U.S. v. Sayad

• Decision Date: 22 December 2009
• Docket Number: No. 08-1366.,08-1366.
• Citation: 589 F.3d 1110
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Alfered SAYAD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

589 F.3d 1110

UNITED STATES of America, Plaintiff-Appellant, v. Alfered SAYAD, Defendant-Appellee.

No. 08-1366.

United States Court of Appeals, Tenth Circuit.

December 22, 2009.

Michael C. Johnson, Assistant United States Attorney (David M. Gaouette, Acting United States Attorney, with him on the briefs), Denver, CO, for Plaintiff-Appellant.

Howard A. Pincus, Assistant Federal Public Defender (Raymond P. Moore, Federal Public Defender, with him on the brief), Denver, CO, for Defendant-Appellee.

Before KELLY, BRORBY, Senior Judge, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

Alfered Sayad pleaded guilty to interstate travel in aid of racketeering, a violation of 18 U.S.C. § 1952(a)(3)(A). The district court sentenced Sayad to five years of probation, a sentence well below the range recommended by the United States Sentencing Guidelines ("USSG" or the "Guidelines"). The government appeals this below-Guidelines sentence, and this court treats its challenges under the rubrics of both procedural and substantive reasonableness. Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(b), this court AFFIRMS the sentence imposed by the district court.

II. Background

On November 4, 2007, Sayad was stopped by a Colorado state trooper for a traffic violation. During the traffic stop, the trooper asked for and received consent from Sayad to search his pick-up truck. The trooper's certified narcotics dog walked around the exterior of the truck and alerted to the rear bumper on the driver's side. Closer investigation revealed the presence of fresh silicone and new paint in that area, which did not match the rest of the tailgate. The trooper then discovered what appeared to be a false compartment in the bed of the pick-up. When the sliding tray was opened, police discovered eleven packages containing 11.04 kilograms of cocaine.

Sayad was later interviewed by DEA special agents Jay Tinkler and Dan Reuter. Sayad stated he thought there were only one or two "chickens" in the compartment, and that this was the first time he had transported illegal drugs. He told the officers he agreed to transport the drugs because he needed money to pay debts he incurred in his dog breeding business.

Sayad was charged in a criminal information with one count of interstate travel in aid of racketeering, a violation of 18 U.S.C. § 1952(a)(3)(A), and pleaded guilty to this charge. In advance of the sentencing hearing, a U.S. probation officer prepared a presentence report ("PSR"). The PSR set Sayad's base offense level at thirty-two due to the large amount of cocaine involved. The offense level was reduced by three levels to twenty-nine under USSG § 3E1.1 for Sayad's acceptance of responsibility. Because the resulting Guideline range fell entirely above the sixty-month statutory maximum term of imprisonment, sixty-months imprisonment became the advisory Guideline range. USSG § 5G1.1(a).

Sayad submitted objections to the PSR. He argued his offense level should have included an additional two-level reduction pursuant to USSG § 3B1.2(b) due to the minor role he played in the offense. Sayad also argued the Guideline calculation should have included a "safety valve" reduction because he truthfully provided the government with information regarding his involvement in the offense. See USSG § 5C1.2. Assuming the district court agreed with all of his arguments, Sayad's advisory Guideline range would be fifty-seven to seventy-one months. Because the maximum term of imprisonment allowed by statute was sixty months, the Guideline range would be narrowed to fifty-seven to sixty months' imprisonment. Id. § 5G1.1(a).

Sayad also asserted a downward variance was warranted pursuant to 18 U.S.C. § 3553(a). First, he argued that although he transported the cocaine, he was not the supplier and was not aware of the large quantity of drugs hidden in the truck. Second, he relied upon his family's history of persecution in Iran, their subsequent flight to the United States, their struggle to forge a living in their new surroundings, and their reliance on him to help run the family restaurant. Third, Sayad asserted his lack of criminal history, non-violent nature, and strong family ties demonstrated he was not likely to present a future risk to the public. As a result, Sayad submitted a sentence to a term of imprisonment of ninety days followed by three years of supervised release would be sufficient but not greater than necessary and would not undermine the factors set forth in § 3553(a). Sayad also attached photos of his family and their restaurant as well as several letters from family members and members of his community that attested to his character, friendliness, and naivete. The government did not file any written response to Sayad's objections.

At sentencing, Sayad's counsel emphasized Sayad's acceptance of responsibility and provided details of Sayad's cooperation with the government and the events leading up to his arrest. Sayad's troubles began when the computer school he was attending closed, leaving Sayad with student loans he could not pay and a poor credit rating. Sayad befriended an individual who promised to help Sayad improve his credit rating by buying a truck for him and forwarding the payments. This individual subsequently offered Sayad the chance to make more money by transporting drugs in the truck.

Sayad's counsel further asserted that although Sayad knew he was transporting illegal substances, he neither knew the quantity nor where they were located in the truck. Furthermore, the drugs were found in a very sophisticated compartment in the bed of the truck that was constructed by an experienced drug smuggler, not someone of Sayad's level of knowledge.

Turning to the § 3553(a) factors, Sayad's counsel argued Sayad was a young man who clearly would not be involved in this type of activity again. He had been fully compliant while on release, did not have any substance abuse or alcohol problems, and was raised by "good people" who cared enough about him to be present in the courtroom. Sayad's family worked very hard, and his aging parents relied heavily upon him to run their restaurant. Furthermore, Sayad's family had already suffered financially as a result of Sayad's arrest.

In light of the circumstances, Sayad's counsel again asked the court to disregard the Guideline calculations and impose a sentence of time served (ninety days), followed by a term of supervised release. Sayad's counsel informed the court of Sayad's willingness "to do whatever the Court requires" to allow him to help his family recoup what they had lost as a result of his actions.

Both Sayad and his father addressed the district court. Sayad's father described how hard the family worked to establish a successful restaurant business after arriving in the United States, and also described his efforts to raise his son Sayad to be honest, truthful, and trusting. He also stated his son realized he made a "big mistake," and told the court how important Sayad's help was to operating the family's restaurant. In his statement to the court, Sayad repeatedly apologized, characterizing himself as "naive," "stupid," and "like a donkey," and his behavior as a "big mistake" which deserved punishment. Sayad, however, also recognized the emotional and financial harm he had caused his parents, and begged the court to allow him to "go back and help my parents out." He promised the court he had changed and would never again make such a mistake. During the sentencing hearing, the government did not respond or object to the arguments presented by Sayad's counsel, or the content of Sayad's and his father's statements.

After listening to the argument of Sayad's counsel, and the statements of Sayad and his father, the district court first addressed Sayad's objections to the PSR. The judge held Sayad did not qualify as a "minor participant" pursuant to USSG § 3B1.2 for several reasons. First, there was no evidence corroborating Sayad's assertion that his sole involvement was as a mule. Second, the large quantity of drugs entrusted to Sayad "cast some degree of doubt" on the assertion he was just a one-time courier. Third, Sayad's false statements to the police at the time of his arrest regarding the extent of his knowledge about the hidden compartment cast further doubt on Sayad's story. Finally, the court found Sayad's use of the term "chickens," in reference to the packages of drugs he was transporting, indicated he was less naive, and more involved, than he professed. The court concluded that "this may well have been his first offense, but it is more likely to me the first time caught" and that "[i]t's more than likely that he knew a lot more than he was telling to the authorities."

The district court, however, found Sayad was entitled to a two-level safety valve reduction pursuant to USSG § 5C1.2. At issue was whether Sayad had met the fifth requirement and "truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan." USSG § 5C1.2. The final addendum to the PSR indicated the government no longer contested this point. Accordingly, the district court granted the two-level safety valve reduction. Because the resulting Guideline range fell entirely above the maximum term of imprisonment allowed by statute, Sayad's advisory Guideline sentence was the statutory maximum of sixty months' imprisonment pursuant to USSG § 5G1.1.

The district court next noted the Guidelines are not mandatory and turned to the factors set out in 18 U.S.C. § 3553(a). Under § 3553(a)(1), the court first stated "the illegal transportation of a large quantity of drugs is a very serious matter which ... justifies imprisonment for a lengthy period of time." The court next turned to the "history and characteristics of the defendant":

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