Opinion
111,739.
06-12-2015
STATE of Kansas, Appellee, v. Na‘im S. AL–AMIN, Appellant.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant. Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Samuel Schirer, of Kansas Appellate Defender Office, for appellant.
Kendra Lewison, assistant county attorney, Barry Wilkerson, county attorney, and Derek Schmidt, attorney general, for appellee.
Before BUSER, P.J., STANDRIDGE, J., and HEBERT, S.J.
MEMORANDUM OPINION
PER CURIAM.
Na‘im S. Al–Amin appeals from the sentence imposed on convictions for two counts of distribution of cocaine within 1,000 feet of school property and one count of aiding and abetting distribution of cocaine. He argues that the district court erred by not granting him either a dispositional departure or a greater durational departure sentence.
Facts
On March 1, 2013, the State charged Al–Amin with two counts of distribution of cocaine within 1,000 feet of school property, one count of aiding and abetting distribution of cocaine, one count of conspiracy to distribute cocaine, two counts of distribution of marijuana, and one count of distribution of pyrrolidinopentiophenone. Al–Amin later entered into a plea agreement requiring him to plead no contest to two counts of distribution of cocaine within 1,000 feet of school property and one count of aiding and abetting distribution of cocaine. In return, the State agreed to dismiss the remaining counts. Consistent with the plea agreement, the district court accepted Al–Amin's no contest pleas on March 21, 2014, and convicted him on all three counts.
Al–Amin filed a written motion for dispositional and/or durational departure sentence prior to sentencing. He argued the following mitigating factors justified a departure sentence: (1) he took responsibility for his actions, (2) he could receive better treatment for his drug problem if he were to receive a dispositional departure, (3) he had already sought assistance in treating his drug problem, (4) he applied and was accepted into the graduate studies program for public administration at the University of Kansas, (5) he was lawfully employed at the time the motion was filed, and (6) he was not a violent offender. Sarah Fisher, a former professor of Al–Amin's, also testified in support of the departure motion at his sentencing hearing. She stated that she had known Al–Amin since 2005 and that he would be an asset to the community. She asked the district court to grant him probation. On cross-examination, she admitted that she did not know what kind of drugs Al–Amin had been accused of selling in this case, but she assumed it was marijuana.
The State argued that Al–Amin should not receive a departure sentence. It noted that he had several previous criminal convictions, some of which were for violent offenses. It also pointed out that Al–Amin had been incarcerated previously in Kansas for possession of marijuana and failed to reform his behavior.
Al–Amin's primary offense carried a presumptive sentence of 68 to 77 months in prison. Although the district court refused to grant a dispositional departure, it did grant a durational departure. The court imposed a controlling 60–month prison sentence for his three convictions. The court arrived at that number by determining that his criminal history score would have been D if his criminal history did not include a person felony conviction that was considerably older than his other convictions. Sixty months was the lowest number in the applicable grid box for a defendant with a criminal history score of D. Al–Amin appeals.
Analysis
This court reviews the district court's decision regarding the extent of Al–Amin's durational departure sentence under an abuse of discretion standard. See State v. Spencer, 291 Kan. 796, 807, 248 P.3d 256 (2011). An abuse of discretion only occurs when a judicial action is arbitrary, fanciful, or unreasonable, based on an error of law, or based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S.Ct. 1594 (2012). As the party asserting error, the burden is on Al–Amin to establish the district court abused its discretion. See State v. Stafford, 296 Kan. 25, 45, 290 P.3d 562 (2012).
Al–Amin argues the district court acted unreasonably by not departing further from the presumptive sentence for his crimes. He argues the district court should have imposed either a dispositional departure or a greater durational departure. As support for this argument, he cites his extraordinary effort to get his life back on track. He further argues that it makes no sense to incarcerate him now that he is ready to contribute to society.
Generally, a sentencing judge is required to impose the presumptive sentence provided by the sentencing guidelines unless the judge finds substantial and compelling reasons to impose a departure sentence. K.S.A.2014 Supp. 21–6815(a). Before the district court imposed Al–Amin's sentence, it noted his criminal history undercut any argument in favor of departure. The court noted that distribution of cocaine is a serious offense and that it is not a victimless crime. The court also recognized that Al–Amin was an intelligent person with great potential and expressed confusion about why he chose to engage in criminal behavior. Upon consideration of the arguments of both parties, the court found that there were no substantial and compelling reasons to grant a dispositional departure. Nevertheless, the court granted a durational departure based on the fact that one felony conviction—which was over 16 years old—was too old to be considered in determining Al–Amin's sentence in this case.
In short, the record indicates the district court carefully considered Al–Amin's departure motion and the arguments advanced by both parties before imposing Al–Amin's sentence. The court's decision was not arbitrary, fanciful, or unreasonable given the circumstances. For this reason, we find the district court did not abuse its discretion by sentencing Al–Amin to 60 months in prison.
Affirmed.