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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. C rim . Action No

. 5

- 08

- cr

- 00 427

- 0 0 2 ) 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 S treet Suite 1250 Philadelphia, PA 19106

Counsel for Appellee

Maria K. Pulzetti, Esquire Brett G. Sweitzer, Esquire Federal Community Def

ender Office for the Eastern District of Pennsylvania
601 Walnut Street The Curtis Center, Suite 540 West Philadelphia, PA 19106

Counsel for A ppellant

______________

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

. F or the reasons set forth below, we find that Bui’s trial counsel provided ineffective

assistance

. Therefore, w e will grant Bui’s petition, vacate the
District Court’s order

, and remand the case for further proceedings consistent with this opinion.

I. Ba ckground 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, Pennsylva nia area. Agents arrested Bui at 1307 Lorraine Road, Reading, Pennsylvania based on his
involveme nt 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 g row 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. § 84 6 ; (2) manufacturing

, as well as aiding and abetting the manufacturing

, of more th an 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 “ wi t hin 1,000 feet of the real property comprising Hampden Park, Reading

, Pennsylvania, an athletic field4 owned and operated by the Reading School District,” (J.A. 33)

, in violation of 21 U.S.C. § 860(a) 1 and 18 U.S.C. § 2.

Bui ple d guilty to counts one and f our as part of a plea
agreement . The plea agreement detailed th e 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 fee t 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 gui lty b ecause 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, p rior to the senten cing hearing, Bui’s counsel filed a motion, pursuant to 18 U.S.C. § 3553(f)

, seeking a sentence reducti on. At the sentencing hearing, counsel withdrew this mo tion , explaining that United States v. McQuilkin , 78 F.3d 105 (3d Cir. 1996) established

1 Altho ugh the superceding indictment states that Bui’s

2 Generally, 18 U.S.C. § 355 3 is referred to as the “safety valve” provision.5 that § 3553(f) did not apply to con victions 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 raise s multiple claims. He argues that: (1) his guilty plea was not voluntary or knowing because it was induced by the mi srepresentations
of his cou nsel; (2) his counsel’s errone ous 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 s chool; 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 no t 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. I n 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 n ot 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 provis ion of the plea agreement was enforceable

. As to the
ineffective assistance of counsel claim , the District C ourt held that the “exhaustive change of plea hearing remedied any alleged errors committed by Bui’s counsel

. . . .” ( J

. A. 9 .) Therefore, the Di strict C ourt ruled that Bui failed to demonstrate any prejudice

, as required by Strickland v. Washington , 466 U.S. 668 (1984)

. T he District C ourt 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 Cou rt granted Bui’s request for a certificate of

a ppealability on t he 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 r equest for Bui’s certificate of

a ppealability , 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 non frivolous 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 juris diction 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 Co urt’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
assis tance 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 th e 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 tha t 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 reasonab le8 probab ility that, but for counsel’s un professional 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 modifie d 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

- barg aining 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) (quo ting 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]now ledge 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 in effective assist ance of counsel where . . . an adequate plea hearing was con ducted. ” 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 representation s to
him

, there is the fact that counsel file d 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 rev ealed our longstanding precedent that § 3553(f) does n ot apply to convictions under § 860. Counsel’s lack of familiarity with an eighteen

- year

- old precedent and
his erroneous advice ba sed on that lack of familiarity
demonstrate co unsel’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 th at 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 rem edy counsel’s

error. Rather tha n correcting counsel’s mistaken adv ice,
several statements that the District Judge made during the plea colloquy se rve to reinforce counsel’s incorrect advice

. For example, t he District Judge stated that “[i]f I determine to apply the Guidelines in your case, the Sentencing Guidelines

perm it me to depart upwards or downwards under some
circumstances . . . .” ( J.A. 121

- 22 ) Additionally, the District10 Judge asked Bui if he understood that “[his] attorney and the Government attorney can agree on facts and they can make
recommendations and mot ions 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 Di strict 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 re inforce 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 Jud ge 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 reas onable 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 t o Bui’s statement that he would not have ple d guilty, logic supports his assertion. If
Bui were unable to benefit from a safety valve reduction , he11 would have gained no benefit fro m his plea agreement. Although the Government agreed to drop counts two and three, these charges were lesser

- included offenses , the
elimination of which did no t impa ct 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 thu s 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
b a sis for the § 860 offense. Cf. Smith v. Horn , 120 F.3d 400,

403

- 04 (3d Cir. 1997). We do note th at it appear s , 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 propert y comprising a public

. . . secondary
school

. . . .” 21 U.S.C. § 860(a). W e leave the re solution 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. W e will grant Bui’s habeas petit ion, 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,

w e 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

.