Ineffective Assistance of Counsel – When Defense Counsel Miscalculates the Guidelines

This month, the Third Circuit decided two habeas corpus petitions, granting relief in one, United States v. Bui, --F.3d--, 2015 WL 4620059 (3d Cir. Aug. 4, 2015), and denying relief in the other, United States v. Fazio, --F.3d--, 2015 WL 4620263 (3d Cir. Aug. 4, 2015). Though in both cases, the petitioners’ received ineffective assistance of counsel, in Fazio the error was corrected by the District Court’s colloquy while in Bui it was not.

In Bui, Dung Bui pled guilty to manufacturing marijuana within 1,000 feet of a school in violation of 21 U.S.C. § 860(a). Bui claimed that he pled guilty because his counsel said that he would receive a lower sentence by doing so. Though § 860 imposes a 10 year mandatory minimum sentence, Bui’s counsel believed that he was eligible for a safety valve under 18 U.S.C. § 3553. Bui’s counsel was seemingly unaware that § 3553 did not apply to convictions under § 860 and Bui was sentenced to 10 years’ imprisonment. Bui sought habeas relief, arguing that he received ineffective assistance of counsel and therefore did not sign the plea agreement voluntarily. The Third Circuit determined that his counsel’s “lack of familiarity with an eighteen-year-old precedent” rendered his assistance ineffective under Strickland v. Washington, 466 U.S. 668 (1984). The Court also noted that the District Court’s inquiry into the voluntariness of the plea bargain did not ameliorate the bad advice, and may have actually added to Bui’s confusion. Because Bui would not have entered into the plea agreement if he was informed that the safety valve did not apply to his offense, the Court vacated the conviction and remanded the case.

The Court in Fazio reached a different result. Cosmo Fazio pled guilty to a drug conspiracy. Though this conviction meant that he would certainly be deported, Fazio’s counsel was unaware of the precise immigration consequences and failed to advise Fazio prior to pleading guilty that he would be deported. Fazio sought habeas relief, arguing that his counsel’s failure to tell him that he would be deported if he pled guilty was ineffective assistance under Padilla v. Kentucky, 559 U.S. 356 (2010). Though the Third Circuit agreed that his counsel’s assistance was ineffective, the Court affirmed the conviction because both the wording of the plea bargain and the colloquy in the District Court clearly outlined the immigration consequences arising from a guilty plea. Therefore, the Court held that any error created by his counsel was corrected by the District Court’s colloquy.

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