Joe Pulczinski v. Trinity Structural Towers

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2584
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Tony Van Bui, *
*
Defendant - Appellant. *
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Submitted: May 14, 2012
Filed: August 9, 2012
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Before WOLLMAN, BEAM, and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
After a warrant search of Tony Van Bui’s vehicle and home uncovered over
eighty kilograms of marijuana, he pleaded guilty to possession with intent to
distribute 100 kilograms or more. The plea agreement recited that Bui was subject
to a mandatory minimum sentence of five years in prison, see 21 U.S.C.
§ 841(b)(1)(B), but that he could be eligible for a “safety valve” reduction if he “will
truthfully provide to the United States all information and evidence he has concerning
the offense” and satisfies the remaining requirements of 18 U.S.C. § 3553(f)(1)-(5).
Two days before the sentencing hearing, defense counsel filed a Sentencing Position
pleading advising the court:

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Mr. Bui does qualify for a safety-valve reduction . . . . However,
although the government has been willing to meet with Mr. Bui, no
meeting has taken place. Based on information the government believes
Mr. Bui would give during a safety valve proffer, the government would
most likely not recommend a . . . reduction. As such, Mr. Bui is
respectfully requesting that he be sentenced to the mandatory minimum
sentence of 60 months.
At sentencing, the district court concluded the safety valve reduction did not apply1
and imposed a 60-month sentence. Bui appeals that sentence. We affirm.
1. On appeal, relying on United States v. Espinosa, 172 F.3d 795, 797 (11th
Cir. 1999), Bui first argues that the district court improperly deferred to the
government and defense counsel in making its safety-valve determination. This
contention requires a closer look at what transpired at the sentencing hearing.
Initially, the district court inquired as to the status of the safety valve issue:
Secondly, until I am told otherwise, it appears to me that there has been
no proffer that has been accepted by the Government, which means . . .
that there is a mandatory minimum set by the United States Congress of
60 months. Does that remain the case today . . . ?
Both attorneys answered affirmatively. Bui’s attorney then reiterated that the
government had offered to meet with Bui for safety-valve purposes and explained:
I have outlined to Mr. Bui what that would entail; that he would
have to be truthful about this offense and other activity . . . .
The Honorable Donovan W. Frank, United States District Judge for the1
District of Minnesota.
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I proffered to the Government what Mr. Bui would say if there
was a safety valve proffer, and the Government has informed me that
they would not believe that that would be truthful information. . . .
At this time, Mr. Bui would still maintain his original version of
the events, and as such I do not believe that the Government would
recommend that he receive a . . . reduction for safety valve.
I have further informed Mr. Bui that if he lied during a proffer
session, the Government could move for obstruction and could also
charge him with lying to federal agents. So, at this point, we are not
asking for a continuance.
I do not believe Mr. Bui is interested in sitting down and meeting
with the Government for the purposes of a safety valve proffer. So then
the 60 months apply. And I would ask for that sentence.
After Bui apologized for his conduct, the district court asked if he understood
“that unless you give additional information to the Government in what we call a
proffer or statement, that the law requires that a five-year sentence . . . be imposed.”
Bui answered, “I do.” Defense counsel added that the prosecutor “bent over
backwards . . . to make sure that Mr. Bui would have been able to pass the safety
valve proffer.” Bui added, “She is a nice person. I can see that.”
The record makes clear that the district court did not abdicate its safety-valve
responsibilities to the prosecutor or to defense counsel. Consistent with § 3553(f)(5),
the court advised that no reduction could be granted unless Bui truthfully provided
information to the government. Defense counsel said that Bui was unwilling to do
so, and the court then verified that Bui understood the consequences of that decision.
The defendant seeking a safety-valve reduction “has the burden to demonstrate he has
provided the government truthful information and evidence about the relevant crimes
before sentencing.” United States v. Alvarado, 615 F.3d 916, 923 (8th Cir. 2010)
(quotation omitted). When the defendant gives the government a statement or
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proffer, as in Espinosa, it is the court’s ultimate responsibility to determine the
truthfulness of the information provided. 172 F.3d at 797. But as Bui made no
proffer, the court had no choice but to deny a safety valve reduction.
2. Bui further argues that his attorney provided constitutionally deficient
assistance by privately communicating Bui’s safety-valve proffer to the government
and unilaterally determining that the government would not believe a proffer by Bui
was truthful and complete, when it was the district court that would finally determine
that issue. Bui contends this prejudicially deprived him of “the opportunity at
sentencing to give a ‘safety valve’ proffer.” We decline to consider ineffective
assistance claims on direct appeal unless the record is fully developed or “trial
counsel’s ineffectiveness is readily apparent.” United States v. Cook, 356 F.3d 913,
919-20 (8th Cir. 2004). Here, no ineffectiveness is readily apparent, as the sentencing
record reflects that defense counsel candidly and effectively advocated Bui’s interest
in obtaining the lowest possible sentence. Of course, the record is not fully
developed as to what may have transpired at meetings between defense counsel and
Bui and government counsel, and what information Bui might have provided had a
safety valve proffer been made. Those questions must be developed, if at all, in a
post-conviction proceeding.
The judgment of the district court is affirmed.
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