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Scott v. United States

United States District Court, D. Delaware

April 23, 2019

JOSEPH SCOTT, Movant/Defendant,

          Joseph Scott. Pro se Movant.

          Alexander Ibrahim. Assistant United States Attorney, United States Department of Justice, Wilmington, Delaware. Attorney for Respondent.




         Movant 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.


         A. Movant's Conviction and Sentencing

         In May 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, [2] 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).

         The 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).

         Movant 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).

         B. Movant's Appeal

         Movant 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).

         C. Movant's Post-Conviction Motions

         In May 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).

         On 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 ...

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