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Basha v. United States

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

February 1, 2019



          Frank D. Whitney, Chief 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). 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).

         I. BACKGROUND

         A. Petitioner Flies Large Quantities of Marijuana from California to Western North Carolina on Behalf of an Interstate Drug-trafficking Organization

         On 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).

         Two 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.).

         B. Petitioner Pleads Guilty to Drug-trafficking and Money-laundering Offenses and Stipulates to a 30-month Sentence in Exchange for Concessions from the Government

         Special 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).

         Petitioner 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).

         Two 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).

         Six 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).

         The 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).

         Two 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.).

         C. The Fourth Circuit Affirms this Court's Judgment, and ...

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