Scott v. United States of America

Filing 26

MEMORANDUM & ORDER: Mr. Scott's motion to vacate his Section 924(c) conviction is denied. The Clerk of the Court shall mail a copy of this order to Defendant and close the open motions at dkt. nos. 152, 158, 168, and 170. SO ORDERED. (Signed by Judge Loretta A. Preska on 6/06/2023) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANTONIO SCOTT,
Petitioner,

08-CR-360 (LAP)
16-CV-5132 (LAP)

-against-

MEMORANDUM & ORDER

UNITED STATES OF AMERICA,
Respondent.

LORETTA A. PRESKA, Senior United States District Judge:
Before the Court is Petitioner Antonio Scott’s motion,
pursuant to 28 U.S.C. § 2255, to vacate his 18 U.S.C. § 924(c)
convictions based on United States v. Davis, 139 S. Ct. 2319
(2019).

(See Motion to Vacate (“Mot.”), dated June 26, 2020

[dkt. no. 147].)1

The Government opposed the motion.

(See

Memorandum in Opposition (“Opp.”), dated July 27, 2020 [dkt. no.
148].)

Mr. Scott filed both a reply and a letter to supplement

his motion; the Government responded to the latter in
opposition.

(See dkt. nos. 149, 152, and 153.)

On December 2,

2021, the Court denied Mr. Scott’s petition pursuant to 28
U.S.C. § 2255 to vacate his 18 U.S.C. § 924(c) conviction.
(Dkt. no. 161.)

Mr. Scott appealed, and the Court of Appeals

subsequently granted a certificate of appealability on the issue
of whether Mr. Scott’s 924(c) conviction “remains supported by
any valid crime- of-violence predicate,” vacated this Court’s

1

All citations to docket entries herein refer to 08-cr-360.
1

order, and remanded to this Court for further proceedings, with
the mandate issuing forthwith.

(See dkt. no. 166.)

Mr. Scott

submitted supplemental briefing in further support of his motion
to vacate on September 22, 2022 (“Pl.’s Supp. Brief”).
no. 170.)

(Dkt.

The Government responded on October 24, 2022 (dkt.

no. 171), and Mr. Scott replied on November 14, 2022 (dkt. no.
172.)
For the reasons set forth below, the motion is denied.
I.

Background
On September 2, 2008, a grand jury issued a superseding

indictment of Mr. Scott and one co-conspirator, O’Kene White,
following a home invasion in which the two men targeted drugs
and drug proceeds.

(See dkt. no. 31 ¶¶ 1-2.)

While inside the

apartment, the indictment alleges that Mr. Scott restrained its
occupants while threatening them at gunpoint, physically
assaulted an occupant, and discharged a firearm.

(Id. ¶ 2.)

The indictment charged Mr. Scott in four counts relevant to this
motion.

(See id. ¶¶ 1-5.)

Counts One and Two charged Mr. Scott

with conspiracy and attempt to commit Hobbs Act robbery,
respectively, in violation of 18 U.S.C. §§ 1951, 1952.
¶¶ 1-3.)

(Id.

Count Three charged Mr. Scott with attempted

possession with intent to distribute a controlled substance
(marijuana), in violation of 21 U.S.C. §§ 812, 841(a)(1),
841(b)(1)(D), and 18 U.S.C. § 2.

(Id. ¶ 4.)
2

Count Four charged

Mr. Scott with using and carrying a firearm during and in
relation to, or possessing a firearm in furtherance of, a crime
of violence or drug trafficking crime in violation of 18 U.S.C.
§§ 924(c)(1)(A)(ii), (iii), and 2.

(Id. ¶ 5.)

At trial, Judge Harold Baer, Jr. instructed the jury that
to find Mr. Scott guilty on Count Four, it must have found that
the defendant committed at least one of the crimes specified in
Counts One, Two, and Three.

(Dkt. no. 111 at 753-54.)

However,

the jury’s verdict form asked the jury only to mark “guilty” or
“not guilty” on Count Four; it did not ask jurors explicitly to
state the count(s) on which the Count Four conviction was
predicated.

(See Mot. at 12-13; Opp. at 5.)

Following its

deliberations, the jury convicted Mr. Scott on all four counts.
(See Mot. at 1; Opp. at 5.)

Mr. Scott moved for a judgment of

acquittal after trial. (See dkt. no. 59 at 1.)

In denying the

motion, Judge Baer specifically rejected Mr. Scott’s argument
that “no rational juror could have found [Mr. Scott] guilty of
attempted possession with intent to distribute marijuana.”

(See

id. at 10.)
Subsequently, on January 30, 2009, Judge Baer sentenced Mr.
Scott to a total of 207 months imprisonment.
at 3.)

(See dkt. no. 71

This sentence included 87 concurrent months on each of

Counts One and Two; 60 months on Count Three, to run concurrently
with Counts One and Two; and 120 months on Count Four, to run
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consecutively to the sentence on the first three counts.

(See

id.)
Following sentencing, Mr. Scott directly appealed his
convictions primarily on evidentiary grounds related to Counts
One, Two, and Three.

See United States v. White, 372 F. App’x.

115, 116 (2d Cir. 2010) (summary order).

The Court of Appeals

upheld each of Mr. Scott’s challenged counts of conviction.
id. at 117.

See

Because the Court rejected Mr. Scott’s evidentiary

challenges as to Counts One, Two, and Three, it “necessarily
decline[d] [Mr. Scott’s] invitation to reverse [his] convictions
on the fourth count of possessing and discharging firearms
during and in furtherance of the other charged crimes.”

Id. at

117.
In 2011, Mr. Scott filed a 28 U.S.C. § 2255 motion, pro se,
contesting his convictions on ineffective assistance and
prosecutorial misconduct grounds.
denied the motion.

(See dkt. no. 80.)

The Court

See Scott v. United States, 11-cv-4638 (HB),

2012 U.S. Dist. LEXIS 80797, at *4-6, 17 (S.D.N.Y Jun. 11,
2012).
In 2015, Mr. Scott’s case was reassigned to this Court
following the death of Judge Baer.

(See dkt. no. 91.)

Soon

after, in light of the Supreme Court’s decision in Johnson v.
United States, 576 U.S. 591 (2015), Mr. Scott filed a second

4

motion pursuant to 28 U.S.C. § 2255.2

(See dkt. no. 97.)

Mr.

Scott simultaneously sought permission from the Court of Appeals
to file a successive habeas petition.

(See Mot. at 2.)

This

Court stayed Mr. Scott’s petition pending the Court of Appeals’
decision.

(See dkt. no. 134.)

On May 12, 2020, the Court of

Appeals granted Mr. Scott’s motion with respect to his § 924(c)
conviction.

(See dkt. no. 135 at 1.)

The Court of Appeals

instructed this Court to conduct a detailed review of the
criminal proceedings and conduct further fact finding to
determine whether Mr. Scott’s “924(c) conviction predicated in
part on conspiracy to commit Hobbs Act robbery . . . is no
longer valid after Johnson and Davis.”3

(Id. at 2.)

On December 2, 2021, the Court denied Mr. Scott’s petition
pursuant to 28 U.S.C. § 2255 to vacate his 18 U.S.C. § 924(c)
conviction based on United States v. Davis, 139 S. Ct. 2319
(2019).

(Dkt. no. 161.)

The Court reasoned that, based on the

then-binding Court of Appeals decision in United States v.
McCoy, 995 F.3d 32 (2021), Mr. Scott’s conviction for attempted

In Johnson, the Supreme Court ruled that the Armed Career
Criminal Act’s sentencing enhancement provision’s residual
clause was unconstitutionally void for vagueness. See Johnson,
576 U.S. at 605-06. Johnson opened the door to further attacks
on similarly worded federal criminal statutes’ sentencing
enhancement provisions, such as the Hobbs Act at issue in Davis.
See Davis, 139 S. Ct. at 2324-29.
3 The Court of Appeals also acknowledged that Mr. Scott’s
§ 924(c) conviction may still be supported by a valid predicate.
(See dkt. no. 135 at 2.)
2

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Hobbs Act robbery qualified as a crime of violence supporting
his 924(c) conviction.

Mr. Scott appealed and, while the appeal

was pending, the Supreme Court issued a decision in United
States v. Taylor, 142 S. Ct. 2015 (2022), finding that attempted
Hobbs Act robbery is not a crime of violence.

As a result of

Taylor, the Supreme Court vacated the Court of Appeals’ decision
in McCoy on which this Court relied.
States, 142 S. Ct. 2863 (2022).

See McCoy v. United

The Court of Appeals

subsequently granted a certificate of appealability on the issue
of whether Mr. Scott’s 924(c) conviction “remains supported by
any valid crime- of-violence predicate,” vacated this Court’s
order, and remanded to this Court for further proceedings, with
the mandate issuing forthwith.
II.

(See dkt. no. 166.)

Legal Standard
a. The Habeas Statute
Under 28 U.S.C. § 2255, a federal prisoner “may move the

court which imposed the sentence to vacate, set aside, or
correct the sentence” on the grounds, inter alia, that the
“sentence was imposed in violation of the Constitution or laws
of the United States . . . or is otherwise subject to collateral
attack.”

28 U.S.C. § 2255(a).

On a Section 2255 motion, the

defendant bears the burden of proof by a preponderance of the
evidence.

See Triana v. United States, 205 F.3d 36, 40 (2d Cir.

2000).
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b. Section 924(c)
Section 924(c) makes it a crime to possess a firearm
“during and in relation to any crime of violence or drug
trafficking crime.”

18 U.S.C. § 924(c)(a)(A).

The statute

provides two definitions for what constitutes a “crime of
violence.”

The first, known as the “force clause” (or the

“elements clause”), classifies a crime of violence as a felony
which “has as an element the use, attempted use, or threatened
use of physical force against the person or property of
another.”

Id. at § 924(c)(3)(A).

The second, known as the

“risk of force” clause (or the “residual clause”), classifies a
crime of violence as a felony that, “by its nature, involves a
substantial risk that physical force against the person or
property of another may be used in the course of committing the
offense.”

Id. at § 924(c)(3)(B).

A “drug trafficking crime” is

defined as “any felony punishable under the Controlled
Substances Act (21 U.S.C. 801 et seq.), the Controlled
Substances Import and Export Act (21 U.S.C. 951 et seq.), or
chapter 705 of title 46.”

Id. at § 924(c)(2).

The crime of violence residual clause, however, is no
longer enforceable.

In Davis, the Supreme Court found that

§ 924(c)'s “risk of force” clause was unconstitutionally vague
and invalidated the provision.

Davis, 139 S. Ct. at 2336.

As a

result, a predicate “crime of violence” under § 924(c) is only
7

valid if it falls within the scope of the force clause.

See

Boykin v. United States, No. 16 CV 4185 (CM), 2020 U.S. Dist.
LEXIS 27317, at *11 (S.D.N.Y. Feb. 18, 2020) (“924(c)(3)(B) has
been effectively stricken from the statute.”).

As relevant

here, in Taylor, the Supreme Court held that attempted Hobbs Act
robbery is not a crime of violence for purposes of 924(c).
Taylor, 142 S. Ct. 2015, 2021 (2022).
c. Jury Instructions on Multiple Theories of Guilt
In Hedgpeth v. Pulido, the Supreme Court held that where a
district court instructs a jury on multiple theories of guilt
and at least one of them is later invalid, the question for
reviewing courts is “whether the flaw in the instructions ‘had
substantial and injurious effect or influence in determining the
jury’s verdict.’”

Hedgpeth, 555 U.S. 57, 58 (2008) (per curium)

(citing Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)).

In the

Second Circuit, the Court of Appeals has applied this directive
to mean a “defendant is not prejudiced by an infirm instruction”
if “the jury would have necessarily found the [defendant] guilty
on one of the properly instructed theories of liability.”
United States v. Mandell, 752 F.3d 544, 549 (2014) (internal
quotation marks omitted).

Under these circumstances, a

defendant’s conviction will be upheld.

See United States v.

Ferguson, 676 F.3d 260, 277 (2d Cir. 2011); see also United

8

States v. Riley, 90 F. Supp. 3d 176, 186 (S.D.N.Y. 2015)
(applying the standard).
III. Discussion
Mr. Scott argues that Davis, 139 S. Ct. 2319, and Taylor,
142 S. Ct. 2015, have invalidated the residual clause of §
924(c)(3)(B) as unconstitutionally vague and eliminated
attempted Hobbs Act robbery as a crime of violence.

Therefore,

Mr. Scott asserts, Counts One and Two can no longer serve as the
predicates for the § 924(c) charge.

Mr. Scott also argues that

Count Three, attempted possession of marijuana, cannot provide
the necessary predicate because possession of marijuana can be a
misdemeanor and not a felony and therefore, under the
categorical approach, does not satisfy 18 U.S.C. § 924(c)(2).
Mr. Scott also argues that, even if Count Three remains a valid
predicate offense, the Section 924(c) conviction must still be
vacated because the jury did not specify which crime his
conviction was based on.
Possession with intent to distribute marijuana remains a
valid predicate, and Mr. Scott’s conviction under § 924(c) is
therefore supported by a valid predicate.

Mr. Scott argues that

the categorical approach requires that Court determine that his
marijuana conviction is not a valid predicate because Section
841(b)(1)(D) “does not categorically involve felony conduct.”
(Pl.’s Supp. Brief 8.)

Under the categorical approach, the
9

Court must look “not to the facts of the particular prior case,
but instead to whether the state statute defining the crime of
conviction categorically fits within the generic federal
definition of a corresponding aggravated felony.”
Holder, 569 U.S. 184, 190 (2013) (cleaned up).

Moncrieffe v.

In support of

this argument, Mr. Scott relies on Moncrieffe, where the Supreme
Court applied the categorical approach in the context of
immigration proceedings to determine whether a state marijuana
conviction constituted an “aggravated felony” under the
Immigration and Nationality Act (“INA”).

Id. at 193-94.

The

Supreme Court reasoned that the state law conviction was not
categorically a felony because Section 841(b)(1)(D) provides
that a “person shall, except as provided in paragraphs (4) and
(5) of this subsection, be sentenced to a term of imprisonment
of not more than 5 years”—“i.e. as a felon.”
§ 841(b)(1)(D)).

Id. (quoting

The exception in paragraph (4) states: “‘[A]ny

person who violates subsection (a) of this section by
distributing a small amount of marihuana for no remuneration
shall be treated as’ a simply drug possessor . . . which for our
purposes means a misdemeanant.”

Id. (quoting § 841(b)(4)).

Therefore, the Supreme Court found that Section 841(b)(1)(D) is
a crime “that may be either a felony or a misdemeanor, depending
upon the presence or absence of certain factors that are not
themselves elements of the crime.”
10

Id.

Mr. Scott argues that

this holding requires the Court to apply the categorical
approach and find that his conviction under Section 841(b)(1)(D)
cannot be a valid predicate because it is possible for a Section
841(b)(1)(D) conviction to be a misdemeanor.
Mr. Scott’s reliance on Moncrieffe is misplaced.
Moncrieffe concerned “the treatment of state convictions under
the INA” and “has no bearing on . . . the default sentencing
provision of the federal marijuana distribution offense set
forth in Section 841(b)(1)(D).”

Medina v. United States, 2020

U.S. Dist. LEXIS 192995, at *15 (S.D.N.Y. Oct. 18, 2020);
Winfield v. Wilson, Civil Action No. 3:14CV172, 2015 U.S. Dist.
LEXIS 25600, at *6-7 (E.D. Va. Mar. 2, 2015) (“The Court fails
to discern how Moncrieffe applies to Winfield's conviction of
felony possession with intent to distribute marijuana.

Unlike

the petitioner in Moncrieffe, the federal statute under which
the jury convicted Winfield clearly prescribed felony punishment
for Winfield's conduct.”).

Indeed, as the Court of Appeals for

the Tenth Circuit found, the analysis for “a federal prosecution
. . . case is different” from that employed in Moncrieffe, where
the Supreme Court itself “noted that federal prosecutions are
different and may be subject to a different process than it
employed to analyze” the “state conviction” in Moncrieffe.
Osuna-Gutierrez v. Johnson, 838 F.3d 1030, 1038 (10th Cir.
2016).

The Tenth Circuit reasoned that while the “criminal
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conduct at issue” in Osonu-Gutierrez was “similar” to the
conduct in Moncrieffe, the “convictions were not—an ultimately
fatal flaw to [petitioner’s] appeal.

[Petitioner] was not

convicted of a state crime to be compared to a federal generic
crime on appeal.
Id.

He knowingly pled guilty to a federal felony.”

Simply put, “Moncrieffe did not involve review of a federal

marijuana distribution conviction, and its holding regarding the
treatment of state convictions under the INA has no bearing on
. . . the default sentencing provision of the federal marijuana
distribution offense set forth in Section 841(b)(1)(D).”
Medina, 2020 U.S. Dist. LEXIS 192995, at *14-15.
Those default provisions are what apply here.

When an

indictment for unlawful distribution does not specify a quantity
of marijuana, the default sentencing provision of five years
applies.

See United States v. Outen, 286 F.3d 622, 638 (2d Cir.

2002); see also United States v. Eddy, 523 F.3d 1268, 1271 (10th
Cir. 2008).

Though Section 841(b)(4) provides “a mitigating

exception to the five-year provision of § 841(b)(1)(D)” Outen,
286 F.3d at 637, the Government need only prove that a defendant
possessed marijuana with intent to distribute to secure a felony
conviction under Section 841(b)(1)(D) and is not required to
negate the factors of Section 841(b)(4).
U.S. at 197.

See Moncrieffe, 569

Rather, it is the defendant’s burden to prove that

his conduct was a misdemeanor that merits the lesser sentence.
12

Id.

Thus a conviction under Section 841(b)(1)(D) is, by

default, a felony and only becomes a misdemeanor if the
defendant, as opposed to the Government, makes an adequate
showing that it should not be a felony.
Here, Mr. Scott was indicted for violating Section
841(b)(1)(D), putting him on notice of the charge and the
applicable five-year sentencing provision.

At trial, Mr. Scott

had the burden of presenting evidence to support the application
of the Section 841(b)(4) exception, which he did not do.
Rather, at trial, the Government proved beyond a reasonable
doubt that Mr. Scott was guilty of violating Section
841(b)(1)(D), was convicted of that crime by the jury, and was
sentenced to sixty months (five years) for that crime.

Mr.

Scott was, in other words, charged with, convicted of, and
sentenced for a “felony punishable under the Controlled
Substances Act.”

And, as the Court previously concluded, Mr.

Scott “attempt[ed] to possess” and distribute “marijuana while
using or carrying a firearm.”

(Dkt. no. 161 at 13.)

Therefore,

Mr. Scott’s argument that his narcotics conviction does not
categorically involve felony conduct fails, Mr. Scott used a
firearm in connection with “felony punishable under the
Controlled Substances Act,” and Count Three is a valid predicate
for his § 924(c) conviction.

13

Mr. Scott also asserts that even if one of the underlying
offenses qualifies as a predicate, the section 924(c) conviction
is invalid due to the general jury instruction.
incorrect.

Mr. Scott is

In United States v. Vasquez, 672 F. App'x 56 (2d

Cir. 2016) (summary order), on a direct appeal from his
convictions of (1) conspiracy to distribute narcotics; (2)
conspiracy to commit Hobbs Act robbery; and (3) discharge of a
firearm in relation to a drug trafficking crime or crime of
violence, the Court held that Vasquez's Section 924(c)
conviction was “clearly supported by a narcotics predicate”
because “the sole . . . theory supporting Vasquez's [Section]
924 convictions is that co-conspirator Polanco fatally
discharged a firearm in furtherance of an agreement to rob drug
dealers and to distribute any recovered narcotics and narcotics
proceeds.”

Id. at 58-61; Marmolejos v. United States, No. 21-

426-pr, 2022 U.S. App. LEXIS 31222, at *5 (2d Cir. Nov. 10,
2022) (holding that a “jury's verdict on the firearms offenses
could not have been predicated on robbery and murder-for-hire
without also being predicated on the narcotics conspiracy” where
“the only evidence of [petitioner]'s involvement in the
narcotics conspiracy for which he stands convicted completely
overlaps with the evidence of his involvement in the Hobbs Act
robbery conspiracy, the conspiracy to commit murder-for-hire,
and the substantive murder-for-hire”).
14

The same is true here.

The Government established at trial

beyond a reasonable doubt that Mr. Scott attempted to commit
Hobbs Act robbery as part of a plan with Mr. White to steal
marijuana and related proceeds from an apartment.
2-4.)

(See Opp. at

And as the Court explained in its December 2 Order,

“[t]he attempted robbery charge is [] inextricably linked to
both the conspiracy charge and the attempt to possess and
distribute marijuana charge” and that Mr. Scott’s “attempt to
possess marijuana while using or carrying a firearm cannot be
disentangled from the attempted robbery.”
13.)

(Dkt. No. 161 at 12-

Thus, “[c]onsistent with the reasoning in Vasquez,” Mr.

Scott’s “convictions for narcotics trafficking and Hobbs Act”
violations “were inextricably intertwined such that there is no
concern that the jury could have found that a firearm was used
in connection with one and not the other.”

United States v.

Freeman, No. 02-CR-150 (LAP), 2022 U.S. Dist. LEXIS 116152, at
*6 (S.D.N.Y. June 30, 2022).

As such, “the Section 924(c)

conviction is supported by the narcotics trafficking
conviction.”
IV.

Id.

Conclusion
Mr. Scott’s motion to vacate his Section 924(c) conviction

is denied.

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The Clerk of the Court shall mail a copy of this order to
Defendant and close the open motions at dkt. nos. 152, 158, 168,
and 170.
SO ORDERED.
Dated:

June 6, 2023
New York, New York
________________________ _________
LORETTA A. PRESKA
Senior United States District Judge

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