Scott v. USA - 2255

Filing 2

MEMORANDUM. Signed by Judge J. Frederick Motz on 2/28/14. (c/m 2/28/14 bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

UNITED STATES OF AMERICA

v.

KEVIN SCOTT

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Civil No. – JFM-13-3181
Criminal No. JFM-09-0581

MEMORANDUM

Kevin Scott has filed a motion to vacate pursuant to 28 U.S.C. §2255. The motion has
been fully briefed. It will be denied.
The four claims asserted by Scott in support of this motion are entirely without merit.
First, Scott complains that his trial lawyer was allegedly ineffective in failing to move to
dismiss the indictment because the indictment did not charge the elements of aiding and abetting.
This contention is entirely academic because Scott pled guilty, not as an aider and abetter but as
a principal. Moreover, aiding and abetting liability need not be charged in an indictment. See
United States v. Day, 700 F.3d 713, 720 (4th Cir. 2012).
Second, Scott asserts that his trial counsel was ineffective in promising him that he would
not be found to be a career offender. During his rearraignment Scott denied that he was made
any promises not contained in the plea agreement, and the plea agreement specifically left open
the possibility that Scott could be found to be a career offender. In any event, the sentence that
this court imposed (which was pursuant to a plea entered under Fed. R. Crim. P. 11(c)(1)(C) that
provided a prison term between 20 and 25 years) was less than the sentence that Scott would
have received as a career offender.

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Third, Scott complains that his trial counsel was ineffective in not explaining the
elements of aiding and abetting to him. As previously stated, Scott pled guilty not as an aider
and abetter but as a principal, and the facts underlying his convictions fully supported that guilty
plea.
Fourth, Scott asserts that his trial counsel should have argued for, and obtained, a
downward departure. Scott ignores the seriousness of his own criminal history. No downward
departure any greater than that provided for in the “C plea” was appropriate.
Finally, Scott did not receive, as he asserts, ineffective assistance of counsel on his
appeal. In his plea agreement Scott waived his right to appeal any sentence in excess of 25 years
(which was greater than the sentence he received), and Scott has alleged no facts that suggest the
sentence he received constituted a “miscarriage of justice.”
A separate order denying Scott’s motion is being entered herewith.

Date: February 28, 2014

_/s/_______________________
J. Frederick Motz
United States District Judge

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