U.S. v. Ruhbayan

• Decision Date: 10 April 2006
• Docket Number: No. 2:02CR29.,2:02CR29.
• Citation: 427 F.Supp.2d 640
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Rajul RUHBAYAN, Defendant.

427 F.Supp.2d 640

UNITED STATES of America, v. Rajul RUHBAYAN, Defendant.

No. 2:02CR29.

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

April 10, 2006.

James Ashford Metcalfe, U.S. Attorneys, Norfolk, VA, for Plaintiff.

Joseph Barry McCracken, Norfolk, VA, for Defendant.

MEMORANDUM OPINION

REBECCA BEACH SMITH, District Judge.

This matter comes before the court for defendant Rajul Ruhbayan's resentencing pursuant to the Court of Appeals for the Fourth Circuit's remand consistent with United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and its progeny. Defendant is resentenced in accordance with this Memorandum Opinion and the Judgment Order entered on November 14, 2005.

I. Factual and Procedural History

Defendant is resentenced on convictions by a jury, following a trial conducted in 2003, of offenses that arise from a scheme, organized and directed by defendant, to present false testimony in defendant's previous federal criminal trial conducted in 2000.

A. 2000 Criminal Case

1. Trial

Between August 30, 2000, and September 5, 2000, defendant was tried before United States District Judge Henry Coke Morgan, Jr., on several drug and firearm charges, including Felon in Possession of a Firearm, Conspiracy to Distribute and Possess with Intent to Distribute Cocaine Base, and Use of a Firearm in a Drug Trafficking Crime.¹ At the trial of these charges, law enforcement officers testified to finding "crack" cocaine and cash in defendant's possession incident to defendant's arrest in Martinsville, Virginia, on April 8, 2000; discovering a loaded semiautomatic pistol concealed in the back seat of defendant's van incident to defendant's arrest in Suffolk, Virginia, on April 14, 2000; and discovering drug residue, drug paraphernalia, and firearms-related materials in defendant's Suffolk, Virginia, home incident to execution of a search warrant on April 14, 2000.

Yolanda Goodman, defendant's girlfriend, who was a convicted felon, testified for the defense. She declared that she owned the pistol discovered in defendant's van; she had concealed the pistol in defendant's van without his knowledge; and she had never seen defendant with either firearms or drugs. Corroborating Ms. Goodman's testimony, defendant testified that he did not own the pistol discovered in his van; he did not know that a pistol was concealed in his van; and he was not a drug dealer. On September 5, 2000, the jury returned a verdict of not guilty of all counts of the indictment, but guilty of two lesser included offenses: Conspiracy to Possess Cocaine Base and Possession of Cocaine Base.

2. Sentencing

The Presentence Investigation Report ("PSR") prepared on October 23, 2000, and addenda prepared on November 21, 2000, and December 1, 2000, assigned defendant a total offense level of eight. See 10/23/00 PSR, Worksheet A. The PSR recommended a criminal history category of IV but noted that category IV may not adequately reflect the seriousness of defendant's past criminal conduct or the likelihood that he would commit future crimes. See id. ¶ 84, at 19.

Defendant's sentencing hearing was held on December 7, 2000. After finding that, absent a departure, defendant's criminal history category should be a III, the court concluded that category III did not adequately reflect the seriousness of defendant's past criminal conduct. Accordingly, the court departed, pursuant to U.S.S.G. § 4A1.3 (Departures Based on Inadequacy of Criminal History Category), and increased defendant's criminal history category from a III to a V. Defendant was sentenced to 24 months imprisonment: 12 months on Count Two and 12 months on Count Three, all to be served consecutively. Defendant appealed his conviction and sentences, arguing, inter alia, that the departure in criminal history category, pursuant to § 4A1.3, was erroneous. See United States v. Ruhbayan, 15 Fed.Appx. 116, 118 (4th Cir. 2001) (unpublished), cert. denied 534 U.S. 1006, 122 S.Ct. 487, 151 L.Ed.2d 399 (2001). The Fourth Circuit affirmed defendant's conviction and sentences, finding, inter alia, that the departure in criminal history category was not erroneous. See id. at 118-19.

B. 2003. Criminal Case

1. Trial

After testifying under oath in defendant's 2000 trial that she possessed the pistol discovered in defendant's van, Ms. Goodman was indicted for being a Felon in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. § 922(g)(1). Following her indictment, Ms. Goodman recanted her testimony that she possessed the pistol. She admitted that she testified falsely in defendant's 2000 trial, at defendant's direction, to assist defendant in avoiding convictions.² Defendant's role in the scheme to present false testimony was evidenced in more than 50 letters produced by Ms. Goodman, which letters defendant had written and sent to her while defendant's 2000 trial was pending, directing Ms. Goodman to confess to possession of the pistol to defendant's trial lawyer and then to testify falsely to possession of the pistol in defendant's 2000 trial.³

The letters were admitted into evidence in the trial conducted between October 20, 2003, and October 27, 2003, of the following charges committed in connection with this false testimony scheme: (1) Conspiracy to Commit Perjury and Obstruction of Justice, in violation of 18 U.S.C. § 371; (2) Corruptly Influencing and Attempting to Influence the Testimony of a Witness, in violation of 18 U.S.C. § 1512(b)(1); (3) Perjury in a Court Proceeding, in violation of 18 U.S.C. 1623; (4) Suborning of Perjury, in violation of 18 U.S.C. § 1622; and (5) Obstruction of Justice, in violation of 18 U.S.C. § 1503.⁴ At the trial, law enforcement officers testified to their arrests of defendant, their search of his home, and the drugs and firearms-related items seized incident to the arrests and the search. Ms. Goodman testified that her testimony in defendant's 2000 trial was false, and, in fact, she had never possessed the pistol found in defendant's van; she had observed defendant with firearms; and defendant had engaged in substantial drug trafficking activities. Two other witnesses testified to selling defendant "crack" cocaine on a weekly basis from January, 1999, through December, 1999. On October 27, 2003, the jury returned a verdict of guilty of all counts.

2. Sentencing

According to the PSR prepared on December 23, 2003, and addendum prepared on January 27, 2004, defendant's conviction of Corruptly Influencing and Attempting to Influence the Testimony of a Witness, in violation of 18 U.S.C. § 1512(b)(1), subjected him to a statutory maximum sentence of life imprisonment. See 12/23/03 PSR at 2. The PSR assigned defendant a base offense level of 30, which is calculated as follows:⁵ U.S.S.G. § 2J1.3 provides a base offense level of 14 for the offenses of perjury or suborning perjury. However, if the perjury or suborning perjury occurred in respect to a criminal offense, then § 2J1.3 permits application of U.S.S.G. § 2X3.1, instead of § 2J1.3, if the offense level calculated under § 2X3.1 is greater than the level provided under § 2J1.3. See U.S.S.G. § 2J1.3(c)(1). If § 2X3.1 applies, then a defendant's base offense level for perjury or suborning perjury is calculated as if he were convicted as an accessory to the criminal offense in respect to which he committed perjury or suborning perjury ("the underlying offense").⁶ Under § 2X3.1, the base offense level for a defendant convicted as an accessory is six levels lower than the offense level for the underlying offense, up to a maximum of level 30. See U.S.S.G. § 2X3.1.

Applying § 2X3.1, the PSR identified Conspiracy to Possess with Intent to Distribute Cocaine Base as an underlying offense. See 12/23/03 PSR, Worksheet A.⁷ The base offense level for this underlying offense is calculated according to the weight of cocaine base that the defendant is attributed with possessing. See U.S.S.G. § 2D1.1(c). Based on a law enforcement officer's testimony of the weight of "crack" cocaine and the amount of cash found in defendant's possession incident to his April 8, 2000, arrest, and two other witnesses' testimony of the weight of "crack" cocaine that they sold defendant on a weekly basis from December, 1999, through January, 1999, defendant was attributed with possessing 905.36 grams of "crack" cocaine. See 12/23/03 PSR ¶¶ 5, 8, 12, at 5-7, A-2, Worksheet A. Possession of 905.36 grams of "crack" cocaine or cocaine base resulted in a base offense level of 36. See U.S.S.G. § 2D1.1(c)(2). Possession of a dangerous weapon during the offense resulted in a two-level increase. See U.S.S.G. § 2D1.1(b)(1). Thus, the offense level for the underlying offense was 38. Applying § 2X3.1, the base offense level for an accessory to this offense is six levels lower than 38, up to a maximum of level 30. See U.S.S.G. § 2X3.1. Accordingly, defendant was assigned a base offense level of 30. See 12/23/03 PSR, Worksheet A.

The PSR recommended two enhancements to defendant's offense level: A two-level enhancement, pursuant to U.S.S.G. § 3B1.1(c), for his organizational and leadership role in the instant criminal activity, and a two-level enhancement, pursuant to U.S.S.G. § 3C1.1, for the obstruction that resulted from the instant offenses. Id. ¶¶ 44, 45, at 12, 13, Worksheet A.⁸ Defendant's total offense level of 34, combined with a recommended criminal history category of III, the same category attributed to him, prior to departure, in the PSR prepared following defendant's 2000 trial, resulted in a Guideline range of 188-235 months. See id., Worksheet C, Worksheet D. Similar to the PSR prepared following defendant's 2000 trial, the December 23, 2003, PSR noted that the criminal history category prescribed by the Guidelines may not adequately reflect the seriousness of defendant's past criminal conduct or the likelihood that he would commit future crimes. See id. ¶ 124, at 31-32. Additionally, the ...