U.S. v. Bashara

Citation27 F.3d 1174
Decision Date18 August 1994
Docket NumberNo. 93-2020,93-2020
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Alan Louis BASHARA, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Brian K. Delaney (argued), James R. Redford (briefed), Office of the U.S. Atty., Grand Rapids, MI, for plaintiff-appellee.

Judy E. Bregman (argued and briefed), Grand Haven, MI, for defendant-appellant.

Before: MERRITT, Chief Judge; GUY and BOGGS, Circuit Judges.

BOGGS, Circuit Judge, delivered the opinion of the court, in which RALPH B. GUY, Jr., Circuit Judge, joined. MERRITT, Chief Judge (p. 1186), delivered a separate dissenting opinion.

BOGGS, Circuit Judge.

Alan Louis Bashara was charged in a two-count indictment for his role in a drug conspiracy that also involved money laundering. Five days before his trial was to begin, Bashara pleaded guilty to both counts. However, eight days before his sentencing, he moved to withdraw his plea. The court rejected his motion and sentenced him to a 97-month prison term, followed by five years' supervised release. Bashara appeals from his conviction and sentence, claiming that he should have been permitted to withdraw his plea, that he was not properly notified by the court that he would face a mandatory minimum sentence for one of the crimes to which he pleaded guilty, and that the court improperly calculated his total offense level under the sentencing guidelines. For the reasons set forth below, we affirm.

I

Bashara was in the business of promoting music concerts in Grand Rapids, Michigan. He also promoted Luigi Buzzitta's hair salon. In time, he and Buzzitta used drugs together. In July 1991, Buzzitta and another person were arrested and charged with conspiracy to possess marijuana. Buzzitta entered into a deal with the government, offering to help them uncover a trafficker of marijuana and heroin. He agreed to purchase cocaine from Bashara, and his efforts led to Bashara's arrest and conviction.

Through their investigation, the police learned that Bashara sold marijuana in Michigan and used the proceeds to purchase heroin from Daniel Okane, a supplier in California. Bashara paid Okane by wiring money through Western Union. Okane shipped the heroin in compact-disc cases and film-reel tins under the guise of Bashara's concert-promotion business. Bashara made at least sixty-five such payments, transferring at least $41,000 to pay for more than 130 grams of heroin, perhaps more than 200 grams. Bashara conceded that some of those purchases were transactions in which he pooled his money together with others so that they could receive a volume discount. As part of his marijuana dealing, Bashara drove alone at least two or three times to Texas, loaded his trunk with marijuana obtained on behalf of Leonard Sillman, a supplier in Grand Rapids, Michigan, to whom Bashara owed debts from loans for prior drug buys, and drove the drugs back to Michigan for him. Although most of the marijuana transported this way was sold by Sillman's people in Michigan, Bashara was sold some of the marijuana for his own account.

Police executed a search warrant on Bashara's premises in April 1992 and seized some drugs. Days later, he voluntarily visited IRS Agent Jurkas, who was investigating the money-laundering charges, and he told her about his involvements with Buzzitta and Okane. He concedes that she warned him not Bashara was charged on November 5, 1992, in a two-count indictment. Count 1, without specifying any quantities, charged conspiracy to possess with intent to distribute, and conspiracy to distribute, marijuana. 21 U.S.C. Secs. 841(a)(1), 846. Count 2 charged money laundering, in connection with his use of the proceeds from his marijuana dealing to purchase heroin for himself and other people. 18 U.S.C. Sec. 1956(a)(1)(A)(i).

to speak without a lawyer present and that he was offered nothing in return for his revelations. In June, he again spoke to Jurkas and federal drug agents voluntarily, this time accompanied by counsel. He elaborated on his previous statements, naming individuals from whom he was buying, and to whom he was selling, marijuana. Again, he received no promises.

On February 11, 1993, five days before his trial was to begin, Bashara pleaded guilty to both counts. However, on April 21, eight days before sentencing, his attorney, Mitchell, moved to withdraw the guilty plea, and he also moved to withdraw as defense counsel. The district court refused to allow withdrawal of the guilty plea, but did permit Mitchell to withdraw. A second attorney was appointed and later withdrew. Present defense counsel was appointed in May 1993.

In seeking unsuccessfully to withdraw his guilty plea, Bashara claimed that, although he had received nothing in writing and did not enter into any formal agreement, he understood from the government that neither of his crimes carried a mandatory minimum sentence. Apparently, Bashara hoped that the court would view his acceptance of responsibility as a reason to give him a comparatively light sentence, and he further presumed that he would benefit from a formal sentencing reduction for accepting responsibility. Ultimately, he did receive a two-level reduction for "acceptance of responsibility," but he also learned at sentencing that his drug crime required a minimum five-year sentence for a first-time offender and a minimum of ten years for a prior offender.

Claiming that he did not fully understand the implications of his guilty plea, that he did not really understand the money-laundering charge, that he would never have pleaded guilty if he had known that the drug charge carried a mandatory minimum sentence regardless of his cooperation, and that he entered into the plea under pressure because he felt that Attorney Mitchell was not sufficiently prepared for trial, Bashara sought to withdraw his guilty plea. However, the court denied that motion and found that he well understood, and had been adequately apprised of, the implications of the guilty plea when he entered it.

In sentencing Bashara, the court enhanced his base offense level of 26 by three levels for his role as a manager or supervisor of a criminal activity that included five or more people, U.S.S.G. Sec. 3B1.1(b), and then reduced the level by two levels for his acceptance of responsibility, id. Sec. 3E1.1(a), resulting in a total offense level of 27. Bashara claimed that he was not a manager or leader of anything, and that there were not even five people involved in his activities. He also contended that he should have received a three-level reduction for accepting responsibility because his total offense level was more than 15. Id. Sec. 3E1.1(b). However, the court rejected that claim because Bashara had waited until the final days prior to trial before he pled guilty and finally accepted responsibility.

With a total offense level of 27 and a criminal history category of II, Bashara faced a guideline sentencing range of 78-97 months. The court sentenced him to two concurrent sentences of 97 months, followed by concurrent supervised release terms of three years and five years.

II

At the time that Bashara pleaded guilty in February, the district court asked him:

Do you understand that these charges carry certain penalties which I must advise you of, and that is the penalty for conspiracy to possess with intent to distribute and [conspiracy to] distribute marijuana carries a possible prison sentence of up to 40 years in prison and/or up to a $2 million fine with a special release provision[,] if there is confinement[,] of up to five years Bashara responded "Yes, Your Honor." The court later asked Bashara's attorney, "[A]re there any other sentencing provisions which you're aware of that should be discussed here at this time?" The attorney responded, "No, Your Honor." 1

                following confinement.  Do you understand this?   As a maximum sentence
                

The first count to which Bashara pleaded guilty charged him with conspiring to possess with intent to distribute, and with conspiring to distribute, marijuana. 21 U.S.C. Secs. 841(a)(1), 846. The count did not specify the quantity of marijuana involved. Sections 841(a)(1) and 846 do not mandate any minimum prison terms for the offense itself. However, under 21 U.S.C. Sec. 841(b)(1)(B)(vii), if the crime involves 100 kilograms of marijuana, or its equivalent, there is a mandatory minimum five-year sentence, to be followed by a mandatory minimum four-year term of supervised release, for the first time that a person is convicted of such a violation. The mandatory minimums are doubled for subsequent offenders. A violation involving that quantity of drugs also carries a maximum prison sentence of forty years and a maximum $2,000,000 fine.

The government suggests that the district court had not yet determined the quantity of marijuana involved in Bashara's crime at the time that Bashara entered his plea. Furthermore, Bashara himself "never admitted to having been involved with 100 kilograms of marijuana and has contested the issue at every opportunity." Appellee's Brief at 4. On the other hand, the court's description of the maximum sentence facing Bashara indicates that the court did in fact know at the time that Bashara entered his plea that the ultimate sentence could be based on the quantities listed in Sec. 841(b)(1)(B), which covers crimes involving at least 100 but less than 1000 kilograms of marijuana, or its equivalent. 2 That statute sets a minimum five-year sentence.

On this appeal, for the first time, Bashara claims that he would not have voluntarily waived his right to a trial if the district court had notified him that he was pleading guilty to a crime that carried a mandatory minimum five-year prison term. Because he did not raise this objection earlier, Bashara's appeal is reviewed for plain error. The Federal Rules of...

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