United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief United States District Judge
Amar Khalid Abed, Rayed Fawzi Abed, Obadya Hanafie Abed, and
Fahad T. Tawalbeh (hereinafter "the defendants"),
initially proceeding pro se but later represented by
counsel, filed motions in 2016 to vacate their convictions
and sentences pursuant to 28 U.S.C. § 2255. ECF Nos.
654, 658, 668, 675, 676. Supplemental and amended motions
also were filed. ECF Nos. 686, 687, 688, 689, 691, 692, 693,
694. The defendants argue that they are entitled to relief
pursuant to the holding in Johnson v. United States,
135 S.Ct. 2551 (2015). On January 10, 2017, the government
filed motions to dismiss the petitions. ECF Nos. 705, 706.
Also pending are a motion for reconsideration of an order
denying a motion for release from custody, ECF No. 738, and
two additional motions for .-release from custody. ECF Nos.
April 12, 2017, the court entered an order staying the cases
pending resolution of United States v. Simms, 914
F.3d 229 (4th Cir. 2019). Simms has now been decided
and the Supreme Court decided a similar issue in United
States v. Davis, 139 S.Ct. 2319 (2019). The parties have
fully briefed the issues.
discussed more fully below, the motions for relief under 28
U.S.C. § 2255, ECF Nos. 654, 658, 668, 675, 676, 686,
687, 688, 689, 691, 692, 693, 694, are GRANTED as regards
Count 11 of the indictment, charging a violation of 18 U.S.C.
§ 924(c), use of a destructive device to commit a felony
in violation of 18 U.S.C. § 924(c). The defendants'
motions for immediate release, ECF Nos. 738, 739, 740, are
DENIED. The government's motions to dismiss, ECF Nos.
705, 706 are DENIED. The Count 11 convictions and mandatory
30-year sentences the defendants are serving for Count 11 are
because these defendants were sentenced based on multiple
convictions, their requests for immediate release are
DENIED. Instead, as explained below, the
court will conduct resentencing hearings for each of the
defendants after revised Presentence Reports have been
prepared and filed and the parties have had an opportunity to
review and object to them. The court will hold separate
resentencing hearings for the defendants in November and
convictions in this case stem from an investigation of the
defendants, who were members of what was loosely termed the
Abed organization, which included at least ten individuals.
ECF No. 645 at 4-5. In 1995 Fahed Tawalbeh and Amar Abed were
convicted of food stamp fraud related to a convenience store
they owned. Id. at 5. In March 1996, agents from the
Bureau of Alcohol, Tobacco, and Firearms (ATF) began
investigating a series of suspicious fires and attempted
arsons at properties owned by Fahad Tawalbeh and other
members of the Abed organization. Id. at 5-6. As the
investigation progressed, law enforcement officers learned of
crimes committed by the Abed organization, including drug
dealing, robbery, burglary, theft, assault, and arson.
Id. at 6-7.
to this proceeding, in late 1994 defendant Fahed Tawalbeh,
who owned a convenience store called the Speedway Market,
became upset because he believed his business was suffering
from competition with The Corner Store, a convenience store
located across the street from the Speedway Market. He
hatched a plan to burn down The Corner Store and agreed to
pay Amar Abed, Rayed Abed, Obadya Abed, and another man,
Richard Chisom, $2, 000 to burn down the store by tossing a
Molotov cocktail through the back window of the store.
Id. at 10-11.
January 13, 1995, Rayed Abed drove the four of them to the
Corner Store. Obadya Abed acted as the lookout and Amar Abed
and Chisom went to the back of the store. At approximately
5:45 a.m., Amar Abed broke a back window with a rock and
Chisom was preparing to light the rag stuffed into the top of
the bottle when he looked to his left and saw someone
walking. Chisom told Amar that he was afraid and did not
think he could do it and Amar told him he had no choice but
to do it. Amar lit the fuse and Chisom tossed the Molotov
cocktail through the window. Id. at 11.
gathered as the fire burned and firefighters arrived to fight
it. Fahed Tawalbeh and Joseph Abed, another member of the
Abed organization, watched the fire from the parking lot of
the Speedway Market. Two people, Todd Thomas and Barbara
Hardy, were seen talking to firefighters and pointing in the
direction of Joseph Abed and Fahed Tawalbeh. Thomas and Hardy
lived in the apartment where Chisom believed someone had seen
him and Amar Abed behind The Corner Store. On the evening of
January 13, 1995, Thomas and Hardy died in a fire that
occurred at their apartment. Id.
March 4, 1997 the Abed defendants were indicted on a number
of counts based on the plot to burn down the convenience
store. All were arrested shortly thereafter.
March 6, 1998, following a 35-day jury trial, Amar Khalid
Abed was convicted of racketeering in violation of 18 U.S.C.
§ 1962(c) (Count 1); conspiracy to racketeer in
violation of 18 U.S.C. § 1962(d) (Count 2); conspiracy
to commit arson in violation of 18 U.S.C. § 371 (Count
3); arson in violation of 18 U.S.C. § 844(i) (Count 4);
conspiracy to commit arson in violation of 18 U.S.C. §
371 (Count 9); arson in violation of 18 U.S.C. § 844(i)
(Count 10); use of a destructive device to commit a felony in
violation of 18 U.S.C. § 924(c) (Count 11); and
conspiracy to distribute a controlled substance in violation
of 21 U.S.C. § 846 (Count 12). ECF No. 645 at 1. On
August 27, 1998 he was sentenced to 210 months on Counts 1,
2, 4, 10, and 12; and 60 months on Counts 3 and 9, all to run
concurrently. He was sentenced to 360 months on Count 11, to
run consecutively to the other terms, for a total of 570
months. In addition, he was sentenced to a total supervised
release term of 5 years. Min. Entry of August 27, 1998 and
ECF No. 438.
Fawzi Abed was convicted on Counts 1, 2, 9, 10, 11, and 12
and also of bribery of a witness in violation of 18 U.S.C.
§ 201(b)(3). ECF No. 649. He was sentenced to 78 months
on Counts 1, 2, 9, 10, 12, and the bribery of a witness
count, and 60 months on Count 9, all to run concurrently. He
was sentenced to 360 months on Count 11, to run consecutively
to the other terms, for a total of 438 months. In addition,
he was sentenced to a total supervised release term of 5
years. Min. Entry of August 27, 1998 and ECF No. 443.
Hanafie Abed was convicted on Counts 1, 2, 9, 10, 11, and 12.
He was sentenced to 137 months on counts 1, 2, 10, and 12,
and 60 months on Count 9, all to run concurrently. He was
sentenced to 360 months on Count 11 to run consecutively to
the other counts for a total of 497 months and was sentenced
to a total of 5 years of supervised release. Min. Entry of
August 27, 1998 and ECF No. 442.
Tawalbeh was convicted on Counts 9, 10, and 11. He was
sentenced to 60 months on Count 9 and 70 months on Count 10,
plus one month pursuant to 18 U.S.C. § 3147 to be served
consecutively to Counts 9 and 10. He was sentenced to 360
months on Count 11 to run consecutively to Counts 9 and 10,
for a total of 431 months. He also was sentenced to a total
of 5 years of supervised release. Min. Entry of August 27,
1998 and ECF No. 439.
their convictions, the Abed defendants filed direct appeals
with the Fourth Circuit Court of Appeals, which affirmed
their convictions and sentences. United States v.
Abed, 203 F.3d 822 (4th Cir. 2000) (Table). With regard
to the pending § 2255 motions, all the Abed defendants
were granted authorization by the Fourth Circuit Court of
Appeals to file successive applications for post-conviction
relief based on Johnson v. United States, 135 S.Ct.
2551 (2015). ECF Nos. 653, 657, 667, 674.
28 U.S.C. § 2255
petitioner may obtain relief via 28 U.S.C. § 2255 by
showing (1) that his sentence was imposed in violation of the
Constitution or laws of the United States; (2) that the court
was without jurisdiction to impose the sentence; (3) that the
sentence was in excess of that authorized by law; or (4) that
the sentence is otherwise subject to collateral attack. The
defendants argue that following the decisions in
Johnson and ...