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ABOUSHI v. U.S.

December 12, 2005.

AHMAD ABOUSHI, Movant,
v.
UNITED STATES OF AMERICA, Respondent.



The opinion of the court was delivered by: FREDERIC BLOCK, District Judge

MEMORANDUM AND ORDER

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.

  I.

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affirmed Aboushi's conviction by summary order, see United States v. Aboushi, 2002 WL 1583903 (2d Cir. Jul. 17, 2002) (unpublished); Aboushi did not seek a writ of certiorari from the United States Supreme Court.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

  II.

  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 ...


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