- Associated Press - Monday, September 19, 2011

MIAMI (AP) The 17-year prison sentence imposed on convicted terrorism plotter Jose Padilla is far too lenient for someone who has a long, violent criminal history and trained to kill at an al Qaeda camp, a federal appeals court ruled Monday as it threw out the sentence.

A divided three-judge panel of the 11th U.S. Circuit Court of Appeals ordered a new sentencing hearing for Padilla, a U.S. citizen and Muslim convert convicted in 2007 along with two co-conspirators of several terrorism-related charges. Padilla, 40, was held for more than three years without charges as an enemy combatant before he was added to the Miami terrorism support case.

The ruling affirmed the convictions of Padilla, Adham Hassoun and Kifah Jayyousi on terrorism support and conspiracy charges. The sentences of Hassoun and Jayyousi - more than 15 years and more than 12 years, respectively - were upheld.

Federal prosecutors objected in 2008 to Padilla’s sentence and the appeals court’s majority agreed that U.S. District Judge Marcia Cooke, who presided over the four-month trial, made several errors in essentially discounting his sentence by 12 years. Among the mistakes, the appeals court found, was not taking into account Padilla’s training at the al Qaeda camp in Afghanistan.

Padilla poses a heightened risk of future dangerousness due to his al Qaeda training,” the judges ruled in a 73-page order. “He is far more sophisticated than an individual convicted of an ordinary street crime.”

The judges also noted Padilla’s 17 prior arrests, including involvement in a deadly fight as a juvenile, and ruled it was wrong for Judge Cooke to use as a reference point several other terrorism cases in which defendants got relatively light sentences. The appeals panel also found error in Judge Cooke’s decision to reduce Padilla’s sentence to account for his three-plus years at a South Carolina military brig as an enemy combatant.

“Although some downward variance is allowed in this circumstance, the district court abused its discretion,” said the ruling written by 11th Circuit Chief Judge Joel F. Dubina, who was joined by Circuit Judge William H. Pryor.

Dissenting was Circuit Judge Rosemary Barkett, who found some problems with an FBI agent’s testimony during trial and said that Padilla was not informed of his Miranda rights when he was arrested at Chicago’s O’Hare International Airport in 2002. Padilla initially was suspected of plotting to detonate a radioactive “dirty bomb” in the U.S., but that allegation was discarded long before the trial.

In her 39-page dissent, Judge Barkett also said she found no abuse of discretion in Judge Cooke’s sentencing of Padilla.

“The sentence imposed on Padilla should not be disturbed by this court, because doing so simply substitutes this court’s sentencing judgment for that of the trial judge,” Judge Barkett wrote.

Padilla’s attorney, Michael Caruso, said he would use Judge Barkett’s dissent to either ask the entire 11th Circuit to consider the case or take it directly to the U.S. Supreme Court.

“We continue to believe that the government introduced improper evidence and violated Jose’s rights,” Mr. Caruso said. “Furthermore, Judge Cooke, who presided over Jose’s case for years, imposed a fair and reasonable sentence.”

The Miami U.S. attorney’s office, which prosecuted the case, declined to comment.

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