Mustafa v. USA

Filing 27

ORDER - Mustafa's Motion to Vacate, Set Aside or Correct His Sentence on all grounds is DENIED. No evidentiary hearing will be held in this matter because the issues raised are resolvable by the record. Furthermore, movant will be denied a motion for certificate of appealability. Signed on 11/24/15 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)

N THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SAEL MOH’D TUMA MUSTAFA

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Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

No. 13-0048-CV-W-FJG
No. 09-00257-01-CR-W-FJG

ORDER
Currently pending before the Court is movant’s motion pursuant to 28 U.S.C. §
2255 to Vacate, Set Aside or Correct Sentence (Doc. # 1).
I.

BACKGROUND

On August 12, 2009, Mustafa was indicted on one count of aiding and abetting mail
fraud, in violation of 18 U.S.C.§§1341 and 1342. The Government charged Mustafa for
his participation in a scheme which involved stolen credit card information that was used
to purchase gift cards from several businesses. On January 20, 2010, Mustafa pleaded
guilty without a plea agreement to the indictment. The Pre-Sentence Report set
Mustafa’s base offense level at seven under the U.S. Sentencing Guidelines and
recommended seven enhancements based on various facts related to the crimes. At the
initial sentencing hearing, the Court heard testimony that Mustafa used a computer to
gain administrative access to commercial websites. Mustafa then downloaded personal
information regarding various customers. This personal information was then used to
access the customer’s credit and debit card accounts. The government presented
evidence that Mustafa and others then stole from the customer’s accounts through wire

transfers and purchased gift cards and airline tickets. On July 8, 2011, the Court found
that the PSR’s enhancements were supported by a preponderance of the evidence
presented at the April 2011 hearing. The Court calculated Mustafa’s guideline range at
168 to 210 months, but then varied downward and sentenced Mustafa to 120 months
imprisonment. Mustafa was also ordered to pay $25,036.26 in restitution. Mustafa
appealed his sentence, arguing that the district court erred by applying a preponderance
of the evidence standard when determining relevant conduct for purposes of sentencing
enhancements. On September 24, 2012, the Eighth Circuit denied his appeal. United
States v. Mustafa, 695 F.3d 860 (8th Cir. 2012).
II. STANDARD
28 U.S.C. ' 2255 provides, in part:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that the
sentence was imposed in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose such sentence,
or that the sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court which
imposed the sentence to vacate, set aside or correct the sentence.
The district court must hold an evidentiary hearing A[u]nless the motion and the
files and records of the case conclusively show that the prisoner is entitled to no relief.@
28 U.S.C. ' 2255. AAccordingly, a claim may be dismissed without an evidentiary
hearing if the claim is inadequate on its face or if the record affirmatively refutes the
factual assertions upon which it is based.@ Shaw v. United States, 24 F.3d 1040, 1043
(8th Cir. 1994) (citing Larson v. United States, 905 F.2d 218, 220-21 (8th Cir. 1990),
cert. denied, 507 U.S. 919, 113 S.Ct. 1278, 122 L.Ed.2d 672 (1993)).
Our analysis of the ineffectiveness claims is governed by Strickland v.

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Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to
succeed on an ineffectiveness claim, Mustafa must show “both deficient performance by
counsel and prejudice.” Id. at 687-88. In Johnson v. U.S., 860 F.Supp.2d 663
(N.D.Iowa 2012), the Court stated:
To establish deficient performance, a person challenging a conviction
must show that “counsel's representation fell below an objective standard
of reasonableness.” [Strickland], 466 U.S. at 688, 104 S.Ct. 2052. . . . The
challenger's burden is to show “that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by
the Sixth Amendment.” Id., at 687, 104 S.Ct. 2052. Harrington v. Richter,
562 ,U.S. 86, 104, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011); Premo v.
Moore, 562 U.S. 115, 121-122, 131 S.Ct. 733, 739, 178 L.Ed.2d 649
(2011) (quoting Richter). Also, the court “ ‘must “judge the
reasonableness of counsel's challenged conduct on the facts of the
particular case, viewed as of the time of counsel's conduct.” ’ ” King [v.
United States,595 F.3d 844,] 852–53 (quoting Ruff v. Armontrout, 77 F.3d
265, 268 (8th Cir.1996), in turn quoting Strickland, 466 U.S. at 690, 104
S.Ct. 2052). There are two substantial impediments to making the
required showing of deficient performance. First, “ ‘[s]trategic choices
made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable.’ ” United States v. Rice, 449 F.3d
887, 897 (8th Cir.2006) (quoting Strickland, 466 U.S. at 690, 104 S.Ct.
2052). Second, “[t]here is a ‘strong presumption that counsel's conduct
falls within the wide range of reasonable professional assistance.’ ” Id.
(quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052); Davis v. Norris, 423
F.3d 868, 877 (8th Cir.2005) (“To satisfy this prong [the movant] must
overcome the strong presumption that his counsel's conduct fell within the
wide range of reasonable professional assistance.”)
Id. at 741. In United States v. Orr, 636 F.3d 944, 952 (8th Cir.) cert.denied, 132 S.Ct.
758 (2011), the Court stated, “strategic choices made after a thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after a less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on investigation.”
However, as noted in Armstrong v. Kemna, 534 F.3d 857 (8th Cir. 2008), “[o]n the other
hand, strategic choices resulting from lack of diligence in preparation and investigation
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[are] not protected by the presumption in favor of counsel.” Id. at 864-65 (internal
citations and quotations omitted).
In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Supreme
Court held that “the two-part Strickland v. Washington test applies to challenges to guilty
pleas based on ineffective assistance of counsel.” Id. at 58, 106 S.Ct. 366. The
performance prong of Strickland requires a defendant to show “‘that counsel’s
representation fell below an objective standard of reasonableness.’” 474 U.S. at 57, 106
S.Ct. 366 (quoting Strickland, 466 U.S.at 688, 104 S.Ct. 2052). The prejudice prong
requires a defendant to “show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.”
Hill, 474 U.S. at 57. “In the context of pleas a defendant must show the outcome of the
plea process would have been different with competent advice.” Lafler v. Cooper, 132
S.Ct. 1376,1384, 182 L.Ed.2d 398 (2012).
III.

DISCUSSION

A. Ground 1 - Ineffective Assistance of Counsel – Failing to Properly Advise
Movant Relative to Pleading Guilty
Mustafa argues that his counsel had the constitutional responsibility to be aware of
the sentencing guidelines and to advise him regarding how they could impact his
decision to plead guilty. Mustafa argues that his counsel had a duty to inform him of
how the monetary amount of the alleged losses would translate into substantial
increases in his guideline offense level. Mustafa alleges that his counsel had this
information at his disposal, but yet failed to fully inform him of how this would affect his
sentence. Despite his representations at the sentencing hearing that he had been fully
informed of the charges against him and had spoken with his attorney and understood
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the consequences of pleading guilty, Mustafa now alleges that his attorney
misrepresented the facts to him, so he did not fully understand the consequences of
pleading guilty.
In opposition, the Government argues that Mustafa must demonstrate that he would
have been acquitted at trial, or would have received a better outcome had he chosen
not to plead guilty. However, the Government argues that Mustafa has failed to make
any such showing and does not discuss the prejudice aspect of his claim. Additionally,
the Government notes that the Guideline enhancements would have been applied
regardless of whether Mustafa pleaded guilty or was convicted. The Government also
notes that Mustafa received a benefit by pleading guilty, he received a 3 point reduction
to his offense level due to his acceptance of responsibility. The Government also notes
that during the change of plea, Mustafa was advised of the sentencing guideline range,
he stated that he was satisfied with his counsel, that his counsel had done everything
he had requested and that his counsel had discussed the discovery with Mustafa and
also the relative merits of pleading guilty.
Q. (By the Court) Mr. Mustafa, are you satisfied with
the representation Mr. Pickett has provided to you?
A. Yes, Your Honor.
Q. Has he failed or refused to do anything you asked him
to do?
A No, Your Honor.
Q. The Court: Mr. Pickett, have you shared any discovery made available to you by the
government in this case?
Mr. Pickett: We have discussed all the discovery I have seen. I have gone over it in
person with him. We have talked about it and he has seen the things that he needs
to see, yes.
Q. (By the Court) Do you recall those discussions, Mr. Mustafa?
Mr. Pickett: Do you recall those discussions we talked about, about what they have
against you?
A The Defendant: Yes, Your Honor.
Q. The Court: Okay. And have you discussed with Mr. Mustafa, Mr. Pickett, the relative
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merits of pleading guilty versus going to trial on this matter?
Mr. Pickett: Are you confused?
The Court: I’m asking you, have you discussed that with him?
Mr. Pickett: Oh yes, Judge. I’m sorry. I have.
Q. (By the Court) And I’ll ask Mr. Mustafa now if he recalls the discussions that he had
with Mr. Pickett about whether or not it’s in his best interest to go to trial or plead
guilty to this charge. Do you recall those discussions?
A. Yeah.
Q. And you just heard your counsel outline the statutory range of punishment for this
offense, do you recall that, just a moment ago?
A. Yes, Your Honor.
Q. Is it consistent with what you were told prior to today?
Mr. Pickett: Consistent means is what I indicated here earlier similar to what I told you
when I first met you?
A Yes, Your Honor.
Q. (By the Court) Okay. And having had those discussions with your counsel about the
evidence the government would present against you at trial, whether or not it’s in
your best interest to plead guilty or go to trial, knowing the statutory range of
punishment for this offense, have you decided which course of action you want to
take here today; that is, plead guilty or go to trial?
A I want to plead guilty, Your Honor.
Q. The Court: And we have no written plea agreement; is that correct, Mr. Pickett?
Mr. Pickett: We do not, Judge.
(Transcript of Change of Plea Hearing, pp 5-7).
...
The Court: And, Mr. Pickett, have you discussed with your client the concept of the
presentence report and how that report would be used by the court in
fashioning its sentencing decision?
Mr. Pickett: Yes, I have done that before, Judge, and we did that again today right
before court.
Q. (By the Court) Any questions about that, Mr. Mustafa?
A.
No, Your Honor. Thank you.
The Court: Have you also discussed with him, Mr. Pickett, the advisory sentencing
guidelines and how they would be used by this court in making its
sentencing decision?
Mr. Pickett: I have talked to him both about the guidelines and where we think the
guidelines might fall in this case, although at this point it’s a guessing game,
and how this court in particular would use those as a guide, but not the sole
way of sentencing, yes.
The Court: You talked about 18 U.S. Code, Section 3553, and how it plays a role in that
process as well?
Mr. Pickett: Yes.
Q. (By the Court) Do you recall those discussions, Mr. Mustafa?
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A.
Q.
A.

Yes.
Any questions about that?
No.

(Change of Plea Transcript, pp. 9 – 10).
...
The Court: Mr. Mustafa, have you understood everything that we have talked about so
far?
The Defendant: Yes, Your Honor.
The Court: Do you have any questions about anything?
The Defendant: No, thank you.
The Court: Is it still your decision to plead guilty to this offense?
The Defendant: Yes, Your Honor.
...
The Court: I didn’t ask you this earlier, Mr. Mustafa, but let me ask you now since I have
stated it. Has anybody threatened you or forced you to come into court and
plead guilty to this offense today?
The Defendant: No, Your Honor.
The Court: You do that of your own free will?
The Defendant: Yes, Your Honor.
(Change of Plea Transcript, pp. 16-17).
In his reply suggestions, Mustafa argues that at the Change of Plea Hearing, he
agreed that he was pleading guilty to the time frame from when he entered the United
States in January 2009 to April 15, 2009. Mustafa argues that based on this
representation, there is at least a “reasonable probability” that any plea agreement
would have limited his sentence exposure to that time frame. However, he argues that
at sentencing, he was held responsible for “relevant conduct” for monetary losses
outside the dates to which he pled guilty. Mustafa argues that to the extent he was held
responsible for the losses outside the above time frame, his plea was not knowingly
entered into. (Movant’s Reply Suggestions, p. 5). Mustafa argues that he had no idea
of the concept of “relevant conduct” and had every reason to believe that the January –
April time frame was the extent of his criminal liability, especially since his counsel did
not advise him otherwise.
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In United States v. Liggins, No. 4:12-CR-3057, 2015 WL 1781489, *4 (D.Neb. Apr.
20, 2015), the Court rejected a claim of ineffective assistance of counsel where the
defendant was repeatedly informed of the maximum possible punishment and the
Court’s ability to sentence her within that range. The Court rejected the defendant’s
claim that her plea could not be knowing and voluntary stating that “[a]ny information
omitted by counsel was fully supplied to the defendant through the plea process, and
the Court explicitly informed the defendant of the potentially applicable sentences during
the plea colloquy; as a result, the defendant has not shown Strickland prejudice.”
Similarly, in this case, Mr. Pickett stated that he had explained the sentencing
guidelines to the defendant and how they would be used in sentencing. The Court also
asked Mustafa multiple times if he understood the proceedings or had any questions
about what had been discussed. Mustafa indicated that he understood the proceedings
and the relative merits of entering a guilty plea. Additionally, during the Change of Plea
Hearing, the Government clarified that the indictment had charged Mustafa with aiding
and abetting others and that this included the time period before he entered the United
States:
Mr. Wolesky: Well, I would note that the indictment does note aiding and abetting each
other and others as far as the time frame. There were periods of time that
I could outline in more detail, obviously when he was in Jordan working
with the individuals at that residence there, specifically Rosemary Evola
who resided in the Western District of Missouri prior to his joining in the
Western District of Missouri. So the government’s evidence would be that
he had engaged in this conduct both while in Jordan as well as while he
was here in the Western District of Missouri to commit the crimes
described in this indictment, as far as a clarification of his aidng and
abetting charge.
...
The Court:
Mr. Mustafa, have you understood everything that we have talked about
so far?

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The Defendant: Yes, Your Honor.
The Court: Do you have any questions about anything?
The Defendant: No, thank you.
The Court: Is it still your decision to plead guilty to this offense?
The Defendant: Yes, Your Honor.
. . .
The Court: Anything further?
Mr. Wolesky: Yes, just one thing, Judge, and I think it’s kind of implied, but I think it
would be prudent at this point to make a record of it, is that both with Mr.
Pickett as well as Mr. Mustafa’s previous attorney, Federal Public
Defender Bob Kuchar, this side of the investigation is ongoing. There are
numerous other charges as I have kind of hinted at in the factual basis of
this. We have had numerous discussions, so this isn’t a surprise to Mr.
Pickett. We have talked about this for a while, that the government is
pursuing – will be pursuing additional charges related to this investigation
for the other parts of this case, specifically the computer hacking and the
wire fraud and other aspects of it. And I think that I would just like that to
be part of the record, that he understands that by pleading guilty without
an agreement today –
The Court: You mean other charges potentially against him?
Mr. Wolesky: Yes, and others.
The Court: Is that correct, Mr. Pickett?
Mr. Pickett: That has been stated. Mr. Mustafa’s position has always been that he will
plead guilty to what he has seen and what he is charged with and that he
will cooperate with the government. That hasn’t been able to occur because
there’s a new policy apparently, and I’m not quite sure I understand it yet,
but he’s trying to enforce - - or have his detention hearing and, therefore,
he’s not able to cooperate.
The Court: You understand this, Mr. Mustafa?
The Defendant: Yes, sir.
The Court: And you’re willing to plead under those conditions today?
The Defendant: Yes, Your Honor.
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The Court: I’m sure you’ll work it all out in the long run. Anything further?
Mr. Wolesky: No, Your Honor.
The Court: Thank you.
(Transcript of Change of Plea Hearing, pp. 15-19).
Therefore, the Court finds that Mustafa has failed to show that he would not have
plead guilty and would have insisted on going to trial, absent counsel’s alleged
misinformation. See also, United States v. Quiroga, 554 F.3d 1150, 1155 (8th Cir.)
cert.denied, 556 U.S. 1228 (2009)(there is “abundant circuit precedent holding that
inaccurate advice of counsel about the sentencing guidelines . . .does not render
involuntary a defendant’s decision to plead guilty, so long as the defendant is informed
of the maximum possible sentence permitted by statute and the court’s ability to
sentence within that range.”); Tinajero-Ortiz v. United States, 635 F.3d 1100 (8th Cir.)
cert.denied, 132 S.Ct. 315 (2011)(same). Accordingly, the Court finds that movant has
failed to show that his counsel’s actions fell below an objective standard of
reasonableness or that he suffered any prejudice regarding counsel’s advice relative to
pleading guilty.
B. Ground 2 -Ineffective Assistance – Failing to Pursue a Cooperation
Agreement
Movant argues that from the beginning of this case, he expressed his desire to
cooperate with the Government, but his counsel failed to pursue a cooperation
agreement. Movant asserts that if his counsel had negotiated an agreement for him,
there is a reasonable probability that he would have received a lesser sentence.
In response, the Government states that they were interested in speaking to movant

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to determine what information movant could provide to them. However, the
Government states that it believed that Mustafa was the highest level target in the
computer hacking scheme to defaud and was skeptical that he would be able to provide
them with useful information. The Government states that it informed Mustafa’s counsel
that he could only earn substantial assistance by identifying higher level targets who
could be prosecuted by the Government, not by identifying lower members of Mustafa’s
conspiracy that were already known. The Government notes that Mustafa did not
provide any document that spelled out the information he would have provided as part
of a proffer, nor has he given a sworn affidavit detailing his knowledge of the offenses or
other defendants. The Government also notes that Mustafa has not shown how any
information he could have provided would have been credible. Thus, the Government
argues that Mustafa has failed to show with any reasonable probability that the outcome
would have been beneficial. In reply, Mustafa argues that if the Government was
“extremely skeptical” of his ability to provide substantial assistance, then why did the
Government in memos dated September 22, 2009 and December 22, 2009 express a
desire for his cooperation. Mustafa argues that “surely if counsel had performed
effectively in assuring the above cooperation, the Government would have provided
sentencing consideration.”
A closer reading of the two memos however does not show that the Government
was seeking Mustafa’s cooperation. Rather, in the September 22, 2009 memorandum,
Government counsel states, “I told [Mustafa’s former counsel] that I was interested in
listening to Mustafa, but wanted to see what the RCFL was able to find on his
computers first and consult with their forensic examiners. . . .I was expecting to

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schedule a proffer with Mustafa in the next week or so.” In the December 22, 2009,
memorandum, Government counsel stated, “[r]egarding cooperation, I am willing to sit
down with you and my supervisor to discuss the issues surrounding this, and see if
there are any options available to Mustafa. If you client does plead guilty to the current
indictment, at this time, it would have to be without any agreement from the United
States. Therefore, he may face charges relating to the other crimes I held back initially
down the road. As I stated, I held these charges back at Mustafa’s request, but they are
still there and will be prosecuted.” (Doc. # 67-1, p. 2)(emphasis added). In the
December 2009 memorandum, the Government makes it clear that although they were
willing to listen to what Mustafa had to say, they would not be offering any plea
agreement. Thus, because the Government memorandums show that they were
unwilling to offer any plea agreement, Mustafa’s counsel cannot be found deficient for
failing to pursue an agreement that the Government was unwilling to offer. Additionally,
during the Change of Plea hearing, Mr. Pickett stated that it was his client’s position that
he was willing to cooperate with the government, but because he had sought to have a
detention hearing, the Government was not willing to cooperate with Mustafa. This
makes clear that it was Mustafa’s actions which prevented a plea agreement from being
negotiated and not actions or inactions of his counsel.
In Burgos-Valdez v. United States, No. Civ. 13-4047, 2015 WL 1189558 (D.S.D.
Mar. 16, 2015), a case with similar facts, the defendant alleged that his counsel failed to
communicate the Government’s invitation to cooperate. The Court in that case found
that the defendant had failed to show that he suffered prejudice because the
government never extended a plea offer. The Court stated:

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Here, the government never made a plea offer. Instead, the government
invited Mr. Burgos-Vadez to make a proffer--to “debrief”--with the
government: to meet with the government and give a complete and truthful
statement about Mr. Burgos-Vadez’s knowledge of the drug conspiracy. . .
.The government specially stated when it extended this invitation that it
was not promising to extend a plea offer, and that it was not obligated to
make a plea offer to Mr. Burgos-Valdez after the debrief. . . .Instead, all
the government promised is that it would evaluate Mr. Burgos-Valdez’s
information from the debrief and determine whether the government
wished to extend a plea offer at all to Mr. Burgos-Valdez. . . . Because no
plea offer was ever made by the government, no sentencing
recommendation was made by the government as part of a plea
agreement. . . . This is fatal to Mr. Burgos-Valdez’s attempt to prove
prejudice. As stated above, in order to show prejudice under these
circumstances, Mr. Burgos-Valdez must show: (1) that there is a
reasonable probability that he would have accepted the earlier plea offer if
he had been afforded effective assistance of counsel in evaluating that
offer; (2) that he would have entered a plea before the government
withdrew the offer or the district court refused to accept the plea; and (3)
there is a reasonable probability that the end result of the criminal process
would have been more favorable by reason of his plea, either because his
conviction would have been to a lesser charge or because his sentence
would have been less. Frye, 132 S.Ct. at 1409. Here Burgos-Valdez
cannot show any of these three elements. He cannot show that he would
have accepted a plea offer because none was ever made. He cannot
show that he would have pleaded guilty before the government withdrew
the agreement or the district court refused to accept the agreement
because no agreement was ever extended. Finally, and most
speculatively, Mr. Burgos-Valdez cannot show that the sentence he
actually received – 240 months - was more than the sentence he would
have received if he had accepted the plea agreement.
Id. at *5-6.
In the instant case, similar to Mr. Burgos-Valdez, Mustafa cannot show that he
would have accepted a plea offer, because the Government never extended such an
offer to him. He cannot show that he would have pleaded guilty before the government
withdrew the agreement or the court refused to accept the agreement, because again
there was never any agreement. Finally, he cannot show that the sentence he
received, 120 months, was more than the sentence he would have received if he had

13

accepted the plea agreement, because there was never any agreement extended and it
would be speculative to guess as to what sentence the Government would have
recommended. Accordingly, because the Court finds that Mustafa has failed to show
that his counsel’s actions below an objective standard and because he has failed the
show that he suffered prejudice, the Court DENIES movant’s motion for relief on this
ground.
C. Ground 3 - Ineffective Assistance – Failing to Conduct Reasonable
Investigation
Mustafa argues that his counsel was ineffective because he did not argue certain
facts to the Court such as the fact that he would have been eligible for a downward
departure under U.S.S.G. § 5K2.0 because he was willing to waive deportation.
Additionally, he argues that his counsel failed to adequately argue the extent of his
responsibility for the underlying criminal offenses under the guideline “relevant conduct.”
Mustafa argues that he was held responsible for the monetary amount of the entire
scheme, even though others such as Carrie Evola admitted that they also engaged in
hacking and the government was never able to identify any IP addresses in Jordan that
could be linked to the victims in this case. Mustafa also argues that he should not have
been held liable for the full amount of the losses because it was not reasonably
foreseeable. He states that his counsel failed to adequately develop this argument.
Mustafa argues that his sentence was enhanced for the use of a minor in the
commission of the offense, even though he had no contact with the minor. He argues
that if his counsel had performed adequately, there is a reasonable probability that his
sentence would have been different.
In opposition, the Government argues that his counsel was not ineffective for failing
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to argue for a downward departure, because Mustafa pled guilty to an aggravated
felony and he would not have been entitled to a hearing to contest the deportation.
Additionally, the Government argues that Mustafa cannot show prejudice, because the
Court already substantially departed from the sentencing guidelines.
With regard to Mustafa’s claim that his counsel did not adequately argue that he
played a lesser role in the scheme, the Government notes that the testimony Mustafa
cited was taken out of context and there was ample other testimony regarding Mustafa’s
role in the scheme and how others observed Mustafa hacking into computers from an
internet café in Jordan. Additionally, the Government notes that there was testimony
from Carrie Evola detailing how Mustafa asked her brother if he knew any individuals
who were willing to have money transferred into their accounts. Rosemary testified that
in response to Mustafa’s request, her brother sent over the names and bank account
numbers of minors who were friends of her nephew. The Government argues that it
presented a large amount of evidence through testimony and exhibits at the sentencing
hearing which Mustafa’s counsel countered through cross-examination and argument.
The result of which resulted in a significant downward departure. Accordingly, the
Government argues that Mustafa has failed to show that his counsel was ineffective in
failing to investigate or that this resulted in prejudice to him.
The Court agrees and finds that Mustafa has failed to show that his counsel
conducted an inadequate investigation. With regard to his first point that his counsel
failed to seek a departure under U.S.S.G. § 5K2.0 based on his willingness to consent
to deportation, this assertion is incorrect. In U.S. v. Ortega, No. 5-10-CR-50106, 5:12CV-5200, 2013 WL 695011, (W.D.Ark. Jan. 31, 2013), the Court stated:

15

[t]he Eighth Circuit has held that departures for waiver of deportation
rights may be warranted in some circumstances. . . .However, failure to
move for a downward departure would not, per se, constitute ineffective
assistance of counsel. . . .The Defendant must demonstrate that he had a
colorable, non-frivolous defense to deportation. See U.S. v. RamirezMarquez, 372 F.3d 935, 938 (8th Cir.2004)(We hold a defendant seeking a
downward departure for waiving deportation must demonstrate a
colorable, non-frivolous defense to deportation and show a waiver of that
defense would substantially assist the administration of justice).
Id. at *2 (internal citations omitted). As noted by the Government, Mustafa pled to an
aggravated felony and most aliens who are convicted of aggravated felonies are subject
to expedited removal. The Court agrees and finds that Mustafa has failed to allege that
he would have a non-frivolous defense to deportation. As noted by the Court in The
Court agrees and finds that Mustafa has failed to allege that he would have a nonfrivolous defense to deportation. As noted by the Court in Ortega, “[i]t cannot be
ineffective assistance not to raise a meritless argument.” Id. at *3 (citing Larson v. U.S.,
905 F.2d 218, 219 (8th Cir.1990)).
With regard to the second point raised, that Mr. Pickett did not attempt to
minimize Mustafa’s role in the overall scheme or argue that others were equally
involved, is incorrect. Mr. Pickett, cross-examined the witnesses which were presented
during the sentencing hearing, he also filed a seven-page brief in response to the
Government’s supplemental sentencing memoranda. Additionally, at the sentencing
hearing, Mr. Pickett stated:
Mr. Pickett: I don’t believe you’re mistaken at all, Judge, of course, but
one preliminary matter I would want to reiterate, this has gone on for some
time, and I want to make sure for the record that the aspects of some of
the relevant conduct from defense counsel’s perspective and, I believe,
also from my defendant’s perspective was that a great majority of the
discovery being relied on at this time, especially things overseas and
airplane tickets and all of those types of things, which lead to a great
amount of the enhancement as far as the loss, which is the most important
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enhancement in some regards here, all came to us after we pled. And I
just want to make sure that was clear on the record and the court
understood that.
That was brought up earlier at the first sentencing hearing, not the
second element of the arguments, but I think in this particular case that’s
the biggest issue I had with - -well, one of the big issues. But that’s a big
issue I had with my client not having knowledge of that because the
knowledge of relevant conduct does goes to what he knew, especially in
the situation here where there’s not a conspiracy or a scheme where other
people are charged. And I think in this particular instance, Judge, the big -the gravest breach against my client’s rights in this particular case, I
believe, was the fact that we got all that discovery afterwards and after we
had already pled and one of the reasons we’re arguing against it so
vehemently.
(Sentencing Transcript, pp. 4-5). Thus, the Court finds that contrary to Mustafa’s
assertions, Mr. Pickett was aware of and did vigorously argue against the use of the
relevant conduct as an enhancement to the sentence. However, even if the Court
determined that Mr. Pickett’s actions and arguments were ineffective, Mustafa cannot
show that he was prejudiced. The sentence which the Court ultimately imposed was
substantially reduced from what the Government had requested and from what the
sentencing guidelines suggested. Accordingly, because the Court finds that Mustafa
has failed to show that his counsel was ineffective for failing to conduct an adequate
and reasonable investigation, the Court hereby DENIES Mustafa’s Motion for Relief
pursuant to Ground 3.
D. Ground 4 - Ineffective Assistance on Appeal
Mustafa argues that his counsel was ineffective on appeal because the only issue
that he raised was that the district court erred in applying a preponderance of the
evidence standard when determining Mustafa’s relevant conduct. Mustafa argues that
since 2005, courts have held that due process never requires more than a
preponderance of the evidence standard for finding sentencing facts. Mustafa argues
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that instead, his counsel could have raised any of the issues presented in Grounds 1-3
above.
In response, the Government argues that Mustafa has not shown that any
sentencing guideline issues would have been successful. The Government notes that
after the first sentencing hearing, the Court ordered a full second legal briefing
regarding its authority to consider relevant conduct. After reconvening and hearing
again from the parties, the Court determined it could consider the relevant conduct
presented and applied the sentencing enhancements. The Government argues that
Mustafa has not shown that the Court misapplied the sentencing guidelines.
The Court agrees and finds that Mustafa has not shown that his counsel was
ineffective for failing to raise any other issues on appeal. As discussed above, the
Court finds that the other issues which Mustafa asserts his counsel should have raised
on appeal, have no merit. Even if the Court were to find that failing to raise the other
issues was ineffective, Mustafa has not shown that he was prejudiced. The
Government had argued for a 180 month sentence. The PSR recommended that the
Court sentence Mustafa to between 168 and 210 months. On July 8, 2011, the Court
departed substantially from both of these recommendations and instead sentenced
Mustafa to a sentence of 120 months, or 48 months below the lowest recommendation.
Accordingly, because Mustafa has not shown that there is reasonable probability that
the Eighth Circuit would have vacated his sentence had Mr. Pickett raised different
arguments on appeal, the Court hereby DENIES Mustafa’s Motion for Relief Pursuant to
Ground 4.

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E. Ground 5 - Ineffective Assistance – Failing to Raise Issue of Illegal Search
& Seizure
Mustafa argues that on April 15, 2009, two Fourth Amendment violations occurred.
Frist, mail which was addressed to other parties was opened and evidence obtained
thereby without a search warrant. Second, a search of the residence where Mustafa
resided was also conducted and computers and other evidence were seized. On July
22, 2009, a seizure of Mustafa’s passport and permanent residence card occurred.
Mustafa states that at that time he was not under arrest and there is no recognized
exception to the warrant requirement. Mustafa argues that his counsel was ineffective
for failing to raise these issues both in the district court and on appeal.
In opposition, the Government states that Mustafa’s illegal search and seizure
claims are barred by his unconditional guilty plea. “The general rule is that a valid guilty
plea waives all non-jurisdictional defects. Stated differently, a valid guilty plea forecloses
an attack on a conviction unless on the face of the record the court had no power to
enter the conviction or impose the sentence.” United States v. Beck, 250 F.3d
1163,1166 (8th Cir.2001)(internal citations and quotations omitted). In Reeves v. United
States, No. 4:12CV927CDP, 2013 WL 3353941 (E.D.Mo.July 3, 2013), the Court stated
“[n]one of Reeves’ claims regarding the search warrant and underlying criminal
investigation raise jurisdictional issues. By entering his unconditional guilty plea,
Reeves waived all nonjurisdictional challenges to the prosecution of his case, including
all claims on search and seizure grounds.” Id. at 3 (internal citations and quotations
omitted).
The Government argues that even if Mustafa had not waived his claims relating
to alleged search and seizure violations, his claims would not be successful. First, the
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Government states that Mr. Pickett was not ineffective for failing to challenge the search
of the mailing sent by Hy-Vee to Carrie Evola and Vince Evola or the search of the
residence. A search of the parcels sent to Carrie and Vince Evola was not illegal,
because the Postal Inspector obtained the consent of Hy-Vee, the sender, to open and
search the parcels. “[O]ne of the specifically established exceptions to the requirements
of both a warrant and probable cause is a search that is conducted pursuant to
consent.” Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041,36 L.Ed.2d
854 (1973). With regard to a search of the residence, the Government argues that the
officers who conducted the search had a warrant and it listed several of the items which
were taken. The Government argues that Mustafa fails to specify what items were
seized which were not encompassed by the search warrant.
With regard to his passport and permanent residence card, the Government
argues that the police never seized these items. Rather, the Government states that it
has addressed this issue in a response filed to Mustafa’s Motion for Return of Property
(Crim. Doc. # 104). The Government states that the items were in the possession of an
attorney for a co-defendant and were in fact turned over to the Pretrial Services Office.
Thus, because the items were never seized, they was no unlawful seizure and Mr.
Pickett cannot be found ineffective for failing to raise this issue.
The Court finds that Mustafa has failed to establish that his counsel was
ineffective for failing to challenge either the search of the envelopes sent by Hy-Vee or
the search of the residence. As noted by the Government, Hy-Vee provided United
States Postal Inspection agents with consent to search an envelope containing gift
cards which had been fraudulently purchased and were to be delivered from Hy-Vee to

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405 N.W. 65th Street, Gladstone, Missouri. Thus, because the agents had consent from
the sender, the search was valid. With regard to the search warrant for the residence,
the Complaint states that a search warrant was served on 405 NW 65th Street,
Gladstone, Missouri on April 15, 2009. Additionally, during the sentencing hearing, the
U.S. Postal Inspector testified that a state search warrant was issued in Clay County,
Missouri. During the search warrant, several items were recovered including four
computers, a ledger, express mail envelopes, postal envelopes, phone cards,
international calling cards, flight vouchers and airline information. U.S. Postal Inspector
Mezzanotte testified that he received a call in April 2009 from a detective with the
Gladstone Missouri police department. The detective told inspector Mezzanotte that
Hy-Vee had noticed several credit cards being mailed and delivered to 405 NW 65th
Street, Gladstone, Missouri. Hy-Vee had been able to determine that the cards were
purchased with stolen credit card accounts. It was decided that the next time an order
was placed, Hy-Vee would have the cards sent to Inspector Mezzanotte and they would
then monitor the cards as they were delivered to the residence and then execute a
search warrant for the residence. (Sentencing Transcript, pp. 66-68). Therefore,
because a warrant existed and the items seized related to the crime which was being
investigated, the Court finds that there was no illegal search or seizure. Accordingly,
Mustafa’s counsel was not ineffective for failing to argue this point either in the district
court or on appeal.
With regard to Mustafa’s passport and permanent residence card, the Court finds
that Mustafa has not shown that these items were ever seized. At Mustafa’s bond
hearing, the Government represented that the attorney for a co-defendant, Michael

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Kelly had Mustafa’s passport. The Government states that Mr. Kelly was contacted and
he informed the Government that the day after the bond hearing, on December 10,
2009, he hand-delivered an envelope containing Mustafa’s passport, green card and a
library card to the United States Pretrial office. Mr. Kelly provided the Government with
a copy of a handwritten note which was located in his files which confirmed this fact.
(Doc. # 118,Exhibit 1). The Government has also inquired of Mr. Hecke with Pretrial
Services. However, Mr. Hecke informed the Government that he did not have any
record of the passport in his file nor could the items be located in his office. The
Government also inquired of Sean Pickett, Mustafa’s trial counsel as to the items.
However, he did not have these items nor did he have a specific memory of who had
them. The Court finds that Mustafa has not shown that these items were ever in the
Government’s possession, accordingly there was no illegal seizure of these items.
Therefore, because the Court has found that there was no illegal searches or
seizures of the packages, the house or Mustafa’s passport or residence card, any
argument raising these issues would have been futile. The Eighth Circuit has held that
counsel cannot be found ineffective for failing to file a futile motion. Dowty v. U.S., No.
13-3022-RAL, 2014 WL 1668336, *5 (D.S.D. Apr. 25, 2014); Hale v. Lockhart, 903 F.2d
545, 549 (8th Cir.1990).
Accordingly, the Court hereby DENIES Mustafa’s Supplemental Claim for Relief
– Ground 5 – Failing to Raise Issue or Illegal Search and Seizure.
CONCLUSION
For the reasons stated above, the Court hereby DENIES Mustafa’s Motion to
Vacate, Set Aside or Correct His Sentence on all grounds. No evidentiary hearing will

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be held in this matter because the issues raised are resolvable by the record.
Furthermore, movant will be denied a motion for certificate of appealability. Under 28
U.S.C. ' 2253(c)(2), A[a] certificate of appealability may issue under paragraph (1) only if
the applicant has made a substantial showing of the denial of a constitutional right.@
The Court finds that the issues raised by movant do not meet this criteria.

Date: November 24, 2015
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge

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