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United States District Court, E.D. New York

December 12, 2005.


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 factors.

  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affirmed Aboushi's conviction by summary order, see United States v. Aboushi, 2002 WL 1583903 (2d Cir. Jul. 17, 2002) (unpublished); Aboushi did not seek a writ of certiorari from the United States Supreme Court.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 motion.*fn2


  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 not required to forecast changes in the governing law.") Moreover, since the argument, if raised, would plainly have been rejected by this Court and the Second Circuit under Garcia, Aboushi cannot demonstrate prejudice.

  B. Ineffective Assistance: Sentencing Enhancements

  With respect to his second ineffective-assistance claim, Aboushi does not specify which of the numerous enhancements he believes should have been challenged on appeal; instead, he simply lists his trial counsel's objections to the PSR. This shotgun approach fails to satisfy Strickland for several reasons.

  First, the Court sustained several of trial counsel's objections. It obviously was not ineffective for appellate counsel not to challenge enhancements the Court did not include in its sentencing calculation.

  Second, many of the enhancements were based on the Court's findings of fact, which would have been reviewed only for clear error on appeal. See, e.g., United States v. Sash, 396 F.3d 515, 520 (2d Cir. 2005) ("We review the factual findings of a district court for its imposition of a sentencing enhancement, pursuant to the Guidelines, for clear error[.]"). Aboushi has failed to demonstrate that his appellate counsel acted objectively unreasonably in deciding not to raises issues subject to this stringent standard of review.

  Finally, having reviewed the enhancements it considered in calculating Aboushi's sentence, the Court concludes that each enhancement was based on a correct interpretation of law and abundant factual support, and, therefore, would have been upheld on appeal. Aboushi therefore cannot demonstrate that appellate counsel's failure to challenge the enhancements was prejudicial. C. Booker/Blakely

  Aboushi's claim that his sentence violated Blakely and/or Booker is barred by Guzman v. United States, 404 F.3d 139, 144 (2d Cir. 2005), which holds that Booker "does not apply to cases on collateral review where the defendant's conviction was final as of January 12, 2005, the date that Booker issued." See also Fuse v. United States, 2005 WL 2173743, at *3 n. 4 (S.D.N.Y. Sept. 7, 2005) (noting that "the logic of Guzman . . . indicates that Blakely, like Booker, is not retroactively applicable to cases on collateral review."). As noted, Aboushi's conviction became final on October 15, 2002, long before either Blakely or Booker was decided.


  Aboushi's § 2255 motion, as amended, is denied. Because Aboushi has failed to make a substantial showing of the denial of a federal right, a certificate of appealability will not issue. See 28 U.S.C. § 2253.



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