                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 13-3144
                                     ____________

                           UNITED STATES OF AMERICA

                                            v.

                               TUYEN QUANG PHAM,
                                            Appellant
                                  ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                              (E.D. Pa. 5-08-cr-00427-004)
                     District Judge: Honorable Legrome D. Davis
                                     ____________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  September 8, 2014

             Before: FISHER, JORDAN and HARDIMAN, Circuit Judges.

                                (Filed: October 1, 2014)
                                     ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Tuyen Quang Pham appeals the District Court’s order denying his motion under

28 U.S.C. § 2255 without holding an evidentiary hearing. The District Court granted a

certificate of appealability on two issues: (1) whether Pham’s counsel was ineffective in

advising him to plead guilty to violating 21 U.S.C. § 860, and (2) whether, if Pham’s
counsel provided ineffective assistance, the collateral relief waiver in Pham’s plea

agreement is enforceable as to that claim.1 For the reasons stated below, we will affirm.

                                              I.

       We write principally for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts that are necessary

to our analysis.

       In March 2008, agents from the Drug Enforcement Administration executed

search warrants at four properties in Reading, Pennsylvania. The searches confirmed

what a prior investigation had led the DEA to believe—three of the properties operated as

large-scale marijuana grow houses, and one showed signs that it formerly operated as a

grow house. Pham co-owned one of the active grow houses, located at 1307 Lorraine

Road, and DEA agents regularly observed Pham at this house during the course of their

investigation.

       The 1307 Lorraine Road property is located within 1,000 feet of an athletic field

named Hampden Park (or “the Park”). Hampden Park borders Reading Senior High

School, and the Reading School District operates the Park. Fences and signs surround

Hampden Park, clearly identifying it as belonging to and subject to the control of the

School District. The School District and the City of Reading co-own the parcel of land



       1
        This Court granted a certificate of appealability on the same issues in a related
case, United States v. Bui, No.11-3795 (3d Cir. May 9, 2012), which is still pending.

                                              2
comprising Hampden Park, and the Park’s land and the parcel of land comprising

Reading Senior High School are described in different deeds.

       In July 2008, twelve individuals, including Pham, were charged with conspiracy to

manufacture marijuana and related offenses. Pham faced four counts: (1) conspiracy to

manufacture more than 1,000 marijuana plants, in violation of 21 U.S.C. §§ 841, 846

(Count One); (2) manufacturing more than 100 marijuana plants, in violation of 21

U.S.C. § 841(a)(1) (Count Two); (3) maintaining a place for the purpose of

manufacturing and distributing marijuana plants, in violation of 21 U.S.C. § 856(a)(1)

(Count Three); and (4) manufacturing marijuana plants and maintaining a place for the

purpose of manufacturing and distributing marijuana plants within 1,000 feet of a school,

in violation of 21 U.S.C. § 860 (Count Four).

       On May 14, 2009, Pham pled guilty to Counts One and Four pursuant to a written

plea agreement. The plea agreement advised Pham that Counts One and Four each

carried a mandatory minimum sentence of ten years’ imprisonment as well as a statutory

maximum sentence of life imprisonment. The plea agreement further stated that no other

promises outside the agreement had been made to Pham. It also included a waiver of

appeal provision under which Pham waived any right to appeal his conviction or sentence

either on direct appeal or collateral attack.

       The District Court held a change of plea hearing and took great care to ensure that

Pham understood the nature of the proceedings. Among other things, Pham told the


                                                3
District Court that no one had promised him anything outside the terms of the plea

agreement, and that he understood that no one could guarantee the sentence he would

receive. The District Court asked Pham whether he understood that he faced mandatory

minimum sentences of ten years’ imprisonment for both Counts One and Four as well as

a statutory maximum penalty of life imprisonment, and Pham told the District Court that

he understood. Furthermore, Pham told the District Court that he understood that the plea

agreement was binding even if the District Court rejected recommendations from counsel

or denied motions related to sentencing. At the conclusion of the plea hearing, the

District Court accepted the guilty plea.

       Before sentencing, Pham’s counsel filed a motion for relief from the mandatory

minimum sentences at issue pursuant to the “safety valve” provision of 18 U.S.C.

§ 3553(f). Pham’s counsel withdrew the motion at the sentencing hearing, however,

because he acknowledged that Third Circuit precedent held that the safety valve

exception did not apply to convictions under § 860. Pham told the District Court that he

spoke to his counsel about the motion, that he understood why his counsel withdrew the

motion, and that he agreed with the request to withdraw the motion. Due to the

mandatory minimum sentences at issue, the District Court sentenced Pham to 120

months’ imprisonment on both Count One and Count Four to be served concurrently, ten

years’ supervised release, a $3,000 fine, and a $200 special assessment.




                                            4
       On October 14, 2010, Pham filed a motion to reduce his sentence, in which he

asserted an ineffective assistance of counsel claim. The District Court construed the

motion as a notice of appeal, but this Court directed the District Court to construe Pham’s

motion as a motion under 28 U.S.C. § 2255.

       Pham filed an amended § 2255 motion, again claiming he received ineffective

assistance. The District Court denied Pham’s § 2255 motion for two reasons. The

District Court first concluded that the waiver of collateral relief provision barred Pham’s

collateral attack. But even if the waiver did not bar consideration of the merits of Pham’s

motion, the District Court also decided that Pham failed to show that he received

ineffective assistance of counsel. Pham filed this timely appeal.

                                             II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 2255. We have

appellate jurisdiction under 28 U.S.C. §§ 1291 and 2253. “‘In a federal habeas corpus

proceeding, we exercise plenary review of the district court’s legal conclusions and apply

a clearly erroneous standard to the court’s factual findings.’” United States v. Lilly, 536

F.3d 190, 195 (3d Cir. 2008) (quoting Lambert v. Blackwell, 134 F.3d 506, 512 (3d Cir.

1997)). We review the denial of an evidentiary hearing for abuse of discretion. Id. A

district court must hold an evidentiary hearing “unless the motion and files and records of

the case show conclusively that the movant is not entitled to relief.” United States v.

Booth, 432 F.3d 542, 546 (3d Cir. 2005) (internal quotation marks and citation omitted).


                                             5
                                             III.

       The only question we must answer is whether Pham’s allegations are sufficient to

show that his counsel provided ineffective assistance when he advised Pham to plead

guilty to violating 21 U.S.C. § 860.2 To establish a claim of ineffective assistance of

counsel, a criminal defendant must show (1) that his counsel’s performance was

deficient, and (2) that his counsel’s deficient performance prejudiced him. Strickland v.

Washington, 466 U.S. 668, 688, 692 (1984).

       To show deficient performance, a defendant “must show that counsel’s

representation fell below an objective standard of reasonableness” as defined by

“prevailing professional norms.” Id. at 688. Our inquiry “must be highly deferential” to

counsel’s performance; we must disregard “the distorting effects of hindsight” and

instead assess the reasonableness of counsel’s performance from “counsel’s perspective

at the time.” Id. at 689. We therefore “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” Id.

       To satisfy Strickland’s prejudice prong, a defendant “must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “A reasonable probability is a


       2
         On appeal, the Government does not argue that Pham’s motion is barred by the
plea agreement’s collateral relief waiver. The government concedes that the waiver
should not be enforced if Pham should have been granted relief from the plea agreement
because he received ineffective assistance. Because we conclude that Pham’s ineffective
assistance of counsel claim fails, we need not address the waiver issue.

                                              6
probability sufficient to undermine confidence in the outcome.” Id. In the guilty plea

context, the prejudice requirement is satisfied if a defendant shows a reasonable

probability that he would have proceeded to trial instead of pleading guilty but for his

counsel’s deficient performance. See Hill v. Lockhart, 474 U.S. 52, 59 (1985). Such a

showing requires “more than a bare allegation” that the defendant would have gone to

trial. See Parry v. Rosemeyer, 64 F.3d 110, 118 (3d Cir. 1995), superseded by statute on

other grounds as recognized in Dickerson v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996).

Rather, a defendant must show that a decision to proceed to trial “would have been

rational under the circumstances.” Padilla v. Kentucky, 559 U.S. 356, 372 (2010).

       On appeal, Pham identifies two instances of allegedly deficient performance: first,

when his counsel failed to advise him that he could mount a defense to Count Four by

arguing that Hampden Park is not a school covered by § 860, and second, when his

counsel erroneously advised him that he would be eligible for the safety valve exception

under § 3553(f) at sentencing. Pham also argues that but for these errors, he would have

proceeded to trial. As discussed below, neither of these arguments is persuasive.

                                            A.

       Pham first contends that his counsel rendered deficient performance by failing to

challenge the factual basis for the charge under § 860. Section 860 makes it a criminal

offense for persons who, inter alia, manufacture drugs “in or on, or within one thousand




                                             7
feet of, the real property comprising a public or private elementary, vocational, or

secondary school.”

       According to Pham, his counsel should not have advised him to plead guilty and

should have instead advised him that he had a viable defense by arguing that Hampden

Park is not a school within the ambit of § 860. Pham’s argument proceeds in two steps.

Pham argues that his counsel should have advocated for a narrow construction of § 860

that prohibits drug activity within 1,000 feet of schools, not athletic fields. Pham also

contends that his counsel should have argued that Hampden Park is not a school by

emphasizing that Hampden Park is co-owned by the School District and the City and that

the Park’s parcel of land is covered by a different deed than the School’s parcel.

       Pham’s argument misses the mark for several reasons. First, we are not persuaded

by Pham’s narrow interpretation of § 860. Although § 860 does not define school, we

must give the text its ordinary meaning. See Asgrow Seed Co. v. Winterboer, 513 U.S.

179, 187 (1995). Real property ordinarily refers to the land and any buildings on the

land, not only the land directly underneath the buildings. See Black’s Law Dictionary

1337 (9th ed. 2009). Moreover, we agree with the Government that a school ordinarily

refers to more than the physical schoolhouse. A school also often includes areas for

recreational activities and gathering, such as athletic fields, assembly areas, and parking




                                             8
lots. Thus, we conclude that § 860 may extend to areas outside school buildings,

including athletic fields.3

       Nor is there any textual basis for restricting a school’s real property to property

that is listed in a single deed or property that is owned only by the school. Section 860 is

focused on a school’s real property, and as the Government argues, a school’s real

property may include plots listed in different deeds because a school may acquire

property at different times or put property to different uses as time passes. Finally,

Pham’s narrow construction of § 860 conflicts with Congress’ broad mission in creating

drug-free school zones. See United States v. Rodriguez, 961 F.2d 1089, 1092 (3d Cir.

1992) (“Congress was more broadly concerned about serious drug crimes that occur in

proximity to schools.”).

       Here, Pham concedes that the Reading School District owns and operates the

property that includes Reading Senior High School, and that the School District co-owns

and operates the adjacent property that includes Hampden Park. The record is bereft of

specific allegations that Hampden Park is used for non-school purposes. In fact, the

record shows just the opposite: the School District controls usage of Hampden Park

       3
         Our conclusion is consistent with how other courts of appeals have approached
§ 860’s 1,000-feet requirement. These courts have held the government to its burden of
proof of showing that the distance between the drug activity’s location and the school’s
property line, not the building line, is within 1,000 feet. See United States v. Watson, 887
F.2d 980, 981 (9th Cir. 1989) (interpreting precursor to § 860); United States v. Johnson,
46 F.3d 1166, 1170 (D.C. Cir. 1995) (reversing § 860 conviction because the government
failed to provide sufficient evidence of distance such as the evidence used in Watson, 887
F.2d at 981).

                                              9
through fences and signs, and the Park comprises playing fields of the kind normally

found at a high school. We therefore conclude that Pham has not alleged sufficient facts

to show that this defense was viable. Accordingly, Pham has failed to make a showing of

deficient performance. See United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999)

(“There can be no Sixth Amendment deprivation of effective counsel based on an

attorney’s failure to raise a meritless argument.”).

       But even if Pham’s argument was marginally more persuasive, we cannot say his

counsel’s performance was deficient. Strickland does not demand perfection, only

reasonableness. See Harrington v. Richter, 131 S. Ct. 770, 791 (2011). Moreover, we

must remember that “[t]here are countless ways to provide effective assistance in any

given case.” Strickland, 466 U.S. at 689. Pham’s counsel did not act unreasonably when

he failed to develop a novel argument that lacked any support in legal authority and

instead advised his client to plead guilty in the face of strong evidence of guilt.

       Similarly, because we conclude that the defense likely would have failed at trial,

Pham cannot show he was prejudiced by his counsel’s alleged error. See Hill, 474 U.S. at

59 (“[W]here the alleged error of counsel is a failure to advise the defendant of a

potential affirmative defense to the crime charged, the resolution of the ‘prejudice’

inquiry will depend largely on whether the affirmative defense likely would have

succeeded at trial.”); see also Roe v. Flores-Ortega, 528 U.S. 470, 485-86 (2000)

(recognizing that the performance and prejudice inquiries may overlap in some cases).


                                              10
Nor has Pham shown that it would have been rational for him to reject the plea bargain

given the strong case against him and the lack of any other defenses.

       Accordingly, we conclude that Pham’s first ineffective assistance of counsel claim

was properly denied because his allegations are insufficient to show deficient

performance and prejudice.

                                            B.

       Pham’s second ineffective assistance claim also lacks merit. Pham argues that his

counsel was ineffective for advising him that he would be eligible for § 3553’s safety

valve exception when this Court has held that the exception is unavailable for convictions

under § 860. See United States v. McQuilkin, 78 F.3d 105, 109 (3d Cir. 1996).

       Even assuming the truth of Pham’s allegations, Pham cannot establish that he was

prejudiced by his counsel’s error. “[W]e have long held that an erroneous sentencing

prediction by counsel is not ineffective assistance of counsel where, as here, an adequate

plea hearing was conducted.” United States v. Shedrick, 493 F.3d 292, 299 (3d Cir.

2007). The written plea agreement stated that Pham faced a mandatory minimum penalty

of ten years’ imprisonment and a maximum penalty of life imprisonment for each count

to which he pled guilty and that no one had made any promises to him to get him to enter

a guilty plea. Moreover, the District Court conducted an extensive and thorough plea

colloquy reiterating Pham’s sentencing exposure and ensuring that Pham was not

pleading guilty because anyone had made any promises outside the agreement. The


                                            11
District Court also explained that it could disregard recommendations by counsel at

sentencing, but Pham would still be bound by his guilty plea. Pham told the District

Court that he understood all this information. Accordingly, any misperceptions Pham

had about his sentence when he decided to plead guilty should have been eliminated by

the written plea agreement and the plea colloquy. Thus, the District Court properly

denied Pham’s claim because he failed to show that, but for his counsel’s erroneous

prediction about the safety valve provision, he would have pled not guilty and proceeded

to trial.

                                             IV.

        Even accepting Pham’s allegations as true, the record establishes that Pham was

not entitled to relief, so the District Court did not abuse its discretion by not holding an

evidentiary hearing. Accordingly, for the reasons set forth above, we will affirm the

order of the District Court.




                                              12
