Pham v. USA

Filing 2

ORDER - Pham's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 51 ) is DENIED. A certificate of appealability is DENIED. Clerk shall enter a separate and final Judgment denying Pham's § 2255 motion. See Kingsbury v. United States, 900 F.3d 1147, 1150 (9th Cir. 2018). Signed by Judge Larry R. Hicks on 1/6/2021. (Copies have been distributed pursuant to the NEF - AB)

Case 3:20-cv-00277-LRH Document 2 Filed 01/06/21 Page 1 of 7

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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UNITED STATES OF AMERICA,

Respondent/Plaintiff, ORDER

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v.

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***
Case No. 3:17-cr-00104-LRH-CLB

ANDREW DENG PHAM,

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Petitioner/Defendant.

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Before the Court is petitioner Andrew Deng Pham’s (“Pham”) motion, to vacate, set aside,

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or correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 51). Pham filed his motion

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considering the recent ruling in Rehaif v. United States, 139 S. Ct. 2191 (2019). The government

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opposes (ECF No. 53), arguing that Pham’s claims are procedurally barred because he did not raise

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them on direct appeal. In his reply (ECF No. 54), Pham maintains that the constitutional errors are

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structural.

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For the reasons contained within this Order, the Court denies Pham’s motion and denies

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him a certificate of appealability.

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I.

BACKGROUND

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Pham has an extensive criminal history dating back to 1995. Most notably, in 2007, Pham

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was convicted of attempted murder. After serving almost nine years for that conviction, he was

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paroled in September of 2016.

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The current motion relates to Pham’s conduct on October 20, 2017, when West Wendover

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Police officers responded to a report at a local casino of two men attempting to cash fraudulent
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checks and who might be in possession of a firearm. After seeing Pham and another individual at

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the check cashing counter, the officers approached. Upon searching Pham, the officers found a

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loaded Glock, Model 33, .357 handgun in his waistband. Pham was still on parole for his attempted

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homicide conviction from 2007.

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In August 2018, per a plea agreement, Pham pleaded guilty to Unlawful Possession of a

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Firearm by a Previously Convicted Felon. ECF No. 38. This Court sentenced Pham to 42 months’

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imprisonment followed by three years of supervised release. ECF Nos. 45, 46. Now, Pham seeks

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to vacate his sentence pursuant to 28 U.S.C. § 2255.

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II.

LEGAL STANDARD

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Pursuant to 28 U.S.C. § 2255, a petitioner may file a motion requesting the court which

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imposed sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255(a). Such a motion

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may be brought on the following grounds: (1) “the sentence was imposed in violation of the

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Constitution or laws of the United States;” (2) “the court was without jurisdiction to impose such

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sentence;” (3) “the sentence was in excess of the maximum authorized by law;” or (4) the sentence

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“is otherwise subject to collateral attack." Id.; see United States v. Berry, 624 F.3d 1031, 1038 (9th

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Cir. 2010). When a petitioner seeks relief pursuant to a right newly recognized by a decision of

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the United States Supreme Court, a one-year statute of limitations applies. 28 U.S.C. §

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2255(f). That one-year limitation period begins to run from "the date on which the right asserted

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was initially recognized by the Supreme Court." Id. § 2255(f)(3).

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On June 21, 2019, the Supreme Court decided Rehaif, overturning established Ninth Circuit

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precedent. 139 S. Ct. 2191. In the past, the government was only required to prove that a defendant

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knowingly possessed a firearm under 18 U.S.C. §§ 922(g) and 924(a)(2). Id. at 2200. Now, under

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Rehaif, the government “must prove both that the defendant knew he possessed a firearm and that

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he knew that he belonged to the relevant category of persons barred from possessing a firearm.”

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Id.

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III.

DISCUSSION

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Pham argues that by leaving out the new Rehaif element from the original indictment, this

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Court lacked jurisdiction. ECF No. 51, at 14. He further alleges the omission in the indictment

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violated both his Fifth Amendment guarantee that a grand jury find probable cause to support all

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the necessary elements of a crime, and his Sixth Amendment right to effective assistance of counsel

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and to be informed of the nature and cause of the accusation. Id. at 16–21.

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A. Unconditional Guilty Plea

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The government contends that by pleading guilty unconditionally, Pham waived his right

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to make any non-jurisdictional challenges to the indictment; specifically, his Fifth and Sixth

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Amendment challenges. See Tollet v. Henderson, 411U.S. 258, 267 (1973). ECF No. 53, at 12.

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As part of his plea, Pham waived “…all collateral challenges, including any claims under

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28 U.S.C. § 2255, to his conviction, sentence, and the procedure by which the Court adjudicated

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guilt and imposed sentence, except non-waivable claims of ineffective assistance of counsel.” ECF

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No. 39, at 11. Consequently waiving “all non-jurisdictional defenses…cures all antecedent

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constitutional defects, allowing only an attack on the voluntary and intelligent character of the

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plea.” United States v. Brizan, 709 F.3d 864, 866–67 (9th Cir. 2013). Considering the plea’s cut-

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and-dry language, the Court finds Pham’s claims are barred by his guilty plea even in view of the

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exceptions to Tollett v. Henderson, 411 U.S. 258 (1973). 1 Nevertheless, the Court still finds it

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necessary to address the jurisdictional and procedural default arguments below.

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B. Jurisdiction

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This Court “has jurisdiction of all crimes cognizable under the authority of the United

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States….” Lamar v. United States, 240 U.S. 60, 65 (1916). Any “objection that the indictment does

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not charge a crime against the United States goes only to the merits of the case,” and does not

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deprive the court of jurisdiction. Id.; see also United States v. Cotton, 535 U.S. 625, 630 (2020)

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Tollett limited federal habeas challenges to pre-plea constitutional violations. 411 U.S. at 267. Exceptions to this
general rule include a claim which the state cannot “constitutionally prosecute.” Class v. U.S., 138 S. Ct. 789, 805
(2018) (quoting Menna v. New York, 423 U.S. 61, 63 (1975) (per curiam)). While Pham claims such an exception
exists in the present instance (ECF No. 51, at 21), the Court agrees with other well-reasoned decisions in the District
of Nevada which hold it does not. See United States v. Abundis, Case No. 2:18-cr-00158-MMD-VCF-1 (D. Nev. Nov.
30, 2020) (finding that the exceptions to Tollett do not apply under Rehaif as the claims “could have been remedied
by a new indictment.”).

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(reiterating Lamar). Quite importantly, the Ninth Circuit and decisions within the District of

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Nevada have relied on the principle announced in Cotton in cases considering the aftermath of

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Rehaif. See, e.g., United States v. Espinoza, 816 F. App'x 82, 84 (9th Cir. 2020) (“[T]he

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indictment's omission of the knowledge of status requirement did not deprive the district court of

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jurisdiction.”); see also United States v. Miller, Case No. 3:15-cr-00047-HDM-WGC (D. Nev.

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Dec. 8, 2020); United States v. Baustamante, Case No. 2:16-cr-00268-APG-CWH (D. Nev. Dec.

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7, 2020).

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Therefore, pursuant to Ninth Circuit precedent and decisions in this District, the Court had
and continues to have jurisdiction over Pham’s case despite Rehaif.

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C. Procedural Default

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The government also argues that Pham’s claims are procedurally defaulted. ECF No. 53,

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at 6. While a defendant certainly can question the underlying legality of his sentence or conviction,

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one who does not on direct appeal is procedurally defaulted from doing so unless they can

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demonstrate: (1) cause and prejudice; or (2) actual innocence. See Bousley v. U.S., 523 U.S. 614,

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622 (1998) (citations omitted). “‘Cause’ is a legitimate excuse for the default; ‘prejudice’ is actual

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harm resulting from the alleged constitutional violation.” Magby v. Wawrzaszek, 741 F.2d 240,

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244 (9th Cir. 1984).

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Pham did not challenge the validity of the indictment and/or plea on direct appeal, but

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instead, argues his claims have not procedurally defaulted because he can demonstrate cause and

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prejudice, or, in the alternative, the omission in his indictment is a structural error and therefore

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only requires a showing of cause. Each argument is addressed in turn.

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1.

Cause

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Pham can likely demonstrate cause. Rehaif overturned long standing precedent in the Ninth

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Circuit, and the decision’s constitutional consequences were not “reasonably available to counsel.”

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Reed v. Ross, 468 U.S. 1, 16 (1984).

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2.

Prejudice

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Still, Pham cannot demonstrate prejudice. The Ninth Circuit has found in numerous

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scenarios, that even if a defendant had been aware that the Government would need to prove the
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knowledge-of-status element, there is no reasonable probability that the outcome would have been

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different. See United States v. Espinoza, 816 F. App'x 82, 84 (9th Cir. 2020) (holding that “the

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failure of the indictment and plea colloquy to include the element of knowledge of felon status

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does not require us to vacate [the] conviction…”); United States v. Schmidt, 792 F. App’x 521,

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522 (9th Cir. 2020) (“Although [defendant] did not argue below that the government was required

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to prove [defendant] knew he was a felon, under any standard of review there was overwhelming

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evidence that [defendant] knew he was a felon when he possessed the firearms at issue in this

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case.”); United States v. Tuan Ngoc Luong, 965 F.3d 973, 989 (9th Cir. 2020) (finding in the trial

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context that, “even if the district court had instructed the jury on the knowledge-of-status element,

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there is no reasonable probability that the jury would have reached a different verdict…”). In other

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words, the Ninth Circuit has repeatedly found no actual harm resulted from alleged constitutional

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violations stemming from the decision in Rehaif in cases involving comparable facts to Pham’s

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Here, Pham admitted to being a previously convicted felon at the time he possessed the

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weapon. ECF No. 39, at 3. In addition, Pham was on parole for attempted murder at the time of

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his arrest after serving nine years in prison. The Court is not persuaded the inclusion of the Rehaif

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element would have changed Pham’s decision to plead guilty or that his plea was involuntary. It

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seems clear Pham would have known he had been convicted of crimes for which he could be

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sentenced to more than a year imprisonment.

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Accordingly, there is no reasonable probability, but for the Rehaif error, that the outcome

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of the proceeding would have been different. Therefore, because Pham has not demonstrated both

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cause and prejudice, he procedurally defaulted on his claims challenging the legality of his

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conviction.

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D. Structural Error

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Alternatively, Pham argues the constitutional errors are structural, therefore only requiring

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a showing of cause. “[C]ertain errors, termed structural errors, might affect substantial rights

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regardless of their actual impact on an appellant’s trial.” United States v. Marcus, 560 U.S. 258,

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263 (2010) (citations omitted). Structural errors go to the very heart of the trial and are not “simply

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an error in the trial process itself.” Arizona v. Fulimante, 499 U.S. 279, 310 (1991).
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While the Ninth Circuit has not decided whether the knowledge-of-status element in Rehaif

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presents issues of structural error, numerous other circuits have concluded it does not. See United

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States v. Nasir, 2020 WL 7041357, at *19, n.30 (3d Cir. Dec. 1, 2020); United States v. Coleman,

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961 F.3d 1024, 1030 (8th Cir. 2020); United States v. Payne, 964 F.3d 652, 657 (7th Cir. 2020);

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United States v. Lavalais, 960 F.3d 180, 187 (5th Cir. 2020); United States v. Trujillo, 960 F.3d

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1196, 1207 (10th Cir. 2020).
The Court agrees with these circuit courts and concludes that Rehaif likely does not involve

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the limited class of errors the Supreme Court has deemed structural.
E. Certificate of Appealability is Denied

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To proceed with an appeal of this Order, Pham must receive a certificate of appealability

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from the Court. 28 U.S.C. § 2253(c)(1); FED. R. APP. P. 22; 9TH CIR. R. 22-1; Allen v. Ornoski,

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435 F.3d 946, 950-951 (9th Cir. 2006). For the Court to grant a certificate of appealability, the

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petitioner must make "a substantial showing of the denial of a constitutional right." 28 U.S.C. §

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2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). And the petitioner bears the burden

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of demonstrating that the issues are debatable among reasonable jurists; that a court could resolve

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the issues differently; or that the issues are “adequate to deserve encouragement to proceed

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further.” Slack, 529 U.S. at 483-84 (citation omitted).

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As discussed above, Pham has failed to raise a meritorious challenge to his conviction and

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sentence pursuant to Ninth Circuit’s decisions following Rehaif. As such, the Court finds that he

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has failed to demonstrate that reasonable jurists would find the Court’s assessment of his claims

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debatable or wrong. See Allen, 435 F.3d at 950–51. Therefore, the Court denies Pham a certificate

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of appealability.

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IV.

CONCLUSION
IT IS THEREFORE ORDERED that Pham’s motion to vacate, set aside, or correct his

sentence pursuant to 28 U.S.C. § 2255 (ECF No. 51) is DENIED.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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IT IS FURTHER ORDERED that the Clerk of Court ENTER a separate and final

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Judgment denying Pham’s § 2255 motion. See Kingsbury v. United States, 900 F.3d 1147, 1150

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(9th Cir. 2018).

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IT IS SO ORDERED.

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DATED this 6th day of January, 2021.

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LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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