request for a departure under Koon, 518 U.S. 81, 116 S.Ct. 2035, 135
L.Ed.2d 392, and Sally, 116 F.3d 76, and concluded that his cooperation
did not warrant a downward departure. See Order of October 5, 1998. The
court also stated that his cooperation was adequately addressed by the
decrease in offense level pursuant to the safety valve provision. See
id. In his petition, Mr. Khan does not advance any new argument regarding
why he merited such a departure and cannot show that he was prejudiced by
Finally, Mr. Khan does not qualify as a minor participant and
therefore, even if his counsel had argued for a role adjustment, his
sentence would not have changed. In order to establish whether a
defendant is a minor participant, a court should consider factors such as
"the nature of the defendant's relationship to other participants, the
importance of the defendant's actions to the success of the venture, and
the defendant's awareness of the nature and scope of the criminal
enterprise." United States v. Headley, 923 F.2d 1079, 1084 (3d Cir. 1991)
(citation omitted); see also United States v. Isaza-Zapata, 148 F.3d 236,
239 (3d Cir. 1998) (same). The defendant bears the burden of
demonstrating that there were other participants and that the minor role
adjustment should apply. See Isaza-Zapata, 148 F.3d at 240. In assessing
the defendant's role in the offense, the district court must consider all
relevant conduct, not just that of the defendant, in assessing relative
culpability. See id. at 241.
Mr. Khan contacted a cooperating witness and offered to supply the
witness with one pound of heroin. He then arranged to purchase the heroin
from suppliers in Brooklyn, New York after discussions with another
individual in Pakistan. Even accepting Mr. Khan's contention that he had
been instructed through every step of this transaction and that he was
merely a "gofer," he played a more active role than that of a very
low-level courier who merely ferries the drugs from one location to
another. See Headley, 923 F.2d at 1084 (noting that fact that defendant
was a courier in a drug operation "is not alone indicative of a minor or
minimal role"). While Mr. Khan argues that his case is factually similar
to that of United States v. Soto, 132 F.3d 56, 57 (D.C.Cir. 1997), the
defendant in that case was approached by a drug dealer to act as a
courier. Here, it was Mr. Khan who approached both the buyer and the
suppliers of the drugs. His conduct does not warrant an adjustment for a
minor role in the offense.
Mr. Khan's substantive claim that his sentence must be vacated or
reconsidered due to bad faith on the part of the government must also be
denied because he did not raise this issue at sentencing or on direct
appeal and has not shown cause and prejudice for this failure. A defendant
"seeking relief for alleged errors in connection with his sentence that
he has not directly appealed" must meet the cause and actual prejudice
standard of United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct.
1584, 71 L.Ed.2d 816 (1982). See United States v. Essig, 10 F.3d 968, 979
(3d Cir. 1993). Even assuming Mr. Khan can show cause, as discussed
supra, he cannot show that he was actually prejudiced by the failure to
raise the claim of bad faith prior to bringing this petition.
While lack of familiarity with the Sentencing Guidelines may well have
rendered Mr. Khan's counsel ineffective, the petitioner cannot show that
but for his counsel's errors, he would have received a different
sentence. Mr. Khan's substantive claim that the government was motived by
bad faith in refusing to make a substantial assistance motion is
inappropriately raised in this collateral proceeding.
The record and papers conclusively establish that Mr. Khan is entitled
to no relief and no hearing is necessary. See 28 U.S.C. § 2255.
An appropriate order follows.
AND NOW, this 6th day of December, 1999, upon consideration of
defendant's petition to vacate, set aside, or correct his sentence, and
the response thereto, it is hereby ORDERED that said petition is DENIED.