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United States v. Scott

United States District Court, D. Delaware

November 6, 2019

JOSEPH SCOTT, Defendant.

          Joseph Scott. Pro se Defendant.

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




         Presently pending before the Court is Defendant Joseph Scott's (“Defendant”) Rule 35 Motion to Correct Illegal Sentence.[1] (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.

         I. BACKGROUND

         A. Defendant's Conviction and Sentencing

         In May 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, [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 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).

         Defendant 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 17).

         B. Defendant's Appeal

         Defendant 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).

         C. Defendant's Post-Conviction Motions

         In May 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. ...

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