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United States v. Hassen

United States District Court, D. Kansas

January 16, 2019

United States of America, Plaintiff,
Yehia Hassen, Defendant.



         In July 2009, defendant Yehia Hassen, pursuant to a plea agreement with the government, entered a plea of guilty to conspiracy to distribute and possession with intent to distribute 1000 kilograms or more of marijuana and 5 kilograms or more of cocaine and attempted money laundering. Under the terms of the plea agreement, Mr. Hassen anticipated a guideline range of 210-262 months (corresponding to a criminal history category of I and a total offense level of 37) but understood that the government would recommend the low end of the range and would file a § 5K1.1 motion if he met the cooperation requirements. Nonetheless, he contends that his attorney (hereinafter referred to as Mr. Hassen's “plea counsel”) told him that he would ultimately receive a sentence below the ten-year mandatory minimum based on the level of cooperation that he had provided and would continue to provide to the government. In fact, when the trial court cautioned plea counsel during the plea colloquy that the typical recommendation for a cooperation reduction was two offense levels, Mr. Hassen's plea counsel told the trial court “I would almost put this in writing, it will be significantly more than two levels because of what he's done.”[1]

         Following Mr. Hassen's guilty plea, he remained out-of-custody on conditions of release. Prior to sentencing, the government advised Mr. Hassen's plea counsel that it was going to recommend a one-level reduction and Mr. Hassen's counsel communicated that information to Mr. Hassen. The record reflects that Mr. Hassen's plea counsel also informed his client that he would have the opportunity to argue to the court that Mr. Hassen should receive a reduction of more than one level. On March 29, 2010, the day of Mr. Hassen's scheduled sentencing, the government filed a § 5K1.1 motion seeking a one-level reduction in Mr. Hassen's total offense level and, consistent with the plea agreement, recommended a sentence of 188 months, the low-end of the resulting guideline range. Mr. Hassen failed to appeal for sentencing and an arrest warrant was issued by the court. At that time, the government withdrew its § 5K1.1 motion. Mr. Hassen remained a fugitive until he was arrested in the Republic of Cyprus in April 2016. He waived extradition and was transported back to the United States.

         In August 2016, the government filed a motion for a hearing to determine whether Mr. Hassen breached the plea agreement by failing to appear for sentencing and then absconding for six years. By filing the motion, the government sought to request a sentence other than the low-end of the guideline range, to request that Mr. Hassen not receive a reduction for acceptance of responsibility and to request an upward departure from the applicable guideline range. At the same time, Mr. Hassen, through new counsel (hereinafter referred to as “post-plea counsel”) filed a motion to withdraw from the plea agreement based upon ineffective assistance of counsel; to withdraw from the plea agreement because he did not enter that agreement knowingly and voluntarily; and to find that the government's one-level § 5K1.1 motion was made in bad faith.[2]

         On September 15 and September 23, 2016, this court held an evidentiary hearing on the parties' motions. After that hearing, and as will be explained in more detail as necessary in this memorandum and order, the court granted the government's motion and denied Mr. Hassen's motion. On November 22, 2016, the court sentenced Mr. Hassen to 324 months imprisonment. By absconding from justice, Mr. Hassen lost the benefit of a three-level acceptance-of-responsibility reduction; lost the government's agreement to a two-level increase for role in the offense and instead received a three-level increase; and received a two-level increase for obstruction of justice. Mr. Hassen also lost the benefit of the government's one-level departure motion. Mr. Hassen, however, did receive the benefit of Amendment 782 and its two-level decrease under § 2D1.1. Mr. Hassen appealed his conviction and sentence to the Tenth Circuit, but later voluntarily dismissed that appeal.

         This matter is now before the court on Mr. Hassen's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 (doc. 1090). In his motion, Mr. Hassen asserts four claims of ineffective assistance of counsel and one claim of prosecutorial misconduct. Mr. Hassen also makes an additional claim of cumulative error. As will be explained, the court denies each of Mr. Hassen's § 2255 claims and denies Mr. Hassen's request for an evidentiary hearing.

         Ineffective Assistance of Plea Counsel

         “To establish ineffective assistance of counsel, a defendant must show ‘that counsel's representation fell below an objective standard of reasonableness' and that he was prejudiced by the deficient performance.” United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). The court assesses “the reasonableness of counsel's performance in light of ‘the facts of the particular case, viewed as of the time of counsel's conduct.'” United States v. Deiter, 890 F.3d 1203, 1209 (10th Cir. 2018) (quoting Strickland, 466 U.S. at 690). The court's review is “highly deferential, ” because “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” See id. (quoting Strickland, 466 U.S. at 689-90). To demonstrate prejudice in the plea context, a petitioner must show “a reasonable probability that the end result of the criminal process would have been more favorable” to him. Moya, 676 F.3d at 1213. A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” Deiter, 890 F.3d at 1209 (quoting Strickland, 466 U.S. at 694).

         For his first claim of relief, Mr. Hassen asserts that his plea counsel's performance was constitutionally deficient because plea counsel failed to fully investigate his case before advising Mr. Hassen to plead guilty. According to Mr. Hassen, if his counsel had fully investigated the quantity of drugs reasonably foreseeable to Mr. Hassen; Mr. Hassen's role in the offense; and the facts underlying the money laundering count, then his counsel would have realized that the “facts” contained in the plea agreement concerning these issues were not supported by the evidence and he would not have advised Mr. Hassen to sign that agreement. Mr. Hassen contends that, if his counsel had conducted a full investigation into the facts of the case, Mr. Hassen would have “asked for a different plea agreement or would have gone to trial.” In support of his argument, Mr. Hassen highlights, in summary fashion, his alleged minimal involvement in the conspiracy and his alleged lack of a supervisory role.

         Because Mr. Hassen fails to establish that any additional investigation by his counsel would have yielded a more favorable result, his claim necessarily fails. United States v. Gonzalez, 596 F.3d 1228, 1233 (10th Cir. 2010) (“It is permissible for a reviewing court, if it so chooses, to proceed directly to the prejudice prong of the Strickland analysis.”). By way of background, the plea agreement executed by Mr. Hassen established a base offense level of 36 based on the amount of cocaine and marijuana trafficked in the conspiracy and reasonably foreseeable to Mr. Hassen; established a two-level increase for Mr. Hassen's role in the offense; and established a two-level increase to the base offense level for the money laundering charge. There is absolutely no evidence in the record that the government would ever have offered Mr. Hassen a more favorable agreement than the one he executed. His contention, then, that he would have “asked for a different plea agreement” is flatly rejected. To the extent Mr. Hassen argued at the August 2016 hearing that he would have simply entered a plea of guilty without the benefit of a plea agreement, the record demonstrates that he would have received a lengthier sentence than he would have received under the agreement that he executed. The initial final presentence investigation report, developed from an independent review of all available case materials, assigned to Mr. Hassen a base offense level of 36, a three-level increase for role in the offense; and a two-level increase for the money laundering charge. With a three-level reduction for acceptance of responsibility, the PSR ultimately calculated a total offense level of 38. Coupled with a criminal history score of I, Mr. Hassen's guideline range under a “straight plea” would have been 235 to 293 months as opposed to 210 to 262 months under the plea agreement (which, of course, would have been reduced to 188 to 235 months based on the government's departure motion). Simply put, nothing in the record supports a reasonable probability that Mr. Hassen, in any plea context, would have obtained a more favorable result than he would have obtained had he been sentenced under the plea agreement he executed.

         This leaves only Mr. Hassen's assertion that he would have proceeded to trial-an assertion that is directly contradicted by his argument to this court in August 2016 when, in attempting to withdraw from the plea agreement, he expressly disavowed any interest in proceeding to trial and confirmed that he was guilty of the charges against him. Moreover, in light of the overwhelming evidence against Mr. Hassen and his admission of guilt, it is not reasonably probable that Mr. Hassen in fact would have proceeded to trial and, even if he had, it is not reasonably probable that the result of that proceeding would be more favorable than the terms of the plea agreement he executed. See Hill v. Lockhart, 474 U.S. 52, 59-60 (1985) (strength of the government's case is often the best evidence whether defendant in fact would have changed his plea and insisted on going to trial). A conviction on the charges against him would have resulted in a substantially longer sentence than the sentence he faced under the plea agreement about which he now complains.[3]

         For his second claim of relief, Mr. Hassen asserts that his plea counsel's performance was constitutionally deficient because plea counsel materially misinformed him about the consequences of his plea and the consequences of proceeding to trial. Specifically, Mr. Hassen asserts that his counsel erroneously told him that a conviction at trial could result in a life sentence; that his counsel failed to inform him that he was eligible for “safety valve” relief and could avoid a mandatory minimum sentence; that his counsel informed him that he would receive at least a two-level departure for his cooperation; and that his counsel failed to explain that a forfeiture judgment would be entered against him. As will be explained, Mr. Hassen has failed to show either deficient performance or prejudice under Strickland, and thus fails to demonstrate ineffective assistance of counsel which would entitle him to relief.

         Mr. Hassen cannot establish a claim based on his counsel's advice that a conviction at trial could result in a life sentence. As explained above, a conviction at trial would have resulted in a total offense level of at least 41 (with a corresponding guideline range of 324 to 405 months imprisonment) and possibly 42 if the government had sufficient evidence of Mr. Hassen's role as an organizer or leader of the conspiracy (with a corresponding guideline range of 360 months to life imprisonment). His counsel's advice, then, to plead guilty in lieu of a potential life sentence was not deficient in the absence of any evidence that counsel's prediction was anything other than a good faith estimate. United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993). Moreover, there is clearly no prejudice to Mr. Hassen. Even Mr. Hassen concedes in his motion that a “reasonable projection” of a guideline range upon conviction at trial “would be 292-365 months.” That range, of course, is far greater than the range he would have received under the plea agreement negotiated by plea counsel and executed by Mr. Hassen. Mr. Hassen's own argument, then, demonstrates that Mr. Hassen would not have obtained a more favorable result by proceeding to trial.

         Mr. Hassen contends that his counsel failed to advise him that he was eligible for safety-valve relief based on Mr. Hassen's criminal history score and minimal role in the conspiracy. A defendant is eligible for relief under the safety valve if he or she can meet the following criteria:

(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines before application of subsection (b) of § 4A1.3 (Departures Based on Inadequacy of Criminal History Category);
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in 21 U.S.C. § 848; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

U.S.S.G. § 5C1.2(a)(1)-(5). If the defendant satisfies all five criteria, the sentencing “court shall impose a sentence without regard to a statutory minimum.” United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1185 (10th Cir. 2004). While Mr. Hassen acknowledges that the PSR assessed a three-level enhancement based on Mr. Hassen's supervisory role, he contends that he could have contested that finding if he had proceeded to trial or entered a straight plea. This argument is rejected. While Mr. Hassen could have argued to the court that he played a minimal role in the conspiracy, the court is convinced that it would have adopted the findings in the PSR and the three-level role enhancement, rendering Mr. Hassen ineligible for safety-valve relief. As set forth in the PSR and the factual basis of the plea agreement executed by Mr. Hassen, extensive evidence exists supporting Mr. Hassen's role as a supervisor in the conspiracy. Thus, even assuming that plea counsel failed to advise Mr. Hassen about his alleged eligibility for safety-valve relief, it was not unreasonable for plea counsel to fail to raise that issue and there is no prejudice to Mr. Hassen because the record reveals no evidence that Mr. Hassen was in fact eligible for that relief.[4]Moreover, Mr. Hassen has not shown a reasonable probability that but for his plea counsel's failure to advise him about his purported eligibility for safety-valve relief, he would have rejected ...

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