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Nguyen v. United States

United States District Court, E.D. Virginia, Alexandria Division

October 29, 2018

PHI VAN NGUYEN, Defendant-Petitioner,


          Leonie M. Brinkema United States District Judge.

         Phi Van Nguyen ("Nguyen" or "movant") has filed a prose Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("Motion to Vacate") [Dkt. No. 214], in which he raises four claims of ineffective assistance of his counsel, Christopher Amolsch ("Amolsch"). Specifically, he alleges that Amolsch failed to investigate Nguyen's criminal conduct in order to better negotiate a plea agreement; assured him that the maximum sentence he would receive under his plea agreement was 60 months, although he received a sentence of 87 months; failed to object to this sentence for being in excess of the plea agreement and disparate from the sentences of his co-defendants; and did not file a notice of appeal as requested. For the reasons that follow, the Motion to Vacate will be dismissed.

         I. BACKGROUND

         On April 14, 2016, a grand jury returned a superseding indictment charging Nguyen with 19 counts, including conspiracy to distribute 500 grams or more of cocaine in violation of 21 U.S.C. § 841 (Count 1), as well as distribution of crack cocaine (Count 2), distribution of "Molly" (Counts 3-12, 15-19), and distribution of cocaine (Counts 13-14). Superseding Indictment [Dkt. No. 98]. On June 28, 2016, Nguyen appeared with Amolsch and pleaded guilty under a written plea agreement to only Count 1, an offense which carried a mandatory minimum sentence of five years to a maximum of 40 years of incarceration Dkt. No. 161. In exchange for that plea, the remaining counts were dismissed. Id. As part of the written plea agreement, Nguyen also signed a statement of facts under the penalty of perjury in which he admitted that he conspired to unlawfully, knowingly, and intentionally distribute 500 grams or more of cocaine in the northern Virginia area. Stmt. Facts [Dkt. No. 163] ¶ 1 He also admitted supervising other conspirators-including co-defendants Phong Thanh Nguyen, Son Dang Nguyen, and Khahn Linh Dong-in the distribution of cocaine. Id. ¶ 4.

         Nguyen was sentenced on October 7, 2016, to 87 months of incarceration, with credit for time served followed by five years of supervised release. Dkt. No. 202. In addition, the Court imposed a $100.00 special assessment. Id. Although no direct appeal was filed, Nguyen timely filed his Motion to Vacate.


         A. Standard of Review

         A motion to vacate under 28 U.S.C. § 2255 provides for collateral attack on a conviction or sentence when the conviction or sentence was imposed in violation of the United States Constitution or laws, when the court lacked jurisdiction to impose the sentence, when the sentence was in excess of the maximum authorized by law, or when the conviction or sentence is otherwise subject to a collateral attack. See 28 U.S.C. § 2255(a). To prevail on a § 2255 motion, a movant bears the burden of proving his grounds for collateral relief by a preponderance of the evidence. See Jacobs v. United States, 350 F.2d 571, 574 (4th Cir. 1965).

         Relief under § 2255 is designed to correct for fundamental constitutional, jurisdictional, or other errors, and it is therefore reserved for situations in which failing to grant relief would be "inconsistent with the rudimentary demands of fair procedure or constitute[ ] a complete miscarriage of justice." United States v. Vonn, 535 U.S. 55, 64 (2002) (quoting United States v. Timmreck, 441 U.S. 780, 783 (1979)). A § 2255 motion "may not do service for an appeal," and claims that have been waived are therefore procedurally defaulted unless the movant can show cause and actual prejudice. United States v. Frady, 456 U.S. 152, 165-67(1982). There is an exception to this rule when a defendant brings a claim of constitutionally ineffective assistance of counsel. See United States v. Gastiaburo, 16 F.3d 582, 590 (4th Cir. 1994). Under § 2255(b), a movant is to be granted an evidentiary hearing on his motion "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief."

         B. Ineffective Assistance of Counsel

         Nguyen is not challenging the voluntariness of his guilty plea, nor is he claiming to be actually innocent of the conspiracy. In his own words, he admits "it should be pointed out that [movant] is not challenging whether he was or wasn't guilty in [sic] the charged offense. [Movant] is challenging the long term of time gave to him [sic] by the sentencing judge, due to the ineffectiveness of his lawyer." Pet'r's Reply Gov's Resp. Opp'n ("Reply") [Dkt. No. 224] at 13. To establish an ineffective assistance of counsel claim, Nguyen must show both that (1) "counsel's performance was deficient" and that (2) "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). Deficient performance occurs when "counsel's representation fell below an objective standard of reasonableness." Id. at 688. A movant can show prejudice when there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A mere showing that "the errors had some conceivable effect on the outcome of the proceeding" is not enough; a reasonable probability requires that the errors are "sufficient to undermine confidence in the outcome." Id. at 693-94.

         Where a movant pleads guilty, as Nguyen did, he must meet a heightened burden of proving prejudice by showing 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 v. Lockhart, 474 U.S. 52, 57-59 (1985): see also United States v. Dvess, 478 F.3d 224, 237 (4th Cir. 2007). Such movants must also "convince the [C]ourt that a decision to reject the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010). In making this showing, Nguyen's "subjective preferences, therefore, are not dispositive; what matters is whether proceeding to trial would have been objectively reasonable in light of all of the facts." United States v. Fueit, 703 F.3d 248, 260 (4th Cir. 2012).

         During the plea colloquy, for which a court certified Vietnamese language interpreter was present, [1] Nguyen affirmed that he had enough time to review the plea agreement and to ask his lawyer all the questions he had about the agreement.

THE COURT: Now, were you able to read the plea agreement for yourself?
THE COURT: All right. And did you read it entirely? Did you read every word of ...

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