United States v. Zaitar, Criminal Action Nos. 07–329 RMC

• Decision Date: 13 January 2015
• Docket Number: Criminal Action Nos. 07–329 RMC,related to Criminal Action No. 08–123 RMC
• Citation: 78 F.Supp.3d 22
• Parties: United States of America v. Yahya Zaitar, Defendant.
• Court: U.S. District Court — District of Columbia

78 F.Supp.3d 22

United States of America

v.Yahya Zaitar, Defendant.

Criminal Action Nos. 07–329 RMC

related to Criminal Action No. 08–123 RMC

United States District Court, District of Columbia.

Signed January 13, 2015

Lawrence Schneider, U.S. Department of Justice, Washington, DC, for United States of America.

David Walker Bos, Federal Public Defender for D.C., Washington, DC, for Defendant.

OPINION

ROSEMARY M. COLLYER, United States District Judge

On May 14, 2012, Yahya Ali Zaitar pled guilty to two criminal conspiracies. In Case No. 07–cr–329, Mr. Zaitar pled guilty to two counts: 1) conspiracy to import and distribute cocaine in the United States; and 2) distribution of cocaine, knowing it would be imported into the United States. Mr. Zaitar's cocaine co-conspirator in Case No. 07–cr–339 was Mohammed Ali Awali, who separately entered a guilty plea. In Case No. 08–cr–123, Mr. Zaitar pled guilty to conspiracy to import and distribute heroin in the United States. Mr. Zaitar's heroin co-conspirator was his brother, Nemr Zhayter, who pled guilty to heroin trafficking in Case No. 08–cr–214.¹ In Yahya Zaitar's plea agreement, the parties estimated an adjusted offense level of 29 and criminal history category I, resulting in a sentencing range of 87 to 108 months under the United States Sentencing Guidelines.

On October 10, 2012, this Court sentenced Mr. Zaitar to 108 months' incarceration in both cases, to run concurrently. Mr. Zaitar promptly appealed, claiming that his guilty plea was involuntary and the product of his trial counsel's promise of a sentence of 87 or fewer months. The United States Court of Appeals for the D.C. Circuit remanded the case to the trial court for consideration of Mr. Zaitar's claim of ineffective assistance of counsel.

After an evidentiary hearing and full briefing, as well as review of the entire record, the Court finds that trial counsel for Mr. Zaitar was not ineffective and thus denies his request to withdraw his guilty plea.

I.

Yahya Zaitar entered guilty pleas on May 14, 2012 to two criminal Informations. He pled guilty to a two-count Information in Case No. 07–cr–329. Count I charged him with a dual-object conspiracy to import 500 grams or more of cocaine into the United States and distribute 500 grams or more of cocaine, intending or knowing that the cocaine would be unlawfully imported into the United States, in violation of 21 U.S.C. §§ 952, 959(a), 960(b)(2)(B), and 963, and 18 U.S.C. § 2. Case No. 07–cr–329, Superseding Information, Dkt. 44. Count II charged distribution of 500 grams or more of cocaine, intending or knowing that the cocaine would be unlawfully imported into the United States, in violation of 21 U.S.C. § 959(a), § 960, and 18 U.S.C. § 2.² Id. Mr. Zaitar also pled guilty to a one-count Information in Case No. 08–cr–123, charging him with a dual-object conspiracy to import 100 grams or more of heroin into the United States and to distribute 100 grams or more of heroin, knowing that the heroin would be unlawfully imported into the United States, in violation of 21 U.S.C. §§ 952, 959(a), 960(b)(2)(b), and 963, and 18 U.S.C. § 2. Case No. 08–cr–123, Superseding Information, Dkt. 129.³ The Plea Agreement reflected the parties' agreement to a base offense level of 30, a two-level enhancement for an aggravating leadership role, and a three-level downward adjustment for early acceptance of responsibility, leading to an adjusted Offense Level 29/Criminal History Category I, or a Guidelines range of 87 to 108 months. Both parties retained their rights to argue for downward or upward departures or variances from the otherwise-applicable Guidelines range as it was determined by the Court.

The plea hearing involved a full colloquy, which was interpreted by a court-certified Arabic interpreter but also included occasions on which Mr. Zaitar spoke directly in English. After explaining the Guidelines calculation proposed in the Plea Agreement, the Court advised Mr. Zaitar:

Now, right now, I don't know enough about the facts, or your defenses, or you, to know how I should devise a sentence for you. Everybody has agreed that this is the range under the Guidelines, but those aren't mandatory. I have to look at other things, too, and I don't know enough today.

Has anyone promised you what your sentence would be?

Defendant: No.

Court: “Okay. Because I don't know, and I'm the one who's going to do it. So if it turns out to be more harsh than you hope, you would not be able to withdraw your Guilty Plea. Do you understand that?

Defendant: Yes.

Case No. 07–cr–329, Transcript of Plea Hearing, May 14, 2012, Dkt. 80 (Plea Tr.), at 18 (emphases added). Mr. Zaitar's counsel, Barry Coburn, explained that the Plea Agreement left both “parties ... free to argue for either a departure or a variance from that range.... Up or down.” Id. at 23. During the plea colloquy, the Court further informed Mr. Zaitar that the Guidelines range would be calculated separately by the Probation Office and may be different from the calculation in the Plea Agreement, to which he responded that he understood. Id. at 24. At the end of the colloquy, the Court specifically asked if Mr. Zaitar “[w]ould ... enter a guilty plea because you're guilty or for some other reason?” and he answered, “Because I'm guilty.” Id. at 25. The Court then stated that it was “confident” that Mr. Zaitar understood what he was doing, that his plea was voluntary, and that he understood the consequences of entering a guilty plea. Id. at 25–26.

Notably, Mr. Zaitar's guilty plea followed years in the D.C. Jail after his arrest in Romania on or about April 14, 2008 and extradition to the United States in August 2008. For a lengthy period of time, Mr. Zaitar affirmatively requested to continue Case No. 08–123 until his brother, Nemr Zhayter, was extradited from Paraguay so that they could confer on a non-trial disposition. In addition, prosecution in Case No. 07–cr–329 awaited extradition of Mohammed Ali Awali, Mr. Zaitar's cocaine codefendant, who was incarcerated in Brazil. See Case. No. 07–cr–329, Dec. 20, 2012 Status Report, Dkt. 24. Over time, Mr. Zaitar became sufficiently familiar with the English language to communicate on daily matters and to speak in court when he felt necessary. Trial was scheduled for either April 18, 2011 or September 19, 2011, see Case No. 07–cr–329, Minute Entry dated Aug. 18, 2010, depending on the possible arrival of one or both co-defendants. Messrs. Zhaytar and Awali arrived in the United States within months of each other and trial schedules were postponed so that counsel could prepare. See Case Nos. 07–cr–329, 08–cr–123, Minute Orders dated Aug. 3, 2011, Sept. 16, 2011, and Nov. 22, 2011. Ultimately, all three men entered separate pre-trial guilty pleas.⁴

Sentencing for Mr. Zaitar was scheduled for August 21, 2012. In preparation, the Probation Office submitted a July 12, 2012 Presentence Investigation Report (PSR) covering both cases. See Case No. 07–cr–329, Dkt. 54 (Restricted). The PSR outlined the alleged conspiracies. Id. The Probation Office relied on the Guidelines Manual in effect on the dates of the offenses of conviction, id. ¶ 61, and treated the cocaine and heroin quantities admitted by Messrs. Awali and Zhaytar in their separate plea agreements as related conduct to Mr. Zaitar's offenses.⁵ These added drug amounts led to an adjusted offense level of 33, resulting in a Guidelines sentencing range between 135 and 168 months' incarceration.Id. ¶¶ 66, 69, 71, 73, 74, 75.

At the sentencing hearing on August 21, 2012, Mr. Zaitar's counsel strongly argued that it was improper to combine the drug quantities admitted by Mr. Zaitar's co-conspirators in their own plea agreements when Mr. Zaitar himself was not present, could not confront either man, and did not agree. The Court continued sentencing to allow briefing on the point. See Case No. 07–cr–329, Defendant Yahya Zaitar's Memorandum Concerning Relevant Conduct, Dkt. 65 (Def. Conduct Mem.); Government's Supplemental Sentencing Memorandum, Dkt. 68 (Gov.Supp.Mem.). Mr. Zaitar's legal brief concluded with his counsels' comment that “we did not advise our client that there was any significant likelihood that the Court might reject the range in the plea agreement, since undersigned counsel [have] never seen that occur or heard of it occurring. Accordingly, should it occur, this may well lead to a cognizable allegation of ineffective assistance of counsel.” Id. at 13–14. The Government advised that the Court had the authority to consider the drug quantities admitted by co-conspirators as relevant conduct but urged a sentence for Mr. Zaitar within the negotiated sentencing range of his plea agreement; more precisely, the Government argued for a sentence of 108 months. (Similarly, the Government had argued for sentencing at the high end of the Guidelines ranges for Messrs. Awali and Zhayter.)

The sentencing hearing reconvened on October 10, 2012. The Court concluded that it could properly add the drug quantities admitted by Mr. Zaitar's co-defendants as relevant conduct to Mr. Zaitar's admitted crimes but that the negotiated sentencing range in Mr. Zaitar's Plea Agreement was “sufficient but not greater than necessary.” See 18 U.S.C. § 3553(a) ; Case No. 07–cr–329, Sentencing Transcript, Oct. 10, 2012, Dkt. 83 (Sentencing Tr.), at 5. The Court noted:

Mr. Zaitar and his counsel have advanced a very compelling argument about his young son who is terribly injured and in need of his father.

Mr. Zaitar himself wrote me a very moving letter. The condition of his family and particularly his son isn't really a consideration under sentencing except under other kinds of circumstances and here, in reading the Government's sentencing memo and the other, the briefs that are before me, the nature of the activity, criminal offense here is broader, deeper, more stark than the evidentiary record might show because we never got to trial.

In comparing those things, I think that I should not

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