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. C rim . Action No

. 5

- 08

- cr

- 00 427

- 0 02 ) 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: August 4, 2015 )

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

, and re mand 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

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 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. § 84 6 ; (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 2 1 U.S.C. § 856(a)(1); and (4) manufacturing and distributing marijuana “ wi thin 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) 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 stipu lated 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 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 guilt y, 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.” 1

Consistent with these statements, p rior to the senten cing hearing, Bui’s counsel f

iled a motion, pursuant to 18 U.S.C. § 3553(f)

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

that § 3553(f) did not apply to con vi ctions under 21 U.S.C. §

860. Bui was sentenced to the mandatory minimum of 120

1 Generally, 18 U.S.C. § 3553 is referred to as the “safety valve” provision.5 months of imprisonment and 120 months of supervised

release

. 2

In his pro se habeas petition, Bui raise s multiple claims. He argues that: (1) his guilty plea was not volunt ary or knowing because it was induced by the mi srepresentations of his counsel; (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 school; and (4) his counsel also provided ineffective assistance by failing to explain the factual predicate for violation of § 860(a). 3

2 Bui did not file an appeal of his sentence.

3 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

th us 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 app eal, 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 C ourt held that the “exhaustive change of plea hearing remedied any allege d errors committed by Bui’s counsel

. . . .” ( J

. A. 9 .) Therefore, the District 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 qualifi ed 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.” 4 (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 ba sed on his view that

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.

4 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 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 erro neous 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 co unsel 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 se cond part specifies

that the defendant must show that “there is a reasonable 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 undermi ne confidence in the outcome.” Id. at 694. We have reasoned that “there can be no Sixth Amendment deprivation of8 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 defend ant 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) (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]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

. . . .”

United States v. Smack , 347 F.3d 533, 538 (3d Cir. 2003 ). However, “an erroneous sentencing prediction by counsel is

not in ef fective assist ance of counsel where . . . an adequate plea hearing was conducted. ” United States v. Shedrick , 493 F.3d 292, 299 (3d Cir. 2007)

.9 Here, the record clearly indicates Bui’s counsel provided him with incorrect advice regarding the availabili ty
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 revealed 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 fundame ntal 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 rem edy counsel’s

error. Rather tha n correcting counsel’s mistaken advice,

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

Govern ment 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.) Further, the District Court stated “there is a10 mandatory minim um term of ten years for that offense which means that unless certain things happen, I will have no choice but to give you a sentence of not less than ten years in prison on Count 1.” (J.A. 85.) With regard to the other count of conviction, the District C ourt similarly stated “[t]here is a similar mandatory minimum term of ten years imprisonment which I must give you for Count 4 unless certain things occur.” (J.A. 87.)

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 discretio n 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 valv e 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),

th is 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

St rickland 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.”11 Hill , 474 U.S. at 59. In addition t o Bui’s statement that he would not have pl e d guilty, logic supports his assertion. If

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

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 impact Bui’s sentencing

exposure. Bui has demonstrated prejudice, thus satisfying the second prong of the Strickland test. 5

Since we conclude that Bui’s counsel was ineffective with respect to his advice rega rding 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

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

403

- 04 (3d Cir. 1997). We do note that 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

schoo l

. . . .” 21 U.S.C. § 860(a). W e 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

5 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 would not hav e pled guilty. W e will grant Bui’s habeas petition, vacate the District Court’s order

, and remand the case for further proceedings consistent with this opinion. Upon remand, the District Court shall determine whether Hampden Park is properly classified a s real property comprising a school

.