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Bui v. United States

United States District Court, N.D. Georgia, Atlanta Division

October 3, 2017




         This matter is before the Court on Magistrate Judge Catherine M. Salinas' Final Report and Recommendation [56] (“R&R”), recommending that Movant Thomas Bui's (“Bui”) Motion to Vacate Judgment and Sentence Pursuant to 28 U.S.C. § 2255 [55] (“2255 Motion”) be dismissed, and that a certificate of appealability be denied.

         I. BACKGROUND

         On February 25, 2014, a grand jury in the Northern District of Georgia returned an Indictment [1] charging Bui with one count of distributing child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and (b)(1) (Count 1), and one count of possessing child pornography, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2) (Count 2).[1] On August 6, 2014, the Court held a change of plea hearing at which Bui sought to enter a guilty plea. ([18]). The Court declined to accept Bui's guilty plea and, on November 4, 2014, after Bui waived his right to a jury trial, the Court conducted a bench trial on the charges alleged in the Indictment. ([22]; [49] at 4). The parties entered several stipulations into evidence, and “[t]he disputed element at trial was whether [Bui] ‘knowingly distributed' child pornographic images through GigaTribe, a peer-to-peer file-sharing program, in violation of 18 U.S.C. § 2252(a)(2).” ([26] at 1-2). On November 14, 2014, the Court found Bui guilty of both counts in the Indictment, including because “mak[ing] [child pornography] accessible to others through a file-sharing website or peer-to-peer network” constitutes “distribution” of child pornography under Section 2252(a)(2). ([26] at 4 (quoting United States v. Grzybowicz, 747 F.3d 1296, 1308 (11th Cir. 2014)).

         On March 4, 2015, Bui was sentenced to 87 months in prison, followed by 15 years of supervised release. ([33]). The Court, at Bui's sentencing hearing, overruled his “objection that a person who is on a peer-to-peer program is not engaged in the act of distribution.” ([50] at 8, 11). On March 13, 2015, Bui filed his Notice of Appeal [35]. On February 29, 2016, the Court of Appeals for the Eleventh Circuit affirmed Bui's convictions, rejecting his argument that “the district court erred in concluding there was sufficient evidence to prove that: (1) he distributed child pornography through a file sharing program; and (2) he distributed a visual depiction of child pornography, rather than just a file fragment.” United States v. Bui, 636 F. App'x 788, 789 (11th Cir. 2016). On October 3, 2016, the United States Supreme Court denied Bui's petition for a writ of certiorari. Bui v. United States, 137 S.Ct. 100 (2016).

         On April 13, 2017, Bui filed his 2255 Motion, challenging his convictions on the grounds that his trial counsel was constitutionally ineffective. Bui argues that his counsel should have challenged the constitutionality of 18 U.S.C. § 2252(a)(2)-the provision under which Bui was convicted of distributing child pornography-on the grounds that that the statutory word “distributes” is impermissibly vague. Bui also argues that his counsel “could have but failed to challenge the prosecutor's decision to constructively amend the Indictment.” ([55] at 8-9). Bui claims the Government constructively amended his Indictment by introducing evidence that a “Los Angeles FBI operative downloaded visual depictions of child pornography.” ([55] at 8-9).

         On July 25, 2017, the Magistrate Judge issued her R&R, recommending that Bui's 2255 Motion be dismissed and that a certificate of appealability be denied. Bui did not file objections to the R&R.


         A. Legal Standards

         1. Ineffective Assistance of Counsel

         To prevail on an ineffective assistance of counsel claim, a petitioner must show that counsel's conduct was “outside the wide range of professionally competent assistance” and that “there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 690, 694 (1984). Courts must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Id. at 689. “[F]or a petitioner to show that the conduct was unreasonable, a petitioner must establish that no competent counsel would have taken the action that his counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 (11th Cir. 2000) (en banc).

         2. Magistrate Judge's Final Report and Recommendation

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982), cert. denied, 459 U.S. 1112 (1983). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). With respect to those findings and recommendations to which objections have not been asserted, the Court must conduct a plain error review of the record. United States ...

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