United States v. Bui

Decision Date04 August 2015
Docket NumberNo. 11–3795.,11–3795.
PartiesUNITED STATES of America v. Dung BUI a/k/a Danny Bui. Dung Bui, Appellant.
CourtU.S. Court of Appeals — Third Circuit

Frank A. Labor, III, Esquire, Emily McKillip, Esquire, Office of United States Attorney, Philadelphia, PA, for Appellee.

Maria K. Pulzetti, Esquire, Brett G. Sweitzer, Esquire, Federal Community Defender Office, Philadelphia, PA, for Appellant.

Before: McKEE, Chief Judge, and FUENTES, and GREENAWAY, JR., Circuit Judges.

OPINION

GREENAWAY, JR., Circuit Judge.

Dung Bui (“Bui”) appeals from the District Court's order denying his petition seeking habeas corpus relief, pursuant to 28 U.S.C. § 2255. For the reasons set forth below, we find that Bui's trial counsel provided ineffective assistance. Therefore, we will grant Bui's petition, vacate the District Court's order, and remand the case for further proceedings consistent with this opinion.

I. Background Facts

This matter originated as an investigation into a conspiracy involving the cultivation and distribution of marijuana. Drug Enforcement Administration (“DEA”) agents executed a search warrant at multiple residences in the Reading, Pennsylvania area. Agents arrested Bui at 1307 Lorraine Road, Reading, Pennsylvania based on his involvement in the conspiracy. After his arrest, Bui “admitted to the agents that the only reason they purchased that house was to ... convert it into a marijuana grow factory....” (J.A. 230)

Bui was indicted on four drug-related counts: (1) conspiracy to manufacture more than 1,000 marijuana plants, in violation of 21 U.S.C. § 846 ; (2) manufacturing, as well as aiding and abetting the manufacturing, of more than 100 marijuana plants, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 ; (3) using the house at 1307 Lorraine Road to manufacture and to distribute marijuana, pursuant to 21 U.S.C. § 856(a)(1) ; and (4) manufacturing and distributing marijuana “within 1,000 feet of the real property comprising Hampden Park, Reading, Pennsylvania, an athletic field owned and operated by the Reading School District,” (J.A. 33), in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2.

Bui pled guilty to counts one and four as part of a plea agreement. The plea agreement detailed the statutory maximum sentences as well as mandatory minimum sentences. In the plea agreement, the parties also stipulated that the property at 1307 Lorraine Road “was located within 1000 feet of Hampden Park, an athletic field owned and operated by the Reading School District, and therefore the defendant's base offense level should be increased two level[s] pursuant to U.S.S.G. § 2D1.2(a)(1)....” (J.A. 45.)

According to Bui, he pled guilty because his counsel told him he would receive a reduced sentence by doing so. Not only did Bui assert counsel told him about the possibility of a lower sentence if he pled guilty, he stated that both before and after the guilty plea, his counsel told other family members that Bui was eligible for a reduced sentence pursuant to the “safety valve.”1

Consistent with these statements, prior to the sentencing hearing, Bui's counsel filed a motion, pursuant to 18 U.S.C. § 3553(f), seeking a sentence reduction. At the sentencing hearing, counsel withdrew this motion, explaining that United States v. McQuilkin, 78 F.3d 105 (3d Cir.1996) established that § 3553(f) did not apply to convictions under 21 U.S.C. § 860. Bui was sentenced to the mandatory minimum of 120 months of imprisonment and 120 months of supervised release.2

In his pro se habeas petition, Bui raises multiple claims. He argues that: (1) his guilty plea was not voluntary or knowing because it was induced by the misrepresentations of his counsel; (2) his counsel's erroneous advice on the safety valve provision constituted ineffective assistance; (3) the District Court erred by accepting Bui's guilty plea, because there was a lack of factual support with respect to whether Hampden Park was a school; and (4) his counsel also provided ineffective assistance by failing to explain the factual predicate for violation of § 860(a).3

The District Court found that Bui's guilty plea was knowing and voluntary.

Thus, the collateral-attack waiver provision of the plea agreement was enforceable. As to the ineffective assistance of counsel claim, the District Court held that the “exhaustive change of plea hearing remedied any alleged errors committed by Bui's counsel....” (J.A. 9.) Therefore, the District Court ruled that Bui failed to demonstrate any prejudice, as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The District Court also held that Hampden Park qualified as a school “under the broad language of § 860(a)....” (J.A. 10.) The District Court did not hold an evidentiary hearing, stating that “the record conclusively shows that Bui is not entitled to relief for all the reasons discussed....” (J.A. 11.)

Our Court granted Bui's request for a certificate of appealability on the issue of “whether Bui's attorney committed ineffective assistance by advising him to plead guilty to 21 U.S.C. § 860, and whether, if Bui's counsel [had] provided ineffective assistance, the collateral waiver in Bui's plea agreement is enforceable as to that claim.”4 (J.A. 13.) Upon granting the request for Bui's certificate of appealability, our Court appointed counsel for Bui. Bui's appointed counsel sought to withdraw based on his view that there were no nonfrivolous issues to appeal, pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We permitted counsel to withdraw from the case, but appointed new counsel to represent Bui.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. § 2255. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. “In a federal habeas corpus proceeding, we exercise plenary review of the district court's legal conclusions and apply a clearly erroneous standard to the court's factual findings. We review the District Court's denial of an evidentiary hearing in a habeas case for abuse of discretion.” United States v. Lilly, 536 F.3d 190, 195 (3d Cir.2008) (internal citations and quotations omitted).

III. Analysis

Bui argues that his counsel provided ineffective assistance by incorrectly advising him about the availability and applicability of the safety valve sentencing provision and by failing to advise him about available defenses to the § 860 enhancement due to the existence of debatable evidence with respect to the question of Hampden Park being a school.

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court established a two-part test to evaluate ineffective assistance of counsel claims. The first part of the Strickland test requires “showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. 2052 (internal citations omitted). The second part specifies that the defendant must show that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. We have reasoned that “there can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument.” United States v. Sanders, 165 F.3d 248, 253 (3d Cir.1999).

The year after deciding Strickland, the Supreme Court slightly modified the prejudice prong of the Strickland test in connection with guilty pleas. See Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). “In order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 59, 106 S.Ct. 366 (internal quotations omitted). The Court has re-emphasized that [d]efendants have a Sixth Amendment right to counsel, a right that extends to the plea-bargaining process.” Lafler v. Cooper, –––U.S. ––––, 132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012).

When addressing a guilty plea, counsel is required to give a defendant enough information ‘to make a reasonably informed decision whether to accept a plea offer.’ Shotts v. Wetzel, 724 F.3d 364, 376 (3d Cir.2013) (quoting United States v. Day, 969 F.2d 39, 43 (3d Cir.1992) ), cert. denied, ––– U.S. ––––, 134 S.Ct. 1340, 188 L.Ed.2d 346 (2014). We have identified potential sentencing exposure as an important factor in the decisionmaking process, stating that [k]nowledge of the comparative sentence exposure between standing trial and accepting a plea offer will often be crucial to the decision whether to plead guilty.” Day, 969 F.2d at 43. In order to provide this necessary advice, counsel is required “to know the Guidelines and the relevant Circuit precedent....” United States v. Smack, 347 F.3d 533, 538 (3d Cir.2003). However, “an erroneous sentencing prediction by counsel is not ineffective assistance of counsel where ... an adequate plea hearing was conducted.” United States v. Shedrick, 493 F.3d 292, 299 (3d Cir.2007).

Here, the record clearly indicates Bui's counsel provided him with incorrect advice regarding the availability of a sentencing reduction, pursuant to § 3553(f). In addition to Bui's statements regarding counsel's representations to him, there is the fact that counsel filed a motion pursuant to § 3553(f), the basis for which he apparently did not research until immediately before the sentencing hearing. (J.A. 204.) That research revealed our longstanding precedent that § 3553(f) does not apply to convictions under § 860. Counsel's lack of familiarity with an eighteen-year-old precedent and his erroneous advice based on that lack of familiarity demonstrate counse...

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