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United States v. Bui

United States Court of Appeals, Third Circuit

October 20, 2014

UNITED STATES OF AMERICA
v.
DUNG BUI a/k/a DANNY BUI Dung Bui, Appellant

Submitted Under Third Circuit LAR 34.1(a) June 26, 2014

PPEAL 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

Frank A. Labor, III, Esquire Emily McKillip, Esquire Office of United States Attorney Counsel for Appellee

Maria K. Pulzetti, Esquire Brett G. Sweitzer, Esquire Federal Community Defender Office for the Eastern District of Pennsylvania Counsel for Appellant

Before: McKEE, Chief Judge, and FUENTES, and GREENAWAY, JR., Circuit Judges.

OPINION

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 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 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 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 ...


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