United States v. Alireza Bakhtiari

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, C. Arlen Beam and Kermit E. Bye (PUBLISHED) [4033548] [12-3813]

United States Court of Appeals
For the Eighth Circuit
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No. 12-3813
___________________________
United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Alireza Bakhtiari
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
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Submitted: April 11, 2013
Filed: May 8, 2013
[Published]
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Before MURPHY, BEAM, and BYE, Circuit Judges.
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PER CURIAM.
Alireza Bakhtiari pleaded guilty to one count of obstructing an official
proceeding in violation of 18 U.S.C. § 1512(c)(2). The district court1 sentenced him

1

The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.

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to fifty-one months in prison and three years of supervised release. Bakhtiari raises
four challenges to his sentence. We reject his arguments and affirm.
I
From 2009 to 2012, B.H., a St. Louis lawyer, defended the same corporate
client in three pro se lawsuits brought by Bakhtiari. The first two lawsuits settled. In
the third suit, for defamation, B.H. came to suspect that Bakhtiari had forged the
allegedly defamatory emails "sent" by B.H.'s client on its letterhead. According to
B.H., Bakhtiari sent the emails, which accused Bakhtiari of sex trafficking, in an
attempt to manufacture facts which would give rise to a defamation suit. B.H. filed
a motion to inspect computer equipment Bakhtiari possessed. The district court
granted the motion and ordered Bakhtiari to make his computer equipment available
within fourteen days. Bakhtiari did not comply. B.H. then filed a motion for
sanctions and contempt against Bakhtiari, informing the court of Bakhtiari's
non-compliance.
The next day, B.H. received an email at his work address. The sender was an
account opened in his son's and daughter-in-law's names. The email, titled, "Eric and
Jamie sitting in a tree," called B.H. offensive terms and included six attached
photographs: three of B.H.'s house, two of B.H.'s son and daughter-in-law, in which
a rifle cross-hairs had been imposed upon their faces, and one of a young girl who the
file name referred to as, but in fact was not, B.H.'s daughter. B.H. was upset. He took
the email as an implied threat against his family. He referred the email to the U.S.
Attorney's office, and an investigation began.
Three days later, G.F., B.H's law partner, went to Bakhtiari's house to inspect
the equipment described in the court order. A computer consultant and court reporter
joined them. While they were at the house, Bakhtiari drew G.F. into a bedroom, at
which time he pulled out a hunting rifle with an affixed scope from under his bed. He
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opened the bolt action of the rifle, ejected a bullet from the chamber, and asked G.F.
if he wanted it. G.F. declined and left the room. G.F., who was aware of the email
sent to B.H., took the display of the rifle as a message that Bakhtiari had sent the email
and was willing to carry out his implied threat.
Authorities continued to investigate. They executed a federal search warrant
on Bakhtiari's workplace computer, where they discovered photographs of B.H.'s son
and daughter-in-law, with and without the cross-hairs. They also discovered the
threatening email had been sent from a server at a hotel in rural Missouri. Bakhtiari's
personal cellular phone had "hit" on cell towers near the hotel around the time the
email was sent.
A grand jury indicted Bakhtiari for sending a threatening communication in
interstate commerce in violation of 18 U.S.C. § 875(c). Bakhtiari represented himself
at trial, with hybrid counsel also present. On May 29, 2012, Bakhtiari filed a "Motion
To Dismiss Indictment On The Basis Of Governmental Misconduct." The motion
alleged the federal agents who arrested Bakhtiari subjected him and his then-girlfriend
to "torture" and "sexual abuse," including shackling them naked to furniture inside
Bakhtiari's home. Bakhtiari brought this motion only after he was unable to reach a
plea agreement with the government. Several photographs taken during the execution
of the search warrant and arrest showed Bakhtiari and his then-girlfriend clothed and
seated comfortably.
Government counsel notified Bakhtiari's hybrid counsel that Bakhtiari could be
subject to additional charges for perjury, false statements, and obstruction of justice
for his false allegations against federal agents. Bakhtiari then pleaded guilty to
obstruction of justice in violation of 18 U.S.C. § 1512(c)(2). He swore he had forged
the "defamatory" documents in the civil lawsuit B.H. defended, he had caused the
threatening email to be sent to B.H., and he had fabricated the "torture" allegations
against federal officials. In exchange, the government dropped the threatening
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communication in interstate commerce charge and declined to bring additional
charges. The stipulation of facts in the plea agreement, which included these
admissions, was read into the record at the plea colloquy.
After his guilty plea, however, Bakhtiari made several statements denying he
was guilty of the crime to which he had pleaded guilty. For example, he told the local
newspaper his former employer was responsible for sending the threatening email, and
did so to retaliate against Bakhtiari for "blowing the whistle" on the St. Louis City
Water Division regarding elevated levels of chlorine in St. Louis water. In his pro se
objections to the Presentence Investigation Report (PSR), Bakhtiari also stated he only
"inadvertently" caused the sending of the threatening email and did not intend to
intimidate anyone or obstruct the civil suit by displaying the hunting rifle to G.F.
The PSR recommended the imposition of an eight-level enhancement for
threatening to cause physical injury to the person of another, United States Sentencing
Guidelines Manual ("U.S.S.G.") § 2J1.2(b)(1)(B), and a two-level enhancement for
offense conduct that was extensive in scope, planning, and preparation. Id.
§ 2J1.2(b)(3)(C). Although the PSR initially recommended a three-level reduction for
acceptance of responsibility, the final version of the Report recommended revoking
the reduction because of Bakhtiari's statements purporting to deny responsibility. At
the conclusion of the sentencing hearing, the court imposed the two enhancements and
denied the reduction. With a total Offense Level of 24 and a Criminal History
Category of I, Bakhtiari's advisory guidelines range was 51-63 months. The district
court sentenced Bakhtiari to 51 months, the bottom end of the range. Bakhtiari
appealed.

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II
Bakhtiari challenges the application of the two enhancements and the denial of
the reduction. He also claims his within-guidelines sentence is substantively
unreasonable.
A.

Obstruction of Justice

Section 2J1.2(b)(1)(B) mandates an eight-level enhancement "[i]f the offense
involved causing or threatening to cause physical injury to a person, or property
damage, in order to obstruct the administration of justice." Bakhtiari argues the email
and display of the rifle were not threats. Rather, they were intended, at most, to
"intimidate and chill B.H.'s advocacy on behalf of his client [in the defamation suit]."
Appellant's Br. 12. His actions are the kind of "lesser threats" U.S.S.G.
§ 2J1.2(b)(1)(B) does not include. United States v. Sanchez, 676 F.3d 627, 632 (8th
Cir. 2012) (citing United States v. Duarte, 28 F.3d 47, 48 (7th Cir. 1994) (stating
§ 2J1.2(b)(1)(B) "distinguish[es] threats of physical injury or property damage from
lesser threats")). We review the district court's factual findings with regard to the
enhancement for clear error and its interpretation and application of the guidelines de
novo. United States v. Hoffman, 707 F.3d 929, 935 (8th Cir. 2013).
Bakhtiari went to great lengths to discover information about B.H.'s family,
including taking photographs of his house, findings photographs of his children
online, doctoring the photographs to add the cross-hairs, writing a menacing email,
and displaying a loaded rifle to B.H.'s law partner. The message was clear: Bakhtiari
purported to harm B.H.'s family and portrayed himself as willing to execute the threat
if B.H. continued to pursue his belief that Bakhtiari had falsified the defamatory
letters. To the extent Bakhtiari argues these actions were not "serious" enough to
merit the enhancement, we observe the "language [of § 2J1.2(b)(1)(B)] does not
impose an additional 'seriousness' requirement beyond the fact of a violent threat."
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United States v. Plumley, 207 F.3d 1086, 1090 (8th Cir. 2000). The district court
correctly imposed the enhancement.
B.

Scope of Offense

Section 2J1.2(b)(3)(C) provides a two-level upward adjustment if the
defendant's offense was "extensive in scope, planning, or preparation." Bakhtiari
argues the only evidence of his planning or preparation is the photographs of B.H.'s
son and daughter-in-law Bakhtiari downloaded. Bakhtiari never admitted he doctored
the photographs with the cross-hairs, created an anonymous email account, or caused
the email to be sent through the Missouri hotel's server. Visiting a website and
displaying a rifle are not "extensive," he claims.
Reviewing factual findings for clear error and legal applications de novo,
Hoffman, 707 F.3d at 935, we once again conclude Bakhtiari is mistaken. As noted
above, Bakhtiari engaged in extensive planning to obtain the photographs of B.H.'s
house and family members, create a false email account, and otherwise plan and
disguise his actions. Although we can locate no Eighth Circuit caselaw heretofore
applying this enhancement, Bakhtiari's conduct is no narrower in scope than the
conduct of other defendants whose sentences have been enhanced in other circuits.
See United States v. Rodriguez, 499 F. App'x 904, 909 (11th Cir. 2012) (per curiam)
(unpublished) (applying the enhancement to a prison inmate who preserved a semen
stain on her clothing and falsely claimed three times she was sexually assaulted by a
corrections officer), cert. denied, 81 U.S.L.W. 3580 (Apr. 15, 2013); United States v.
Jensen, 248 F. App'x 849, 851 (10th Cir. 2007) (applying the enhancement to a prison
official who gave numerous inmates clean urine samples in exchange for sexual
favors). We see no error in the district court's application of the enhancement.

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C.

Acceptance of Responsibility

Section 3E1.1 provides a two-level reduction if the defendant "clearly
demonstrates acceptance of responsibility for his offense." The defendant may receive
an additional one-level reduction upon the government's motion. The plea agreement
Bakhtiari signed initially provided him the full three-level reduction, unless "the
government receives new evidence of statements or conduct by the defendant which
it believes are inconsistent with the defendant's eligibility for this deduction." Plea
Agr. 6. Bakhtiari claims he held true to his statements in the plea agreement and was
improperly denied the three-level reduction as a result. We review the denial of an
acceptance-of-responsibility reduction for clear error. United States v. Tonks, 574
F.3d 628, 632 (8th Cir. 2009) (quotation and citation omitted).
Bakhtiari is wrong again. First, Bakhtiari retreated from his admission in the
plea agreement that he had sent the email. At the sentencing hearing, Bakhtiari
advanced the false theory that he had "inadvertently and indirectly" caused the email
to be sent, but it was principally sent by his enemies at the St. Louis City Water
Division. Bakhtiari also revived his false allegation of "torture" and "sexual abuse,"
telling the court his allegations were "not out-and-out false." Sent. Tr. 128. A
defendant, like Bakhtiari, who admits but later recants guilt is not entitled to an
acceptance-of-responsibility reduction. See United States v. Shade, 661 F.3d 1159,
1167 (8th Cir. 2011). Second, Bakhtiari refused to express remorse or responsibility
for his actions. As the district court said to Bakhtiari,
I haven't heard one single verb from you that you're accepting
responsibility. I expected when you got up here you would turn to
[B.H.] and say: "I'm deeply sorry for all the grief that I have caused
you." Instead, you start lecturing him about his responsibility as a jurist
to – that's bizarre to me. Just bizarre.

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Sent. Tr. 143. We have held a defendant who goes on a "rant" denying responsibility
for his actions does not express the sincere remorse required for the reduction. United
States v. Wineman, 625 F.3d 536, 539 (8th Cir. 2010). Bakhtiari's actions fit the mold
of Shade and Wineman. The district court correctly denied the reduction for
acceptance of responsibility.
D.

Substantive Reasonableness

Finally, Bakhtiari contends his sentence is substantively unreasonable. We
review the substantive reasonableness of a sentence for abuse of discretion. Gall v.
United States, 552 U.S. 38, 51 (2007).
Bakhtiari is an Iranian-born Christian who fled to the United States to escape
persecution. He is thirty-six years old and has a wife with lupus and three minor
children who depend on him for support. He has been continuously employed since
his arrival in the United States and has no history of violent or criminal conduct.
Bakhtiari contends the district court insufficiently weighed these mitigating personal
characteristics when it meted out his sentence.
A sentence within the guidelines range is presumptively reasonable. United
States v. Bordeaux, 674 F.3d 1006, 1010 (8th Cir. 2010) (per curiam) (quotation and
citation omitted). The district court considered the 18 U.S.C. § 3553(a) factors and
chose to assign greater weight to the nature of the offense than the mitigating personal
characteristics Bakhtiari presented. That choice "is well within the wide latitude
[given] to individual district court judges in weighing relevant factors." United States
v. Wisecarver, 644 F.3d 764, 774 (8th Cir. 2011) (quotation and citation omitted),
cert. denied, 132 S. Ct. 533 (2011). The district court did not err when it sentenced
Bakhtiari to fifty-one months, the low end of the guidelines range.

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III
We affirm the judgment of the district court.
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