United States v. Saadvandi , 10 F. App'x 104 ( 2001 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 00-4453
NASRIN SAADVANDI,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(CR-98-421)
Submitted: March 30, 2001
Decided: May 14, 2001
Before WILKINS, TRAXLER, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
William B. Moffitt, Henry W. Asbill, ASBILL, JUNKIN, MOFFITT
& BOSS, Washington, D.C., for Appellant. Helen F. Fahey, United
States Attorney, Morris R. Parker, Jr., Assistant United States Attor-
ney, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
2 UNITED STATES v. SAADVANDI
OPINION
PER CURIAM:
Nasrin Saadvandi appeals her jury convictions and sixty-three
month sentence for conspiracy to possess and distribute opium and
related offenses. Finding no reversible error, we affirm.
Saadvandi was arrested following a "controlled delivery" of a suit-
case containing opium in a hidden compartment. After the delivery,
Saadvandi telephoned her ex-husband, notifying him in Farsi, their
native language, that "it has come." Saadvandi was arrested after she
opened the suitcase. After several hours of interrogation, Saadvandi
agreed to assist law enforcement in completing a second controlled
delivery to her ex-husband, who accepted the suitcase and was also
arrested. Saadvandi raises four issues on appeal concerning her con-
viction and sentence.
First, Saadvandi claims the district court abused its discretion in
not recusing itself based upon comments the court made in ruling
against one of Saadvandi’s attorneys six years prior. Recusal is gov-
erned by 28 U.S.C. § 455 (1994), which provides for disqualification
"in any proceeding in which [the court’s] impartiality might reason-
ably be questioned." Due to the passage of time, the court’s lack of
recollection of the attorney or the prior events, and the lack of per-
sonal bias evident in the court’s initial ruling, we conclude the district
court’s impartiality could not reasonably be questioned. See In re:
Beard, 811 F.2d 818, 827 (4th Cir. 1987). We therefore find the dis-
trict court did not abuse its discretion in denying the motion to recuse.
Second, Saadvandi claims the district court abused its discretion in
limiting cross-examination of a "jailhouse informant" who testified
against Saadvandi at trial. See United States v. Rhynes, 218 F.3d 310,
315 (4th Cir. 2000) (setting standard of review). Restrictions on the
scope of cross-examination are within the sound discretion of the trial
court, which has wide latitude to set reasonable limits to prevent
harassment, prejudice, or confusion of the issues. United States v.
Ambers, 85 F.3d 173, 176 (4th Cir. 1996). We find no abuse of discre-
tion in the Court’s action.
UNITED STATES v. SAADVANDI 3
Third, Saadvandi claims the district court should have awarded a
downward departure under U.S. Sentencing Guidelines Manual
§ 5K2.0 (1998) due to her status as a deportable alien. Saadvandi
makes two arguments in this regard: (1) her status as a deportable
alien makes her ineligible for certain preferred conditions of confine-
ment and Bureau of Prisons programs; and (2) her status as a con-
victed felon and association with persons employed by the deposed
Shah of Iran would subject her to further punishment and possible
persecution once she returned to Iran. Saadvandi argued that she
would then be punished twice for one offense and offered to voluntar-
ily return to Iran in lieu of a prison sentence.
The district court denied the motion on both arguments. A sentenc-
ing court’s decision not to depart is not reviewable unless the court’s
decision not to depart is based on a mistaken view that it lacks the
authority to depart. United States v. Edwards, 188 F.3d 230, 238 (4th
Cir. 1999), cert. denied, 528 U.S. 1130 (2000); United States v.
Bayerle, 898 F.2d 28, 31 (4th Cir. 1990).
With respect to the first argument, the court concluded Saadvandi’s
circumstances were not outside the heartland of the Guidelines, and,
therefore, the court lacked authority to depart. This Court has recog-
nized the availability of a downward departure when alien status
increases the severity of a defendant’s punishment to a degree that
takes her case outside the heartland of the Guidelines. See United
States v. DeBeir, 186 F.3d 561, 569-70 (4th Cir. 1999); see also Koon
v. United States, 518 U.S. 81, 96 (1996) (permitting departure where
factor not adequately accounted for by the Guidelines). We find the
district court did not err in concluding Saadvandi’s circumstances are
not outside the heartland of the Guidelines. See United States v.
Daughtrey, 874 F.2d 213, 217 (4th Cir. 1989). With respect to Saad-
vandi’s second argument for departure based on her status as a
deportable alien, the district court declined to exercise its discretion
to depart; therefore, the court’s decision is not reviewable on appeal.
See United States v. Brock, 108 F.3d 31, 33 (4th Cir. 1997).
Fourth, Saadvandi claims the court should have awarded a down-
ward departure under § 5K2.0 for substantial assistance. The Guide-
lines, however, adequately account for assistance to the government
in § 3E1.1 and § 5K1.1. We find the court was correct in concluding
4 UNITED STATES v. SAADVANDI
it lacked authority to depart for factors already adequately considered
by the Guidelines. See Koon, 518 U.S. at 96. In addition, a § 5K1.1
downward departure is not permitted without a government motion,
United States v. Schaefer, 120 F.3d 505, 508 (4th Cir. 1997), and the
Government has not filed such a motion. For these reasons, we affirm
Saadvandi’s convictions and sentence. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
AFFIRMED