Variance from 57 months to 5 years probation affirmed

United States v. Sayad, ___ F.3d ___ , 2009 WL 4912298 (10th Cir 2009)
Affirmance on substantive and procedural reasonableness grounds of sentence of 5 years probation, a variance from the low end of the advisory guidelines, if calculated in a manner most favorable to defendant, of 57 months. Defendant had pleaded guilty to interstate travel in aid of racketeering in a drug case where he was stopped on the interstate transporting 11 kg of cocaine. The district court referred to the Defendant’s Iranian-Christian heritage as a mitigating factor, speculating that in that community he would face more scorn for, yet more guidance to address his misdeeds. Acknowledging confusion in the area, the COA notes but does not decide whether any impropriety of considering this under 18 USC § 3553 raises a procedural reasonableness issue. There was no error, however, because the district court did not rely on Defendant’s religious heritage in imposing its sentence–in context, it was used as proxy for describing how close-knit was Defendant’s family and community. See the COA discussion for the substantive reasonableness of the sentence. It distinguishes Friedman, in which the COA reversed a downward varied sentence, on the grounds that the district court there did not adequately explain (it spoke of “feelings”), in spite of the defendant’s recidivist history and eligibility for career offender status, why the evidence supported such a big variance. (And, the COA states that failure to adequately explain the sentence is a procedural shortcoming). Lesson: support your record well when you are asking for a variant sentence and, just in case you get it, have the district court explain int thoroughly in case the government appeals.