2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-20-2014

USA v. Dung Bui

Precedential or Non-Precedential: Precedential

Docket No. 11-3795

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-3795

_____________

UNITED STATES OF AMERICA

v.

DUNG BUI

a/k/a

DANNY BUI

 Dung Bui,

 Appellant 

______________

APPEAL FROM THE UNITED STATES DISTRICT 

COURT FOR THE EASTERN DISTRICT OF 

PENNSYLVANIA

(D.C. Crim. Action No. 5-08-cr-00427-002)

District Judge: Honorable Legrome D. Davis

______________

Submitted Under Third Circuit LAR 34.1(a)

June 26, 2014

______________
2

Before: McKEE, Chief Judge, and FUENTES, and 

GREENAWAY, JR., Circuit Judges.

(Opinion Filed: October 20, 2014)

Frank A. Labor, III, Esquire

Emily McKillip, Esquire

Office of United States Attorney

615 Chestnut Street

Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

Maria K. Pulzetti, Esquire

Brett G. Sweitzer, Esquire

Federal Community Defender Office 

for the Eastern District of Pennsylvania

601 Walnut Street

The Curtis Center, Suite 540 West

Philadelphia, PA 19106

Counsel for Appellant 

______________

OPINION

______________
3

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 
4

owned and operated by the Reading School District,” (J.A. 

33), in violation of 21 U.S.C. § 860(a)1and 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.”2

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 

 

1 Although the superceding indictment states that Bui’s 

2 Generally, 18 U.S.C. § 3553 is referred to as the 

“safety valve” provision.
5

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.

3

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).4

 

3 Bui did not file an appeal of his sentence.

4

 Bui’s habeas petition focused on the argument that 

Hampden Park is not a playground. In its response, the 

government stated that “[t]he indictment does not allege that 

Hampden Park is a playground.” (Appellee Br. 15 n.1.) 

Instead, the government noted that the athletic fields at 

Hampden Park are used as part of Reading High School and 

thus comprise part of the school, regardless of the ownership 

issue. In his reply, Bui argued that Hampden Park could not 

qualify as school property because the land was jointly owned 

between the City of Reading and the Reading School District. 

Now, on appeal, Bui’s argument focuses solely on the fact 

that Hampden Park is not real property comprising Reading 

High School because of its joint ownership. He claims that, 

had his attorney explained the nature of Hampden Park and 

the elements of § 860, he would not have pled guilty. 
6

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 (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.”5(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 

 

5

 The Government has not sought 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.” (Appellee Br. 5.) 
7

there were no nonfrivolous issues to appeal, pursuant to

Anders v. California, 386 U.S. 738 (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 (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 (internal citations omitted). The second part specifies 

that the defendant must show that “there is a reasonable 
8

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. 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 (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 

(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, 132 S. Ct. 1376, 1384 (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, 

134 S. Ct. 1340 (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 . . . .” 
9

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 counsel’s performance fell below prevailing 

professional norms required by Smack and Strickland. See 

Hinton v. Alabama, 134 S. Ct. 1081, 1089 (2014) (“An 

attorney’s ignorance of a point of law that is fundamental to 

his case combined with his failure to perform basic research 

on that point is a quintessential example of unreasonable 

performance under Strickland.”).

Unlike the majority of guilty plea cases, the District 

Court’s plea colloquy here did not serve to remedy counsel’s 

error. Rather than correcting counsel’s mistaken advice, 

several statements that the District Judge made during the 

plea colloquy serve to reinforce counsel’s incorrect advice. 

For example, the District Judge stated that “[i]f I determine to 

apply the Guidelines in your case, the Sentencing Guidelines 

permit me to depart upwards or downwards under some 

circumstances . . . .” (J.A. 121-22) Additionally, the District 
10

Judge asked Bui if he understood that “[his] attorney and the 

Government attorney can agree on facts and they can make 

recommendations and motions and requests of me at the time 

of sentencing, but I don’t have to do what they ask me to do

. . . .” (J.A. 125.)

These statements, albeit reasonable and accurate 

statements under normal circumstances, are problematic here. 

Any statement by the District Court about sentencing 

discretion creates confusion here because the mandatory 

minimum would limit the exercise of its discretion. Further, 

these statements indicating the District Court had discretion 

to vary from the mandatory minimum serve to reinforce the 

erroneous advice provided by counsel regarding the 

availability of the safety valve reduction. 

During the proceedings, 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. Although the 

District Judge did correctly inform Bui that “I could award 

you two terms of life imprisonment but I must award a 

mandatory minimum of ten years imprisonment” (J.A. 119), 

this single sentence did not serve to overcome the erroneous 

advice of counsel in light of the other statements supporting 

counsel’s advice. Thus, Bui has satisfied the first prong of 

the Strickland test. 

Bui has also satisfied the second prong of the 

Strickland test by asserting 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.” 

Hill, 474 U.S. at 59. In addition to Bui’s statement that he 

would not have pled guilty, logic supports his assertion. If 

Bui were unable to benefit from a safety valve reduction, he 
11

would have gained no benefit from his plea agreement. 

Although the Government agreed to drop counts two and 

three, these charges were lesser-included offenses, the 

elimination of which did not impact Bui’s sentencing 

exposure. Bui has demonstrated prejudice, thus satisfying the 

second prong of the Strickland test.6

Since we conclude that Bui’s counsel was ineffective 

with respect to his advice regarding the applicability of § 

3553(f) and are thus granting his habeas petition on that 

ground, we need not address Bui’s second claim — that 

counsel was ineffective for failing to investigate the factual 

basis for the § 860 offense. Cf. Smith v. Horn, 120 F.3d 400, 

403-04 (3d Cir. 1997). We do note that it appears, based on 

the extensive arguments set forth by counsel on appeal, that 

both factual and legal issues exist as to whether Hampden 

Park is “real property comprising a public . . . secondary 

school . . . .” 21 U.S.C. § 860(a). We leave the resolution of 

these questions to the District Court to address on remand. 

IV. Conclusion

On the facts before us, we conclude there is a 

reasonable probability that, but for counsel’s errors, Bui 

would not have pled guilty. We will grant Bui’s habeas 

petition, vacate the District Court’s order, and remand the 

case for further proceedings consistent with this opinion. 

 

6 Given the evidence available on the record before us, 

we do not believe remand for an evidentiary hearing is 

required. 28 U.S.C. § 2255(b).
12

Upon remand, the District Court shall determine whether 

Hampden Park is properly classified as real property 

comprising a school.