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Shafique v. United States

United States District Court, D. New Jersey

May 18, 2018


          Edward C. Bertucio, Jr., Esq. Hobbie, Corrigan & Bertucio, P.C. Counsel for Petitioner

          Diana V. Carrig, Esq.Office of the United States Attorney Counsel for Respondent


          NOEL L. HILLMAN, U.S.D.J.

         Presently before the Court is the Motion to Vacate, Set Aside, or Correct Sentence of Muhammad Shafique (“Petitioner”) brought pursuant to 28 U.S.C. § 2255 (the “Petition”). ECF No. 1. In response to this Court's Order to Answer, ECF No. 3, Respondent the United States of America filed its Answer, ECF No. 7, and Petitioner filed a Reply, ECF No. 8. For the following reasons, the Court will deny the Petition and decline to issue a certificate of appealability.

         I. BACKGROUND

         A.Criminal Proceedings

         Petitioner, along with his co-defendants, was arrested on February 14, 2012, pursuant to a federal criminal complaint, arising from an investigation into a conspiracy to procure contraband cigarettes in violation of 18 U.S.C. § 2342(a). No. 12-cr-636, ECF Nos. 1 (complaint); 13 (executed arrest warrant).[1]The Court appointed Jose Luis Ongay, Esquire, to represent Petitioner before his initial appearance. No. 12-cr-636, ECF No. 6.

         Mr. Ongay reviewed the Complaint with Petitioner, and Petitioner admitted that he had engaged in the transactions described in the complaint and told Mr. Ongay that he wanted to plead guilty. See No. 16-cv-3878, ECF No. 7-4, Declaration of Jose Luis Ongay at 2. The Government sent discovery materials including the recordings of the controlled sales of cigarettes, over one hundred law enforcement reports detailing the sales and investigative measures throughout the investigation, financial records, and the materials obtained during the various searches to one of the attorneys of a co-defendant, who then arranged for a discovery vendor to make the materials available to all counsel electronically. ECF No. 7, Ans. at 5. Petitioner, via counsel, filed a motion to obtain access to the electronic discovery database, which was eventually granted. See No. 12-cr-636, ECF No. 17.

         On September 25, 2012, the Government indicted Petitioner and his co-defendants on charges related to the criminal complaint. No. 12-cr-636, ECF No. 29. The Government later filed a superseding indictment on October 10, 2012. ECF No. 31. One of the co-defendants filed a motion to dismiss the indictment based on outrageous Government conduct on February 4, 2013. No. 12-cr-636, ECF No. 59. Petitioner, along with other co-defendants, joined in the motion. No. 12-cr-636, ECF No. 70. The motions to dismiss were denied. No. 12-cr-636, ECF No. 73.

         Petitioner agreed to plead guilty, but before doing so, he attempted to cooperate with the U.S. Attorney's Office by proffering on December 6, 2012. No. 16-cv-3878, ECF No. 7-5. Mr. Ongay was present with Petitioner at the proffer. Id. Petitioner admitted to his conduct and provided detailed information regarding the conspiracy and other ongoing investigations. Id.

         After proffering, Petitioner agreed to consolidate his cases and plead guilty to four separate federal criminal offenses: Counts 1 and 13 of the superseding indictment in No. 12-cr-636 for conspiracy to engage in cigarette tracking and conspiracy to engage in money laundering; (2) conspiracy to commit bank and wire fraud, offenses charged in an indictment from the Southern District of New York, No. 13-cr-536;[2] and (3) another conspiracy to engage in cigarette tracking. No. 13-cr-547, ECF Nos. 1 (information), 5 (plea agreement).

         In addition to laying out the charges, the plea agreement laid out the maximum sentences for each charge, which would total fifty (50) years imprisonment. No. 13-cr-547, ECF No. 5 at 2. The plea agreement did not include an agreed upon term of imprisonment, but it did contain an appellate waiver so long as the sentence imposed fell within or below the U.S. Sentencing Guidelines range for an offense level of 26. Id. at 4, 11. The plea agreement also provided that the Court could impose a term of supervised release not to exceed three (3) years for the New Jersey offenses and not to exceed five (5) years for the New York offenses. Id. at 3.

         Petitioner pled guilty on August 15, 2013. See No. 13-cr-547, ECF No. 3 (minute entry); No. 16-cv-3878, ECF No. 1-5 at 4-78 (plea hearing transcript). This Court conducted a lengthy and thorough plea colloquy. No. 16-cv-3878, ECF No. 1-5. Under oath, Petitioner agreed that he had reviewed with Mr. Ongay and understood the plea agreement, the charges contained in the various charging documents, and the rights and penalties defined in the Rule 11 form. Id. He also confirmed that he was satisfied with his counsel's representation and advice. Id. The Court asked Mr. Ongay whether he had received “sufficient discovery and other information to advise your client properly about this plea of guilty.” Id. Mr. Ongay replied, “Yes, Your Honor. This is the case that we have a computerized database that has all of the information . . . It is quite good, if I may say.” Id. Mr. Ongay also explained that he did not counsel Petitioner regarding the mortgage fraud conspiracy case in New York, but rather relied upon Petitioner's New York counsel to do so. Id.

         At the plea hearing, Petitioner and Ongay signed and submitted a written Application for Permission to Enter Plea of Guilty. No. 13-cr-547, ECF No. 4. In the Application, Petitioner stated, inter alia, that he told his lawyer all the facts and circumstances known to him about the charges set forth in the indictments and information, that he was satisfied that his lawyer understood the information that he provided, and that his lawyer counseled and advised him on the nature of each charge and on all possible defenses he might have in this case. Id., ¶¶ 15-16. He also stated that his lawyer explained the plea agreement to him and that he understood it. Id., ¶ 37.Finally, Petitioner stated, “I believe that my lawyer has done all that anyone could do to counsel and assist me, AND I AM SATISFIED WITH THE ADVICE AND HELP MY LAWYER HAS GIVEN ME.” Id., ¶ 42. Mr. Ongay stated that he had reviewed the Application with Petitioner. No. 16-cv-3878, ECF No. 1-5. Then Petitioner signed the Application in open court. Id. at 65-68; No. 13-cr-547, ECF No. 4.

         The Court concluded that Petitioner's plea was knowing, voluntary, and supported by an independent basis in fact. No. 16-cv-3878, ECF No. 1-5. The Court accepted Petitioner's plea of guilty. Id. See also No. 13-cr-347, ECF No. 3 (minute entry).

         On August 6, 2014, the parties appeared before the Court for sentencing.[3] No. 12-cr-636, ECF No. 12 (minute entry); No. 16-cv-3878, ECF No. 1-3 at 2-67 (sentencing transcript). The plea agreement stipulated an advisory offense level, after all adjustments, of a level 26. However, this Court, sua sponte, determined that a particular specific offense characteristic in U.S.S.G. § 2S1.1 did not apply despite the stipulation and lowered the total offense level 25 and revised the PSR accordingly. The revision resulted in an advisory Guidelines range of 57 to 71 months' imprisonment. No. 16-cv-3878, ECF No. 1-3.

         The Government argued that a sentence within the Guidelines range was appropriate and that there was no support for a downward variance because: (1) Petitioner was the orchestrator and primary beneficiary of the 2011 to 2012 cigarette trafficking conspiracy; (2) Petitioner committed four separate federal criminal offenses - two of which (the money laundering and the 2010 cigarette trafficking conspiracy) resulted in no incremental punishment; and (3) Petitioner continued to engage in illegal trafficking of cigarettes, even after he had been arrested in New York in possession of approximately 4, 000 cases of contraband cigarettes in January 2012 and after he had been arrested in the present case while on bail. See ECF 7, Ans. at 10 & ECF No. 7-6 (Government's sentencing memorandum).

         Mr. Ongay argued for a downward variance based upon sentencing entrapment/manipulation, i.e. that the Government continued to sell contraband cigarettes to Petitioner over a period of months thereby increasing his offense level. No. 16-cv-3878, ECF No. 1-3. Petitioner also had his wife address the Court, who requested that the Court consider something akin to “probation.” Id. Mr. Ongay specifically noted that Petitioner's behavior while on bail and under the supervision of the Court had been exemplary, and that any term of incarceration would negatively impact his family especially because he was the main provider for the family. Id.

         The Court declined to vary downward, but found that Petitioner merited a sentence of 57 months - at the lowest end of the Guidelines range. Id. In rejecting the defense's sentencing entrapment argument in support of a variance, which the Court had accepted at the sentencings of Petitioner's co-defendants, the Court distinguished Petitioner's case given his “willingness . . . to participate and himself drive many of these transactions” and noted his willingness to engage in trafficking before and after the Government's involvement. Id. at 50-54. The Court explained that “anything lower than 57 months would fail to address the fact that [Petitioner] was engaged in a significant wire fraud involving losses to lenders . . . . That criminal conduct standing alone would have warranted a sentence close to the 57 number I articulated, perhaps 41 months, the additional months designed to encompass this broad conspiracy to sell contraband cigarettes and to address Mr. Shafique's history.” Id. at 53-54.

         Finally, the Court pointed out that Petitioner's commission of four separate federal offenses required a substantial sentence to deter future conduct: “a strong message needs to be sent to Mr. Shafique that these multiple kinds of criminal conduct demonstrating an intentional and deliberate disregard for the law means a substantial sentence is appropriate upon conviction.” Id. at 54. The Court sentenced Petitioner to 57 months' concurrent sentences. No. 13-cr-547, ECF No. 13 (judgment of conviction). He also sentenced Petitioner ...

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