Third Circuit Reverses Denial of § 2255 Motion – Finds Counsel Ineffective

To prove ineffective assistance of counsel, a defendant must prove two things.  First, he must prove that his attorney provided poor representation.  Second, he must prove that that poor representation likely made a difference in the outcome of the case.  When a defendant pleads guilty because of bad advice, both of these requirements are met.  In a recent Third Circuit case, the defendant pled guilty to manufacturing marijuana within 1000 feet of a school (21 U.S.C. § 860).  The reason he pled guilty was that his attorney had advised him that he would be eligible for a reduced sentence under the “safety valve” law.  The “safety valve” law (18 U.S.C. § 3553(f)) provides a way for defendants charged with certain offenses to receive sentences below what would otherwise be mandatory minimums.  In this case, the defendant pled guilty because his attorney told him that he would be able to receive a sentence of less than 10 years – even though a 10-year mandatory minimum applied in his case.  The problem was that 21 U.S.C. § 860 is not one of the offenses listed in the safety valve statute.  It became clear that the defendant had been misadvised when his attorney filed a motion seeking a safety valve reduction.  The Court vacated the defendant’s conviction and remanded for further proceedings in the district court.  On remand, the defendant may be able to negotiate a plea to a safety-valve eligible count.  United States v. Bui, 2114 WL 5315061 (3d Cir. Oct. 20, 2014)