to point 1 — because Mr. Abuhouran's attack on
the indictment is hereby found meritless, so to is his complaint that his
counsel failed to raise the issue.
In the third issue argued by Mr. Abuhouran, he notes that Count 27
states only that his brother "wrote a check," with no statement
indicating that a transaction — e.g., a deposit, negotiation, or
transfer — actually occurred. Mr. Abuhouran therefore urges this
court to conclude that, because no transaction was alleged, the
indictment lacked a key element of money laundering. Mr. Abuhouran's
brother Aktham has already raised this precise issue in his own motion,
which I ultimately denied by order of June 7, 2001. See U.S. v.
Abuhouran [Abuhouran II], No. CRIM. A. 95-560-04, 2001 WL 880323
(E.D.Pa. June 7, 2001). Even if this court had not already decided this
issue, point 3 must fail because the motion containing it was filed
outside the period of time allowed by § 2255.
Point 3 appears in a motion filed August 21, 2000, and sent by Mr.
Abuhouran on August 16, 2000. Under § 2255, a petition generally must
be filed within one year of the date upon which the prisoner's conviction
became final. Mr. Abuhouran's conviction became final on April 19, 1999,
when the Supreme Court denied his petition for certiorari. The motion
raising point 3 was submitted several months after April 19, 2000
— the deadline for filing a § 2255 submission. Moreover, Mr.
Abuhouran has not alleged that any other event (e.g., a
government-created impediment to making a motion, § 2255(2), a newly
recognized right, § 2255(3), or facts that could not have been
discovered sooner through the exercise of due diligence, § 2255(4))
has renewed his ability to file a new § 2255 petition. Therefore,
this court must treat the August 2000 submission as a "second or
successive motion" that must be certified by the Third Circuit before
this court may reach its merits.
In the wake of the Supreme Court's decision in Apprendi v. New Jersey,
530 U.S. 466 (2000), Mr. Abuhouran filed yet another challenge to his
sentence. Apprendi held: "Other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to the jury, and proved beyond a
reasonable doubt." Id. at 490. Based on that holding, Mr. Abuhouran
challenges two upward departures applied to his sentence under the
federal sentencing guidelines: a 4-point upward adjustment for his
leadership role in the offense and a 2-point upward adjustment for
obstruction of justice. He complains that the "indictment did not provide
him with notice of these facts, and they were not proven before a jury or
beyond a reasonable doubt in violation of the United States
Although the Apprendi motion was filed more than a year after Mr.
Abuhouran's conviction became final, the government conceded that §
2255's one-year bar was inapplicable because Apprendi "newly recognized"
the due-process right asserted in the motion. Accordingly, the
government's response to Abuhouran's motion addressed only the merits of
the Apprendi argument. Subsequent to the parties' submissions in this
case, it became apparent that the government ceded more procedural ground
than was necessary: the Third Circuit has since held that Apprendi is not
to be applied retroactively on collateral review. In re Turner,
267 F.3d 225 (3d Cir. 2001). Judge DuBois of this court recently wrote
that, because the Turner court considered an application to file a
second or successive habeas petition, its opinion does not necessarily
foreclose relief to a prisoner filing his first habeas petition.*fn3 See
United States v. Enigwe, 212 F. Supp.2d 420, 430 n. 10 (E.D.Pa. 2002).
Enigwe ultimately concluded, however, that ample case law from other
circuits persuasively supported the same result for first habeas petitions,
and that Mr. Enigwe's Apprendi argument was barred. Id. at 431 (citing
McCoy v. United States, 266 F.3d 1245, 1258 (11th Cir. 2001); United
States v. Moss, 252 F.3d 993, 997 (8th Cir. 2001); United States v.
Sanders, 247 F.3d 139, 147 (4th Cir. 2001); Jones v. Smith,
231 F.3d 1227, 1236 (9th Cir. 2000)).
Even if Mr. Abuhouran were able to overcome the retroactivity
obstacle, extensive Third Circuit precedent interpreting the substantive
holding of Apprendi forecloses his current argument. The Circuit has
consistently held that Apprendi concerns are not implicated unless the
sentence imposed on the defendant exceeds the maximum statutory
penalty.*fn4 See, e.g., United States v. Sau Hung Yeung, 241 F.3d 321,
327 n. 3 (3d Cir. 2001); United States v. Williams, 235 F.3d 858,
863 (3d Cir. 2000); United States v. Mack, 229 F.3d 226, 235 n. 12
(3d Cir. 2000); United States v. Cepero, 224 F.3d 256, 267 n. 5
(3d Cir. 2000) (en banc). In this case, the maximum statutory penalty for
each count of money laundering was 20 years, or 240 months. 18 U.S.C. § 1956
(a)(1). Because the sentence actually imposed, 188 months, is well under
the statutory maximum, Apprendi has no effect on these facts.
Finally, Mr. Abuhouran asserts that "[t]he grand jury that returned the
indictment was impaneled for over 40 months in violation of
Fed.R.Crim.P. 6(g)." Rule 6(g) provides that a grand jury may generally
not serve for longer than 18 months, unless an extension of no more than
6 months is granted.
Without reaching the merits of the claim, this court must dismiss the
motion containing point 5 as untimely. As noted at the onset of this
opinion, point 5 was the last issue raised in a series of submissions
filed with this court. It was included in a motion filed May 4, 2001, and
sent by Mr. Abuhouran on May 1, 2001. As already discussed in this
opinion, absent certain conditions (not alleged here), a § 2255
submission must be filed within one year of
the date upon which the
prisoner's conviction became final. Mr. Abuhouran's conviction became
final on April 19, 1999, so his motion raising point 5 was submitted more
than two years after his conviction achieved "final" status. This court
must treat the May 2001 submission as a "second or successive motion"
that must be certified by the Third Circuit before this court may reach
This court finds Mr. Abuhouran's five challenges to his sentence to be
unavailing, and therefore, in an order accompanying this opinion,
petitioner's various § 2255 motions are denied.
For the reasons stated in the accompanying opinion, it is hereby
1. The Report and Recommendation of Magistrate Judge
Angell (Docket #433) is APPROVED AND ADOPTED.
2. The Petition Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence (Docket #428) is
3. The Motion to Dismiss Indictment and/or Motion to Amend
Motion to Vacate Sentence (Docket #437) is DENIED.
4. The Motion for Leave to Amend § 2255 Motion
(Docket #441) is DENIED.