United States District Court, E.D. New York
MEMORANDUM & ORDER
K. BRODIE, UNITED STATES DISTRICT JUDGE
February 14, 2014, Defendant-Petitioner Ahmed Sherzai pled
guilty to one count of bribing a public official in violation
of 18 U.S.C. § 201(b)(1). (Minute Entry dated Feb. 14,
2014, Docket Entry No. 17.) On April 30, 2015, the Court
sentenced Petitioner to forty-eight months of imprisonment
and three years of supervised release. (Minute Entry dated
Apr. 30, 2015, Docket Entry No. 31.) On, March 28, 2016,
Petitioner sent a letter to the Court requesting that the
Court reduce his sentence. (Pet'r Letter dated Mar. 28,
2016 (“Pet.”), Docket Entry No. 41.) Because the
fourteen-day period within which Petitioner should have moved
to reduce his sentence had elapsed, the Court construed
Petitioner's request as a petition to modify his sentence
pursuant to 28 U.S.C. § 2255. (Order dated May 16, 2016
at 1-4, Docket Entry No. 43.) The Court notified Petitioner
that before converting his request to a section 2255
petition, the Court needed Petitioner to consent to the
conversion. (Id. at 3-4.) Petitioner subsequently
consented to the conversion. (Pet'r Letter dated May 23,
2016, Docket Entry No. 44.) For the reasons discussed below,
the Court denies the petition.
2013, Petitioner worked for a military contractor in
Afghanistan that was responsible for fuel deliveries to
United States military bases. (Pet. 2; Plea Hr'g Tr.
(“Plea Tr.”) 23:24-24:6, Docket Entry No. 18.)
Each time a military contractor failed to deliver fuel to a
United States military base, the military imposed a $75, 000
fine on the contractor for the missed fuel delivery. (Pet.
5-6.) Petitioner bribed a United States military official
(the “Military Official”) to falsify
transportation movement requests (“TMRs”), which
are military records that document the delivery of fuel.
(Pet. 2; Plea Tr. 7:4-8.) By falsifying a TMR, it would
appear that the contractor delivered the fuel, despite no
delivery, and the false TMR prevented the contractor from
being fined for a missed delivery. (Pet. 5-6.) Petitioner
sought to have the Military Official falsify fourteen TMRs by
indicating that the fuel shipment associated with each TMR
was delivered, thereby avoiding the $75, 000 fine for each of
the fourteen missed fuel deliveries. (Plea Tr. 24:15-26:4.)
on the foregoing, Petitioner pled guilty to one count of
bribing a public official in violation of 18 U.S.C. §
201(b)(1). (Minute Entry dated Feb. 14, 2014; Plea Tr.
22:24-26:13.) Petitioner entered into a plea agreement with
the government, which provides in pertinent part:
The [g]overnment estimates [a] likely . . . range of
imprisonment of [seventy to eighty-seven] months. . . .
The defendant agrees not to file an appeal or otherwise
challenge, by petition pursuant to 28 U.S.C. § 2255 or
any other provision, the conviction or sentence in the event
that the Court imposes a term of imprisonment of
[eighty-seven] months or below. This waiver is binding
without regard to the sentencing analysis used by the Court.
. . . The defendant waives any right to additional disclosure
from the government in connection with the guilty plea.
(Plea Agreement 3-4, Docket Entry No. 49-2.) Petitioner pled
guilty before Magistrate Judge Robert Levy, on February 14,
2014. (Minute Entry dated Feb. 14, 2014; Plea Tr. 1.) Judge
Levy questioned Petitioner as to his state of mind and
whether Petitioner was entering the plea knowingly and
voluntarily, to which Petitioner responded that he was of
sound mind and entering the plea voluntarily. (Plea Tr.
7:11-8:16.) Judge Levy explained to Petitioner all of the
rights he was surrendering by entering a guilty plea and
further explained that the Court was not bound to sentence
him within the sentencing guidelines range specified in the
plea agreement. (Plea Tr. 10:15-21:20.) Judge Levy
specifically explained to Petitioner that “[i]n
paragraph [four] [of the plea agreement], you have agreed not
to appeal or otherwise challenge your sentence or conviction
if you receive a term of imprisonment of [eighty-seven]
months or less.” (Plea Tr. 21:21-24.) Petitioner stated
that he had been fully advised of his rights, understood the
appeal waiver and voluntarily chose to enter the guilty plea.
(Plea Tr. 8:17-10:14; 21:25.) The Court accepted the guilty
plea on July 25, 2014. (Order dated July 25, 2014, Docket
Entry No. 21.)
sentencing hearing before the Court, Petitioner disputed the
falsity of five of the fourteen TMRs and the parties
stipulated that Petitioner bribed the Military Official to
falsify the remaining nine TMRs. (Sentencing Hr'g Tr.
(“Sentencing Tr.”) 4:1-4:17, Docket Entry No.
39.) Because the United States military imposes a $75, 000
fine on contractors for every missed fuel delivery, the
government argued at sentencing that Petitioner's bribes
caused a loss of $675, 000, representing the fines avoided
for the nine missed fuel deliveries due to the falsified
TMRs. (Sentencing Tr. 4:1-4:17.) Therefore, based on the
stipulation that Petitioner falsified nine TMRs, the Court
calculated the loss amount as $675, 000, resulting in a total
offense level of twenty-five with a sentencing guidelines
range of fifty-seven to seventy-one months. (Sentencing Tr.
his statement to the Court, Petitioner asserted that he did
not believe he had caused any harm or loss to the government
because the falsified TMRs pertained to unpaid invoices for
fuel that was actually delivered and therefore his actions
did not result in the avoidance of any warranted fines.
(Sentencing Tr. 7:3-12:20.) The Court asked Petitioner if he
had any evidence proving that the fuel deliveries at issue
were completed, to which Petitioner responded that he had
“satellite pictures and signatures.” (Sentencing
Tr. 12:21-23.) Because Petitioner failed to present any
evidence to support his assertion, the Court declined to
accept Petitioner's assertion that the deliveries were in
fact completed and that he was merely attempting to collect
on unpaid invoices. (Sentencing Tr. 17:24-18:18.) The Court
sentenced Petitioner below the sentencing guidelines range to
forty-eight months of imprisonment. (Sentencing Tr.
18:19-25.) The Court informed Petitioner that because the
Court sentenced him to a term of imprisonment below
eighty-seven months, his appeal waiver would prevent him from
successfully appealing his conviction and sentence unless he
believed that either his guilty plea or appeal waiver was
somehow unlawful or involuntary. (Sentencing Tr.
Petitioner's request to reduce his sentence
one year after the Court sentenced Petitioner, he filed the
petition, seeking to reduce his sentence based on documentary
evidence allegedly showing that the fuel deliveries were
completed. (Pet. 1.) Petitioner attaches to the petition the
transcript of a conversation he had with the Military
Official, (Docket Entry No. 41-1), copies of various
documents pertaining to the false TMRs, (Pet'r Docs. in
Supp. of Pet. (“Pet'r Supp. Docs.”), Docket
Entry No. 41-2), and letters of support from his family and
work colleagues, (Docket Entry No. 41-3). Petitioner argues
that the transcript and supporting ...