A federal appeals court has ruled that Jose Padilla, often referred to as the al Qaeda ”Dirty Bomber,” should be resentenced after determining that his 17 year prison sentence is too lenient.

A split three judge panel ruled 2-1 that the District Court judge who sentenced Padilla erred in reviewing Padilla’s criminal history and the nature of his terrorism offenses.

“Padilla’s sentence is substantively unreasonable because it does not adequately reflect his criminal history, does not adequately account for his risk of recidivism, was based partly on an impermissible comparison to sentences imposed in other terrorism cases, and was based in part on inappropriate factors,” Chief Judge of the 11 th Circuit Appeals court Joel Dubina and Judge William H. Pryor noted in their majority opinion.

Padilla was arrested in Chicago in May 2002 and accused by then U.S. Attorney General John Ashcroft of plotting an attack using a radiological or “dirty bomb.”  Padilla was transferred to military custody where he was held until he was charged in 2005.

After three years in military detention the government decided to charge Padilla in civilian court, but the charges against him made no mention of the dirty bomb plot.  Padilla was indicted and charged with other men for being part of a North America terrorism cell that recruited and moved money to Al Qaeda and other terrorist groups.

Padilla was convicted after a civilian trial in 2007 along with Adham Amin Hassoun and Kifah Wael Jayyousi.

Padilla and the other men filed an appeal to their conviction, but prosecutors also filed an appeal noting that Padilla’s sentence was too lenient especially given his extensive criminal record which included 17 arrests and a murder conviction.

“Padilla’s sentence of 12 years below the low end of the Guidelines range reflects a clear error of judgment about the sentencing of this career offender,” the appeal judges noted in their ruling. “Padilla poses a heightened risk of future dangerousness due to his al Qaeda training. He is far more sophisticated than an individual convicted of an ordinary street crime.”

Judge Rosemary Barkett dissented with the majority on the appeals court writing,  ”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, in whom that authority inheres.”

The appeals court upheld Hassoun’s 15 year and Jayyousi ‘s 12 year sentences.