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United States v. Abed

United States District Court, W.D. Virginia, Roanoke Division

September 10, 2019

UNITED STATES OF AMERICA,
v.
AMAR KHALID ABED, RAYED FAWZI ABED, OBADYA HANAFIE ABED, and FAHAD T. TAWALBEH, Defendants

          MEMORANDUM OPINION

          Hon. Michael F. Urbanski Chief United States District Judge

         Defendants 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. 739, 740.

         On 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.

         As 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.[1] The Count 11 convictions and mandatory 30-year sentences the defendants are serving for Count 11 are VACATED.

         However, 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 December 2019.

         BACKGROUND

         The 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.

         Relevant 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.

         On 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.

         A crowd 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.

         On 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.

         On 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.

         Rayed 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.

         Obadya 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.

         Fahad 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.

         Following 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.

         DISCUSSION

         I. 28 U.S.C. § 2255

         A 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 ...


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