United States District Court, D. Delaware
Scott. Pro se Movant.
Alexander Ibrahim. Assistant United States Attorney, United
States Department of Justice, Wilmington, Delaware. Attorney
MEMORANDUM OPINION 
NOREIKA, UNITED STATES DISTRICT JUDGE.
Joseph Scott (“Movant”) filed an authorized
second or successive Motion to Vacate, Set Aside, or Correct
Sentence Pursuant to 28 U.S.C. § 2255. (D.I. 455). The
Government filed a Response in opposition. (D.I. 463). For
the reasons discussed, the Court will deny Movant's
§ 2255 Motion without holding an evidentiary hearing.
Movant's Conviction and Sentencing
1999, Movant and four others were charged in a multiple count
indictment. (D.I. 2) Count One charged Movant and his
co-defendants with conspiracy to distribute cocaine and crack
cocaine from mid-November 1998 to May 11, 1999, in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and § 846.
Count Four charged Movant by himself with distribution of
crack cocaine on April 21, 1999, in violation of 21 U.S.C.
§ 841(a)(1) and (b)(1)(B). (D.I. 2). Two of the
defendants entered guilty pleas and testified at trial as
government witnesses. (D.I. 206 at 2). Movant and the
remaining co-defendants were tried before a federal jury in
September and October 1999. Movant was convicted of the
charges set forth in Counts One and Four, and the remaining
co-defendants were convicted of at least one count each.
(D.I. 206 at 2). Movant's conviction under Count One
carried a mandatory minimum of ten years' imprisonment
and a statutory maximum of life,  and his conviction under
Count Four carried a mandatory minimum of five years and a
statutory maximum of forty years. See 21 U.S.C.
§ 841(b)(1)(B); (D.I. 463 at 4).
United States Probation Office prepared a final Presentence
Investigation Report (“PSR”) prior to sentencing,
which calculated Movant's base offense level at 40 based
on the quantity and type of drugs attributable to him along
with applicable enhancements. (D.I. 463-1 ¶ 46). Movant
was characterized as a career offender based on two prior
convictions, one for second degree assault and another for
possession with intent to distribute cocaine. (D.I. 463-1
¶ 47). The drug guideline was used to calculate
Movant's total offense level, however, because his
offense level under the drug guideline (40) was higher than
his base offense level under the career offender guideline
(37), and the enhanced career offender criminal history
category VI was used in place of what otherwise would have
been a criminal history category IV. (D.I. 463-1 ¶¶
47, 72, 73). Finally, the PSR calculated Movant's
Sentencing Guidelines Range from 360 months to life
imprisonment. (D.I. 463-1 ¶ 90).
made a number of objections in advance of sentencing,
including the argument that he should not be held accountable
for drug weights for the acquitted offenses and the argument
that he was not a career offender. (D.I. 463-1 at Def.
Objs.). The now-retired Honorable Roderick R. McKelvie
adopted the PSR's factual findings, the Sentencing
Guidelines calculation, and the position of the United States
Probation Office and the Government as to each of
Movant's objections to the PSR. (D.I. 463-2 at 13-14). In
January 2000, Judge McKelvie sentenced Movant to 360
months' imprisonment, which represented the bottom of the
then-mandatory Guidelines range. (D.I. 133; 463-2 at 17).
appealed his sentence, alleging, inter alia, that
the drug weights attributed to him had not been proven to the
jury. See Brief for Appellant Scott, United
States v. Scott, 2000 WL 34215820 at pp. 5-6 (3d Cir.
2003) (00-5180). While Movant's appeal was pending, the
United States Supreme Court decided Apprendi v. New
Jersey, 530 U.S. 466 (2000). Movant raised
Apprendi issues in his appeal, and the Third Circuit
affirmed Movant's conviction and sentence of 360 months.
(D.I. 256 at 3); see also United States v. Scott,
259 F.3d 717 (3d Cir. May 7, 2001) (Table). The Third Circuit
explained that the statutory maximum of Movant's offense
in violation of 21 U.S.C. § 841(b)(1)(A) (Count One)
could no longer be life post-Apprendi, and instead
had to be 20 years, which is the statutory maximum for a
cocaine offense under § 841 when no drug weight is
proven to the jury. (D.I. 256 at 9); see 21 U.S.C.
§ 841(b)(1)(C). Nevertheless, the Third Circuit held
that Movant's 30 year sentence was constitutional,
because 30 years was within the combined statutory maximum of
40 years for the two drug convictions (each conviction
carried a 20 year statutory maximum under § 841 because
no drug quantity was pled). (D.I. 256 at 9 & n.4). The
Court of Appeals did, however, reverse the 5-year term of
supervised release imposed against Movant, because the
statutory maximum term of supervised release for a conviction
under 21 U.S.C. § 841(b)(1)(C) is only 3 years. (D.I.
256 at 10; 172) Thereafter, Movant was resentenced in June
2001 to a 3-year term of supervised release. (D.I. 178, 428).
Movant's Post-Conviction Motions
2002, Movant filed a § 2255 Motion challenging his
sentence based on ineffective assistance of counsel. (D.I.
192). The now-retired Honorable Joseph J. Farnan denied the
§ 2255 Motion, except to allow Movant to file a petition
for a writ of certiorari of his appeal to the Supreme Court;
the petition for a writ of certiorari was subsequently
denied. (D.I. 206; D.I. 249). Thereafter, Movant filed a
number of additional collateral attacks on his sentence,
invoking 28 U.S.C. § 2255 and/or Federal Rule of Civil
Procedure 60(b) and (d), each of which were denied. (D.I.
289; 367; 373; 382; 392).
April 20, 2016, Movant filed a pro se application
for leave to file a second or successive § 2255 motion
(No. 16-1947) in the Third Circuit Court of Appeals. (D.I.
400 at 2 ¶4). That application contained the instant
§ 2255 Motion. On June 27, 2016, given the uncertainty
of the interplay between the one year statute of limitations
for 2255 motions and movants seeking relief under Johnson
v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015),
the Federal Public Defender's Office for the District of
Delaware filed a protective § 2255 Motion in this Court,
acknowledging that Movant had already filed in the Third
Circuit an application for leave to file a second or
successive § 2255 motion. (D.I. 400). The protective
§ 2255 Motion alleges that Movant is entitled to
resentencing because he is no longer ...