United States v. Young , 371 F. App'x 358 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-5079
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JASON YOUNG,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:08-cr-00240-LO-6)
Submitted: January 7, 2010 Decided: March 22, 2010
No. 08-5111
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FARES ABULABAN, a/k/a Sameh,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:08-cr-00101-JCC-1; 1:08-cr-00240-LO-1)
Argued: January 27, 2010 Decided: March 22, 2010
Before TRAXLER, Chief Judge, AGEE, Circuit Judge, and Catherine
C. BLAKE, United States District Judge for the District of
Maryland, sitting by designation.
Affirmed by unpublished opinion. Judge Blake wrote the opinion,
in which Chief Judge Traxler and Judge Agee joined.
ARGUED: Marvin David Miller, Alexandria, Virginia, for Appellant
Fares Abulaban. David Brian Goodhand, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Kevin M. Schad, SCHAD & SCHAD, Lebanon, Ohio; Heather Golias,
LAW OFFICE OF MARVIN D. MILLER, Alexandria, Virginia, for
Appellants. Dana Boente, United States Attorney, Lawrence J.
Leiser, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
BLAKE, District Judge:
Fares Abulaban and Jason Young pled guilty to drug
conspiracy and related gun charges and were sentenced to total
terms of imprisonment of 232 months for Abulaban and 270 months
for Young. Both appeal aspects of their sentencing; Abulaban
also appeals the denial of his motion to suppress a firearm
seized during a warrantless search of the automobile in which he
drove to the site of the supposed cocaine transaction. In fact
it was a “reverse sting” operation. For the reasons that
follow, we affirm the rulings of the district court.
I.
A.
In February 2008, agents of the Immigration and Customs
Enforcement (“ICE”) Division of the Department of Homeland
Security planned a “reverse sting” operation in which ICE
undercover agent Tony Rodriguez played the role of a drug dealer
with cocaine connections in Columbia. Defendant Abulaban agreed
to find purchasers for 20 kilograms of cocaine which Agent
Rodriguez was to have available for sale on February 15, 2008 in
Morgantown, West Virginia. Defendant Young was to be one of the
buyers.
Several meetings took place among Abulaban, Rodriguez, and
other co-conspirators or undercover agents prior to February 15,
3
2008. On February 7, 2008, Abulaban met with Rodriguez and
others to discuss arrangements for buyers to purchase the 20
kilograms of cocaine. It was agreed that Abulaban would receive
some fee or percentage of the purchase price for his work, and
there was discussion about using vehicles, including his, to
pick up money or drugs. Abulaban left that meeting in a silver
BMW he had apparently recently purchased (“the BMW”). On
February 14, 2008, Abulaban met with Agent Rodriguez and others
again, driving them in his BMW to Club Envy, the site of the
next day’s planned transaction, where he gave the agents a tour
of the Club including its entrances and exits before driving the
agents back to the lot where their car was parked.
On February 15, 2008, Abulaban initially picked up the
agents in a different car to drive around and discuss the deal,
including Abulaban’s intention to take two of the kilos himself
to sell. In the course of the discussion, Abulaban asked Agent
Rodriguez if he had his gun with him or had a gun. After
parking in front of the Morgantown Hotel, Abulaban entered the
hotel and later exited carrying a paper bag, which he handed to
Agent Rodriguez. The bag contained approximately $40,000 in
banded cash. Abulaban then drove the agents, with the money, to
Club Envy in his silver BMW. Other conspirators arrived, also
with money, and eventually another undercover agent brought the
purported 20 kilograms of cocaine to the Club. Once the “drugs”
4
were placed in view, the conspirators were arrested. Abulaban
and defendant Jason Young, one of the buyers, were among those
arrested. While Abulaban did not have a gun on his person,
weapons were recovered from other persons arrested at the Club.
Following the arrests, agents searched Abulaban’s BMW and found
a loaded .380 caliber semi-automatic handgun in the driver’s
side map compartment.
B.
On March 13, 2008, a federal grand jury in Alexandria,
Virginia, returned an indictment (08-CR-101) charging Abulaban,
Young, and others with conspiracy to distribute and possess with
intent to distribute both cocaine and ecstasy in violation of 21
U.S.C. §§ 841(a)(1) and 846. A single-count superseding
indictment returned June 19, 2008, narrowed the scope of the
conspiracy and did not name Young. A separate indictment
returned June 12, 2008 (08-CR-240), charged Abulaban, Young, and
others with conspiracy to possess with intent to distribute five
kilograms or more of cocaine, in violation of 21 U.S.C. §§
841(a)(1), 846, and 860 (Count One); charged Abulaban with
possessing a firearm (the .380 caliber semi-automatic found in
his BMW) on February 15, 2008 in furtherance of a drug
trafficking offense, in violation of 18 U.S.C. § 924(c) (Count
Two); and charged Young with using and carrying a firearm (a .38
caliber Taurus revolver) on February 15, 2008 during and in
5
relation to a drug trafficking offense, also in violation of 18
U.S.C. § 924(c) (Count Three).
Prior to trial Abulaban moved to suppress the handgun
seized from his BMW, claiming that the warrantless search
violated the Fourth Amendment. After an evidentiary hearing,
the district court found the search lawful, concluding that “the
officers had probable cause to search the BMW, as it was an
instrumentality of the drug conspiracy and thereby falls within
the vehicle exception to the warrant requirement.” J.A. 300.
Secondarily, the court concluded that the officers had probable
cause to believe the BMW was subject to forfeiture and that it
could be seized without a warrant. Accordingly, the motion to
suppress was denied. 1
On July 12, 2008, Abulaban pled guilty to Counts One and
Two of the indictment in 08-CR-240 arising from the February 15,
2008 transaction (conspiracy to possess with intent to
distribute cocaine and possession of a firearm in furtherance of
a drug-trafficking offense); Young pled guilty to Counts One and
Three of the same indictment (the cocaine conspiracy and using
and carrying a firearm). Neither had a written plea agreement,
1
This ruling was made by Judge James C. Cacheris in
connection with the 08-CR-101 indictment. The § 924(c) charge
involving the handgun later became part of the 08-CR-240
indictment, assigned to Judge Liam O’Grady. Judge O’Grady
adopted Judge Cacheris’s ruling. J.A. 353.
6
although Abulaban and the government agreed he had reserved the
right to appeal the denial of his suppression motion. Abulaban
also pled guilty, with a written agreement, to Count One of the
superseding indictment in 08-CR-101, which charged a conspiracy
to possess with intent to distribute ecstasy based on a meeting
with co-conspirator Mohammed Alazzam and an undercover agent in
March 2007 to plan the acquisition and sale to the agent of 2500
ecstasy pills at a price of $10 per tablet. Abulaban was to be
paid as a broker for this sale, but it was never carried out.
On October 10, 2008, the district court sentenced Young to 210
months’ incarceration on Count One and 60 months consecutive on
Count Three. On October 30, 2008, the court sentenced Abulaban
to 172 months’ incarceration on Count One of both 08-CR-101 and
08-CR-240, to run concurrently, and 60 months consecutive on
Count Two of 08-CR-240. This appeal followed. 2
II.
A.
We first consider whether the district court erred in
denying Abulaban’s motion to suppress the gun found in his BMW.
2
Both Abulaban and Young filed notices of appeal and
briefed their respective issues. Their appeals were
consolidated. Prior to oral argument, however, because of a
change in counsel for Young, the appeals were deconsolidated.
Young’s claims will be resolved on the briefs.
7
We review the court’s findings of fact for clear error and its
conclusions of law de novo. United States v. Kelly, 592 F.3d
586, 589 (4th Cir. 2010).
Abulaban argues that for the automobile exception to apply
the vehicle must be “readily mobile” and there must be “probable
cause to believe it contains contraband,” citing Maryland v.
Dyson, 527 U.S. 465, 467 (1999). This is of course consistent
with precedent. To the extent he suggests, however, that the
car was no longer “mobile” because the agents had seized the
keys and arrested Abulaban, and therefore the automobile
exception no longer applied, this suggestion has been rejected,
for reasons thoroughly and recently explained in Kelly, 592 F.3d
at 591. The inherent mobility of the car, combined with the
lesser expectation of privacy in an automobile as compared to a
home or office, justify application of the exception even if the
police have control over the automobile at the time of the
warrantless search. Id. at 590-91; see also United States v.
Brookins, 345 F.3d 231, 237-38 (4th Cir. 2003).
Abulaban also argues that the agents lacked probable cause
to believe the BMW contained contraband, relying on testimony
from agents that they were not aware of any contraband in the
BMW after the bag of money was removed, and that they had not
seen Abulaban with a pistol. There was ample evidence to
conclude, however, that Abulaban planned to receive a fee from
8
the transaction and to take a portion of the drugs; it is simple
logic to find, as the district court did, that Abulaban intended
to use the BMW to transport his share of the money and the
cocaine away from Club Envy. Nor is there any dispute that he
had used the car to transport drug purchase money to the Club.
As the district court concluded, this case falls well within the
parameters set forth in United States v. Dickey-Bey, 393 F.3d
449, 457 (4th Cir. 2004), permitting the search of the car as an
instrumentality of the crime. In addition, as the government
argues, examining the facts from the standpoint of an
objectively reasonable police officer, there was probable cause
to believe Abulaban was concealing a gun in the BMW and perhaps
other evidence of the conspiracy. His question about whether
the agent had a gun, combined with the value of the purported
drugs and the fact that other co-conspirators had weapons,
supported a fair probability that Abulaban, who had no weapon on
his person, had concealed a weapon in his BMW. See Brookins,
345 F.3d at 235 (internal citation omitted). Further, the BMW
admittedly had been used to transport both participants and
money before the transaction at the Club. Thus, to the extent
the question is distinct from whether the BMW was an
“instrumentality” of the drug conspiracy, we conclude the search
was also justified by probable cause to believe the BMW
9
contained evidence of the crime or contraband, including a
weapon. 3
B.
We now turn to Abulaban’s challenge to his within
Guidelines sentence. As recently explained, now that the
Guidelines are effectively advisory, district courts must first
correctly calculate the defendant’s Guidelines range and then
“allow the parties to argue for what they believe to be an
appropriate sentence and consider those arguments in light of
the factors set forth in 18 U.S.C.A. § 3553(a).” United States
v. Engle, 592 F.3d 495, 500 (4th Cir. 2010). The district court
must explain its reasons for the sentence it imposes; the
appellate court then reviews that sentence for reasonableness,
including both a procedural and a substantive component. First,
the appellate court must ensure that the district court
committed no significant procedural error, such as
failing to calculate (or improperly calculating) the
Guidelines range, treating the Guidelines as
mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts,
or failing to adequately explain the chosen sentence –
including an explanation for any deviation from the
Guidelines range.
3
In light of this conclusion, we need not reach the
applicability of the forfeiture statute as a basis to seize the
BMW.
10
Id., quoting Gall v. United States, 552 U.S. 38, 51 (2007).
The second step considers the substantive reasonableness of the
sentence, taking into account the totality of the circumstances
and applying an abuse of discretion standard. Id. The appellate
court, though not the district court, may accord a presumption
of reasonableness to a sentence that falls within a properly
calculated Guidelines range. United States v. Smith, 566 F.3d
410, 414 (4th Cir. 2009); United States v. Brewer, 520 F.3d
367, 372 (4th Cir. 2008).
Abulaban essentially raises a procedural challenge,
alleging the Guidelines were not correctly calculated because,
in his view, the court sentenced him on the basis of unrelated
conspiracies in North and South Carolina and on the basis of an
additional 1000-pill ecstasy sale in New York. He characterizes
this (1) as a violation of Fed. R. Crim. P. 32(i)(3)(B) based on
his objection to the fact that the presentence report (“PSR”)
included the names of other alleged coconspirators and (2) as a
Fifth and Sixth Amendment violation on the theory that he was
sentenced for offenses to which he did not plead guilty and in
which he was not involved. 4
4
Abulaban’s argument that he had not waived his right to
appeal the sentence was mooted by the government’s response that
it did not seek to enforce any such waiver.
11
Regardless of the underlying theory, a fair reading of the
sentencing transcript makes it clear that Abulaban was sentenced
only on the two drug conspiracies to which he pled guilty, and
on the related firearms charge. The conspiracy in 08-CR-240
involved 20 kilograms; Abulaban brokered the entire deal. The
ecstasy conspiracy in 08-CR-101 involved a planned distribution
of 2,500 tablets in March or April 2007 in Virginia. Abulaban
admitted to both these conspiracies on July 15, 2008 before
Judge O’Grady. J.A. 363-65, 368-71, 391-93. On October
30,2008, he was sentenced by Judge O’Grady, who added a 4-level
role enhancement to the PSR’s 34 levels, which was based on 20
kilograms of cocaine and 1,015 tablets of ecstasy. J.A. 496. 5
The judge declined to find obstruction of justice, deducted
three levels for acceptance of responsibility, and noted an
advisory Guidelines range of 168 to 210 months at level 35
Criminal History Category I. J.A. 486-87, 496. In listening to
arguments about the appropriate sentence, Judge O’Grady said “I
am going to sentence him based on what he did in two different
drug conspiracies and the possession of a firearm.” J.A. 503.
He later referred to Abulaban putting together the 20-kilogram
deal and being the leader of the drug organization for the deal
5
If anything, therefore, the quantity of ecstasy was
understated.
12
at Club Envy. J.A. 515. While he misspoke by referring to
methamphetamine as one of the “multiple” conspiracies, he
quickly accepted counsel’s correction. J.A. 516. Considering
the seriousness of the offense, the need for deterrence and
punishment, as well as Abulaban’s age, medical condition, and
limited criminal record, he imposed a sentence close to the
bottom of the Guidelines range. To suggest that Judge O’Grady
relied on criminal conduct for which Abulaban’s guilt was not
firmly established borders on the frivolous. The sentence was
reasonable and did not violate any provision of the
Constitution.
C.
Defendant Young also challenges his sentence in several
respects: first, the court’s attribution of the entire 20
kilograms to him for purposes of sentencing; second, the four-
level enhancement for use of body armor; third, the alleged
reliance of the court on evidence from a proceeding where Young
was not present; and fourth, that the 270-month term of
incarceration was substantively unreasonable. These will be
addressed in turn.
First, the record before the trial court amply supports a
finding that the full 20 kilograms of cocaine not only were
foreseeable to Young but also were within the scope of his
particular agreement. Young knew that he was part of “a big, 20
13
kilogram, cocaine deal.” J.A. 576. As the PSR noted, there was
evidence that when it appeared the purchasers would fall short,
Young agreed to take his initial five kilos and quickly sell
enough to return to Club Envy later that evening to buy two more
kilos. J.A. 549, 574. 6 While the PSR attributed only seven
kilograms to Young, the government contended that Young should
be accountable for all 20 kilos. Reviewing the facts that
showed Young’s knowledge of and participation in a specific 20-
kilogram transaction, the trial court correctly concluded that
the entire 20 kilograms was reasonably foreseeable to Young
“within the scope of the criminal activity that he jointly
undertook.” J.A. 466-67. See U.S.S.G. § 1B1.3(a)(1)(A) & (B)
and app. Note 2.
Second and third, the district judge correctly enhanced
Young’s sentence for use of body armor based primarily on
Young’s own admission to law enforcement agents that he had a
gun and body armor that night, although he took off the body
armor when he ran to the back of the Club. J.A. 460-61, 467.
Reference to trial evidence as consistent with Young’s own
statements did not undercut the independent basis for the
6
Young admitted he had been asked to take more than his
five kilos, but denied agreeing to do so. J.A. 577.
14
court’s finding at sentencing nor did it violate Young’s due
process rights.
Finally, Young has not persuaded us that the sentence, at
the low end of the advisory Guidelines range, was substantively
unreasonable. The district judge emphasized the seriousness of
the offense, as reflected by the quantity of cocaine and the
possession of both a weapon and body armor, 7 but he also
considered Young’s individual history, as noted by the court’s
downward departure from Criminal History Category III to
Category II when calculating the Guidelines. Considering the
totality of the circumstances, we cannot say that the district
judge abused his substantial discretion in sentencing Young to
the low end of the Guidelines on the cocaine conspiracy,
followed by the mandatory minimum consecutive 60 months on the
firearms charge.
III.
Accordingly, for the reasons explained above, the
suppression ruling and the Judgment and Commitment orders
entered by the district court as to Fares Abulaban and Jason
Young are
AFFIRMED.
7
Possession of body armor also contributed to Young’s
sentence being longer than other co-conspirators.
15