United States v. Dung Bui
2015 U.S. App. LEXIS 13548
| 3rd Cir. | 2015Background
- DEA arrested Dung Bui during a multi-location marijuana grow investigation; Bui admitted the house at 1307 Lorraine Road was purchased to be converted into a grow site.
- Indicted on four counts, Bui pleaded guilty to (1) conspiracy to manufacture >1,000 marijuana plants (21 U.S.C. § 846) and (2) manufacturing/distributing within 1,000 feet of school property (21 U.S.C. § 860(a)) as part of a plea agreement that stipulated the 1,000-foot enhancement.
- Bui claims his trial counsel told him he would be eligible for a safety-valve sentence reduction under 18 U.S.C. § 3553(f), inducing his guilty plea; counsel also filed a § 3553(f) motion but withdrew it at sentencing upon learning § 3553(f) does not apply to § 860 convictions per Third Circuit precedent.
- The District Court accepted the plea, sentenced Bui to the mandatory minimum 120 months, denied his § 2255 motion without an evidentiary hearing, and held the plea voluntary and the collateral-attack waiver enforceable.
- The Third Circuit granted a COA on whether counsel rendered ineffective assistance by advising Bui to plead to § 860 and whether the collateral waiver bars relief for that claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether counsel rendered ineffective assistance by incorrectly advising about safety-valve (§ 3553(f)) eligibility | Bui: counsel told him he was eligible for safety-valve, inducing plea; he would have gone to trial otherwise | Gov: plea was voluntary after an adequate plea colloquy; any prediction was harmless | Held: Counsel was ineffective; advice was legally erroneous and prejudicial under Hill/Strickland — Bui likely would not have pled |
| Whether the plea colloquy cured counsel's erroneous advice | Bui: colloquy did not correct counsel’s mistake and some judge statements reinforced the error | Gov: thorough plea hearing remedied any attorney errors; plea was knowing and voluntary | Held: Colloquy did not cure the error; judge’s remarks reinforced misimpression about sentencing discretion |
| Whether Bui showed prejudice for a guilty-plea ineffective-assistance claim | Bui: lost potential safety-valve benefit; plea conferred no sentencing advantage because dropped counts were lesser-included | Gov: (implicitly) no prejudice because plea and sentencing were lawful | Held: Prejudice shown under Hill — reasonable probability Bui would have proceeded to trial |
| Whether collateral-attack waiver bars § 2255 relief | Gov: waiver enforceable generally; but government did not seek to enforce waiver here for the ineffective-assistance claim | Bui: seeks relief despite waiver because claim attacks voluntariness induced by counsel error | Held: Waiver does not preclude review of this ineffective-assistance claim given voluntariness concerns; relief granted on counsel-error ground |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (established two-prong ineffective-assistance test)
- Hill v. Lockhart, 474 U.S. 52 (prejudice for plea-stage IAC requires showing would have gone to trial)
- Lafler v. Cooper, 566 U.S. 156 (right to effective counsel extends to plea bargaining)
- Hinton v. Alabama, 571 U.S. 263 (ignorance of fundamental law plus failure to research can be unreasonable performance)
- United States v. Smack, 347 F.3d 533 (3d Cir.) (counsel must know Guidelines and circuit precedent)
- United States v. Shedrick, 493 F.3d 292 (3d Cir.) (erroneous sentencing prediction can be harmless if plea hearing adequate)
- United States v. Lilly, 536 F.3d 190 (3d Cir.) (standard of review for § 2255 proceedings)
- United States v. Day, 969 F.2d 39 (3d Cir.) (importance of comparative sentencing exposure to plea decisions)
- United States v. Sanders, 165 F.3d 248 (3d Cir.) (no IAC for failure to raise meritless arguments)