United States District Court, E.D. New York
December 12, 2005.
AHMAD ABOUSHI, Movant,
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.
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(unpublished); Aboushi did not seek a writ of certiorari from the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 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
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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