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Ahmed v. United States

February 15, 2006

SYED FAROOQ AHMED, PETITIONER,
v.
THE UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge:

To the Honorable Jed S. Rakoff, United States District Judge:

Pro se petitioner Syed Farooq Ahmed, a/k/a "Farooq Shah," has petitioned pursuant to 28 U.S.C. § 2255 to vacate his September 13, 2002 sentence of 70 months imprisonment. (Dkt. No. 2: Pet. ¶¶ 2-3.) Ahmed claims that he is entitled to relief because: (1) his trial counsel was ineffective because he abandoned an argument that Ahmed should be held responsible for no more than 277 grams of heroin for sentencing purposes (Pet. ¶ 12(1)); (2) his trial counsel was ineffective because he failed to discover alleged Brady evidence that would have established that Ahmed was not part of the broader conspiracy involving larger quantities of heroin (Pet. ¶ 12(2)); and (3) his sentence was not constitutional under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), because it was based on facts as to drug quantity not determined by a jury (Pet. ¶12(3)).

For the reasons set forth below, Ahmed's petition should be DENIED.

FACTS

The Indictment

A second superseding indictment was filed on December 18, 2001 charging Ahmed and three others, Abid Chaudhry, Usman Chaudhry and Junaid Iqbal, with one count of conspiring to "distribute and possess with intent to distribute a controlled substance, to wit, one kilogram and more of mixtures and substances containing a detectable amount of heroin, in violation of Sections 812, 841(a)(1), and 841(b)(1)(A) of Title 21, United States Code." (00 Cr. 1184, Dkt. No. 15: S2 Superseding Indict. ¶¶ 1-2, contained in Ahmed 2d Cir. Appx. at A7.)

The March 6, 2002 Pimentel Letter

On March 6, 2002, the government submitted a Pimentel letter setting forth the government's position regarding the application of the Sentencing Guidelines to Ahmed's case (Ahmed 2d Cir. Appx. A11.1: Pimentel Ltr.) Because the government alleged that the conspiracy involved between three and ten kilograms of heroin, the government calculated a base offense level of 34 under U.S.S.G. §2D1.1. (Pimentel Ltr. at A11.2.) The Government stated that Ahmed appeared to satisfy the conditions set forth in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 for relief from the statutory minimum sentence provision, warranting a two-level reduction in his offense level. (Pimentel Ltr. at A11.2.) In addition, the government stated that if Ahmed entered a guilty plea, "a two-level reduction in the offense level would be warranted for acceptance of responsibility" under U.S.S.G. §3E1.1(a). (Pimentel Ltr. at A11.2.) Lastly, the government noted that "[i]f the defendant timely notifies the Government of his intent to plead guilty, thereby permitting the Government to avoid preparing for trial and permitting the Court to allocate its resources efficiently, an additional one-level reduction would be warranted under U.S.S.G. § 3E1.1(b)." (Pimentel Ltr. at A11.2.) Based on these considerations, the letter calculated Ahmed's applicable Guidelines offense level be 29, which called for a Guideline range of 87 to 108 months. (Pimentel Ltr. at A11.3.)

The Plea Hearing

At the April 5, 2002 plea hearing, Ahmed's counsel indicated that Ahmed wished to plead guilty to Count One of the superseding indictment. (Ahmed 2d Cir. Appx. A12: 4/5/02 Plea Tr. at A13-A14.) At the start of the hearing, Judge Rakoff asked Ahmed whether he was satisfied with his representation by his counsel, John Jacobs, and Ahmed replied that he was. (Id. at A18.) Ahmed also responded that he had a full opportunity to discuss the matter with his counsel and that he had told his counsel everything that he knew about the proceeding. (Id.) After Judge Rakoff advised Ahmed of certain rights that he was giving up and certain consequences of pleading guilty (id. at A18-A26),*fn1 the following colloquy ensued:

THE COURT: Then in light of everything we have now discussed, Mr.

Ahmed, tell me what it is that you did that makes you guilty of this offense.

A. Your Honor, I sold 277 grams of heroin, which I did it.

Q. How did you make arrangements to get that heroin?

A. I was given by Abid's brother, Usman Chaudhry. He gave it to me in Queens.

Q. When he gave it to you, did he explain or did you know how he was getting it?

A. Yes, I did, your Honor.

Q. Did you know that there was a group of people who worked together illegally selling heroin?

A. Yes, your Honor. Abid, whose name is there, they came with two kilos of heroin, and they wanted to give me, and I said I cannot do that much. His name is Jonay Igbal.

Q. You knew that there was a group of people here who were trying to sell more than a kilogram of heroin even though you were only going to sell a small part.

A. Yes, your Honor.

Q. And you agreed to help out by selling some portion of it?

A. First of all, when Jonay Igbal brought that item, at that time I refused.

Q. Yes, but eventually you agreed to sell some, yes?

A. Yes, your Honor. I only sold that 277 gram[s] of heroin.

Q. I understand, but let me make sure we are on the same wavelength. You knew that the people who were providing the heroin to you were trying to sell more than a kilogram of heroin, yes?

A. Yes, I do, your Honor.

Q. And you knew that while you were not agreeing to sell that large amount, you were going to help them out by selling a smaller amount, correct?

A. It was two years before, but this is the recent one. The one I sold 277 gram[s] was two years before, your Honor. About three years ago.

Q. We are talking about sometime between October 1999 and December 2000.

A. Yes, your Honor, I sold the same 277 gram[s] within this period of time.

Q. Right. When you agreed to sell it, you knew that the other people who were providing it to you were planning to sell more than a kilogram of heroin, yes?

A. Yes, your Honor.

Q. And you agreed to help them out by selling this ...


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