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3rd Circuit Vacates Pot Grower’s Guilty Plea

(CN) - A marijuana grower whose attorney mistakenly told him he would receive a reduced sentence if he pleaded guilty to drug charges received ineffective assistance, the 3rd Circuit ruled.

Dung Bui, also known as Danny Bui, was charged with growing more than 1,000 marijuana plants within 1,000 feet of a park.

Bui's counsel urged him to plead guilty to the charges, telling him that if did, he would be eligible for a reduced sentence.

But this advice was wrong.

Under mandatory sentencing guidelines, U.S. District Judge Legrome Davis had no choice but to sentence Bui to the a minimum 10 years in prison. Davis also tacked on an additional 10 years of supervised release to the sentence.

Bui appealed, and upon review the 3rd Circuit concluded the marijuana grower was not reasonably informed of the consequences of his plea.

"The record clearly indicates Bui's counsel provided him with incorrect advice regarding the availability of a sentencing reduction," Judge Joseph Greenaway said, writing for the three-judge panel. "Counsel's lack of familiarity with an eighteen-year-old precedent, and his erroneous advice based on that lack of familiarity, demonstrate counsel's performance fell below prevailing professional norms."

In addition, the panel found the trial judge not only failed to take steps to address that misunderstanding, but made several statements reinforcing the bad advice Bui received from his attorney.

The trial judge said that "the sentencing guidelines permit me to depart upwards or downwards under some circumstances," and told Bui he would consider a request for a downward departure.

The three-judge panel said that "although the district judge 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,' this single sentence did not serve to overcome the erroneous advice of counsel in light of the other statements supporting counsel's advice."

Since it found Bui received ineffective assistance from his attorney, the 3rd Circuit did not address another of Bui's assertions - that his sentence was longer that it should have been because the school athletic field next to his marijuana plants was wrongly classified as a park.

The panel remanded the case back to the district court for proceedings consistent with its opinion.

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