Saleh v. United States

Background

Mohammed A. Saleh, proceeding without a lawyer, moved under Federal Rule of Civil Procedure 60(b) to reopen his prior criminal proceeding. He sought a sentence reduction based on Amendment 794 to the United States Sentencing Guidelines, which concerns reductions for a defendant who played a minor or minimal role in the offense.

A jury found Saleh guilty in 1995 of seditious conspiracy to wage war against the United States, bombing conspiracy, and attempted bombing. Judge Michael B. Mukasey sentenced him to 35 years in prison in 1996, and the Court of Appeals affirmed the conviction and sentence.

Saleh later filed a petition under 28 U.S.C. § 2255, arguing that his trial lawyer was ineffective for failing to communicate potential penalties and plea offers. Judge Mukasey denied that petition in 2003. The Court of Appeals denied Saleh’s request in 2005 for permission to file another § 2255 petition. Saleh also filed an earlier Rule 60(b) motion in 2013, which the court denied.

Rule 60(b) and the procedural ruling

Rule 60(b) permits a court, in limited circumstances, to provide relief from a final order. In the post-conviction context, however, such a motion may address the integrity of the earlier post-conviction proceeding, not errors in the underlying conviction or sentence. A motion that challenges the conviction or sentence generally is treated as a second or successive § 2255 petition, which requires authorization from the Court of Appeals.

The court held that Saleh’s motion plainly challenged his sentence rather than his earlier § 2255 proceeding. Saleh had not raised the mitigating-role issue in that earlier proceeding, and his request to reopen the criminal case was, in substance, a request to reduce his sentence. The court therefore denied the motion as outside the scope of Rule 60(b), rather than transferring it to the Court of Appeals for possible authorization as a successive petition.

Alternative merits analysis

The court stated that it would also deny the motion if it reached the merits. At sentencing, Saleh and several co-defendants had sought reductions under Guidelines § 3B1.2. Judge Mukasey denied those requests after finding that the trial evidence showed each defendant was willing to do what was necessary to accomplish the conspiracy’s goals. The Court of Appeals affirmed that denial.

Amendment 794 became effective on November 1, 2015. It clarified that a role reduction depends on whether the defendant was substantially less culpable than the average participant in the criminal activity, with the comparison focused on the defendant’s co-participants in the case. The court concluded that Amendment 794 was not listed as retroactive under Guidelines § 1B1.10. Because it was not retroactive, the court said it lacked power to modify Saleh’s sentence on that basis.

Disposition

The court denied Mohammed Saleh’s Rule 60(b) motion to reopen the prior criminal proceeding. It did not issue a certificate of appealability because Saleh had not made the required substantial showing that a constitutional right had been denied. It also certified under 28 U.S.C. § 1915(a)(3) that an appeal would not be taken in good faith. The clerk was directed to terminate the motions pending at ECF Nos. 1077 and 1187.