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United States v. Sawaf

United States District Court, E.D. Kentucky, Southern Division

January 4, 2018

ALI HADI SAWAF, Defendant.

          OPINION & ORDER


         This matter is before the Court on a report and recommendation (DE 276) from Magistrate Judge Candace J. Smith. For the following reasons, defendant's objections (DE 286) are DENIED and the Court follows the recommended disposition (DE 276).

         I. BACKGROUND

         The procedural history of this case is extensive. Since the Magistrate Judge provided an accurate and exhaustive account, and defendant Sawaf does not object to that account, it is adopted by this Court. The relevant portions of procedural history are provided below.

         On June 28, 2001, a federal grand jury returned an Indictment charging defendant Sawaf, a medical doctor specializing in urology, with eleven counts of unlawful drug distribution for prescribing controlled substances without a legitimate medical purpose in violation of 21 U.S.C. § 841(a)(1). Sawaf was also charged with three counts of being in possession of a firearm after having been convicted of a felony and domestic abuse in violation of 18 U.S.C. § 922(g). (DE 1). As a result of plea discussions, it is undisputed that the United States verbally offered Sawaf a plea agreement that included a recommendation that he be sentenced to 41 months of incarceration. See Sawaf v. United States, 570 Fed.Appx. 544, 545 (6th Cir. 2014). Sawaf rejected the plea offer and proceeded to trial. Sawaf was ultimately found guilty of eight of the eleven drug charges and sentenced to 240 months of imprisonment. (DE 84). Sawaf appealed the sentence. After twice being vacated, a 240-month term of imprisonment was affirmed by the United States Court of Appeals for the Sixth Circuit on July 28, 2008. In its opinion of affirmation, the Sixth Circuit noted, “Sawaf also asserts that the district court improperly refused to revisit on remand its determination of the quantity of drugs involved for guidelines purposes. However, this court rejected Sawaf's challenge to the district court's determination on his initial appeal.” (DE 162).

         Sawaf filed his first § 2255 motion on November 16, 2009, alleging ineffective assistance of counsel due to counsel's failure to effectively advise Sawaf regarding the government's plea offer and failing to object to the Court's determination of drug quantity at sentencing. (DE 166). The motion was denied by this Court and Sawaf appealed. The Sixth Circuit limited its consideration to Sawaf's claim that counsel's assistance was ineffective because counsel failed to advise him of his sentencing exposure under the Guidelines if he rejected the plea agreement and proceeded to trial. (DE 222). The Sixth Circuit reversed the District Court's denial of § 2255 relief, finding Sawaf had demonstrated a reasonable probability that his decision to reject the Government's 41-month plea offer would have been different had he been adequately informed of the much lengthier term provided for under the guidelines. (DE 222). The Sixth Circuit remanded the matter to the District Court “with instructions to administer an appropriate remedy in light of [its] holding that Sawaf is entitled to relief.” (DE 222).

         On July 7, 2014, Sawaf, through counsel, filed a Corrected Motion Concerning the Remedy to be Granted upon Remand from the Sixth Circuit and for Bond. (DE 224). In that filing, counsel argued the proper remedy for the Court to impose on remand was to require the Government to offer Sawaf a 41-month plea deal that permitted him to enter a nolo contendere plea and, upon Sawaf's acceptance of the offer, the Court should impose a sentence of 41 months. Id. Counsel noted in the filing that while the original plea offer did not include the ability for Sawaf to plead nolo contendere, this remedy was being suggested to address the Court's concern with accepting a guilty plea from a defendant who was continuing to maintain his innocence. (DE 224, at 4). The Government objected to Sawaf's suggestion of a nolo contendere plea, arguing it never would have made such a plea offer. (DE 226).

         On September 24, 2014, Sawaf appeared before this Court for a hearing on the motion. At the hearing, the Government confirmed its objection to a nolo contendere plea, explaining the plea agreement that had been originally offered required an admission of guilt. The Government explained its position that the Sixth Circuit had not ordered the determination of guilt vacated, and thus the Court could sentence Sawaf to time-served, which would not require Sawaf to enter a guilty plea, and would permit him to be immediately released and placed on supervised release. (DE 245 at 3-4).

         Counsel for Sawaf, attorney C. William Swinford, Jr., represented that if the Court would entertain the Government's suggestion of time-served on the original convictions, Sawaf would have to consider it. (DE 245 at 4). He explained that if the matter was set for resentencing, he would probably make objections to the pill calculation, although he understood that the pill count had been affirmed on appeal. (DE 245 at 4-8). Counsel stated, however, that the filing of objections to the pill calculation may not be necessary if the Court would entertain the Government's suggestion of a time-served sentence. (DE 245 at 5).

         This Court explained that Sawaf could either plead guilty or accept the previous adjudication of guilt, but either way the Court intended to sentence Sawaf to time-served. (DE 245 at 7-9). After conferring with Sawaf, counsel advised the Court that Sawaf was prepared to proceed that day, have the Court issue a variance, and sentence him to time- served. (DE 245 at 8; DE 263-1 at 2). The Court specifically asked Sawaf, “Dr. Sawaf, do you understand what we are doing here?” To which, he responded, “Yes, yes, Your Honor.” DE 245 at 9). All parties having agreed that the preparation of a new presentence report was not necessary, and that Sawaf should be sentenced to time-served on the prior adjudication of guilt and released that day, the Court sentenced Sawaf pursuant to Federal Rule of Criminal Procedure 32. Sawaf was sentenced to time-served, released from custody, and placed on a three-year term of supervised release.

         On September 24, 2015, exactly one year after the resentencing hearing, Sawaf filed the instant § 2255 Motion, which was amended and supplemented on September 28, 2015, and January 27, 2016, respectively. (DE 240; 242; 249). Sawaf now argues that attorney Swinford provided ineffective assistance at the proceeding on September 24, 2014, by failing to object to the time-served sentence, failing to insist the Court sentence him to 41 months, and failing to object to the drug quantity calculation in the original presentence report. Sawaf also claims that Swinford was ineffective for failing to advise Sawaf that, if he was sentenced to time-served rather than accepting a plea deal re-offered by the Government, Sawaf would allegedly forego nine years of social security benefits. (DE 249 at 14). Sawaf's filings can also be liberally read to assert claims that his due process rights were violated when he was resentenced based upon the drug quantity estimate from the original presentence report, and his rights under the Eighth Amendment were violated when he was sentenced to time-served and not the 41-month term of incarceration originally offered by the Government. (DE 240 at 5; DE 249 at 10-11). Sawaf contends the Court should grant him habeas relief in the form of ordering the Government to re-offer the 41-month plea agreement with a stipulation to drug quantity and, after he accepts the plea agreement, vacate his prior convictions, accept his guilty plea, and sentence him to 41-months incarceration. The Court reviews Sawaf's arguments below.

         II. ANALYSIS

         A. Threshold Issues

         At the outset, Sawaf objects to the findings of the Magistrate Judge on two threshold issues involved with this petition. First, the Magistrate Judge points out that the language of the statute providing for habeas petitions offers a remedy to those “in custody…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….” 28 U.S.C. § 2255(a) (emphasis added). In this case, Sawaf is not claiming the right to be released, but instead seeks a new judgment changing his time-served sentence to a 41-month sentence. (DE 28 at 6). Sawaf is motivated, at least in part, by his belief that such relief would allow him to recover foregone federal benefits. (DE 242 at 9; DE 249 at 14; DE 273 at 6). While the Sixth Circuit has not spoken directly to this type of relief, it is clear that a prisoner merely contesting financial conditions, such as the imposition of a monetary fine or restitution, is not claiming release for the purposes of a § 2255 petition. See Grover v. U.S. Bureau of Prisons, 182 F.3d 917, 1999 WL 454716 (6th Cir. 1999); see also United States v. Watroba, 56 F.3d 28, 29 (6th Cir. 1995).

         Even if the Court were to ignore Sawaf's explicitly stated motivation, it is not clear that § 2255 provides for the remedy sought. Here, Sawaf is not directly challenging financial conditions within the sentence, but instead he is requesting that his time-served sentence be vacated and replaced with a 41-month sentence-essentially that the Court impose a new term of incarceration. It is unclear that such relief would lessen any restraint or condition imposed upon him. Even if Sawaf were given credit for this new term of incarceration, his relief would essentially only re-structure the form of his sentence, having no effect on release. Further, there has been no evidence presented that the mandatory term of supervised release applicable to the first sentence, and being currently served by Sawaf, would not also be applicable to the new term of incarceration. Since Sawaf's petition merely attempts to change the form of his sentence, at least partly for its effect on monetary and collateral consequences, ...

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