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Bah v. United States

United States District Court, N.D. Georgia, Atlanta Division

November 30, 2017

MOHAMMED BAH, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

         MOTION TO VACATE 28 U.S.C. § 2255

          FINAL REPORT AND RECOMMENDATION

          RUSSELL G. VINEYARD, UNITED STATES MAGISTRATE JUDGE

         This matter has been submitted to the undersigned Magistrate Judge for consideration of Mohammed Bah's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, [Doc. 166], the government's response, [Doc. 170], and Bah's reply, [Doc. 175]. For the reasons that follow, it is RECOMMENDED that Bah's § 2255 motion be denied.

         I. PROCEDURAL HISTORY

         A federal grand jury in the Northern District of Georgia returned a twenty-nine count indictment against Bah and co-defendant Elizer Owens (“Owens”), charging Bah in Count One with conspiracy to possess with intent to distribute marijuana and at least 28 grams of cocaine base (“crack”), in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B)(ii), 841(b)(1)(C), and 841(b)(1)(D); in Counts Two, Four, Ten, Twelve, and Twenty-Five through Twenty-Seven with possession with intent to distribute marijuana, in violation of §§ 841(a)(1) and 841(b)(1)(D), and18 U.S.C. § 2; in Counts Three and Fifteen with possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(I) and 2; in Counts Five, Seven, Sixteen, Nineteen, Twenty, Twenty-Three, and Twenty-Nine with possession of a firearm by an illegal alien, in violation of 18 U.S.C. §§ 922(g)(5) and 2; in Count Nine with possession of a stolen firearm, in violation of §§ 922(j), 924(a)(2), and 2; in Counts Eleven and Thirteen with possession with intent to distribute cocaine, in violation of §§ 841(a)(1), 841(b)(1)(C), and18 U.S.C. § 2; and in Counts Fourteen, Twenty-Two, and Twenty-Four with possession with intent to distribute crack, in violation of §§ 841(a)(1), 841(b)(1)(C), and18 U.S.C. § 2. [Doc. 1]. After learning that Bah was legally present in the United States, the government filed a motion to dismiss Counts Five, Seven, Sixteen, Nineteen, Twenty, Twenty-Three, and Twenty-Nine, which the Court granted. [Doc. 37]. Represented by court appointed counsel Michael J. Trost (“Trost”), Bah entered a negotiated guilty plea to Counts One and Three. [Docs. 101; 108; 129]. The government agreed to dismiss the remaining counts. [Doc. 108-1 at 5].

         The plea agreement included the following provision regarding the immigration consequences of Bah's guilty plea:

[Bah] recognizes that pleading guilty may have consequences with respect to his immigration status if he is not a citizen of the United States. Under federal law, a broad range of crimes are removable offenses, including the offense to which [Bah] is pleading guilty. Indeed, because [Bah] is pleading guilty to this offense, removal is presumptively mandatory. Removal and other immigration consequences are the subject of a separate proceeding, however, and [Bah] understands that no one, including his attorney or the district court, can predict to a certainty the effect of his conviction on his immigration status. [Bah] nevertheless affirms that he wants to plead guilty regardless of any immigration consequences that his plea may entail, even if the consequence is his automatic removal from the United States.

[Doc. 108-1 at 4-5] (emphasis added). Bah signed the plea agreement and a separate certification section, which states in relevant part:

I have read the foregoing Plea Agreement and have carefully reviewed every part of it with my attorney. I understand the terms and conditions contained in the Plea Agreement, and I voluntarily agree to them.

[Id. at 16-17].

         At the plea hearing, Bah was placed under oath and confirmed that he had reviewed the plea agreement with Trost and signed it. [Doc. 129 at 2-3]. The government outlined the terms of the plea agreement, including the immigration provision, stating as follows:

. . . [Bah] recognizes that there may be consequences with respect to his immigration status if he is not a citizen of the United States. Under federal law there's a broad range of crimes that are removable offenses, including the offense to which [Bah] is pleading today. He also understands at this time neither the Court nor his attorney can predict what the effect of his conviction will be on his immigration status. [Bah] nevertheless affirms that he wants to plead guilty regardless of any immigration consequences that may result.

[Id. at 9-10]. Bah acknowledged that this was the agreement he had made and signed and that no one had threatened or forced him to plead guilty . [Id. at 13-14].

         The government then summarized what the evidence would show if the case went to trial, stating that Bah and Owens “worked together to sell guns and ...


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