Scott v. USA

Filing 21

ORDER - movant's amended motion to vacate, set aside or correct his sentence 1 pursuant to 28 U.S.C. Section 2255 is DENIED. Movant will be denied a motion for certificate of appealability. Signed on 7/29/15 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda) Modified on 7/29/2015 to reflect that a copy of the Order was sent via regular mail to Plaintiff (Wheeler, LaTandra).

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
NARICCO T. SCOTT,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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) Civil No. 15-0140-CV-W-FJG
) Crim. No. 10-00162-06-CR-W-FJG
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ORDER
Pending before the Court is Movant’s Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence (Doc. No. 1, filed on February 23, 2015).
On June 6, 2011, movant was charged in a multi-defendant indictment with
conspiracy to distribute five kilograms or more of a mixture or substance containing
cocaine and 50 grams or more of a mixture or substance containing cocaine base, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and 846 (Doc. No. 380). The Government
also submitted an information (Doc. No. 348) under 21 U.S.C. § 851, alleging that
movant had previously been convicted of three felony drug violations, which increased
the statutory range of punishment to the enhanced range of life imprisonment.
On February 7, 2012, movant pled guilty to Count One, pursuant to a plea
agreement with the Government (Doc. No. 621, 645). As part of the plea agreement,
the Government agreed to apply the statutory enhanced punishment based on only one
of movant’s prior drug felony convictions, making the statutory range 20 years to life
imprisonment under 21 U.S.C. § 841(b)(1)(A).
On December 20, 2012, movant appeared before the district court for
and was sentenced to 240 months imprisonment on Count One, which was a 52-month
variance below the low end of the advisory Guidelines range.

Movant appealed,

that the Court erred in not holding an evidentiary hearing regarding the government’s

decision not to file a substantial assistance motion, and that the statutory minimum
sentence was unconstitutional. The Eighth Circuit affirmed the District Court. United
States v. Scott, 541 Fed. Appx. 720, 721-22 (8th Cir. 2013). Movant filed a petition
seeking writ of certiorari in the United States Supreme Court, which was denied. Scott
United States, 134 S.Ct. 1332 (2014).
Movant asserts two grounds for relief: (1) ineffective assistance of counsel for
not arguing that movant was entitled to a lesser sentence based on movant’s alleged
cooperation; and (2) his sentence violates the Eighth Amendment, in that he is less
culpable than a typical offender.

STANDARD
To establish a claim for relief based upon ineffective assistance of counsel,
movant must show that counsel failed to exercise the skill and diligence that a
reasonably competent attorney would have exercised under similar circumstances.
Thomas v. Lockhart, 738 F.2d 304, 307 (8th Cir. 1984). There is a Astrong presumption
that counsel=s conduct falls within the wide range of reasonable professional
assistance.@ Strickland v. Washington, 466 U.S. 668, 689 (1984). Movant must also
demonstrate that he was prejudiced by the alleged incompetence of counsel by showing
the existence of a Areasonable probability that, but for counsel=s unprofessional errors,
the result of the proceeding would have been different.@ Id. AA reasonable probability is
a probability sufficient to undermine confidence in the outcome.@ Id.
JUDGMENT
The Court has reviewed movant=s motion (Doc. No. 1), respondent=s opposition
(Doc. No. 5), and the record in the underlying criminal case, and finds that movant=s
allegations are without merit for the reasons stated in respondent=s opposition.
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In

particular, movant’s counsel cannot be found ineffective for failure to move for a lesser
sentence due to movant’s alleged cooperation when there is no mechanism or legal
authority for counsel to have sought a sentence below the statutory minimum.
Furthermore, with respect to the Eighth Amendment claim, to the extent that movant is
attempting to re-argue issues raised on appeal, his claim must be denied. And, as
by the Government in its response (Doc. No. 5, p. 10), movant’s claim that he is less
culpable than a typical drug offender is belied by the record.
Therefore, movant=s amended motion to vacate, set aside or correct his sentence
pursuant to 28 U.S.C. ' 2255 (Doc. No. 1), filed February 23, 2015, is DENIED.
No evidentiary hearing will be held in this matter because the issues raised are
resolvable by the record. Furthermore, movant will be denied a motion for certificate of
appealability, in that the issues raised are not debatable among reasonable jurists, nor
could a court resolve the issues differently.
IT IS SO ORDERED.

Date: July 29, 2015
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge

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