United States District Court, D. Delaware
Scott. Pro se Defendant.
Alexander Ibrahim. Assistant United States Attorney, United
States Department of Justice, Wilmington, Delaware. Attorney
NOREIKA, U.S. DISTRICT JUDGE.
pending before the Court is Defendant Joseph Scott's
(“Defendant”) Rule 35 Motion to Correct Illegal
Sentence. (D.I. 466). By his Motion, Defendant
contends that his sentence is illegal because his newly
reduced 324-month sentence exceeds the statutory maximum
twenty-year (240-months) sentence applicable to each count of
conviction. For the following reasons, the Court will deny
Defendant's Rule 35 Motion.
Defendant's Conviction and Sentencing
1999, Defendant and four others were charged in a multiple
count indictment. (D.I. 2). Count One charged Defendant 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 Defendant 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). Defendant and the
remaining co-defendants were tried before a federal jury in
September and October 1999. Defendant 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). Defendant'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 Defendant'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).
Defendant 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
Defendant'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 Defendant'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
Defendant's objections to the PSR. (D.I. 463-2 at 13-14).
In January 2000, Judge McKelvie sentenced Defendant to 360
months' imprisonment, which represented the bottom of the
then-mandatory Guidelines range. (D.I. 133; D.I. 463-2 at
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 *5-6 (3d Cir. 2003)
(00-5180). While Defendant's appeal was pending, the
United States Supreme Court decided Apprendi v. New
Jersey, 530 U.S. 466 (2000). Defendant raised
Apprendi issues in his appeal, and the Third Circuit
affirmed Defendant'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
Defendant'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 Defendant'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 Defendant,
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; D.I. 172). Thereafter, Defendant was
resentenced in June 2001 to a 3 year term of supervised
release, with all other aspects of his original sentence
remaining unchanged. (D.I. 178; D.I. 428).
Defendant's Post-Conviction Motions
2002, Defendant 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 Defendant 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,
Defendant filed a number of additional collateral attacks on
his sentence, invoking 28 U.S.C. ...