Tuesday, October 28, 2014

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.

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The District Court's indication of the sentence it would impose before the defendant allocuted was not reversible plain error.

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