Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

El-Amin v. United States

United States District Court, W.D. North Carolina, Charlotte Division

May 16, 2018

SULIMAN MALIK EL-AMIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          ROBERT J. CONRAD, JR. UNITED STATES DISTRICT JUDGE

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1).

         I. BACKGROUND

         Petitioner was charged by Bill of Information[1] with: Count (1), possession with intent to distribute a mixture and substance containing a detectable amount of a Schedule II controlled substance, methamphetamine; Count (2), possession of a firearm by a felon; and Count (3), using or carrying a firearm in furtherance of a drug trafficking crime. (3:16-cr-222, Doc. No. 1).

         Petitioner pled guilty to all three counts pursuant to a written plea agreement. (3:16-cr-222, Doc. No. 2). The agreement provides that Petitioner stipulates that there is a factual basis, that he read and understood the written factual basis filed with the plea agreement, and that it may be used by the Court and Probation Office without objection to determine the applicable advisory guideline range and appropriate sentence. (3:16-cr-222, Doc. No. 2 at 4). The parties agreed to jointly recommend several findings and conclusions as to the U.S. Sentencing Guidelines including that “[t]he amount of mixture and substance containing a detectable amount of methamphetamine that was known to or reasonably foreseeable by the defendant was approximately 45.5 grams.” (3:16-cr-222, Doc. No. 2 at 2). Petitioner waived all appellate and post-conviction rights to contest the conviction except for claims of ineffective assistance of counsel or prosecutorial misconduct. (3:16-cr-222, Doc. No. 2 at 5).

         The written Factual Basis provides, in part, that “[t]he total amount of mixture and substance containing a detectable amount of methamphetamine purchased or seized is approximately 45.5 grams.” (3:16-cr-222, Doc. No. 3 at 2).

         A Rule 11 plea hearing before Magistrate Judge Cayer. See (3:16-cr-222, Doc. No. 28). Petitioner acknowledged that he received a copy of the Bill of Information and went over it with counsel. (3:16-cr-222, Doc. No. 28 at 5). He fully understood the charges and potential penalties including how the sentencing guidelines may apply in his case. (3:16-cr-222, Doc. No. 28 at 5-7). He agreed that he is guilty of the three counts to which he was pleading guilty. (3:16-cr-222, Doc. No. 28 at 9). He agreed that the parties would jointly recommend that the amount of mixture and substance containing a detectable amount of methamphetamine that was known or reasonably foreseeable to Petitioner was approximately 45.5 grams. (3:16-cr-222, Doc. No. 28 at 10, 13). Petitioner confirmed that he read the factual basis, understood it, and agreed with it. (3:16-cr-222, Doc. No. 28 at 14). Nobody threatened, intimidated, or coerced him, or made any promises other than those contained in the plea agreement to induce him to plead guilty. (3:16-cr-222, Doc. No. 28 at 14). He was satisfied with counsel's services. (3:16-cr-222, Doc. No. 28 at 14). Magistrate Judge Cayer found that the plea was knowingly and voluntarily made, that a factual basis supports the plea, and accepted the guilty plea. (3:16-cr-222, Doc. No. 28 at 15).

         The PSR calculated the base offense level as 22 based on the quantity of methamphetamine for which Petitioner was responsible, 45.5 grams. (3:16-cr-222, Doc. No. 16 at ¶ 25). Three levels were deducted for acceptance of responsibility, resulting in a total offense level of 19. (3:16-cr-222, Doc. No. 16 at ¶¶ 40-43). Petitioner had four criminal history points and a criminal history category of III. (3:16-cr-222, Doc. No. 16 at ¶¶ 62, 63). The resulting guideline range was 37 to 46 months plus a mandatory consecutive sentence for Count (3). (3:16-cr-222, Doc. No. 16 at ¶¶ 116, 117).

         At the sentencing hearing, Petitioner agreed that he read the PSR, understood it, and had enough time to review it with counsel. (3:16-cr-222, Doc. No. 29 at 2-3). The parties agreed that the PSR correctly calculated the guideline range. (3:16-cr-222, Doc. No. 29 at 3). While arguing for a downward variance, counsel noted that “as to the overall drug amount, Mr. El-Amin is fully taking responsibility for what that was, 45.5 grams. I don't think there's any allegation that it was high purity or anything like that. And he certainly knows that, you know, even fake drugs - all of that can be very serious conduct and I think he takes responsibility for that.” (3:16-cr-222, Doc. No. 29 at 16). The Government filed a departure motion that the Court granted. (3:16-cr-222, Doc. No. 29 at 17). The Court sentenced Petitioner to 24 months' imprisonment as to Counts (1) and (2), concurrent, and 60 months consecutive as to Count (3), for a total of 84 months, followed by three years of supervised release. (3:16-cr-222, Doc. No. 29 at 17); (3:16-cr-222, Doc. No. 20).

         Counsel filed a memorandum brief on direct appeal but Petitioner filed a pro se brief arguing that the sentence is unreasonable and that he should be resentenced. The Fourth Circuit Court of Appeals affirmed, finding that the sentence is procedurally and substantively reasonable. It found that the Court properly calculated the applicable sentencing guideline range, appropriately explained the below-guidelines sentence in light of the relevant § 3553(a) factors, and offered ample reasons for rejecting counsel's request for a downward variance. United States v. El-Amin, 699 Fed.Appx. 177 (4th Cir. 2017). The United States Supreme Court denied certiorari on January 16, 2018. El-Amin v. United States, 138 S.Ct. 750 (2018).

         Petitioner filed the instant § 2255 Motion to Vacate on March 12, 2018. (Doc. No. 1). He argues that counsel was ineffective for failing to: (1) object to the 45.5 gram drug quantity because some of the drugs were fake; (2) object that the drug amount was not charged in the Bill of Information; and (3) argue that “the McCarthy Rule of 62 interrogation questions that were mandatory, stated by the Supreme Court.” (Doc. No. 1 at 4). He requests an evidentiary hearing to determine the “actual/fake drug quantity, ” and a corrected sentence. (Doc. No. 1 at 12). He specifically states that he is not attempting to withdraw his guilty plea. (Doc. No. 1-1 at 7-8).

         II.SECTION 2255 STANDARD OF REVIEW

         A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a).

         The Sixth Amendment to the U.S. Constitution guarantees that in all criminal prosecutions, the accused has the right to the assistance of counsel for his defense. See U.S. Const. Amend. VI. To show ineffective assistance of counsel, Petitioner must first establish deficient performance by counsel and, second, that the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.