U.S. v. El-Amin

• Decision Date: 09 May 2005
• Docket Number: No. CRIM 3:03CR55.,CRIM 3:03CR55.
• Citation: 373 F.Supp.2d 574
• Parties: UNITED STATES of America v. Sa'ad EL-AMIN.
• Court: U.S. District Court — Eastern District of Virginia

373 F.Supp.2d 574

UNITED STATES of America v. Sa'ad EL-AMIN.

No. CRIM 3:03CR55.

United States District Court, E.D. Virginia, Richmond Division.

May 9, 2005.

Robert E. Trono, Office of the U.S. Attorney, Gregg R. Nivala, Richmond, VA, for United States of America.

Paul Geoffrey Gill, Robert James Wagner, Office of the Federal Public Defender, Richmond, VA, for Sa'ad El-Amin.

MEMORANDUM OPINION

HUDSON, District Judge.

THIS MATTER is before the Court on Petitioner Sa'ad El-Amin's ("El-Amin" or "Defendant") Motion to Correct or Amend his Sentence pursuant to 28 U.S.C. § 2255 and the United States's Motion to Withdraw its Motion under Federal Rule of Criminal Procedure 35(b) ("Rule 35(b)").

I. PROCEDURAL HISTORY

On May 8, 2003, a federal grand jury sitting in Richmond, Virginia issued a nineteen-count superseding indictment. Count One charged El-Amin with conspiring with his wife to defraud the United States in violation of 18 U.S.C. § 371; Count Two charged El-Amin with evading tax payments in violation of 26 U.S.C. § 7201; Counts Three through Five charged El-Amin with filing false tax returns in violation of 26 U.S.C. § 7206; Counts Six through Eight charged El-Amin with failure to file a tax return in violation of 26 U.S.C. § 7203; Counts Nine through Fifteen charged El-Amin with mail fraud in violation of 18 U.S.C. § 3241; Counts Sixteen through Eighteen charged El-Amin with bankruptcy fraud in violation of 18 U.S.C. §§ 152, 2; and, Count Nineteen charged El-Amin with obstruction of justice in violation of 18 U.S.C. § 1503.

On June 25, 2003, El-Amin entered into a plea agreement and pled guilty to Count One. El-Amin acknowledged that the factual allegations alleged in Count One of the indictment were true and accurate and that, had the matter proceeded to trial, the United States could have proved those facts beyond a reasonable doubt. In exchange for his plea of guilty to Count One, the United States agreed to dismiss the remaining Counts of the Indictment. Additionally, El-Amin agreed to waive his right to appeal any sentence within the statutory maximum for Count One. El-Amin further agreed to cooperate fully and truthfully with the United States and provide all information known to him regarding any criminal activity. It was further agreed that upon acceptance of the agreement by the Court, the United States would make a motion under United States Sentencing Guideline § 5K1.1 with respect to his wife, Beverly Crawford ("Crawford"), and recommend that she be sentenced to 12 months of home incarceration. The parties agreed that any alleged breach of the plea agreement would be determined by the Court at an appropriate proceeding. With respect to sentencing, the United States and El-Amin agreed that the following Sentencing Guideline calculations were appropriate:

a loss amount under U.S.S.G. § 2T4.1 of greater than § 400,000.00 but less than $1,000,000.00 yielding an offense level of 20; a 2 point role in the offense adjustment for use of a special skill pursuant to U.S.S.G. § 3B1.3; a 2 point enhancement for obstruction of justice pursuant to U.S.S.G. § 3C1.1; a 3 point reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1; and an offense level total of 21, criminal history category I, yielding a guideline range of 37 to 46 months.

Plea Agreement ¶ 17. The United States and the defendant further agreed that, pursuant to Fed.R.Civ.P. 11(c)(1)(B), a 37 month sentence was appropriate. Plea Agreement ¶ 18.

Prior to sentencing, El-Amin tendered to the United States a series of objections wherein El-Amin challenged virtually all of the sentencing concessions he had made as part of his plea agreement. First, in contradiction of his prior agreement, El-Amin argued that a base offense level of eighteen rather than twenty was appropriate.¹ Second, El-Amin objected to a two point role in the offense adjustment for use of a special skill as an attorney. Finally, El-Amin objected to the two point enhancement for obstruction of justice on the grounds that, contrary to his prior sworn representations, he did not attempt to persuade Crawford to file false tax returns.

Upon receiving El-Amin's objections, the prosecutor advised trial counsel that if El-Amin pursued his written objections, the United States would move the Court to deny El-Amin the concessions contained in the plea agreement. Trial counsel relayed this communication to El-Amin. Trial counsel advised El-Amin that if he pursued his objections, one possible outcome was that the United States could successfully void all of the concessions it had made in the plea agreement and jeopardize Crawford's sentence of home confinement. Trial counsel reminded El-Amin that even if he withdrew the written objection they could still be brought to the attention of the Court when the United States filed its Rule 35(b) motion. El-Amin followed counsel's advice and withdrew the objections.

On October 17, 2003, in accordance with terms of the plea agreement, the Court sentenced El-Amin to a term of 37 months of imprisonment.

On October 15, 2004, in order to comply with the applicable time limitations, the United States filed a motion under Rule 35(b). The United States requested the Court to hold the Motion under advisement while it assessed the value and extent of El-Amin's cooperation.

On October 18, 2004, the Court received a Motion under 28 U.S.C. § 2255 from El-Amin. The grounds for relief in the § 2255 are as follows:

Claim 1 Counsel for the government engaged in misconduct when he threatened to withdraw from or deprive El-Amin of the concessions agreed to the in the Plea Agreement if El-Amin did not withdraw written objections to the Presentence Report.

Claim 2 The Probation Officer used the wrong edition of the Federal Sentencing Guidelines in computing El-Amin's sentence, to wit, the 2003 edition rather than the 2000 edition was used resulting in a higher base offense level.

Claim 3 When the Probation Officer improperly used the 2003 edition of the Sentencing Guidelines, he was able to include the penalties and interest accrued on taxes allegedly owed by El-Amin and Crawford. Had the Probation Officer used the proper edition, to wit the 2000 edition, penalties and interest were not permitted to be used to establish the tax loss. This violated the ex post facto provisions of the United States Constitution.

Claim 4 The inclusion of "use of a special skill" enhancement by the Probation Officer was not justified because El-Amin was not a tax attorney and the business and operating accounts maintained by El-Amin and Crawford were always know[n] to, open and available to the government for scrutiny. Additionally, "special skill" is included in the dollar amount of loss which is the specific offense characteristic.

Claim 5 The enhancement for obstruction of justice is without factual or legal support and was therefore improperly used to increase his prison sentence.

Claim 6 The enhancements and the amount of tax loss which increased El-Amin's base offense level violated El-Amin's Fifth and Sixth Amendment rights because the Federal Sentencing Guidelines and Rule 32 of the Federal Rules of Criminal Procedure allow the Court to find the facts supporting the enhancements and tax loss by a preponderance of the evidence.... If the Supreme Court extends its holding in Blakely to the Federal Sentencing Guidelines, El-Amin will be entitled to be resentenced....

On December 30, 2004, the United States filed a Motion to Withdraw its Motion For Reduction of Sentence. On February 7, 2005, El-Amin moved to amend his 28 U.S.C. § 2255 to assert:

Claim 7 Counsel was ineffective for advising El-Amin to withdraw his objections to the Presentence Report.

On February 18, 2004, El-Amin, by counsel, filed an opposition to the withdrawal of the motion for reduction of sentence. The United States has responded to El-Amin's opposition to the withdrawal of the motion for a reduction of sentence.

II. Defendant's 28 U.S.C. § 2255 Petition

The failure to raise a claim at trial and direct appeal generally results in a procedural default barring collateral review, absent a demonstration of cause and prejudice or actual innocence. See Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). The United States correctly notes that Claims 2 through 6 are defaulted because El-Amin could have, but failed to raise these claims at trial and on direct appeal. El-Amin responds that the ineffective assistance of counsel and the misconduct of the prosecutor constitute cause excusing his default and it is to those issues that the Court now turns.

El-Amin notes that the Plea Agreement did not require that he waive his right to object to the Presentence Report ("PSR"). El-Amin concludes that, "[s]ince the government did not have a legitimate or good faith basis to move to declare the plea agreement null and void because El-Amin objected to the PSR, its threat to move to withdraw the concessions given to El-Amin in the agreement was unwarranted and constituted misconduct." El-Amin's Reply at 6. El-Amin's charge that the government engaged in misconduct is not supported by the relevant law and facts.

The law governing the interpretation of plea agreements is an "amalgam of constitutional, supervisory, and private [contract] law concerns." United States v. Harvey, 791 F.2d 294, 300 (4th Cir.1986). Generally, contract principles are wholly dispositive in assessing whether a plea agreement was breached with the focus on whether the aggrieved party was denied the benefit of his bargain. United States v. Ringling, 988 F.2d 504, 506 (4th Cir.1993). When the United States and a defendant stipulate in a plea agreement that a particular sentence or sentencing factor is appropriate, the parties may breach the agreement when they subsequently attempt to subvert that stipulation through their actions or advocacy. See United States v. Boatner, 966 F.2d 1575,...