                                                                     FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  July 1, 2013
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                          FOR THE TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

 v.                                                    No. 13-6001
                                                     (W.D. Oklahoma)
 ALEX ALI BORGHEE,                            (D.C. No. 5:12-CR-00133-M-1)

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.




      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.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1.
      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.



                                 BACKGROUND

      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

                                         -2-
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

                                         -3-
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. 1 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.




       1
       Policy Statement §5K2.20 allows a downward departure “only if the
defendant committed a single criminal occurrence or . . . transaction that was (1)
committed without significant planning; (2) was of limited duration; and (3)
represents a marked deviation by the defendant from an otherwise law-abiding
life.” The commentary specifically includes a defendant’s “mental and emotional
conditions; . . . record of prior good works; . . . motivation for committing the
offense; and . . . efforts to mitigate the effects of the offense,” as proper
circumstances to consider in departing on these grounds. USSG §5K2.20 at
appl.n.3.



                                        -4-
      The district court subsequently held a sentencing hearing. After listening

to all parties, the court made the following statement concerning Mr. Borghee’s

sentence and the issue of a downward departure:

             Concerning the matter of the departure, the Court would first
      note that this Court has a great deal of discretion in its application of
      this particular guideline.

            Someone said something about an ordinary bank robbery.
      There is not an ordinary bank robbery, there is no such thing, in this
      Court’s opinion, as an ordinary bank robbery.

             The Court is aware that there are certainly some mitigating
      factors in this case, but whether or not the behavior required . . .
      significant planning, . . . certainly there was planning that had to
      occur to get to the bank. . . . [T]he acts which the Defendant took
      required[] significant planning[] to get there. The duration certainly
      was brief, but the Court cannot consider this, without weighing the
      impact of Ms. Perkle, who described for her what these moments
      meant when the Defendant said to her, “give me $5,000 . . . or I’ll
      shoot.” The fact that he did not have a gun doesn’t matter. . . .

             I think probably the most compelling part . . . [is] the dearth of
      mitigation conduct by the Defendant. I guess to use the words of the
      prosecutor, he didn’t turn himself in, he did not have contact with
      any authority, I think the fact was that he went to pay off one of the
      debts that he had.

                                         ....

             This Court does not find, and I know that there are other
      judges in this courthouse who have departed in a bank robbery case
      to a sentence of probation, but this Court does not find this case is
      one such case where the Court can depart. It certainly is not the
      worst bank robbery that this Court has ever seen, but meeting those
      minimum — the planning, it was a few minutes, and he was an
      otherwise law-abiding citizen, but this is not the case that this Court
      believes is an appropriate one for the Court to depart from.


                                          -5-
             I guess the Court will hang its hat on the efforts to mitigate the
      effects of the offense in determining whether or not the Court should
      depart.

              Also, the motivation for committing the offense. I’m sure, Mr.
      Borghee, because of his own efforts at taking seriously the mental
      health, and other counseling that he has gotten, is good, but
      everybody has bills. I appreciate that he is a younger man,
      everybody has problems, but your response cannot be, in an ordered
      society, to go and tell somebody, “Give me $5,000 . . . or I’ll shoot.”
      It is just unacceptable.

       . . . The Court is exercising its discretion not to depart downward
      for those reasons.

Tr. of Sentencing Hr’g at 17-19 (emphasis added). The court then sentenced

Mr. Borghee to 37 months, at the bottom of the advisory Guidelines range.

      This appeal followed, in which Mr. Borghee argues (1) the court abused its

discretion and committed procedural error in interpreting and refusing to apply

the “aberrant behavior”departure provisions of USSG §5K2.20 when it denied a

downward departure; and (2) the 37-month sentence is substantively

unreasonable.



                                   DISCUSSION

      We review a sentence for both procedural and substantive reasonableness,

giving deference to the district court under an abuse of discretion standard. Gall

v. United States, 552 U.S. 38, 51 (2007). “[W]e review de novo the district

court’s legal conclusions regarding the guidelines and review its factual findings


                                         -6-
for clear error.” United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir.), cert.

denied, 133 S. Ct. 555 (2012). “Procedural reasonableness addresses whether the

district court incorrectly calculated or failed to calculate the Guidelines sentences,

treated the Guidelines as mandatory, failed to consider the § 3553(a) factors,

relied on clearly erroneous facts, or failed to adequately explain the sentence.”

United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008). Substantive

reasonableness, in turn, addresses whether the sentence length is reasonable given

all the circumstances of the case in light of the § 3553(a) factors. Id.

      I.     Procedural reasonableness and applicability of “aberrant
             behavior” provision:

      Prior to and at the sentencing hearing, Mr. Borghee sought a downward

departure from the advisory Guidelines range applicable to his sentence, arguing

that his single act of bank robbery constituted “aberrant behavior” in accordance

with USSG §5K2.20. The district court declined to award such a downward

departure. Mr. Borghee argues the court committed a procedural error by

“inject[ing] a new factor into the downward departure consideration which was

inconsistent with the purpose of the departure provision.” Appellant’s Op. Br. at

11. The government responds that we lack jurisdiction to review the district

court’s decision, because that decision was a discretionary refusal to grant a

downward departure.




                                          -7-
      “Even after Booker, ‘[t]his court has no jurisdiction . . . to review a district

court’s discretionary decision to deny a motion for a downward departure on the

grounds that a defendant’s circumstances do not warrant the departure.’” United

States v. Fonseca, 473 F.3d 1109, 1112 (10th Cir. 2007) (quoting United States v.

Sierra-Castillo, 405 F.3d 932, 936 (10th Cir. 2005)). We may review the “denial

of a downward departure only if the denial is based on the sentencing court’s

interpretation of the Guidelines as depriving it of the legal authority to grant the

departure.” Id. We also have jurisdiction where a defendant “claim[s] that the

district court considered a prohibited factor under the Guidelines in denying a

downward departure.” Sierra-Castillo, 405 F.3d at 937.

      Applying those precepts to our case, it is clear that the district court knew

it had the power and authority to depart downward from Mr. Borghee’s advisory

Guidelines range. It is also clear that the court considered whether the “aberrant

behavior” Guideline provision permitted it to so depart downward. Thus, we first

consider whether the court properly interpreted and applied the aberrant behavior

provision of USSG §5K2.20 to determine whether the court committed a

procedural error in calculating the advisory Guidelines sentence.

      As indicated, the aberrant behavior provision permits a downward departure

where a defendant is implicated in a “single criminal occurrence” which was “of

limited duration” and “was committed without significant planning.” USSG

§5K2.20(b). The accompanying commentary suggests the consideration of other

                                          -8-
circumstances. The district court considered those circumstances and, contrary to

Mr. Borghee’s allegations, the court did not rely upon prohibited circumstances.

The court considered the totality of the circumstances surrounding Mr. Borghee’s

conduct, to see if it qualified as an “extraordinary” case of aberrant behavior.

Having determined that it did not, the court did not depart downward on that

basis. We perceive no procedural irregularity in the district court’s decision that

Mr. Borghee did not qualify for an aberrant behavior departure. 2

      II. Substantive reasonableness

      Mr. Borghee also claims his 37-month sentence is substantively

unreasonable. “When evaluating the substantive reasonableness of a sentence, we

afford substantial deference to the district court, and determine whether the length

of the sentence is reasonable given all the circumstances of the case in light of the

factors set forth in 18 U.S.C. § 3553(a).” United States v. Balbin-Mesa, 643 F.3d

783, 788 (10th Cir. 2011) (further quotation omitted). If the sentence is within

the correctly calculated Guideline range, it “is entitled to a rebuttable

presumption of reasonableness on appeal.” Id. (internal quotation marks omitted).

“This is a deferential standard that either the defendant or the government may

rebut by demonstrating that the sentence is unreasonable when viewed against the



      2
       To the extent that the question before us is simply whether the district
court erred in refusing to depart downward in the exercise of its broad discretion,
we agree with the government that we lack jurisdiction to review such a decision.

                                         -9-
other factors delineated in § 3553(a).” United States v. Kristl, 437 F.3d 1050,

1054 (10th Cir. 2006) (per curiam).

      Mr. Borghee argues that the “circumstances of this case warrant a sentence

below th[e] guideline range based on consideration of the factors enumerated in

[18 U.S.C. § 3553(a)].” Appellant’s Br. at 22. He argues that his “growing

depression and panic attacks, which were fueled by his financial situation” along

with his “young age and level of maturity,” led him to commit the bank robbery.

Id. at 23-24. Mr. Borghee further argues that a 37-month sentence is longer than

is necessary to further the sentencing goals of deterrence, protection, respect for

the law, and appreciation of the seriousness of the offense of bank robbery.

      While Mr. Borghee makes a compelling case, he fails to rebut the

presumption of reasonableness which attaches to his within-Guidelines sentence.

The district court is afforded considerable discretion in crafting an appropriate

sentence. “A district court abuses its discretion when it renders a judgment that is

‘arbitrary, capricious, whimsical, or manifestly unreasonable.’” United States v.

Munoz-Nava, 524 F.3d 1137, 1146 (10th Cir. 2008) (quoting United States v.

Byrne, 171 F.3d 1231, 1235-36 (10th Cir. 1999)). We cannot say that the district

court’s judgment in this case was arbitrary or capricious. It was thoughtful and

reasonable.




                                         -10-
                         CONCLUSION

For the foregoing reasons, we AFFIRM the sentence in this case.

                                       ENTERED FOR THE COURT


                                       Stephen H. Anderson
                                       Circuit Judge




                                -11-
