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United States v. Mustafa

United States District Court, D. Minnesota

July 5, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
KANAN T. MUSTAFA, Defendant.

          James S. Alexander and Karen B. Schommer, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.

          Kanan T. Mustafa, Reg. No. 20751-041, pro se defendant.

          MEMORANDUM OPINION AND ORDER

          JOHN R. TUNHEIM CHIEF JUDGE

         Kanan 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.[1] 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.

         BACKGROUND

         Mustafa 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.)

         During 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.)[2] 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.)

         Mustafa 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.[3] (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.)

         DISCUSSION

         I. REQUEST TO COMPEL

         Under 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. § 5K1.1(a).

         It is 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.)

         Mustafa 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.

         Additionally, 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 ...


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