United States District Court, D. Nevada
LARRY R. HICKS, District Judge.
Before the court is defendant Hung Quoc Bui's ("Bui") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Doc. #42.
I. Facts and Procedural History
On August 25, 2010, Bui was charged with three courts of access device fraud in violation of 18 U.S.C. § 1029(a)(2), and three counts of aggravated identity theft in violation of 18 U.S.C. § 1028A. Doc. #1. On June 3, 2011, Bui pled guilty to all six counts without the benefit of a plea agreement. Doc. #20. Subsequently, on October 25, 2011, Bui was sentenced to seventy-eight (78) months incarceration. Doc. #29.
Bui appealed his sentence (Doc. #30) and on December 12, 2012, the Ninth Circuit affirmed both his conviction and sentence (Doc. #39). Thereafter, Bui filed the present motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Doc. #42.
II. Legal Standard
Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or correct a sentence if "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255; 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice and Procedure § 41.3b (5th ed. 2005).
The Sixth Amendment to the Constitution provides that criminal defendants "shall enjoy the right to have the assistance of counsel for his defense." U.S. CONST. AMEND. VI. To establish ineffective assistance of counsel, a petitioner must show that his or her counsel's performance was deficient, and that petitioner was prejudiced as a result of counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). In determining whether counsel's performance was deficient, the court must examine counsel's overall performance, both before and at trial, and must be highly deferential to the attorney's judgments. United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995) (citing Strickland, 466 U.S. at 688-89) (internal quotations omitted). Once a petitioner has established that counsel's performance was deficient, the petitioner "must then establish that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. A reasonable probability is a probability "sufficient to undermine confidence in the outcome." Id.
In his motion for relief under § 2255, Bui contends that his counsel was constitutionally ineffective for three separate reasons: (1) counsel failed to properly advise him of the elements of aggravated identity theft; (2) counsel failed to advise him as to the mandatory consecutive sentence for aggravated identity theft; and (3) counsel failed to offer sufficient mitigating factors at sentencing. See Doc. #47. The court shall address each challenge below.
A. Elements of Aggravated Identity Theft
In his motion for post-conviction relief, Bui claims that his counsel never advised him that in order to be guilty for a charge of aggravated identity theft under 18 U.S.C. § 1028A he had to know that the identity used was that of a real person. Bui asserts that had his counsel properly advised him as to this element, he would not have plead guilty. See Doc. #47.
The court has reviewed the documents and pleadings on file in this matter and finds that the record does not support Bui's claim that he was not advised of the elements of aggravated identity theft. Rather, the detailed record in this action establishes that Bui was fully appraised and advised of all the essential elements of aggravated identity theft including the element of using another person's identify.
In particular, at his change of plea hearing the court carefully explained the elements of aggravated identify theft as follows: "[t]he other offenses with which you are charged are three counts of aggravated identity theft. There are two elements which make up the offense of aggravated identity theft. And I want to make sure that you understand each one. The first one is that the defendant knowingly used, without lawful authority, a means of identification of another person. The second element is that the defendant uses the means of identification of another person during and in relation to the crime of access device fraud as you have been charged in Counts One through Three of the indictment." Doc. # 45, p. 10-11. After identifying and explaining these elements, the court asked if Bui understood both elements of aggravated identify theft to which he answered "[y]es, your honor." Doc. #45, p.11. Further, Bui responded affirmatively that he understood that by pleading guilty to the charges of aggravated identity theft then he was also necessarily admitting that he violated those same elements. Id. Thus, his ...