U.S. v. Abdullah
| Decision Date | 16 October 1991 |
| Docket Number | Nos. 90-1615,90-1922,s. 90-1615 |
| Parties | UNITED STATES of America, Appellee, v. Mustafa A. ABDULLAH, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Timothy Stein, Kansas City, Mo., for appellant.
Peter Ossorio, Asst. U.S. Atty., Kansas City, Mo., for appellee.
Before McMILLIAN, BOWMAN, and BEAM, Circuit Judges.
Mustafa Abdullah negotiated a written plea agreement and entered a plea of guilty to one count of conspiracy to distribute cocaine and cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and to one count of using a firearm in the commission of a felony in violation of 18 U.S.C. § 924(c). Before sentencing, Abdullah moved to withdraw his pleas. The district court denied the motion as meritless. On appeal, Abdullah asserts that the district court violated Fed.R.Crim.P. 11 in accepting his guilty pleas; that the district court abused its discretion under Fed.R.Crim.P. 32 in denying his motion to withdraw his pleas; and that the federal sentencing guidelines violate his Fifth Amendment right to due process. We affirm.
On August 17, 1989, a federal grand jury charged Abdullah, along with four other co-conspirators, in an eighteen-count indictment. Abdullah initially entered a plea of not guilty to all eight counts against him. He later entered into a written plea agreement wherein he agreed to plead guilty to count one, conspiracy to distribute cocaine and cocaine base, and count eighteen, use of a firearm in the commission of a felony. In return, the government agreed to dismiss the other six counts.
In compliance with the plea agreement, on September 29, 1989, Abdullah changed his pleas on counts one and eighteen from not guilty to guilty. The district court held a Rule 11 hearing. At the hearing, the court questioned Abdullah and established that he had read, understood, and voluntarily signed the plea agreement; understood the charges against him; and voluntarily wished to change his plea because he was in fact guilty. Based on Abdullah's assurances, the district court concluded that his guilty pleas were voluntary and knowledgeable and, therefore, accepted them.
On January 14, 1990, Abdullah sent the district court a letter seeking to withdraw his guilty pleas. Abdullah alleged that he did not understand the technicalities of the agreement, that the elements of conspiracy were too broad for the offense he had committed, and that the government had improperly included facts related to the dismissed counts in the presentence report. On January 28, 1990, Abdullah sent an additional letter to the district court, alleging ineffective assistance of counsel.
The district court held an evidentiary hearing concerning Abdullah's motion to withdraw his guilty pleas on March 1, 1990. The only evidence Abdullah offered in support of his motion was his own testimony. Rejecting Abdullah's credibility and finding no support for his claims, the court overruled Abdullah's motion.
On March 2, 1990, the district court conducted a sentencing hearing. At the hearing, Abdullah challenged the accuracy of certain facts and conclusions contained in the presentence report, particularly the report's conclusion that he was the leader of the conspiracy to distribute cocaine. In deciding the appropriate offense level for the conspiracy count, however, the court agreed with the report's basic conclusions. The court initially found that the conspiracy involved more than 500 grams of cocaine base resulting in a base level of 36. The court then found that contrary to Abdullah's assertions, he was the leader of the conspiracy, which involved five persons, and increased his offense level by four points. Based on the adjusted offense level of 40 and a criminal history category of I, the court imposed a sentence of 365 months. The court also imposed a mandatory 60 month consecutive sentence on the firearm count. This appeal followed.
Abdullah argues that the district court committed various violations of Rule 11. First, he claims that the district court failed to establish a factual basis for his guilty pleas. See Fed.R.Crim.P. 11(f). According to Abdullah, the district court's only attempts to establish a factual basis for his guilt on either count involved two short exchanges with the prosecution and defense attorneys where the court simply asked each attorney whether the government could offer substantial evidence of Abdullah's guilt were the case to go to trial. On both occasions, each attorney indicated that the government could do so. Change of Plea Transcript at 8, 20-21. Abdullah argues that such generalized inquiry is insufficient to satisfy the requirements of Rule 11. Abdullah, however, ignores other portions of the Rule 11 hearing, which establish a clear factual basis for his guilty pleas.
Contrary to Abdullah's portrayal of the Rule 11 hearing, the district court reviewed specific factual allegations supporting the guilty pleas. The court asked the prosecutor to summarize the main provisions of the plea agreement. Paragraph six of the agreement contained the essential facts supporting the guilty pleas:
Between March 29, 1989 and July 17, 1989, in Kansas City, Missouri, the defendant had an informal agreement with at least one other person who was not an informant or agent of the government to distribute cocaine and cocaine base, that is "crack." The defendant personally sold cocaine and cocaine base during the period specified above and delivered or caused to be delivered cocaine base to other persons with the understanding that they would sell all or part of the cocaine base. On July 17, 1989, a Sturm Ruger, Super Blackhawk .44 magnum caliber stainless steel revolver, serial number 84-82945, loaded with five cartridges, was seized during the execution of a search warrant in Apartment 542, 10519 East 43rd Street, Kansas City, Missouri. Defendant and Phenique L. Garner were the only persons in the apartment at the time the search warrant was executed. Three more rounds of .44 magnum ammunition were found in a black briefcase found on the coffee table in the living room. Also in the briefcase were miscellaneous cards, papers, receipts and records, some of which identified the defendant or purported to bear his signature. Also seized in Apartment 542 was over 745 grams of cocaine hydrochloride and two separate plastic bags containing over 13 grams and two grams, respectively, of cocaine base; as well as a clear plastic envelope that contained three baggies containing a total of 40 grams of cocaine base.
Plea Agreement p 6. Although the prosecutor did not recite paragraph six's contents, he did state that both Abdullah and his attorney agreed to the paragraph's accuracy. Change of Plea Transcript at 17-18. The Court eventually asked Abdullah if he disagreed with any part of the prosecutor's summary and Abdullah responded that he did not. Id. at 19. Because the plea agreement's description of the essential facts underlying the charges supports a finding of guilt, we hold that Abdullah's acknowledgment of the accuracy of the plea agreement's provisions satisfies Rule 11's requirement that the court establish a factual basis for the defendant's guilt.
Second, Abdullah argues that the district court violated Rule 11 by failing to insure that he understood the charges to which he pleaded guilty. See Fed.R.Crim.P. 11(c)(1). Abdullah claims he did not understand either the conspiracy or the firearm charge because he received confusing and incorrect explanations of both.
The district court went to great lengths to insure that Abdullah understood the charges against him. The court began by reading count one of the indictment and asking Abdullah if he understood the conspiracy charge. Change of Plea Transcript at 9. When Abdullah stated that the charge was "a little vague," the court clarified it as follows:
THE COURT: .... That you all, being the defendants, did knowingly and intentionally conspire and agree with each other and with others unknown to the Grand Jury to distribute controlled substances, namely cocaine and also a mixture and substance containing cocaine base, which is known as crack. That's basically the charge against you. Now, I might explain that you don't have to have gotten into any written agreement with them or--nor do you have to have talked to all of them and agreed to go on with any specific plan or anything like that. It's just simply that you and at least one or more of those others were working together to distribute some amount, some appreciable amount, of cocaine and cocaine base, crack.
Id. at 10-11. After listening to the court's explanation of the conspiracy charge, Abdullah stated without reservation that he understood the nature of the charge. Id. at 11.
The court proceeded to review the firearm charge in the same manner. After reading count eighteen of the indictment, the court explained the charge as follows:
THE COURT: .... [T]hat you in affect [sic] possessed and used a firearm, this .44 magnum caliber revolver that's described, in--during and at the time the conspiracy was going on in relation to the offense of conspiracy to distribute cocaine and cocaine base as alleged in Count 1. And also as alleged in Count 17.
Id. at 12-13. The court then asked Abdullah if he understood the charge. When Abdullah stated that he still found the charge vague, the prosecutor offered the following additional explanation:
MR. OSSORIO: .... [U]nder the case law as I understand it, at least in this district, used can include merely having available for use a weapon. And so what the Government is alleging that this weapon that I believe with I believe it was five rounds was in the apartment and was available for use in furthering the conspiracy in any way and also--or also available for use in regard to possessing with intent to distribute the cocaine and...
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