Gad v. United States of America

Filing 7

ORDER: The Court DENIES Mr. Gad's motion to vacate, set aside, or correct his sentence (Dkt. # 1 ) and DISMISSES this matter with prejudice. The court DENIES Mr. Gad a certificate of appealability. Signed by Judge James L. Robart. (SS) (cc: Petitioner via USPS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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NADER A. GAD,

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v.

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Petitioner,

ORDER

UNITED STATES OF AMERICA,
Respondent.

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CASE NO. C23-1993JLR

Before the court is pro se Petitioner Nader A. Gad’s motion to vacate, set aside, or

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correct his sentence pursuant to 28 U.S.C. § 2255. (Mot. (Dkt. # 1).) Respondent the

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United States of America (“the Government”) opposes the motion. (Resp. (Dkt. # 5).)

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The court has reviewed the parties’ submissions, the relevant portions of the record, and

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the governing law. Being fully advised, the court DENIES Mr. Gad’s motion and

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DENIES Mr. Gad a certificate of appealability.

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In December 2018, a grand jury returned a four-count indictment charging Mr.
Gad with two counts of possession of heroin and methamphetamine with intent to
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distribute pursuant to 21 U.S.C. §§ 841(a)(1) and (b)(1)(B) (Counts 1 and 3) and two

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counts of possession of firearms in furtherance of a drug trafficking crime pursuant to

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18 U.S.C. § 924(c)(1)(A)(i) (Counts 2 and 4). (Indictment (CR18-0316JLR Dkt. # 11). 1)

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The § 924(c) charges in Counts 2 and 4 were based on the drug charges alleged in Counts

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1 and 3. (Id. at 2-3.)

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In June 2019, Mr. Gad pleaded guilty to a lesser-included drug offense under

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Count 1 and the § 924(c) charge in Count 2. (See Consent to Rule 11 Plea

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(CR18-0316JLR Dkt. # 29); Plea Agreement (CR18-0316JLR Dkt. # 30).) The § 924(c)

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charge in Count 2 was again based on the drug charge in Count 1. (Plea Agreement at 2.)

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As part of his plea, Mr. Gad also waived appellate and collateral review of his conviction

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and sentence. (Id. at 10-11.) On November 4, 2019, the court imposed a

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below-Guidelines sentence of 24 months for the drug charge in Count 1 and a

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mandatory-minimum sentence of 60 months, served consecutively, for the § 924(c)

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charge in Count 2, resulting in a total term of incarceration of 84 months. (11/4/19 Min.

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Entry (CR18-0316JLR Dkt. # 42); Judgment (CR18-0316JLR Dkt. # 43); see also PSR

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Sentencing Recommendation (CR18-0316JLR Dkt. # 35 (sealed)) at 1.)

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Mr. Gad now argues that the conviction and sentence the court imposed under

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§ 924(c) must be vacated as unconstitutional because the court improperly determined

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that his predicate crime was a “crime of violence.” (See generally Mot.) The

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Government counters that the court should deny the motion because (1) it is untimely;

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The court uses this convention when citing documents in Mr. Gad’s criminal case,
United States v. Gad, No. CR18-0316JLR (W.D. Wash.)
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(2) Mr. Gad’s § 924(c) conviction and sentence were not based on a “crime of violence”

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predicate; (3) Mr. Gad waived collateral review of his conviction and sentence; and

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(4) Mr. Gad’s challenge to his § 924(c) conviction is procedurally defaulted. (See

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generally Resp.) The court concludes that even if Mr. Gad had avoided the procedural

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hurdles the Government describes, his motion must nevertheless be denied because his

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conviction and sentence were not based on a “crime of violence” in the first instance.

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Section 924(c)(1)(A)(i) provides, in relevant part, that

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any person who, during and in relation to any crime of violence or drug
trafficking crime . . . uses or carries a firearm, or who, in the furtherance of
any such crime, possesses a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking crime . . . be
sentenced to a term of imprisonment of not less than 5 years.

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18 U.S.C. § 924(c)(1)(A)(i). A “drug trafficking crime” is defined, in relevant part, as

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“any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.)[.]”

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18 U.S.C. § 924(a)(2). Meanwhile, a “crime of violence” is

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an offense that is a felony and—
(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or

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(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of
committing the offense.

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18 U.S.C. § 924(a)(3). Here, Mr. Gad was convicted and sentenced under 18 U.S.C.

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§ 924(c)(1)(A)(i) for possession of a firearm in furtherance of a drug trafficking crime

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under the Controlled Substances Act and his indictment, plea agreement, and judgment

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make no mention of a crime of violence. (See Indictment at 2 (charging Mr. Gad in

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Count 2 with possession of firerms in furtherance of the drug trafficking crime charged in

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Count 1); Plea Agreement (agreeing to plead guilty to possession of firearms in

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furtherance of a drug trafficking crime “as charged in Count 2 of the Indictment”);

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Judgment at 1.) Because Mr. Gad’s conviction and sentence are based on the predicate

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crime of drug trafficking rather than a crime of violence, the court cannot offer Mr. Gad

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the relief he seeks.

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For the foregoing reasons, the court DENIES Mr. Gad’s motion to vacate, set

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aside, or correct his sentence (Dkt. # 1) and DISMISSES this matter with prejudice. The

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court DENIES Mr. Gad a certificate of appealability because “jurists of reason” would

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not “find it debatable whether the petition states a valid claim of the denial of a

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constitutional right.” Slack v McDaniel, 529 U.S. 473, 484 (2000).
Dated this 26th day of April, 2024.

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A

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JAMES L. ROBART
United States District Judge

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