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United States of America v. Arthur Ishkhanian

June 16, 2011

UNITED STATES OF AMERICA
v.
ARTHUR ISHKHANIAN



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before this Court is Petitioner Arthur Ishkhanian's ("Ishkhanian") pro se Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. §2255 ("§ 2255 Motion"). For the reasons set forth below, this Motion is denied.

I. PROCEDURAL HISTORY

On May 11, 2006, Ishkhanian was charged by a federal grand jury with possession of 500 grams or more of methamphetamine with intent to distribute. On November 30, 2007, pursuant to a plea agreement, Ishkhanian appeared before this Court and pled guilty to conspiracy to distribute methamphetamine, in violation of 21 U.S.C. § 846; possession of methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); and distribution of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A).

At that time, Ishkhanian agreed to the following factual bases to support the guilty plea: Ishkhanian was a member of a conspiracy to distribute and possess with intent to distribute approximately 100 pounds of methamphetamine over a two-year period from 2004 through April 13, 2006, the date of his arrest. (N.T. 14, 11/30/07.) Ishkhanian began distributing methamphetamine after he was approached by co-conspirator Levon Arakelyan ("Arakelyan") and asked if he could sell and distribute methamphetamine that Arakelyan could supply. (Id.) Ishkhanian agreed and this began an arrangement whereby Arakelyan directly supplied Ishkhanian with multi-pound quantities of methamphetamine, ranging from three to six pounds of methamphetamine.*fn1 (Id.) On April 13, 2006, Ishkhanian was approached by DEA agents who disclosed to him the nature of the evidence they had gathered against him. He then consented to a search of his residence which revealed six clear zip lock bags that contained a clear, crystal-like substance, later determined to be methamphetamine, in addition to $197,500 in United States currency. Ishkhanian admitted to the agents that he had in his possession this amount of methamphetamine and currency. (Id. at 22.)

On May 11, 2006, Ishkhanian, Petrosyan, and Mitchell Orlando*fn2 were charged in an indictment with possession of 500 grams or more of methamphetamine with intent to distribute. On August 8, 2006, Arakelyan, who had been arrested in Las Vegas, was charged in a separate indictment with one count of conspiracy. This case proceeded to trial in April 2007, at which, Ishkhanian testified against Arakelyan during the two-week jury trial. Arakelyan was found guilty of this charge on May 3, 2007. (Presentence Report ("PSR") ¶ 14.)

Shortly after Arakelyan's trial on May 25, 2007, Ishkhanian filed an unopposed Motion for Modification of Bail Conditions, seeking to have the conditions of his then current house arrest and electronic monitoring replaced with daily calls to pretrial services. This Motion was granted on May 31, 2007. On August 1, 2007, Ishkhanian was charged in a superseding indictment, along with Petrosyan, Arakelyan, Orlando, and eleven (11) additional defendants, the majority of whom were Ishkhanian's larger-volume customers. (PSR ¶¶ 3, 20.)

On November 30, 2007, Ishkhanian entered a plea pursuant to a written guilty plea agreement with the government. At the guilty plea colloquy, Ishkhanian acknowledged that he reviewed the terms of the plea agreement with his attorney, and that he understood those terms. (N.T. 23, 11/30/07.) Based on Ishkhanian's responses to the Court, we found that he "understands his rights and is voluntarily giving up those rights." (Id.) Ishkhanian agreed that, with very little limited exceptions, he would neither appeal nor present any collateral challenge to his conviction or sentence.*fn3 The Government asked the Court to allow bail to remain the same, but on December 10, 2007 moved for a revocation of Ishkhanian's bail and the entry of an order for detention. Ishkhanian was scheduled to begin serving a state sentence on an unrelated narcotics offense on January 2, 2008. In response to this Motion, Ishkhanian's counsel negotiated a reporting date of February 4, 2008, and Ishkhanian was ordered to report on this date. (PSR ¶ 194.) Ishkhanian, however, failed to report on this date, and a bench warrant was issued. (Id. ¶ 195.) After an extensive fugitive investigation conducted by the United States Marshals Service, Ishkhanian was arrested in Pensacola, Florida in possession of a false Ohio driver's license and false credit cards. (Id. ¶¶ 196, 221.)

On January 16, 2009, this Court held a sentencing hearing for Ishkhanian's methamphetamine charges. Prior to the hearing, the Probation Office ("Probation") prepared a presentence report. In it, Probation enhanced Ishkhanian's base level of 38 by two levels pursuant to U.S.S.G. § 3C1.1 for obstruction of justice for failing to self-surrender, absconding from federal supervision, and attempting to evade apprehension. (PSR ¶¶ 147, 158, 162-63.) Ishkhanian was also not credited in the presentence report with a reduction for acceptance of responsibility, therefore, leaving his offense level at 40. (Id. ¶¶ 164, 168.) Ishkhanian's criminal history category was calculated as VI based on his career offender status, and thus, the resulting advisory sentencing guideline range was calculated as 360 months to life imprisonment. (Id. ¶ 240.) Ishkhanian argued at sentencing that Probation incorrectly denied him a three-point reduction of his offense level for acceptance of responsibility. The Government agreed with the assessment of Probation that Ishkhanian was not entitled to this reduction because, although he had earlier cooperated with the government, Ishkhanian later committed a new crime by fleeing the jurisdiction. This Court then imposed a sentence of 360 months imprisonment, the bottom of the advisory guideline range.

Ishkhanian filed an appeal to the Third Circuit Court of Appeals contesting the sentence and asserting that his plea agreement was invalid. The Government sought to enforce the waiver of appeal that Ishkhanian had agreed to in his plea agreement. In an opinion dated November 5, 2009, the court affirmed this Court's judgment of sentence concluding that Ishkhanian had "failed to show that the District Court's oversight*fn4 of one aspect of the requirements of Rule 11 affected his substantial rights or that enforcing the waiver in his plea agreement would result in a miscarriage of justice." See Ishkhanian, 351 Fed. Appx. at 747. The court further concluded that Ishkhanian had not demonstrated "plain error" and enforced the appellate waiver in the plea agreement declining to consider Ishkhanian's challenge to the reasonableness of his sentence. Id.

Subsequently, Ishkhanian filed the instant § 2255 Motion on May 3, 2011, and asserts the following claims:

1. ineffective assistance of counsel in that counsel, Jack McMahon, Jr., Esq., advised Ishkhanian to plead guilty even after he told him he was innocent because any state sentence he incurred would run concurrent to any federal sentence imposed;

2. violation of "double jeopardy" in that he was punished for the same crime twice because his base level for sentencing was enhanced two points for obstruction of justice and he was also convicted and sentenced separately for escape;

3. "breach of contract" because he signed a plea agreement which stated he was guilty of possession with intent to distribute 500 grams of methamphetamine, but he was sentenced for "15 kilos or more of ...


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