(W.D. Oklahoma) (D.C. No. 5:12-CR-00133-M-1)
Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.
ORDER AND JUDGMENT [*]
Stephen H. Anderson Circuit Judge
After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.
Defendant and appellant Alex Ali Borghee pled guilty to one count of bank robbery, in violation of 18 U.S.C. § 2113(a). He was sentenced to thirty-seven months' imprisonment. Arguing that his sentence is procedurally and substantively unreasonable, Mr. Borghee appeals his sentence. We affirm.
At approximately 4:40 p.m. on April 20, 2012, Mr. Borghee entered a Bank of America branch in Oklahoma City. He approached a teller and slid a note to her which read, "5, 000.00 money . . . or I'll shoot." Mr. Borghee also warned the teller not to hit the panic button. When the teller realized Mr. Borghee was robbing her, she began to unlock her drawer, which caused Mr. Borghee to ask if she had hit the panic button. The teller told him that she had not. As the teller began retrieving the cash, Mr. Borghee said, "thirty seconds" and then, a short time later, "twenty seconds, " which made the teller believe that he was "counting down."
After the teller gave Mr. Borghee $1, 442.00 in cash, he left the bank. The teller then hit the panic button, informed a fellow employee that she had been robbed, and locked the doors to the bank. When law enforcement personnel arrived, the teller gave them a description of the robber.
After the robbery, Mr. Borghee contacted an individual, A.F., a former co-worker to whom he owed money. Mr. Borghee told A.F. to meet him in a church parking lot and that he "had her money." Mr. Borghee arrived at the meeting in a black BMW. A.F. testified that Mr. Borghee had "bloodshot eyes, was sweating on his hairline, fidgeting, and appeared extremely nervous." Mr. Borghee had a stack of cash in his hand and gave A.F. a $50 bill, telling her that he had robbed a bank. A.F. stated that because Mr. Borghee "lied about everything, " A.F. did not believe him.
On May 5, 2010, A.F. contacted the FBI and told agents that she had seen pictures from the bank robbery which had been released to the public and that she recognized Mr. Borghee. When the agents showed her additional pictures from the bank robbery, A.F. confirmed that the robber was Mr. Borghee. She apparently told the agents that Mr. Borghee "can be violent and would flee if confronted about the bank robbery." Other bank workers also identified Mr. Borghee as the bank robber. Law enforcement personnel arrested Mr. Borghee on May 15, 2012, and laboratory results confirmed that his fingerprints were on the demand note.
A grand jury subsequently issued a one-count indictment charging Mr. Borghee with bank robbery, in violation of 18 U.S.C. § 2113(a). Mr. Borghee then pled guilty to the offense without a plea agreement.
In preparation for sentencing under the advisory United States Sentencing Commission, Guidelines Manual ("USSG"), the United States Probation Office prepared a presentence report ("PSR"). The PSR calculated a total offense level of 21 which, with a criminal history category of I because Mr. Borghee had no prior criminal convictions, yielded an advisory Guidelines range of 37 to 46 months.
Mr. Borghee filed his sentencing memorandum, in which he asked the court to classify the bank robbery as "aberrant behavior" and depart downward, pursuant to USSG § 5K2.20. He also suggested a below-Guidelines sentence was warranted because of his young age (24 years old) and his history of depression and panic attacks. The government also filed a sentencing memorandum, in which it argued that Mr. Borghee did not qualify for a departure based on "aberrant behavior" and arguing, further, that a departure was not warranted because Mr. Borghee made no effort to mitigate his crime and did not accept responsibility for it until he was actually arrested and shown the evidence against him.
The district court subsequently held a sentencing hearing. After listening to all parties, the court made the following statement concerning Mr. Borghee's ...