United States District Court, D. New Jersey
C. Bertucio, Jr., Esq. Hobbie, Corrigan & Bertucio, P.C.
Counsel for Petitioner
V. Carrig, Esq.Office of the United States Attorney Counsel
L. HILLMAN, U.S.D.J.
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.
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).The Court appointed Jose Luis Ongay,
Esquire, to represent Petitioner before his initial
appearance. No. 12-cr-636, ECF No. 6.
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.
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.
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
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; and (3) another conspiracy to engage in
cigarette tracking. No. 13-cr-547, ECF Nos. 1 (information),
5 (plea agreement).
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.
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.
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.
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).
August 6, 2014, the parties appeared before the Court for
sentencing. 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.
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).
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.
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.
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 ...