The opinion of the court was delivered by: FREDERIC BLOCK, District Judge
Ahmad Aboushi ("Aboushi"), proceeding pro se, moves, pursuant
to 28 U.S.C. § 2255, to vacate or correct his sentence. For the
following reasons, the motion is denied.
On August 19, 1999, Aboushi was convicted in this Court of
conspiracy to rob truck drivers and conspiracy to possess,
transport and sell stolen vehicles and goods that had moved in
interstate commerce; he was also convicted of fifteen substantive
crimes involving the vehicles and goods stolen in the course of
the conspiracies. Following Aboushi's conviction, the Court's
Probation Department prepared a Presentence Investigation Report
("PSR") that calculated a proposed sentencing range based on the United States Sentencing Guidelines ("the Guidelines"); the PSR's
calculation included sentencing enhancements based on various
Aboushi's counsel raised numerous objections to the PSR.
Sustaining some of these objections and rejecting others, the
Court calculated that the then-mandatory Guidelines called for a
sentence of life imprisonment; however, the Court exercised its
discretion to downwardly depart, sentencing Aboushi to 20 years'
imprisonment for the robbery conspiracy and to two years'
imprisonment for each of the remaining convictions. The Court
ordered that the two-year sentences would run concurrently with
each other and consecutively to the 20-year sentence, resulting
in a total term of imprisonment of 22 years.
Aboushi appealed, raising three challenges to his conviction;
he did not, either through counsel of pro se, challenge his
sentence in any respect. On July 17, 2002, the Second Circuit
affirmed Aboushi's conviction by summary order, see United
States v. Aboushi, 2002 WL 1583903 (2d Cir. Jul. 17, 2002)
(unpublished); Aboushi did not seek a writ of certiorari from the
United States Supreme Court.
On June 1, 2003, Aboushi filed the subject § 2255
motion.*fn1 On January 26, 2005, Aboushi filed a "supplement" seeking leave to amend the
The Court grants Aboushi leave to amend. As amended, his § 2255
motion presents three claims: (1) that he was denied effective
assistance of counsel because both his trial and appellate
counsel failed to argue that the Court's sentence violated
Apprendi v. New Jersey, 530 U.S. 466 (2000); (2) that he was
denied effective assistance of counsel because his counsel failed
to challenge the Court's sentencing enhancements on appeal; and
(3) that the Court's sentencing enhancements violated Blakely v.
Washington, 542 U.S. 296 (2004), and United States v. Booker,
125 S. Ct. 738 (2005). These claims are without merit.
A. Ineffective Assistance: Apprendi
With respect to his claim that his trial and appellate counsel
were ineffective for failing to argue that his sentence violated
Apprendi, Aboushi must satisfy both prongs of the test
articulated in Strickland v. Washington, 466 U.S. 668 (1984).
First, he must show that "counsel's representation fell below an
objective standard of reasonableness," id. at 688; in so doing, he must overcome the "strong presumption that
counsel's conduct falls within the wide range of reasonable
professional assistance." Id. at 689. Second, he must show
prejudice, that is, "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding
would have been different," id. at 694; a reasonable
probability is "a probability sufficient to undermine confidence
in the outcome." Id.
Aboushi cannot satisfy either prong. Apprendi holds only
that, "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490. Aboushi's sentence created no
Apprendi issue because it did not exceed the applicable
statutory maximums; therefore, it was neither objectively
unreasonable nor prejudicial for Aboushi's trial and appellate
counsel not to argue that his sentenced violated Apprendi.
To the extent Aboushi means to argue that counsel should have
argued that the Court's consideration of enhancements pursuant to
the Guidelines violated Apprendi, the argument must fail. Prior
to Blakely and Booker, it was settled law in the Second
Circuit that "nothing in [Apprendi] alters a sentencing judge's
traditional authority to determine those facts relevant to
selection of an appropriate sentence within the statutory maximum
an authority the Supreme Court has recognized both before the
Sentencing Guidelines . . . and since their adoption." United
States v. Garcia, 240 F.3d 180, 183 (2d Cir. 2001) (citations
omitted). Thus, Aboushi cannot demonstrate that counsel's failure
to raise such an argument was objectively unreasonable. See Mayo
v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) ("Counsel is ...