United States v. Koumbairia ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Action No. 08-213-1 (JDB)
NAIBEYE KOUMBAIRIA Civil No. 13-743 (JDB)
Defendant.
MEMORANDUM OPINION
Before the Court is petitioner Naibeye Koumbairia’s motion to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Court will
deny the motion.
BACKGROUND
Following Koumbairia’s plea of guilty to sixteen charges based on his participation in a
bank fraud conspiracy, the Court sentenced Koumbairia to 100 months on each count, to run
concurrently. See Judgment [ECF No. 240]. Previously, he had been convicted under 18 U.S.C.
§ 922(g)(1) for possession of a firearm by a convicted felon. See United States v. Koumbairia,
No. 10-3016, 2013 WL 597656, at *1 (D.C. Cir. Feb. 1, 2013). Koumbairia appealed the bank
fraud sentence and argued that in sentencing him, the Court improperly double-counted his
possession of a gun when it (a) increased his base offense level for possessing a gun during the
course of the bank fraud conspiracy and (b) calculated his criminal history category based in part
on his prior gun possession sentence. See U.S.S.G. § 4A1.2(a)(1) (“The term ‘prior sentence’
means any sentence previously imposed . . . for conduct not part of the instant offense.”).
The indictment in this case charged that Koumbairia possessed a gun on March 6, 2007,
as a part of a fraud conspiracy, yet before he pled guilty to the bank fraud charges, he had been
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convicted under section 922(g)(1) for that gun possession. The Court increased his base offense
level for the bank fraud sentence based on separate instances of gun possession during the bank
fraud conspiracy. See Koumbairia, 2013 WL 597656, at *2-3. The Court explained that
Koumbairia’s earlier sentence for his section 922(g)(1) conviction did not take into consideration
his use of “a gun in any way in connection with this bank fraud.” Tr. of Sent. Hr’g [ECF No.
260] 54. In other words, even though the indictment charged that Koumbairia possessed a gun on
March 6, 2007, as part of the bank fraud conspiracy, because the Court found that the prior
sentence was not based on his use of a gun in connection with the conspiracy, the Court could
rely on that sentence to increase his criminal history category while also increasing his base
offense level based on separate instances of gun possession in connection with the bank fraud
conspiracy. On appeal, the D.C. Circuit found no “clear” or “obvious” error in this Court’s
offense level or criminal history calculations, and affirmed the sentence as imposed. Koumbairia,
2013 WL 597656, at *3.
Koumbairia, proceeding pro se, has now moved to vacate, set aside, or correct his
sentence under section 2255, arguing that his counsel was constitutionally deficient for not
objecting to the Court’s sentencing calculations and for not moving to dismiss the indictment.
STANDARD OF REVIEW
Under section 2255, a prisoner in custody under sentence of a federal court may move the
sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that “the
sentence was imposed in violation of the Constitution or laws of the United States, or that the
court was without jurisdiction to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
Such a motion will be granted only in limited circumstances because of the premium placed on
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the finality of judgments and because of the opportunities prisoners have to raise most of their
objections during trial or on direct appeal. See United States v. Frady, 456 U.S. 152, 164 (1982)
(“Once the defendant's chance to appeal has been waived or exhausted, . . . we are entitled to
presume he stands fairly and finally convicted, especially when . . . he already has had a fair
opportunity to present his federal claims to a federal forum.”). “[T]o obtain collateral relief a
prisoner must clear a significantly higher hurdle than would exist on direct appeal.” Id. at 166.
The defendant bears the burden of proving his claims by a preponderance of the evidence. United
States v. Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973).
Even so, “unless the motion and the files and records of the case conclusively show that
the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine
the issues, and make findings of fact and conclusions of law with respect thereto.” § 2255(b). But
a district court need not conduct an evidentiary hearing before denying a section 2255 motion
when “the motion and files and records of the case conclusively show that the prisoner is entitled
to no relief.” Id.; accord United States v. Morrison, 98 F.3d 619, 625 (D.C. Cir. 1996). “If it
plainly appears from the face of the motion and any annexed exhibits and the prior proceedings
in the case that the movant is not entitled to relief in the district court, the judge shall make an
order for its summary dismissal . . . .” Rules Governing § 2255 Proceedings, Rule 4(b).
DISCUSSION
Koumbairia argues only that his counsel was constitutionally ineffective. The Sixth
Amendment to the United States Constitution guarantees “the right to the effective assistance of
counsel,” Strickland v. Washington, 466 U.S. 668, 686 (1984) (internal quotation marks
omitted), and a habeas petitioner may raise an ineffective assistance of counsel claim for the first
time in a section 2255 proceeding “whether or not [she] could have raised the claim on direct
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appeal,” Massaro v. United States, 538 U.S. 500, 504 (2003). To succeed on a claim of
ineffective assistance of counsel, a habeas petitioner must show both that his lawyer performed
deficiently, see Strickland, 466 U.S. at 687 (requiring showing that “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment”), and that the petitioner was prejudiced by the lawyer’s mistakes, see id. at 694(requiring “a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different”). “Failure to make the required showing of either
deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700.
I. KOUMBAIRIA’S COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO
OBJECT TO THE COURT’S SENTENCING CALCULATIONS
Koumbairia first argues that his counsel was ineffective because his counsel failed to
object when the Court increased his criminal history category based on Koumbairia’s prior gun
conviction even though the Court also increased his base offense level because he possessed a
gun in connection with the bank fraud offense. The D.C. Circuit, however, found that this Court
did not commit a “clear” or “obvious” error in calculating Koumbairia’s criminal history.
Koumbairia, 2013 WL 597656, at *3. Koumbairia nevertheless believes that had his counsel
objected, either (1) the Court would not have used the conviction to enhance his criminal history
category; or (2) the D.C. Circuit would have (a) reviewed the criminal history calculation under a
less deferential standard of review than plain error review, (b) determined that the Court erred,
and (c) reversed. Because his counsel did not object, Koumbairia contends that his assistance
was constitutionally deficient.
Yet had his counsel objected to the Court’s criminal history calculation, it would have
made no difference. To begin with, the Court did not rely on the March 6, 2007 gun possession
in calculating Koumbairia’s base offense level. See Tr. of Presentence Hr’g [ECF No. 259] 87.
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Instead, the Court relied on other instances in which Koumbairia possessed a firearm in
connection with the fraud scheme. Id. From that alone, the Court could conclude that it did not
engage in double-counting. See, e.g., United States v. Crosson, 166 F.3d 1210, at *1 (4th Cir.
1998) (Table) (no error where district court increased criminal history category because it did not
rely on prior sentence in computing offense level); United States v. Oser, 107 F.3d 1080, 1086,
1088 (3d Cir. 1997) (prior sentence was not relevant conduct for criminal history purposes where
court did not rely on prior offense in computing base offense level).
Further, when relying a on prior sentence to calculate criminal history, “‘prior sentence’
means any sentence previously imposed . . . for conduct not part of the instant offense.” U.S.S.G.
§ 4A1.2(a)(1). The conduct at issue here is the gun possession underlying Koumbairia’s section
922(g)(1) conviction. To be “part of the instant offense,” or “relevant conduct,” id. § 4A1.2 app.
n.1, that possession must have “occurred during the commission of the offense of conviction, in
preparation for that offense, or in the course of attempting to avoid detection or responsibility for
that offense,” id. § 1B1.3(a)(1)(B). Here, the Court did not consider the conduct for the section
922(g)(1) conviction to be “in any way [connected to] this bank fraud.” Tr. of Sent. Hr’g [ECF
No. 260] 54. In other words, the Court found that the prior sentence was imposed for conduct
unrelated to the bank fraud offense—a finding congruent with its lack of reliance on that conduct
when calculating the base offense level for the fraud sentence. See Tr. of Presentence Hr’g [ECF
No. 259] 87. Had Koumbairia’s counsel objected, the Court would have overruled the objection
based on the above analysis. Hence, Koumbairia suffered no prejudice on that basis, meaning
that Koumbairia’s counsel was not constitutionally deficient—he was not obligated to raise a
meritless argument. United States v. Watson, 717 F.3d 196, 198 (D.C. Cir. 2013) (“[C]ounsel
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does not perform deficiently by declining to pursue a losing argument.”); United States v. Kelly,
552 F.3d 824, 831 (D.C. Cir. 2009) (counsel “not obliged to raise a meritless defense”).
Moreover, it appears unlikely that the D.C. Circuit would have determined that the Court
erred in so concluding. Other circuits have confronted the question of how to determine whether
a prior sentence constitutes relevant conduct when calculating criminal history. See United States
v. Torres, 182 F.3d 1156, 1159 (10th Cir. 1999) (surveying case law). Some courts ask simply
“whether the prior sentence was actually taken into account by the sentencing court in
determining the total offense level.” Id. at 1159 (citing Crosson, 166 F.3d at 1210; Oser, 107
F.3d at 1086, 1088). Under that standard, the Court did not err because the Court relied on other
instances of gun possession, explicitly disclaiming reliance on the March 6, 2007 possession
when determining the base offense level.
Another approach is to “make an independent evaluation of whether the prior sentence
constituted relevant conduct based on factors such as the similarity, temporal proximity, and
regularity of the indicted offense and the prior offense.”1 Torres, 182 F.3d at 1159-60 (citing
United States v. Phillips, 129 F.3d 118, at *2 (4th Cir. 1997) (Table); United States v. Walling,
936 F.2d 469, 471 (10th Cir. 1991)). The section 922(g)(1) conviction was based on
Koumbairia’s constructive possession of a gun that was found in his home during the execution
of a search warrant. Whether the simple fact of keeping a gun in the house while engaging in an
ongoing bank fraud conspiracy alone constitutes “relevant conduct” is questionable. It may
instead support the alternative conclusion that Koumbairia kept a gun in his home for self-
defense purposes—which would not be “relevant conduct.” Rather than possessing the gun “in
connection with” the bank fraud offense, Koumbairia was convicted of a strictly possessory
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Some courts combine the two approaches, but under either approach, independently or in combination,
the prior sentence did not constitute relevant conduct here. See Torres, 182 F.3d at 1160.
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offense, and the gun was found in his home, not on his person. Koumbairia, 2013 WL 597656, at
*2-3. In contrast, when making a ruling on the base offense level under the Sentencing
Guidelines, the Court found that there was “substantial evidence that reveals that defendant was
seen with a gun, that he was prepared to confront someone that he believed stole money from the
conspiracy with the aid of the gun, and that he had a gun with him when he was accompanying [a
co-conspirator] as she cashed a fraudulent check.” Tr. of Presentence Hr’g [ECF No. 259] 87.
Each of those instances supported a finding that Koumbairia “possess[ed a firearm] in
connection with the offense,” a finding that overlaps considerably with a finding that the
possession constituted “relevant conduct.” U.S.S.G. § 2B1.1(b)(13)(B). Hence, it seems unlikely
that the D.C. Circuit would conclude, even under a less deferential standard, that the Court erred
in finding that Koumbairia’s sentence for gun possession was not “relevant conduct.” U.S.S.G. §
4A1.2 app. n.1. Thus, because he has not shown any prejudice due to his counsel’s failure to
object, Koumbairia cannot show that his counsel was ineffective under Strickland.
II. KOUMBAIRIA’S COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO
MOVE TO DISMISS THE INDICTMENT
Koumbairia also argues that his counsel was constitutionally deficient because he did not
move to dismiss the fraud indictment. He contends that he was prejudiced because the gun
charge was severed from the bank fraud charges, meaning that when he was sentenced for the
bank fraud charges after he finished serving his prison sentence on the gun charge, the Court
could not sentence him to concurrent sentences—and his criminal history category was increased
because of the prior gun possession sentence—so he received a longer total term of
imprisonment. Read broadly, his argument is that the delay in indicting him on the bank fraud
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charges violated the Due Process Clause.2 But as with the double-counting issue, Koumbairia
cannot show that he was prejudiced by his counsel’s failure to move to dismiss the indictment:
no basis existed for such a motion.
Excessive pre-indictment delay “offends due process if the defendant can carry the
burden of showing (1) that the government delayed bringing the indictment in order to gain a
tactical advantage; and (2) that the delay caused him actual and substantial prejudice.” United
States v. Mills, 925 F.2d 455, 464 (D.C. Cir. 1991), modified on other grounds, 964 F.2d 1186(D.C. Cir. 1992) (en banc). Even if Koumbairia could show that the delay caused him sentencing
prejudice3—which is questionable given the analysis above—he offers no evidence to support
his claim that the government intentionally delayed in order to gain a tactical advantage. See
United States v. Lovasco, 431 U.S. 783, 790 (1977) (noting that “proof of prejudice is generally
a necessary but not sufficient element of a due process claim, and that the due process inquiry
must consider the reasons for the delay as well as the prejudice to the accused”); United States v.
Pollack, 534 F.2d 964, 969 (D.C. Cir. 1976) (no due process claim for pre-indictment delay
where defendants did not meet their “substantial burden” to show that “the government acted
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To the extent Koumbairia argues that the indictment should have been dismissed because the gun charge
should not have been severed, he is incorrect. Federal Criminal Rule 8(a) provides that an indictment “may” charge
a defendant with separate counts in two or more offenses, but only if those offenses “are of the same or similar
character, or are based on the same act or transaction, or are connected with or constitute parts of a common scheme
or plan.” In other words, even if the bank fraud offenses and the gun possession offense were sufficiently related to
be joined—an uncertain proposition given the above analysis—Rule 8(a) is a rule of permissive joinder, not
mandatory joinder. See, e.g., United States v. Giwa, 831 F.2d 538, 542 n.4 (5th Cir. 1987); United States v. Worthy,
755 F. Supp. 2d 226, 231 n.9 (D. Maine 2010). Hence, the Court would have denied a motion to dismiss that was
premised solely on the argument that the government improperly severed the gun possession charge from the bank
fraud indictment.
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Moreover, even assuming that Koumbairia was actually prejudiced when the government severed the
bank fraud charges—thus leading to pre-indictment delay on those charges—it is not settled that this is the kind of
prejudice that violates the Due Process Clause. See, e.g., United States v. Bridgeman, 523 F.2d 1099, 1112 (D.C.
Cir. 1975) (defendant must show “that the delay caused substantial prejudice to [his] rights to a fair trial”) (emphasis
added). In fact, several courts have held that because pre-indictment delay causing only sentencing prejudice does
not implicate a defendant’s right to a fair trial, such delay does not violate the Due Process Clause. See United States
v. Uribe-Rios, 558 F.3d 347, 358-59 (4th Cir. 2009); United States v. Ricketson, 498 F.2d 367, 371 (7th Cir. 1974).
But see United States v. Ray, 578 F.3d 184, 199 (2d Cir. 2009) (applying due-process analysis to pre-indictment
delay’s prejudicial effect on sentencing); United States v. Sanders, 452 F.3d 572, 577, 580 (6th Cir. 2006) (same).
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with impropriety”). In addition, the government has countered persuasively that the pre-
indictment delay on the bank fraud charges was due to the complexity of defendants’ scheme and
the large volume of evidence against them. See Gov’t’s Opp’n [ECF No. 302] (“Gov’t’s Opp’n”)
22-23; see also United States v. Bridgeman, 523 F.2d 1099, 1112 (D.C. Cir. 1975) (“The obvious
reason for the delay was the magnitude and complexity of the crimes.”); Lovasco, 431 U.S. at
790-91 (prosecutors “are under no duty to file charges as soon as probable cause exists but
before they are satisfied they will be able to establish a suspect’s guilt beyond a reasonable
doubt”). And the government indicted Koumbairia well within the statute of limitations. See
Gov’t’s Opp’n at 23; 18 U.S.C. §§ 3282, 3293. Hence, even if Koumbairia’s counsel had moved
to dismiss the indictment based on the pre-indictment delay, the Court properly would have
denied that motion, and thus his failure to so move caused Koumbairia no prejudice under
Strickland.
III. KOUMBAIRIA’S COUNSEL WAS NOT INEFFECTIVE FOR FAILING TO
ELICIT TESTIMONY FROM KOUMBAIRIA AT THE EVIDENTIARY
HEARINGS
Finally, Koumbairia also argues that his counsel was constitutionally deficient because he
did not elicit certain testimony from Koumbairia at the evidentiary hearings related to his
sentencing. Koumbairia does not argue that he was denied his constitutional right to testify on his
own behalf. Instead, he argues that if his counsel had put him on the stand, he would have
testified that the gun found in his home during the March 6, 2007 search was the same gun used
in the instances upon which the Court relied to increase his base offense level, and that this fact
would have changed the Court’s “relevant conduct” analysis for the criminal history category.
But this purported failure is also not a basis on which to find his counsel ineffective. The Court
disclaimed reliance on the March 6, 2007 possession not because it was a different gun, but
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because the possession was of a different character altogether: the other instances of possession
clearly supported a finding that Koumbairia used the gun to protect the proceeds of the bank
fraud conspiracy. See Tr. of Presentence Hr’g [ECF No. 259] 87. The constructive possession of
a gun in his home does not so neatly demonstrate that Koumbairia was using the gun for that
purpose—even if it was the same gun—so the Court did not rely on it. Thus, even had
Koumbairia testified that it was the same gun, the Court’s sentencing calculations would not
have changed; the March 6, 2007 gun possession simply was not “relevant conduct.” Hence,
Koumbairia suffered no prejudice under Strickland because the result would have been the same,
and his ineffective assistance claim must fail.
CONCLUSION
Upon a careful review of petitioner’s motion and the entire record of this criminal
proceeding, the Court concludes that a hearing is unnecessary. See Morrison, 98 F.3d at 625(where “the motion and the files and records of the case conclusively show that the prisoner is
entitled to no relief,” the judge need not conduct an evidentiary hearing (quoting § 2255)). The
relevant filings here conclusively show that Koumbairia is not entitled to relief under Strickland
on his ineffective assistance of counsel claims, and he does not identify any information outside
the record that would aid the Court in evaluating his claims—with the exception of the testimony
that it was the same gun, but that testimony would not aid the Court. See Toms, 396 F.3d at 437.
Hence, the Court will deny the motion without holding an evidentiary hearing.
For the foregoing reasons, the Court will deny Koumbairia’s section 2255 motion. A
separate order has issued on this date.
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/s/
JOHN D. BATES
United States District Judge
Dated: February 21, 2014
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