Jabir v. United States
| Decision Date | 21 September 2022 |
| Docket Number | 1:19CV2005,1:18CR0072-6 |
| Parties | AMRAN JABIR, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Ohio |
Pending is Pro Se Petitioner Amran Jabir's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 284).[1] Also pending are Petitioner's Motions to Supplement Record (ECF No. 297) and for Permission to File a Supplemental Motion (ECF No. 332). The Court has been advised, having read the file and reviewed the applicable law. For the reasons stated below, the § 2255 motion (ECF No. 284) is denied.
In August 2018, a federal grand jury in the Northern District of Ohio returned a Second Superseding Indictment (ECF No. 91) against Jabir and nine co-defendants. Jabir was charged with Conspiracy to Distribute and Possess with Intent to Distribute, in violation of 21 U.S.C. §§ 841(a)(1) (b)(1)(B) and (b)(1)(C), and 846 (Count 1), and Unlawful Use of a Communication Facility (Counts 32, 33, and 40), in violation of 21 U.S.C. § 843(b).
Petitioner filed a Request for Pre-Plea Presentence Report (“Pre-Plea PSR”) (ECF No. 98), which the Court Granted. See Non-document Order dated September 12, 2018. In October 2018, the U.S. Pretrial Services & Probation Department filed a Criminal History Category Report regarding Petitioner. The Pre-Plea PSR found a subtotal criminal history score of 10. Two points were added because Jabir had “committed the instant offense while under a criminal justice sentence,” initially resulting in a total criminal history score of 12. According to the sentencing table in USSG Chapter 5, Part A, a criminal history score of 12 established a criminal history category of V. Because Petitioner was a career offender, the Pre-Plea PSR concluded that the appropriate criminal history category was VI. See U.S.S.G. § 4B1.1(b).
With this knowledge, on November 6, 2018, Petitioner filed a Notice of Intent to Change Plea (ECF No. 148). The next day, the Government notified the Court and Petitioner that Jabir had a conviction for “Felony Conspiracy to Possess with Intent to Distribute Marijuana, case number 1:08CR00019, in the United States District Court for the Northern District of Ohio, on or about May 8, 2008.” Information to Establish Prior Conviction (ECF No. 152) at PageID #: 1419. By this filing, the Government notified the Court and Petitioner of its intent to rely upon this conviction “for the purpose of invoking the increased sentencing provisions of Title 21, Section 841(b)(1)(C), United States Code.” ECF No. 152 at PageID #: 1418.
On November 8, 2018, Petitioner executed a written Plea Agreement (ECF No. 158) with the Government, in which Jabir agreed to plead guilty to Count 1 of the Second Superseding Indictment and, upon sentencing, the Government agreed to move to dismiss Counts 32, 33, and 40. See ECF No. 158 at PageID #: 1475. He also acknowledged that he “may be classified as a career offender based upon his prior criminal record,” and if the Court so classified him that “his adjusted base offense level [would] be 34 pursuant to U.S.S.G. § 4B1.1(b).” ECF No. 158 at PageID #: 1477. Jabir acknowledged: ECF No. 158 at PageID #: 1481. Petitioner also waived his right to bring a direct appeal or collateral attack in his case, except if the Court's sentence exceeded the statutory or guidelines maximum or in instances of ineffective assistance or prosecutorial misconduct. The appeal-waiver provision in the Plea Agreement provides:
ECF No. 158 at PageID #: 1478.[2] The undersigned reviewed the appeal-waiver provision with Petitioner during the plea colloquy, confirming that he reviewed the provision and understood that he was waiving his right to challenge his conviction and sentence through a collateral attack.
A final Presentence Investigation Report (“PSR”) was filed in February 2019.[3]The final PSR is consistent with the Pre-Plea PSR. Both reports note that Jabir “has at least two prior felony convictions for a controlled substance offense,” those being “Conspiracy to Possess with the Intent to Distribute Marijuana, U.S. District Court Northern District of Ohio, docket number 1:08CR00019-001 and Trafficking Offenses, Cuyahoga County Common Pleas Court docket number[ ] CR-10-543208-B.” The PSRs concluded, therefore, that Jabir was a career offender with an offense level of 34 and criminal history category of VI. This resulted in an advisory guideline imprisonment range of 188 to 235 months.
The PSRs also added two points to Petitioner's base offense level for possessing a dangerous weapon. U.S.S.G. § 2D1.1(b)(1). Petitioner and his brother, co-Defendant Amer Jabir, used an apartment on South Prairie Drive in Chicago, Illinois. In January 2018, a search of the apartment was conducted and a Springfield Armory .45 caliber firearm with 10 .45 caliber rounds was found.
On March 19, 2019, the undersigned sentenced Petitioner on Count 1 of the Second Superseding Indictment to 188 months of imprisonment to be followed by six years of supervised release and granted the Government's oral motion to dismiss Counts 32, 33, and 40. See Judgment in a Criminal Case (ECF No. 244), entered on March 21, 2019; Transcript of Sentencing Proceedings (ECF No. 275). The Court found the enhancement under U.S.S.G. § 2D1.1(b)(1) was applicable, overruled Petitioner's objection, and adopted that paragraph in the final PSR and its two-level enhancement in Petitioner's offense level for the possession of a firearm in relation to the drug offense. See ECF No. 275 at PageID #: 2749-55; Addendum to the final PSR. The Court also found the career offender enhancement under U.S.S.G. § 4B1.1 was applicable and adopted the paragraph in the final PSR that the offense level for a career offender is 34. See ECF No. 275 at PageID #: 2755-59. Jabir was advised of his right to appeal, see ECF No. 275 at PageID #: 2791, but did not do so.
On August 27, 2019,[4]Petitioner filed the instant timely Motion Under § 2255 to Vacate, Set Aside, or Correct Sentence (ECF No. 284).
On May 5, 2020, the Clerk of Court received for filing from Petitioner a Motion to Supplement Record (ECF No. 297). On March 16, 2022, the Clerk of Court received for filing from Petitioner a Proposed Supplemental Argument to Motion to Vacate Under § 2255 (ECF No. 332).
As recently stated by the United States Court of Appeals for the Sixth Circuit:
. . .To obtain relief under § 2255, the movant “must show ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.' ” McPhearson v. United States, 675 F.3d 553, 559 (6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). An evidentiary hearing “is required unless the record conclusively shows that the petitioner is entitled to no relief.” Campbell v. United States, 686 F.3d 353, 357 (6th Cir. 2012) (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)); see 28 U.S.C. § 2255(b).
Nix v. United States, No. 20-6218, 2022 WL 815539, at *1 (6th Cir. March 15, 2022).
The Sixth Circuit has held that “[i]t is well-settled that a knowing and voluntary waiver of a collateral attack is enforceable.” Slusser v. United States, 895 F.3d 437, 439 (6th Cir. 2018) (citing Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999)). A subsequent change in the law does not render a waiver unknowing or involuntary, even if the petitioner would not have agreed to the waiver had he known about the later change. Vowell v. United States, 938 F.3d 260, 267 (6th Cir. 2019) (citing United States v. Bradley, 400 F.3d 459, 463 (6th Cir.), cert. denied, 546 U.S. 862 (2005)).
When a petitioner knowingly, intelligently, and voluntarily waives the right to collaterally attack his sentence, he is precluded from bringing such claims. Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001) (citing United States v. Fleming, 239 F.3d 761, 763 (6th Cir. 2001). A waiver in a plea agreement is generally considered knowing and voluntary if a defendant testified that his guilty plea was not coerced and that he reviewed and understood the agreement terms. Id. An...
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