Youngstown Daily Legal News

Federal court finds ineffective counsel not a valid excuse for admission of guilt

ANNIE YAMSON
Special to the Legal News
Published: August 8, 2013

The 6th Circuit U.S. Court of Appeals has affirmed the sentence of Mustaffa Shabazz in the U.S. District Court for the Northern District of Ohio.

Shabazz pleaded guilty to one count of credit card fraud and one count of mail fraud and was sentenced by the district court to 37 months’ imprisonment on each count, to be served concurrently.

Upon appeal to the federal court, Shabazz contended his plea was not knowingly and voluntary, his sentence was unreasonable and the district court abused its discretion by denying his motion to withdraw his guilty plea.

The panel, however, did not see it that way.

“We affirm his conviction and sentence,” wrote Judge Julia Gibbons on behalf of the appellate panel.

A federal grand jury indicted Shabazz and his co-defendant with one count of credit card fraud and aiding and abetting credit card fraud, and four counts of mail fraud and aiding and abetting mail fraud.

According to the district court, Shabazz admitted that he fraudulently obtained credit cards in the names of other individuals without their permission or knowledge and then used those cards to obtain merchandise, goods and services.

Following the indictment, Shabazz entered into a plea agreement in which he stipulated that the amount of loss exceeded $30,000.

The parties agreed to a base offense level of seven. They also concurred that the level should be increased by six pursuant to the U.S. Sentencing Guidelines Manual, which states that any loss that exceeds $30,000 calls for a six-level increase.

Because the offense involved the use of an unauthorized access device, the offense level was increased by another two levels.

The government subsequently agreed to recommend a two-level reduction for acceptance of responsibility.

On appeal, Shabazz claimed his counsel told him that the amount of loss would not affect the length of his sentence.

“In fact, if he had stipulated to an amount of loss less than $30,000, it would have resulted in an increase to his offense level of four, rather than six,” wrote Judge Gibbons.

Shabazz stated that, if he had known that the amount of loss would affect the length of his sentence, he would not have stipulated to an amount over $30,000.

When Shabazz filed a motion for a hearing to replace his counsel, the trial court granted it but proceeded to clarify with him that he was not asking to withdraw his guilty plea.

The court reiterated that Shabazz admitted to the amount of loss in the plea agreement.

“Because my attorney advised me that it didn’t make a difference, that the dollar amount didn’t make a difference,” replied Shabazz. “But it does make a difference. After I received my (presentence investigation report) and I read it, it’s a difference in points.”

Eventually, Shabazz did file a motion to withdraw his guilty plea, arguing that his original counsel was ineffective.

“He does not bring an ineffective assistance of counsel claim,” wrote Judge Gibbons. “Instead, he argues that the district court should have discovered his counsel’s ineffective assistance during the plea hearing and corrected Shabazz’s misunderstanding.”

Simply put, Shabazz argued that the district court was required to explain how the stipulated facts in the plea agreement could have affected the Sentencing Guidelines calculation.

The appellate panel declined to impose such a requirement.

“At this stage, district courts cannot be expected to review the universe of sentencing possibilities as they relate to the stipulated facts with the defendant.”

Yet, Shabazz maintained that “by relying on the tainted plea agreement, the district court gave weight to erroneous fact-finding ... and produced a substantively unreasonable sentence.”

The circuit court found that, in a previous case, it had determined that “a court relies on clearly erroneous facts when the sentencing judge relies upon erroneous information and the information in question appears to have been an important factor in determining the sentence.”

In Shabazz’s case, he freely admitted he fraudulently obtained credit cards and used them to obtain goods and services valued at approximately $34,261.

Also, during the plea hearing, the district court asked Shabazz to read the “factual basis and relevant conduct” section of his plea agreement and then asked Shabazz if every statement in that section was true and correct.

Shabazz replied in the affirmative, thereby indicating his plea was made knowingly and voluntarily.

“The district court was entitled to rely on his admission for purposes of calculating the amount of loss and did not abuse its discretion in imposing Shabazz’s sentence.”

The 6th Circuit ultimately affirmed Shabazz’s conviction and sentence with Judges Eugene Siler ad Eric Clay joining Judge Gibbons to form the majority.

The case is cited United States v. Shabazz, Case No. 12-3702.

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