United States District Court, W.D. North Carolina, Charlotte Division
D. Whitney, Chief United States District Judge
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). Also pending are the
Government's Motion to Dismiss and Response to Motion to
Vacate, (Doc. No. 6), the Government's Amended Motion to
Dismiss, (Doc. No. 8), Petitioner's Pro Se Motion for
Leave to File an Amended Motion to Vacate, (Doc. No. 13), and
the Government's Motion to Dismiss and Response to
Amended Motion to Vacate, (Doc. No. 15).
Petitioner Flies Large Quantities of Marijuana from
California to Western North Carolina on Behalf of an
Interstate Drug-trafficking Organization
March 16, 2013, Petitioner Saad Basha, a commercial pilot,
flew a plane containing a large quantity of marijuana from
California to western North Carolina. (Crim. No. 3:16cr59,
Doc. No. 15 at 1-2: Factual Basis). Petitioner was working
for a drug-trafficking organization and knew he was
transporting marijuana. (Id.). The March 16 trip was
one of at least three flights he piloted on the
conspiracy's behalf, during which he transported at least
50 pounds of marijuana. (Id., Doc. 26 at 4-5: PSR).
days before the March 16 trip, Petitioner made two deposits
of $9, 900 into his bank account. (Id., Doc. No. 15
at 2). The deposited funds represented advance payments for
his services as a pilot for the conspiracy. (Id.).
Petitioner later withdrew $6, 000 and $9, 900 in cash.
(Id.). Petitioner structured these transactions to
avoid the currency-transaction-reporting requirement that
would be triggered by a transaction involving more than $10,
000, and to conceal the relationship between the funds and
Petitioner's drug-trafficking activity. (Id.).
Petitioner Pleads Guilty to Drug-trafficking and
Money-laundering Offenses and Stipulates to a 30-month
Sentence in Exchange for Concessions from the
Agent Ubaldo Rios with Homeland Security Investigations filed
a criminal complaint against Petitioner in November 2015,
alleging drug-trafficking, money-laundering, and structuring
violations. (Id., Doc. No. 1 at 1). In an affidavit
accompanying the complaint, Rios stated that government
officials encountered Petitioner at a Charlotte, North
Carolina, airport on or about March 17, 2016, and that after
Petitioner returned to the air, he “ejected dozens of
pounds of marijuana from the aircraft as observed by an FAA
official on the ground.” (Id., Doc. No. 1 at
3). Rios also affirmed that investigators had listened to a
consensually recorded telephone conversation Petitioner
placed to a co-conspirator to obtain payment for transporting
marijuana. (Id.). Rios asserted that investigators
had debriefed “[s]everal cooperating witnesses”
about Petitioner's marijuana-trafficking activities and
that the amount known to Petitioner was at least 100
kilograms but less than 400 kilograms. (Id.). Rios
stated in the affidavit that, before the March 2013 trip,
Petitioner received four deposits of $9, 900, two into his
personal account and two into his business account,
representing advance payments for his marijuana-trafficking
activities. (Id.). According to Rios, these deposits
were made in western North Carolina, and Petitioner made cash
withdrawals in California on March 13 of almost all of these
funds. (Id., Doc. No. 1 at 3-4). Petitioner was
arrested on December 1, 2015, a week after the criminal
complaint was filed. (Id. at 3).
made his initial appearance in this Court on December 22,
2015. He was represented by Anthony Brooklier, an attorney
practicing in Los Angeles, California. (Id., Doc.
No. 9: Motion for Leave to Appear Pro Hac Vice). Brooklier
was later granted leave to represent Petitioner pro hac vice
with the assistance of local counsel, Michael Jeffrey Greene.
(Id., Doc. No. 11: Order).
months after Petitioner made his initial appearance, the
Government charged him through a Bill of Information with
conspiring to distribute and to possess with intent to
distribute marijuana, in violation of 21 U.S.C. §§
846, 841(a)(1); and conspiring to launder proceeds of
unlawful activity, in violation of 18 U.S.C. § 1956(h).
(Id., Doc. No. 14: Information). On the same day,
the parties filed a plea agreement in which Petitioner agreed
to plead guilty to both offenses. (Id., Doc. No. 16:
Plea Agreement). The parties also agreed that a factual basis
existed to support Petitioner's guilty plea, and the
parties filed a written factual basis reciting facts
consistent those described above. (Id., Doc. No.
15). The prosecutor, Brooklier, and Petitioner all signed the
factual basis, in which Petitioner acknowledged he was aware
of at least 80 kilograms of marijuana, and the parties
reserved their right to argue for a drug-quantity finding of
between 80 and 400 kilograms of marijuana. (Id. at
2-3). As part of the parties' plea agreement and
“in exchange for the concessions made by the United
States, ” Petitioner waived his right to appeal his
conviction or sentence, except on grounds of ineffective
assistance of counsel or prosecutorial misconduct.
(Id., Doc. No. 16 at 5). Petitioner and Brooklier
also signed the plea agreement. (Id. at 8).
weeks after the parties filed the plea agreement, a
magistrate judge accepted Petitioner's guilty plea after
conducting the colloquy required by Federal Rule of Criminal
Procedure 11. (Id., Doc. No. 34: Plea Hr'g Tr.).
At the beginning of the hearing, attorney Greene reported to
the magistrate judge that Petitioner had asked him and
Charlotte attorney Rob Heroy to serve as lead, rather than
local, counsel and that he believed that Brooklier would be
moving to withdraw because Petitioner did not “want
his services anymore.” (Id. at 2). Greene
explained that he and Heroy had both entered general notices
of appearance on Petitioner's behalf. (Id.).
After waiving his right to a grand-jury indictment,
id. at 4, Petitioner affirmed that he understood the
charges against him and the maximum penalties he faced-up to
five years in prison for the drug-trafficking offense and up
to twenty years in prison for the money-laundering offense,
id. at 6-8. Petitioner affirmed that he was, in
fact, guilty of the offenses to which he was pleading guilty.
(Id. at 10). Petitioner also affirmed that he had
had “enough time to discuss with [his] attorneys any
possible defenses [he might] have” and that he was
“satisfied with the services of [his] attorneys.”
(Id. at 14). At the hearing's conclusion, the
magistrate judge found that Petitioner's guilty plea was
both knowing and voluntary. (Id. at 15).
probation office prepared a presentence report in which the
probation officer calculated a total offense level of 19
based on Petitioner's responsibility for between 80 and
100 kilograms of marijuana. (Id., Doc. No. 26 at
6-7). This offense level also included a two-offense-level
reduction because Petitioner satisfied the requirements under
the safety valve, U.S.S.G. § 5C1.2, and a
three-offense-level reduction for acceptance of
responsibility. (Id.). Based on an offense level of
19 and a criminal-history category of I, the Sentencing
Guidelines advised a range of between 30 and 37 months in
prison. (Id. at 10).
months after Greene and Heroy were retained to represent
Petitioner, the parties filed a joint sentencing stipulation
in which they recommended a 30-month sentence, at the low end
of the Sentencing Guidelines range. (Id., Doc. No.
25: Joint Sentencing Stipulations). In this stipulation,
signed by Heroy, Greene, and Petitioner, the parties
explained that, in exchange for the Government's
agreement not to object to the drug-quantity calculation or
base offense level in the presentence report, Petitioner
agreed not to seek a departure or variance from the advisory
guideline range. (Id. at 1). The parties also agreed
that a 30-month prison sentence was “sufficient but not
greater than necessary to accomplish the goals of sentencing
under 18 [U.S.C. §] 3553(a).” (Id.).
Consistent with the parties' recommendation, this Court
sentenced Petitioner to 30 months in prison. (Id.,
Doc. No. 35 at 13: Sentencing Hr'g Tr.).
The Fourth Circuit Affirms this Court's Judgment, and