United States District Court, D. Minnesota
S. Alexander and Karen B. Schommer, UNITED STATES
ATTORNEY'S OFFICE, for plaintiff.
T. Mustafa, Reg. No. 20751-041, pro se defendant.
MEMORANDUM OPINION AND ORDER
R. TUNHEIM CHIEF JUDGE
Mustafa was sentenced to consecutive sentences for two
conspiracy-related counts: (1) 30 months for conspiracy to
engage in interstate transportation of goods under 18 U.S.C.
§§ 371, 1029(a)(2), and 2314, and (2) 100 months
for conspiracy to defraud the United States under 18 U.S.C.
§ 286. Mustafa has filed three post-sentencing motions.
First, he asks the Court to compel the United States to file
a downward departure motion under U.S.S.G. § 5K1.1.
Second, Mustafa requests the Court to subpoena the
Minneapolis Police Department to obtain evidence in support
of his first motion. Third, Mustafa moves for a correction of
a judicial oversight under Rule 36 for improperly imposing
consecutive sentences. The Court will deny these motions because
the United States already moved for a departure under §
5K1.1, the subpoenas would be unreasonable, and the Court
properly imposed consecutive sentences.
led a conspiracy to obtain and sell stolen and fraudulently
acquired phones and tablets. (Plea Agreement ¶ 1, Oct.
27, 2016, Docket No. 918; Presentencing Investigation Report
(“PSR”) ¶ 137, Feb. 1, 2017, Docket No. 958
(identifying Mustafa as “an organizer or leader”
of the conspiracy).) He pled guilty to Count 1 of the
indictment, conspiracy to engage in interstate transportation
of goods under 18 U.S.C. §§ 371, 1029(a)(2), and
2314, which carried a maximum sentence of 5 years'
imprisonment. (Plea Agreement ¶¶ 2, 4a.) He also
pled guilty to Count 3 of the indictment, conspiracy to
defraud the United States under 18 U.S.C. § 286, which
carried a maximum sentence of 10 years. (Id.) As
part of the plea agreement, Mustafa agreed to cooperate with
the United States. (Id. ¶ 15.) In exchange, the
United States agreed to move at sentencing for a downward
departure under U.S.S.G. § 5K1.1. (Id.)
sentencing, the Court adopted the Presentence Investigation
Report (“PSR”), which concluded that Mustafa had
a total offense level of 35 and criminal history category of
I. (Am. Statement of Reasons (“SOR”) § III,
June 27, 2017, Docket No. 1235.) The United States moved for
a downward departure under § 5K1.1 due to the
substantial assistance provided by Mustafa, which the Court
granted. (Id. § V.C.) The Court also applied a
downward variance to avoid sentencing disparities and to
account for Mustafa's family situation, his lack of
criminal history, the time he had already served, and other
factors laid out in 18 U.S.C. § 3553. (Id.
§§ VI, VIII.) The Court determined that a total
punishment of 130 months imprisonment was appropriate and
sentenced Mustafa to 30 months for Count 1 and 100 months for
Count 3 to run consecutively. (Id.)
has filed three post-sentencing motions. First, Mustafa asks
the Court to compel the United States to file a motion for a
§ 5K1.1 departure consistent with his plea agreement
because Mustafa believes the United States has not yet moved
for such a departure. (Def.'s Reply at 1, May 16, 2018,
Docket No. 1236.) He argues that his 130-month sentence is
only a 5-month reduction from the high end of a guidelines
range of 108-135 months and less than the 20-percent
reduction he expected. (Id. at 2.) Second, Mustafa
asks the Court to issue three subpoenas to obtain information
from the Minneapolis Police Department about the substantial
assistance he provided. (Def.'s Mot. for Issuance of
Subpoena Duces Tecum (“Subpoena Mot.”) at 1, May
23, 2018, Docket No. 1237.) Finally, he asks the Court to
correct a perceived judicial error in sentencing him to
consecutive instead of concurrent sentences under Rule 36.
(Def.'s Mot. to Correct at 1, Apr.12, 2018, Docket No.
1227.) He argues that the Court overlooked U.S.S.G. §
5G1.2(c), which states “if the sentence imposed on the
count carrying the highest statutory maximum is adequate to
achieve the total punishment, then the sentence on all counts
shall run concurrently.” (Def.'s Reply at 6.)
REQUEST TO COMPEL
U.S.S.G. § 5K1.1, a court may issue a downward departure
from the sentencing guidelines “[u]pon motion of the
government stating that the defendant has provided
substantial assistance in the investigation or prosecution of
another person who has committed an offense.” The Court
determines the appropriate reduction. U.S.S.G. §
undisputed that Mustafa provided substantial assistance to
the United States. But the Court already accounted for that
assistance. (SOR § V.C.) The Court initially determined
that the guidelines range was 168 to 180 months based on
Mustafa's total offense level of 35 and criminal history
category of I. (SOR § III.) The United States
subsequently moved for a downward departure under §
5K1.1, which the Court granted. (Id. § V.D.) In
light of the § 5K1.1 departure and a slight downward
variance, the Court imposed a sentence of 130 months, which
was 38 months below the minimum guidelines range. Overall,
Mustafa received a 23-percent reduction in his sentence.
Thus, Mustafa's attorney's statement “that
[Mustafa] would receive a twenty (20) percent reduction in
his sentence” was accurate. (Def.'s Reply at 2.)
mistakenly states that the original guidelines range was
108-135 months. (Def.'s Reply at 2.) A guidelines range
of 108-135 months would have applied if Mustafa had a total
offense level of 31 instead of 35. It is possible that
Mustafa thought that the Court would not apply the four-level
enhancement under U.S.S.G. § 3B1.1(a) for being an
organizer or leader. (Plea Agreement at 7-8; see PSR
¶ 137.) However, the Court did apply this enhancement.
Because the Court applied the four-level enhancement,
Mustafa's total offense level was 35, not 31; and the
guidelines range was therefore 168-180 months instead of
108-135 months. Because the United States moved for a
downward departure for substantial assistance at sentencing
and the Court applied the departure in sentencing Mustafa,
the Court will deny Mustafa's request to compel the
United States to file a § 5K1.1 motion.
Mustafa fails to demonstrate any grounds for modifying his
original sentence. 18 U.S.C. § 3582 permits the
modification of a sentence in three scenarios. First, the
Court may modify a sentence if the Director of the Bureau of
Prisons moves to decrease the sentence and either the Court
finds an extraordinary and compelling reason for the
reduction or the defendant is over the age of 70, has served
30 years in prison, and no longer poses a danger to society.
18 U.S.C. § 3582(c)(1)(A). Second, the Court may reduce
a sentence pursuant to Rule 35 if the United States moves to
decrease the sentence in light of substantial assistance
provided to the United States after sentencing. Id.
§ 3582(c)(1)(B). Third, the Court may modify a sentence
if the defendant or Director of the Bureau of Prisons moves
to decrease the sentence based on a subsequent lowering of
the guidelines range by the Sentencing Commission.
Id. § 3582(c)(2). Mustafa has not demonstrated
that any of these scenarios apply to him. Neither the
Director of Bureau of Prisons nor the United States have
moved for a reduction of Mustafa's sentence. See