United States v. Mansour W. Saikaly

207 F.3d 363, 2000 U.S. App. LEXIS 4511, 2000 WL 298250
CourtCourt of Appeals for the Sixth Circuit
DecidedMarch 23, 2000
Docket98-3786
StatusPublished
Cited by45 cases

This text of 207 F.3d 363 (United States v. Mansour W. Saikaly) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Mansour W. Saikaly, 207 F.3d 363, 2000 U.S. App. LEXIS 4511, 2000 WL 298250 (6th Cir. 2000).

Opinions

MARBLEY, D.J., delivered the opinion of the court, in which COLE, J., joined. BATCHELDER, J. (pp. 373-74), delivered a separate opinion concurring in part and dissenting in part.

OPINION

MARBLEY, District Judge.

Defendant-Appellant Mansour W. Sai-kaly appeals the 240-month sentence imposed by the district court upon resentenc-ing following the vacation of his conviction for using or carrying a firearm in relation to a drug trafficking crime pursuant to 18 U.S.C. § 924(c) and the vacation of his designation as an armed career criminal pursuant to 18 U.S.C. § 924(e). Specifically, Saikaly objects to the district court’s: 1) enhancement of his sentence pursuant to U.S.S.G. § 2Dl.l(b)(l) for possession of a firearm; 2) failure to consider his objection to the amount of drugs for which he was responsible; and 3) failure to consider his objection to his criminal history category and the determination that he was a criminal history category V rather than a IV. Saikaly also objects to a typographical error on the judgment and commitment order filed after the resentencing. For the reasons that follow, we AFFIRM in part and REVERSE in part, and REMAND for further proceedings consistent with this opinion.

I.

In May 1992, Saikaly was arrested following a year-long investigation in Akron, Ohio, targeting large-scale drug dealers James Dillehay, Jerome Gordon and Anthony Johnson. Saikaly allegedly ran a crack house on the south side of Akron and purchased cocaine from Gordon and Johnson on numerous occasions. Saikaly met Johnson through David Shepherd, who also ran a “crack house” on the south side of Akron. Initially, Saikaly and Shepherd were friendly, but a rift developed. According to the presentence investigation report, Saikaly learned that Shepherd intended to rob him. To protect his narcotics transactions, Saikaly allegedly instructed his girlfriend, Lisa Gadsen, to purchase a Glock 9mm semi-automatic pistol for him.1 In a wiretapped phone conversation, Johnson told Shepherd that Saikaly had shown him the Glock.

On May 1,1992, Saikaly and two individuals were stopped in New York City in a black Blazer owned by Saikaly’s brother, Maurice. The individuals were stopped because the Blazer matched a description of a vehicle involved in a robbery. The officers searched the vehicle and found Gadsen’s loaded Glock 9mm in the locked glove compartment, ammunition, and $22,-000 in cash. Saikaly and his companions [366]*366were arrested, but those charges were dismissed and Saikaly returned to Akron.

On May 22, 1992, Saikaly was again arrested at his residence in Akron and ultimately charged, along with twelve co-defendants, in a ten-count superseding indictment 2 for conspiracy to distribute and possess with the intent to distribute cocaine, and various other drug and firearm charges. Saikaly was named in Count 1 (conspiracy), Count 7 (using or carrying a firearm in connection with a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)), and Counts 8 and 9 (felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1)). Co-defendants Gordon and Johnson entered pleas of guilty and served as government witnesses at trial, providing much of the testimony against the other defendants. Saikaly presented four witnesses on his behalf — his parents and his siblings. Saikaly’s brother, Maurice, testified that he received the Winchester shotgun from Lisa Gadsen as payment for electronics work he had done for her, that Gadsen owned the Glock, and that he had allowed Gadsen to drive his Blazer. Maurice also testified that the $22,000 found in the Blazer belonged to him. Saikaly’s mother testified that she found the Winchester shotgun in the garage where Maurice conducted his electronics business, and that she moved it to Saikaly’s bedroom for safekeeping.

The jury was not persuaded by Saikaly’s defenses to the firearms charges and con-, victed him on all counts. The district court sentenced Saikaly to a total of 360 months imprisonment (300 months on Counts 1, 8 and 9 and 60 months consecutive on Count 7). The district court found that Saikaly was an armed career criminal pursuant to U.S.S.G. § 4B1.4 and assigned him criminal history category V. In addition, the district court found that Saikaly was responsible for more than 5 but less than 15 kilograms of cocaine. Saikaly appealed his conviction, raising various challenges to the search and seizure of his home, the sufficiency of evidence, and the admission of evidence stemming from his arrest in New York. He also claimed a violation of the Speedy Trial Act. This court affirmed Saikaly’s conviction, see United States v. Ross, 53 F.3d 332 (6th Cir.1995), and the United States Supreme Court denied certiorari.

Saikaly then filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, raising four issues as construed by the district court: 1) Saikaly’s § 924(c) conviction was not valid after Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995); 2) Saikaly’s Fourth Amendment rights had been violated in the seizure of evidence used against him at trial; 3) the evidence obtained from the New York arrest should not have been admitted and used against him; and 4) Saikaly was denied effective assistance of counsel at trial and on appeal. The district court vacated Saikaly’s § 924(c) conviction, finding that there was no evidence that he “used’’ or “carried” a firearm as defined by Bailey. In addition, the district court agreed with Saikaly on one of his specific claims regarding ineffective assistance of counsel: that his trial counsel failed to object to his classification as an armed career criminal in the presen-tence report because two of the three underlying offenses did not qualify as serious drug offenses or as violent felonies under the statute. The district court concluded:

Mr. Saikaly’s petition for relief is granted with respect to his § 924(c) claim and his request for resentencing based on the court’s utilization of an erroneous presentence report. In all other regards, Mr. Saikaly’s petition is denied.
The Probation Department is hereby ordered to create a new presentence form for Mr. Saikaly. Mr. Saikaly’s new [367]*367sentencing hearing will be scheduled presently.

The new presentence report ordered by the district court set forth the following findings and/or recommendations:

1) that a two-level enhancement pursuant to U.S.S.G. § 2Dl.l(b)(l) for possession of a firearm should be applied;

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Bluebook (online)
207 F.3d 363, 2000 U.S. App. LEXIS 4511, 2000 WL 298250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-mansour-w-saikaly-ca6-2000.