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United States v. Sherzai

United States District Court, E.D. New York

September 1, 2017

UNITED STATE OF AMERICA,
v.
AHMED SHERZAI, Defendant-Petitioner.

          MEMORANDUM & ORDER

          MARGO K. BRODIE, UNITED STATES DISTRICT JUDGE

         On 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.

         I. Background

         In 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.)

         a. Petitioner's plea

         Based 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.)

         b. Petitioner's sentencing

         At the 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. 4:13-21.)

         During 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. 20:20-21:20.)

         c. Petitioner's request to reduce his sentence

         Almost 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 ...


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