U.S. v. Nguyen

• Decision Date: 12 March 1998
• Docket Number: No. CR 92-926-ER.,No. CV 97-2964-ER.,CV 97-2964-ER.,CR 92-926-ER.
• Citation: 997 F.Supp. 1281
• Parties: UNITED STATES of America, Plaintiff, v. Mong Hoang NGUYEN, Defendant-Movant.
• Court: U.S. District Court — Central District of California

997 F.Supp. 1281

UNITED STATES of America, Plaintiff, v. Mong Hoang NGUYEN, Defendant-Movant.

No. CV 97-2964-ER.

No. CR 92-926-ER.

United States District Court, C.D. California.

March 12, 1998.

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Nora M. Manella, U.S. Attorney, James P. Walsh, Asst. U.S. Atty., Marc R. Greenberg, Asst. U.S. Atty., Los Angeles, CA, for Plaintiff.

Kevin M. Schad, Kevin M. Schad & Associates, Cincinnati, OH, for Defendant.

MEMORANDUM OPINION AND ORDER

RAFEEDIE, Senior District Judge.

Before the Court is defendant Mong Hoang Nguyen's Motion to Vacate, Set Aside or Correct Sentence, brought pursuant to 28 U.S.C. § 2255 (but construed in part as arising under 18 U.S.C. § 3582). The Court has read and considered the papers filed in connection with this matter and, having determined the issues suitable for resolution without the need for oral argument, now HEREBY DENIES the motion for the reasons set forth below.

I. FACTUAL AND PROCEDURAL BACKGROUND

The circumstances leading to the present motion stem from defendant Mong Hoang Nguyen's involvement in a conspiracy whose primary purpose was to sell crack cocaine in Southern California.

On August 20, 1992, Nguyen and co-defendants Do Tat Doan and Bao Vu Huynh met with an undercover agent at a local restaurant in Garden Grove, California and agreed to sell the agent 50 grams of crack cocaine. Huynh delivered a single piece of crack cocaine, contained in a plastic bag, to the agent. The agent paid Doan $450, and Doan gave the money to Nguyen. Shortly thereafter, the defendants and the agent left the restaurant. Outside, Huynh handed the agent three more pieces of crack cocaine. The agent paid Doan an additional $1,450. In a separate but contemporaneous transaction, Doan also sold a firearm to the agent. All transactions were recorded on audio and/or video surveillance tape. Subsequent lab analysis determined that the four pieces of crack had a net weight of 33.04 grams.

Huynh and Nguyen were arrested on September 15, 1992 and October 1, 1992, respectively. Both admitted their involvement in the conspiracy, Nguyen did so by written confession.¹ Doan evaded capture for the time being.

Shortly thereafter, the grand jury returned a two-count indictment against all three defendants, charging each with (1) conspiracy to possess 50 grams of cocaine base with intent to distribute, in violation of 21 U.S.C. § 846; and (2) possession of 33 grams of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1).

On December 31, 1992, a jury convicted Nguyen on both counts.² The Court sentenced the defendant on March 18, 1993 to a total of 188 months in prison and five years of supervised release.³ The defendant appealed two of the Court's evidentiary rulings, and the court of appeals affirmed in an unpublished opinion. See United States v. Nguyen, 2 F.3d 1159, 1993 WL 290881 (9th Cir. 1993). Nguyen was represented by counsel Theresa A. Kristovich at all stages of the proceedings.

Nguyen, represented by new counsel, has now filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Nguyen first claims (1) that Amendment 487 to the Sentencing Guidelines, which defines "cocaine base" to mean "crack," applies retroactively to his case and (2) that the government failed to satisfy its burden at sentencing of proving by a preponderance of the evidence that the drugs involved were indeed crack cocaine. Nguyen also raises numerous ineffective assistance of counsel claims, namely that: (3) before trial, counsel advised the defendant of the incorrect maximum sentence possible, causing him to reject a favorable plea offer; (4) at trial, counsel failed to seek suppression of the defendant's confession, failed to procure an expert to transcribe a surveillance audiotape, and forced the defendant to testify; and (5) on direct appeal, counsel failed to raise the prejudicial admission at trial of Doan's sale of a firearm to the agent and failed to argue that Nguyen was improperly sentenced based on crack (rather than powder) cocaine.⁴ The defendant requests an evidentiary hearing on all of his claims.

II. CHARACTER OF THE MOTION

Before broaching the merits of Nguyen's motion, the Court must first determine which portions of the motion arise under 28 U.S.C. § 2255 and which arise under 18 U.S.C. § 3582(c)(2).⁵ Fortunately, the defendant's arguments easily lend themselves to division. The Court must treat Nguyen's retroactive application argument, number one (1) supra, pursuant to 18 U.S.C. § 3582(c)(2). See Hamilton v. United States, 67 F.3d 761, 764 (9th Cir.1995). All other claims are necessarily limited to analysis under 28 U.S.C. § 2255. See United States v. Perez, 129 F.3d 255, 259 (2d Cir.1997).

III.

18 U.S.C. § 3582(c)(2) MOTION

Section 3582(c)(2) of Title 18 allows a district court to reduce the term of a previously imposed sentence of imprisonment for a "defendant who has been sentenced ... based on a sentencing range that has subsequently been lowered by the Sentencing Commission." 18 U.S.C. § 3582(c)(2).

Nguyen argues that retroactive application of Amendment 487 will reduce the guideline sentencing range applicable to his offense. The Amendment provides:

"Cocaine base," for the purposes of this guideline, means "crack." "Crack" is the street name for a form of cocaine base, usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form.

U.S.S.G. § 2D1.1(c) *n. (D) (Amend. 487 Nov. 1993).

Nguyen is of the opinion that the drug involved in his case was not cocaine base, as defined by Amendment 487, but was instead powder cocaine, which would call for a lower sentence. The defendant's § 3582(c)(2) motion fails for two reasons.

First, Amendment 487 does not affect Nguyen's sentence because the Amendment did not materially change the law in effect in our circuit at the time of his offense conduct and sentencing.

The primary goal of Amendment 487 was to resolve an inter-circuit split over what constitutes "cocaine base" for purposes of the Sentencing Guidelines. See Amendment 487 (comment). Some circuits had defined "cocaine base" broadly and held it to encompass more than just crack cocaine (e.g., coca paste). See, e.g., United States v. Rodriguez, 980 F.2d 1375 (11th Cir.1992), cert. denied, 509 U.S. 907, 113 S.Ct. 3003, 125 L.Ed.2d 695 (1993); United States v. Jackson, 968 F.2d 158 (2d Cir.), cert. denied, 506 U.S. 1024, 113 S.Ct. 664, 121 L.Ed.2d 589 (1992); United States v. Brown, 859 F.2d 974 (D.C.Cir.1988). Other circuits, including our own, limited "cocaine base" to crack or rock cocaine. See, e.g., United States v. Wheeler, 972 F.2d 927 (8th Cir.1992); United States v. Lopez-Gil, 965 F.2d 1124 (1st Cir.), cert. denied, 506 U.S. 981, 113 S.Ct. 484, 121 L.Ed.2d 388 (1992); United States v. Shaw, 936 F.2d 412 (9th Cir.1991). Ultimately, the U.S. Sentencing Commission adopted the latter approach and incorporated the narrower definition of "cocaine base" into § 2D1.1(c) *n. (D) of the November 1, 1993 Guidelines Manual.

Because the rule of Amendment 487 already existed in common law form in our circuit when Nguyen was sentenced, see Shaw, 936 F.2d at 416, its retroactive application is unnecessary and would not affect Nguyen's 188 month sentence. See United States v. Townsend, 98 F.3d 510, 513 (9th Cir.1996); U.S.S.G. § 1B1.10 n. 1 (Nov.1997).

Second, and in any event, retroactive application of Amendment 487 is forbidden. Section 3582(c)(2) permits a reduction in sentence only if, among other things, the reduction is "consistent with applicable policy statements issued by the Sentencing Commission." 18 U.S.C. § 3582(c)(2). Amendment 487 is not listed, however, in policy statement U.S.S.G. § 1B1.10(c), which governs the retroactivity of Guideline amendments and specifies which amendments a defendant may invoke pursuant to § 3582(c)(2). See U.S.S.G. § 1B1.10(c) (Nov. 1997); U.S.S.G. § 1B1.10(c) (Nov.1995); U.S.S.G. § 1B1.10(d) (Nov.1993). As a result, a reduction in the defendant's term of imprisonment would be inconsistent with the Guidelines' policy statements. See U.S.S.G. § 1B1.10(a) (Nov.1997).

IV.

28 U.S.C. § 2255 MOTION

A. TIMELINESS

Because Nguyen's § 2255 motion was filed after April 23, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the AEDPA) apply. See Lindh v. Murphy, ___ U.S. ___, 117 S.Ct. 2059, 2061-68, 138 L.Ed.2d 481 (1997); Calderon v. U.S. Dist. Court, 128 F.3d 1283, 1287 (9th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 899, 139 L.Ed.2d 884 (1998). Under the AEDPA, a one-year period of limitations applies to § 2255 motions. See 28 U.S.C. § 2255 (as amended). In this case, the limitation period began to run on April 24, 1996, the day of the enactment of the AEDPA, and expired on April 23, 1997. No motion "filed on or before April 23, 1997 ... may be dismissed for failure to comply with the [AEDPA's] time limit." Calderon, 128 F.3d at 1287.

The Clerk of the Court received and lodged Nguyen's motion on April 22, 1997, but did not file it until April 25, 1997. Ordinarily, for purposes of a statute of limitations, papers and pleadings are considered filed when they are placed in the possession of the Court. See Cintron v. Union Pacific R Co., 813 F.2d 917, 920 (9th Cir.1987); Fed. R.Civ.P. 5(e). The Court finds no reason why this rule would be inapplicable here. Thus, the Court concludes that for purposes of the AEDPA's period of limitations, unless a movant is entitled to the benefit of constructive filing under Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), a § 2255 motion is deemed filed on the date it is received (and perhaps lodged) by the Clerk of the Court. The date of the "filed" stamp is not conclusive. Nguyen's motion is timely.

B. PROOF OF CRACK COCAINE

Nguyen first contends that the government failed to...