Skip to main content

Circuit Court grants habeas petition, finding trial counsel provided ineffective assistance of counsel regarding the availability of safety valve reduction and noting that the District Court’s statements during the plea colloquy did not alleviate counsel’s error.

United States v. Bui, No. 11-3795, 2014 WL 5315061 (October 20, 2014)

Dung Bui was indicted on the following four drug counts: (1) conspiracy to manufacture more than 1,000 marijuana plants, in violation of 21 U.S.C. § 846; (2) manufacturing and 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 a house to manufacture and distribute marijuana, in violation of 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," 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 because his counsel told him and his family that he was safety valve eligible and thus could get a reduced sentence. His counsel filed a §3553(f) motion for a sentence reduction, but later withdrew the motion, explaining that under United States v. McQuilkin, 78 F.3d 105 (3d Cir. 1996), §3553(f) did not apply to convictions under 21 U.S.C. §860 (count four). In his pro se habeas petition, Bui argued that (1) his guilty plea was induced by his counsel’s misrepresentations and, as result, was not voluntary or knowing; (2) the erroneous safety valve advice was ineffective assistance; (3) the District Court erred in receiving his guilty plea when there were no facts supporting whether Hampden Park was a school; and (4) by neglecting to explain the factual predicate for the §860(a) violation, his counsel was ineffective.

Applying the Strickland test, the Third Circuit agreed with Bui’s second argument that his counsel was ineffective. Under the first prong of the test (counsel’s errors were "so serious that counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment"), Bui’s counsel provided him erroneous advice regarding the applicability of the safety valve reduction. The Court also noted that counsel filed the 3553(f) motion, "which he apparently did not research until immediately before the sentencing hearing," and that his "lack of familiarity with an eighteen-year-old precedent and his erroneous advice based on that lack of familiarity demonstrate counsel's performance fell below prevailing professional norms required by [United States v.] Smack [, 347 F.3d 533 (3d Cir. 2003)] and Strickland."

Furthermore, the Court explained that "[u]nlike the majority of guilty plea cases, the District Court’s plea colloquy here did not serve to remedy counsel’s error." Many of the District Court’s statements "serve[d] to reinforce" counsel’s incorrect advice and "the District Judge never stated that Bui was ineligible for the safety valve reduction due to his decision to plead guilty to the §860 offense."

Bui satisfied the second prong of the Strickland test ("but for" the errors, the result would have been different) because there would have been no incentive to plead guilty if he was not going to benefit from the safety valve reduction. The Court did not reach the issue of whether Hampden Park was a school district, which was the basis of the § 860 violation, but noted that factual and legal arguments exist on whether the park is a school, and thus remanded.

The procedural history of this case is also interesting. The District Court found that Bui’s guilty plea was knowing and voluntary and thus the collateral-attack waiver was enforceable and that Bui did not establish prejudice. The Third Circuit granted Bui’s request for a certificate of appealability and appointed appellate counsel, who then filed an Anders brief.  The Court permitted counsel to withdraw and appointed new counsel. Notably, the government did not seek to enforce the collateral waiver, "acknowledging that ‘Bui’s appeal rises or falls on the basis of his claim that he should be relieved of his guilty plea, which included the waiver.’" See here and here for more on appellate waivers in the Third Circuit.

Comments

Popular posts from this blog

Double Jeopardy Claim Falls Short on Deferential Habeas Review

In the habeas matter of Wilkerson v. Superintendent Fayette SCI, Nos. 15-1598 & 15-2673, the Third Circuit defers to a state court determination that the defendant’s conviction of both an attempted murder count and an aggravated assault count based on the same altercation did not violate the Double Jeopardy Clause.
The evidence was that during the altercation, the defendant both struck the victim in the head with a gun and shot him in the chest. The Pennsylvania Superior Court upheld consecutive sentences on the theory that the evidence was sufficient to permit a jury to find the striking to support one count and the shooting the other. Despite the jury instructions’ and verdict form’s failure to require each of these discrete findings, the Third Circuit holds that the state court’s reasoning was sound enough to withstand deferential review the AEDPA’s “clearly established Federal law” limitation. “[W]here the jury instructions were merely ambiguous and did not foreclose the jury…

Mailing Threatening Communications is a Crime of Violence and a Judicial Proposal for Reform of the Categorical Approach

In United States v. Chapman, __F.3d__, No. 16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017), the Third Circuit held that mailing a letter containing any threat to injure the recipient or another person in violation of 18 U.S.C. § 876(c) qualifies as a crime of violence for the purposes of the career offender enhancements of the Sentencing Guidelines Manual § 4B1.1(a).The Court acknowledged in a footnote that the analysis is the same for a violation of 18 U.S.C. § 871, threats against the president.


The Court began its analysis by reviewing the definition of “crime of violence” and specifically the meaning of the words “use” and “physical force.”Quoting United States v. Castleman, 134 S. Ct. 1405 (2014), and Tran v. Gonzales, 414 F.3d 464 (3d Cir. 2005), it defined “use” as “the intentional employment of force, generally to obtain some end,” which conveys the notion that the thing used “has become the user’s instrument.” The Court confirmed the definition of “physical force” as “force ca…

A Traffic Stop Followed by a Summons is not an Intervening Arrest for Sentencing Guidelines Purposes

In United States v. Ley, __ F.3d __, 2017 WL 5618617 (3d Cir., Nov. 22, 2017), the Third Circuit held that a traffic stop, followed by the issuance of a summons, is not an intervening arrest for the purpose of calculating a defendant’s prior convictions under USSG § 4A1.2(a)(2).   Defendant John Francis Ley received two speeding tickets on two consecutive days.  After writing each ticket, the police released Ley and informed him that the matter would proceed via summons.  No arrest was made and Ley was sentenced for both matters on the same day. The District Court, however, held that the issuance of the summons constituted an intervening arrest for the purposes of the Guidelines and each ticket therefore merited an individual criminal history point.  Ley appealed.  Looking at the ordinary meaning of both “arrest” and “summons,” as well as the Supreme Court’s history of distinguishing arrests from other interactions with law enforcement, the Third Circuit, joining three other circuits …