United States v. Arash Allaei ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1969
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Arash Allaei, *
* [UNPUBLISHED]
Defendant - Appellant. *
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Submitted: March 13, 2006
Filed: March 16, 2006
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Before MURPHY, BOWMAN, and BENTON, Circuit Judges.
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PER CURIAM.
Arash Allaei pled guilty to conspiracy to manufacture and cultivate in excess
of 100 marijuana plants, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B). The
district court1 sentenced him to 24 months imprisonment. Allaei appeals, asserting
that his sentence was imposed without consideration of United States v. Booker, 543
U.S. 220 (2005), and 18 U.S.C. § 3553(a). We affirm.
1
The Honorable Joan N. Ericksen, United States District Judge for the
District of Minnesota.
Allaei's plea agreement specified a base offense level of 20, stated that the
government would recommend a 3 level reduction for acceptance of responsibility,
and acknowledged that the court could grant a safety valve reduction. The agreement
declared that the adjusted offense level would be 15 if the safety valve were granted,
corresponding to a guideline range of 18 to 24 months. The presentence report
disagreed with the total offense level of 15, finding that the offense level could not be
less than 17 given the five year statutory minimum under 21 U.S.C. § 841(b)(1)(B).
See U.S.S.G. § 5C1.2(b).
At sentencing Allaei moved for a downward departure based on aberrant
conduct and unique circumstances which the government opposed. The district court
set a base offense level of 17, gave Allaei the benefit of the safety valve, and
computed the guideline range at 24 to 30 months. The court declined to depart after
finding the factors cited by Allaei not sufficiently extraordinary or atypical and after
considering Allaei's "extraordinary advantages", "family support", and lack of
financial need. It imposed a sentence of 24 months, the bottom of the guideline range.
Allaei asserts that the district court failed to recognize that the sentencing
guidelines are not binding after Booker, but adhered strictly to them rather than
considering the § 3553(a) factors and the facts of his case including his educational
status, successful operation of a business, remaining drug free, and cooperation with
authorities. He claims that the court therefore did not comply with the sentencing
procedures set out in United States v. Haack, 403 F.3d 997, 1002 (8th Cir. 2005), and
United States v. Hadash, 408 F.3d 1080, 1083 (8th Cir. 2005). The government
contends that Allaei cannot appeal his sentence since it falls within the sentencing
range foreseen in his plea agreement, see generally United States v. Nguyen, 46 F.3d
781, 783 (8th Cir. 1995), and also argues that the record demonstrates that the district
court understood that the guidelines are advisory and the sentence must be reasonable.
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The district court did not choose to depart based on aberrant conduct and it
found Allaei's circumstances not so extraordinary, particularly considering the
advantages he has had in life. The court stated several reasons for its sentencing
decision, citing United States v. Rogers, 400 F.3d 640 (8th Cir. 2005) (court obliged
to consider the § 3553(a) factors), and recognized that after Booker a sentence must
be reasonable. After reviewing the record, we conclude the district court did not err
or abuse its discretion in sentencing Allaei and that his sentence was not unreasonable.
Accordingly, we affirm the judgment.
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