DINH v. USA
Filing
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MEMORANDUM OPINION as to NGOC PHU DINH (4) (Crim. No. 12-81 1266 ) denying Defendant's Motion to Vacate Sentence (details more fully stated in said Opinion). Signed by Judge Nora Barry Fischer on 7/8/2016. (bdk)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
UNITED STATES OF AMERICA,
v.
NGOC PHU DINH,
Defendant.
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Criminal No. 12-81
Civil No. 16-540
Judge Nora Barry Fischer
MEMORANDUM OPINION
I.
INTRODUCTION
This matter is before the Court on a Motion to Vacate, Set Aside or Correct Sentence
under 28 U.S.C. § 2255 (“Motion”) filed by pro se Defendant Ngoc Phu Dinh (“Defendant”),
(Docket No. 1266), which is opposed by the Government, (Docket No. 1281). After careful
consideration of the parties’ submissions and for the following reasons, Defendant’s Motion
[1266] is denied.
II.
BACKGROUND
On April 4, 2014, Defendant pled guilty to a lesser included offense at Count One of the
Indictment at Criminal Number 12-81 pursuant to a plea agreement with the Government, i.e.,
one count of conspiracy to possess with intent to distribute and to distribute less at least 50
kilograms of marijuana but less than 100 kilograms of marijuana, contrary to the provisions of 21
U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and in violation of 21 U.S.C. § 846. (See Docket No. 845;
Plea Agreement dated 3/28/14 at ¶ A.1). By pleading to the lesser included offense, Defendant
avoided the mandatory minimum penalty of 10 years’ incarceration and up to a life term that was
applicable to the charge in the Indictment. (See Docket Nos. 1, 2). Instead, the potential
penalties in his case included a term of incarceration of up to 20 years’ imprisonment and an
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advisory guidelines range of 33-41 months. (Docket No. 1136). Defendant was eligible for a
probationary sentence but the Court determined that probation was not appropriate in his case
after considering all of the section 3553(a) factors, including his mental and emotional health
conditions. (Docket Nos. 1144-45). However, the Court found sufficient bases to grant a
downward departure and a downward variance, imposing a sentence of 18 months’ incarceration,
and a period of 3 years’ supervised release. (Id.). The Court also ordered Defendant to pay a
$100.00 special assessment and forfeit $37,870.00 in drug proceeds to the Government. (Id.).
The facts of Defendant’s case were uncontested as no objections were lodged to the
Presentence Investigation Report. (Docket Nos. 1136, 1144). The Court was well informed of
Defendant’s personal history and characteristics through the information contained in the PIR,
and his counsel’s advocacy in his Sentencing Memorandum and at the sentencing hearing.
(Docket Nos. 938; 1128). To that end, Defendant is 56 years old. (Docket No. 938 at 3). He
was born in Vietnam but fled there as a refugee and became a naturalized citizen of the United
States in 1994. (Id. at ¶ 38-39). He has a limited educational background and a work history
primarily consisting of positions in nail salons. (Id. at ¶¶ 59-61). For a time, he was a partowner and operator of a nail salon in Murrysville with his now ex-wife. (Id.). During 20052006, Defendant served a sentence of 12 months and 1 day incarceration for a prior federal
conviction for knowingly transporting more than $10,000.00 from the United States to Canada
without reporting same to U.S. Customs. (Id. at ¶ 31). Defendant lied to customs agents when
crossing the Peace Bridge into Canada near Buffalo and was found in possession of $119,000.00.
(Id.).
During the time period of the events charged in the indictment, 2010-2012, Defendant
lived at times in the Pittsburgh area but also periodically resided in Oakland, California. (Id. at ¶
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42). Prior to the sentencing in this matter, Defendant was not working and was receiving SSI
benefits. (Id. at ¶ 58). As far as physical, mental and emotional conditions, it was reported that
he suffered from depression and had frequent headaches. (Id. at ¶¶ 45-52). He advised that he
frequently smoked marijuana to cope with his headaches. (Id. at ¶ 53-54). Defendant also
obtained a medical marijuana permit from the State of California in February 2012 that was
effective until February 2013. (Id. at ¶ 55).
Defendant’s conviction in this matter resulted from his participation in a large interstate
marijuana trafficking conspiracy that moved more than 1,000 kilograms of high-grade marijuana
from Oakland, California into the Pittsburgh area and generated millions of dollars in illegal
revenue. (Docket No. 938 at ¶ 9). Defendant’s role in the conspiracy involved him acting as a
local Pittsburgh-based marijuana dealer who obtained multi-pound quantities of marijuana from
ringleader Jennifer Chau Chieu and distributed same to his customers in exchange for thousands
of dollars. (Id. at ¶¶ 10-14). Defendant was captured on multiple wiretaps having conversations
with Chieu about marijuana transactions and was observed picking up packages containing
marijuana from Chieu’s home on video surveillance footage from a pole camera. (Id. at ¶¶ 1013). In one eventful sequence during July of 2011, Defendant obtained 50 pounds of marijuana
that was driven from California to this District by coconspirators Kiet Quoc Son and Qyunh
Tran, sold the marijuana in a few days, and then provided the couple with $136,000.00 in
proceeds to take back to the California supplier. (Id. at ¶¶ 10-11). The funds did not make the
return trip as law enforcement stopped the van before the Ohio border and seized the money
from Son and Tran. (Id. at ¶ 11). As part of his plea agreement, Defendant stipulated with the
Government that he was responsible for the distribution of between 80 and 100 kilograms of
marijuana. (Id. at ¶ 14).
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As noted, this Court sentenced Defendant to 18 months’ incarceration and 3 years’
supervised release on September 21, 2015. (Docket No. 1145). Defendant did not appeal his
conviction or sentence to the Court of Appeals.
(See generally Docket Report 12-81-04).
However, subsequent to the sentencing proceeding, Defendant filed a series of motions which
did not specifically rely upon 28 U.S.C. § 2255 but essentially sought resentencing or a reduced
sentence due to his mental and emotional health conditions. (See Docket Nos. 1154, 1214, 1232,
1234). Defendant also complained of the lack of mental health treatment by the Bureau of
Prisons (“BOP”). (Id.). After receiving responses from the Government, the Court denied all of
these motions, noting that Defendant’s mental health conditions were fully considered by the
Court at the initial sentencing hearing and that this Court lacked jurisdiction to consider any
challenges to the execution of his sentence by the BOP because he was serving his sentence at
FCI Hazelton in the Northern District of West Virginia. (See Docket Nos. 1166, 1227, 1247).
The Court further instructed Defendant that any judicial remedy for these asserted problems
could not be entertained until he filed an appropriate a grievance with the BOP and that any
lawsuit challenging the BOP’s decision must be brought in the U.S. District Court for the
Northern District of West Virginia. (Id.).
On May 2, 2016, Defendant timely filed his § 2255 Motion within one year of his
sentence becoming final. (Docket No. 1266). The Court advised Defendant of his rights under
United States v. Miller, 197 F.3d 644 (3d Cir. 1999) and he elected to proceed with the § 2255
Motion as filed. (Docket Nos. 1268, 173). The Government filed its response in opposition on
June 15, 2016. (Docket No. 1281). The matter is now fully briefed and ripe for disposition.
III.
LEGAL STANDARD
A prisoner in federal custody may move to vacate his or her sentence under 28 U.S.C. §
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2255(a) if such “sentence was imposed in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a). Generally, a district court must order an evidentiary hearing in a
federal habeas case if a criminal defendant’s § 2255 allegations raise an issue of material fact.
United States v. Biberfeld, 957 F.2d 98, 102 (3d Cir. 1992).
But, if there is “no legally
cognizable claim or the factual matters raised by the motion may be susceptible of resolution
through the district judge’s review of the motion and records in the case,” the motion may be
decided without a hearing. United States v. Costanzo, 625 F.2d 465, 470 (3d Cir. 1980); see also
Lilly, 536 F.3d at 195. If a hearing is not held, the district judge must accept the criminal
defendant’s allegations as true “unless they are clearly frivolous on the basis of the existing
record.” Gov’t of Virgin Islands v. Bradshaw, 726 F.2d 115, 117 (3d Cir. 1984). Similarly,
“vague and conclusory allegations contained in a § 2255 petition may be disposed of without
further investigation.” United States v. Knight, 2009 WL 275596, at *13 (W.D. Pa. 2009)
(quoting United States v. Thomas, 221 F.3d 430, 437 (3d Cir. 2000)).
IV.
DISCUSSION
The primary basis for Defendant’s pro se § 2255 Motion is that his federal conviction for
conspiracy to distribute marijuana should be set aside and that his sentence of 18 months’
incarceration should be vacated due to the Commonwealth of Pennsylvania’s passage of
legislation authorizing the distribution of medicinal marijuana within the Commonwealth on
May 17, 2016. (Docket No. 1266). The Government responds that the state’s medical marijuana
law provides no basis to set aside Defendant’s federal conviction and sentence. (Docket No.
1281). The Court agrees with the Government’s position that habeas relief under § 2255 is not
appropriate in this case for several reasons.
Initially, Courts have recognized that a state’s authorization of the distribution of medical
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and/or recreational marijuana does not support a claim for habeas relief from a federal marijuana
conviction in violation of the Controlled Substances Act, 21 U.S.C. § 801, et seq. (“CSA”). See
United States v. Lepp, 2013 WL 1435144, at *18 (N.D. Cal. Apr. 9, 2013) (denying petitioner
leave to amend a § 2255 petition to add a claim raising equal protection challenge to the CSA);
Free v. United States, 2008 WL 2714121, at *5 (E.D. Mich. Jul. 7, 2008) (denying petitioner
leave to reopen § 2255 proceedings to raise a claim that many states have passed medical
marijuana laws); Young v. United States, 2013 WL 4679931, at *7 (E.D. Tenn. Aug. 30, 2013)
(District of Columbia’s medical marijuana law provided no basis for relief from federal
conviction). Despite the Commonwealth of Pennsylvania’s enactment of its medical marijuana
law, the distribution of marijuana remains illegal under federal law, 21 U.S.C. § 801, et seq., and
“[t]he Supremacy Clause unambiguously provides that if there is any conflict between federal
and state law, federal law shall prevail.” Gonzales v. Raich, 545 U.S. 1, 29, 125 S. Ct. 2195,
2212, 162 L. Ed. 2d 1 (2005). Further, as this Court held in a Memorandum Opinion denying a
pretrial motion to dismiss filed by codefendant Peter Tat, “arguments challenging the
constitutionality of the enforcement of federal marijuana laws are not unique in that they have
been repeatedly raised by criminal defendants and summarily rejected by the courts.” United
States v. Tat, Crim. No. 12-81, 2014 WL 1646943, at *4 (W.D. Pa. Apr. 24, 2014). Hence, the
changes in state law do not provide grounds for relief under § 2255(a) which expressly limits the
vacation of a defendant’s sentence to situations where the “sentence was imposed in violation of
the Constitution or laws of the United States,” i.e., federal law. 28 U.S.C. § 2255(a).
Although the Commonwealth’s medical marijuana law was passed during 2016, no actual
distribution of medical marijuana has taken place because the Department of Health has only
recently started taking applications for minors with serious medical conditions to possess and
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administer the controlled substance within the Commonwealth under medical supervision. See
Department of Health Announces Completion of Temporary Guidelines for Safe Harbor
Provision
of
Pennsylvania’s
Medical
Marijuana
Program,
available
at:
http://www.media.pa.gov/Pages/Health-Details.aspx?newsid=312 (last visited 7/8/16). The
remainder of the medical marijuana legislation governing the activities of distributors and
dispensaries is not expected to be fully implemented for another 18-24 months. Id. Of course,
Defendant’s marijuana trafficking activities occurred in 2010-2012 or at a time when
Pennsylvania outlawed all forms of marijuana distribution and he was never authorized to
distribute marijuana by any authorities, state or federal. Cf. Tat, 2014 WL 1646943, at *4 (“the
criminal conduct charged in this case allegedly took place between June of 2010 and March of
2012, several years before Colorado and Washington’s laws on personal use became effective
and while the State of California regulates certain forms of medicinal marijuana, the
Commonwealth of Pennsylvania has not.”); see also Young, 2013 WL 4679931, at *7 (“the
District of Columbia’s medical marijuana law which became effective in July 2010 does not
afford any plausible basis for granting relief to Young under 28 U.S.C. § 2255. It cannot
reasonably be disputed that marijuana was classified by Congress as a Schedule I controlled
substance prior to 2010. Young committed his criminal offenses long before 2010. He was
indicted, convicted, and sentenced prior to 2010.”) (citation omitted).
Accordingly,
Pennsylvania law did not authorize anyone – including Defendant – to distribute marijuana
within the Commonwealth during the operative time period charged in the Indictment in this
case.
Defendant raises a number of additional arguments that are likewise without merit,
pointing to his mental health history, medical marijuana permit, and substance abuse in an effort
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to mitigate the seriousness of his offense conduct and convince the Court to resentence him to
time served. (Docket No. 1266). But, all of these factors were fully considered by the Court as
part of its evaluation under 18 U.S.C. § 3553(a) at the sentencing hearing and a mere
disagreement with the lawful sentence that was imposed by the Court within the boundaries
permitted by the applicable statute is not a basis for habeas relief. See 28 U.S.C. § 2255(a)
(a sentence is subject to collateral attack if “the sentence was in excess of the maximum
authorized by law”).
As the Court noted at the sentencing hearing, Defendant’s California Cannabis Patient
Card, which was effective from February 12, 2012 through February 13, 2013, did not authorize
him to illegally distribute multi-pound quantities of marijuana in Pennsylvania during 20102012. (See Docket No. 938 at ¶ 55). Further, Defendant’s present assertions that he only
possessed marijuana for personal use and/or to self-medicate are not credited by the Court
because they clearly conflict with the uncontested facts that Defendant admitted during the
course of this matter.
See e.g., Blackledge v. Allison, 431 U.S. 63, 73-74 (1977) (“the
representations of the defendant, his lawyer, and the prosecutor at [a plea] hearing, as well as any
findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent
collateral proceedings. Solemn declarations in open court carry a strong presumption of verity.”).
To reiterate, Defendant’s marijuana trafficking activities involved multi-pound quantities that far
exceeded personal use and included, among other things, the event where he was fronted 50
pounds of marijuana by his supplier in July of 2011, sold it over a period of only a few days, and
then provided his conspirators with $136,000.00 in drug proceeds to repay the California-based
supplier. (See Docket No. 938 at ¶¶ 10-11).
Overall, the Court finds that there is no basis in law or fact justifying the extraordinary
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relief to set aside Defendant’s valid federal conviction and sentence under § 2255. Accordingly,
his Motion is denied.
V.
CONCLUSION
Based on the foregoing, Defendant’s Motion to Vacate, Set Aside or Correct Sentence
under 28 U.S.C. § 2255 is denied, with prejudice. The Court also holds that Defendant has failed
to make a substantial showing of the denial of a Constitutional right and is not entitled to a
certificate of appealability. An appropriate Order follows.
s/Nora Barry Fischer
Nora Barry Fischer
U.S. District Judge
Dated: July 8, 2016
cc/ecf: All counsel of record
Ngoc Phu Dinh (USM# 11558-055)
USP Hazelton-Camp
P.O. Box 2000
Bructon Mills, WV 26525
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