USA v. Nguyen et al

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v. Civil No. 05-2012
Criminal No. 03-20039-003
SON TRUONG NGUYEN DEFENDANT/MOVANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Movant Son Truong Nguyen, a federal prisoner, brings a motion to vacate, set aside, or
correct sentence under 28 U.S.C. § 2255. An evidentiary hearing was conducted on December 14,
2005. Movant testified, as did his former criminal defense attorney John Settle. Interpreter Bill Bell
translated the proceedings. I had indicated to the parties at the conclusion of the hearing that a
transcript of the proceeding would be ordered but, after reviewing the claims, found it unnecessary.
DISCUSSION
In September 2003, movant was indicted for drug offenses along with two co-defendants.
Movant was charged with conspiracy to distribute methamphetamine (Count I), aiding and abetting
the distribution of more than 5 grams of actual methamphetamine (Count III), aiding and abetting
the distribution of more than 50 grams of methamphetamine (Count IV), and aiding and abetting the
possession with intent to distribute more than 50 grams of methamphetamine (Count V).
On November 17, 2003, the date scheduled for trial, movant pled guilty to Count V pursuant
to a plea agreement, which provided in part that relevant conduct would be considered in sentencing.
The agreement set out the maximum imprisonment of 40 years and provided that the mandatory
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minimum was 5 years except that, if the drug amount was more than 500 grams of methamphetamine
or 50 grams of actual methamphetamine, the mandatory minimum was 10 years. The presentence
investigation report (PSI report) erroneously stated that the mandatory minimum was 5 years for the
amounts involved in the case but was amended to reflect a 10-year mandatory minimum.
At the sentencing on February 10, 2004, Settle advised Honorable Robert T. Dawson that
movant was quite fluent in English and an interpreter was unnecessary. Movant was sworn by the
court and asked if he was satisfied with the services of his attorney. Movant replied, “I not fully
understand the whole deal in this case.” (Sentencing T. 3). Settle advised Judge Dawson that
movant had told him he did not understand the amended PSI report prepared in December 2004.
Judge Dawson recessed to call for an interpreter.
When court resumed with an interpreter present, movant was again sworn and asked if he was
satisfied with the services and representation of Settle. Movant responded, “Yes. He is helping me
a great deal.” (Sentencing T. at 7). The parties advised the court that the amended PSI report had
been reviewed and they agreed with the PSI report that a guideline “safety valve” was appropriate,
which meant that movant was not subject to the 10-year mandatory minimum. Settle related that one
of movant’s problems was the change in the PSI report of the mandatory minimum from 5 to 10
years but that Settle had advised him the probation officer’s recommendation to apply the guideline
“safety valve” meant that movant would be sentenced under the appropriate guideline range without
regard to the 10-year mandatory minimum. At one point, when movant indicated he was having
problems with the addition of drug amounts, the court observed, “I think he understands more than
he may indicate that he does but let’s go off the record and you can compute that for him.”
(Sentencing T. at 11).
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The court overruled movant’s objections to the PSI report, including the use of relevant
conduct to arrive at the base offense level. With a 3-point reduction for acceptance of responsibility,
the resulting guideline range was 87 to 108 months. The court imposed a sentence of 87 months and
5 years supervised release. Movant took no appeal.
At the conclusion of the evidentiary hearing before the undersigned, movant withdrew the
claim that his plea was unknowing and involuntary. Movant’s remaining claims are that Settle failed
to file an appeal and movant’s sentence violates Booker.
Appeal
Movant contends he directed Settle to appeal but he failed to do so. When counsel fails to
file a notice of appeal after being instructed to do so by the client, actual prejudice is presumed and
no showing of meritorious appellate claims is require to prevail on a claim of ineffective assistance
of counsel. Barger v. U.S. , 204 F.3d 1180, 1181-82 (8 Cir. 2000) (citing Holloway v. Unitedth
States, 960 F.2d 1348, 1356-57 (8th Cir. 1992). “A bare assertion by the petitioner that [he] made
a request is not by itself sufficient to support a grant of relief, if evidence that the fact-finder finds
to be more credible indicates the contrary proposition.” Id. (citing Rodriguez v. United States, 964
F.2d 840, 842 (8 Cir. 1992) (per curiam)).th
Settle has practiced law 28 years, 10 of which he served as a state public defender. He was
retained by movant’s family for a fee of $2,500 which was to cover all court proceedings except for
jury trial. Settle spoke several times to members of movant’s family who were interested in the case.
According to Settle, movant well knew prior to sentencing that “relevant conduct” would be
considered and a 10-year mandatory minimum could apply. After sentencing, movant was unhappy
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with the sentence but did not appear dismayed or surprised or complain that he was expecting a 5-
year mandatory minimum. Later at the jail, Settle discussed the matter of appeal with movant who
asked if he could appeal. Settle advised that the chances of prevailing on appeal were “very poor.”
After receiving this advice, movant did not say he wanted to appeal and never directed Settle to
appeal. Settle does not recall talking to movant after this meeting. Settle sometimes has clients sign
a waiver of appeal but did not do so in this case. Settle explained that inmates can contact him
through telephone calls from relatives and letters but he does not accept collect calls.
Settle did not use an interpreter when speaking with movant, explaining at the hearing that
he had no reason to believe one was necessary because movant speaks English quite well and
appeared to have a very clear understanding of what was told him. The government introduced a
letter written in English by movant to Settle on March 2, 2004, asking Settle for a “favor” – to
prepare requests for a 500-hour drug class and a transfer for a prison near movant’s family. Movant
stated toward the end of the letter, “Could you do this for the last time.” (Govt’s Ex. 1). Movant
did not mention an appeal.
Movant testified that he did not understand what his attorney told him regarding legal
matters. Although he understands and speaks English, he is more comfortable communicating in
Vietnamese concerning complicated legal terminology. He attended high school in California where
the teachers spoke English and received in Arkansas a beauty college certificate.
Movant continued that when he was sentenced, he felt saddened and did not know how much
time 87 months was and had no time to think about it. He asked Settle what happened because he
was expecting a lower sentence. He does not recall the attorney’s response. When he learned that
the mandatory maximum sentence had been increased from 5 to 10 years, he told Settle that he
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wanted to appeal and Settle responded there were no grounds. He never withdrew the request for
an appeal. The last time he saw Settle was in the courtroom after sentencing. He tried to reach the
attorney by telephone several times but the office would not accept his collect calls. He later learned
there was a 10-day limit to file a notice of appeal and while in jail he decided after a year that
nothing was going on with an appeal and he likely had no appeal.
I find that movant’s hearing testimony was lacking in credibility. According to movant, one
of his main objections to his sentence was the court’s consideration of “relevant conduct” in
sentencing. He said the term was never explained to him by Settle. However, the evidence
establishes that movant early on was made aware of the concept that the Sentencing Guidelines took
into consideration “relevant conduct,” notwithstanding a guilty plea to one count of a multiple-count
indictment. Settle discussed this matter with movant, the plea agreement had a paragraph entitled
“Relevant Conduct Considered,” and the court stated at the plea hearing that it would take into
consideration the dismissed counts at sentencing. I do find that, despite knowing that relevant
conduct would be considered, movant had a difficult time accepting the concept and told Settle it
was not “fair.”
I also reject movant’s testimony that he believed a 5-year mandatory minimum applied and
Settle promised a 5-year sentence. The credible testimony of Settle establishes that movant was
aware of the 10-year mandatory minimum prior to sentencing. Further, because the guideline “safety
valve” was used in this case, the 10-year mandatory minimum was not applied but, rather, movant
was sentenced under the appropriate guideline range without reference to the 10-year mandatory
minimum.
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Based on all matters presented, I find credible the testimony of Settle that after he advised
movant that his chances to prevail on appeal were very poor, movant let the matter go and did not
request that the attorney pursue an appeal. I also find instructive movant’s letter to Settle, which
does not mention an appeal but, rather, is concerned with prison matters. The letter indicates movant
is versed in the English language and reasonably intelligent and his testimony of his lack of
comprehension of the English language is suspect. I conclude, contrary to movant’s testimony, that
he accepted his attorney’s advice regarding an appeal and gave no directive to file an appeal.
Accordingly, movant has no valid claim of denial of appeal through the ineffective assistance of
counsel.
Booker
Movant challenges his sentence based on United States v. Booker, ___U.S. ___, 125 S.Ct.
738 (2005). In Blakely v. Washington, ___U.S. ___, 124 S.Ct. 2531 (2004) the Supreme Court
struck down as unconstitutional a Washington state sentencing scheme that allowed judges to apply
sentencing enhancements based on judge-found facts. The court held that the Sixth Amendment
right to trial by jury requires that any fact which leads to a sentencing enhancement, other then the
fact of a prior conviction, must be found by a jury or admitted by the defendant. In Booker, the
Supreme Court applied the Blakely holding to the Federal Sentencing Guidelines, finding them
unconstitutional. The Court made the mandatory Guidelines advisory only to correct the defect.
Here, movant’s conviction became final prior to the delivery of the Booker decision on
January 12, 2005. Booker is not retroactively applied to convictions that became final prior to the
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decision. Never Misses a Shot v. United States, 413 F.3d 781 (8 Cir. 2005). Movant, therefore, hasth
no Booker claim.
CONCLUSION
Based on the above, I recommend that movant’s claims be denied and his motion be
dismissed with prejudice. The parties have ten days from receipt of our report and
recommendation in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The
failure to file timely objections may result in waiver of the right to appeal questions of fact.
The parties are reminded that objections must be both timely and specific to trigger de novo
review by the district court.
DATED this 13th day of January 2006.
/s/Beverly Stites Jones
HON. BEVERLY STITES JONES
UNITED STATES MAGISTRATE JUDGE
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