Scott v. USA
Filing
39
MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S AMENDED § 2255 MOTION [DKT. NO. 14 ], DENYING AS MOOT PETITIONER'S MOTION FOR EVIDENTIARY HEARING [DKT. NO. 35 ], AND DISMISSING CASE WITH PREJUDICE. Signed by Senior Judge Irene M. Keeley on 7/30/2021. (Mailed to PS petitioner/defendant via CM, RRR.)(wrr) (Additional attachment(s) added on 7/30/2021: # 1 Certified Mail Return Receipt) (wrr).
Case 1:18-cv-00113-IMK Document 39 Filed 07/30/21 Page 1 of 29 PageID #: 259
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
MICHAEL SHERIFF SCOTT,
Petitioner,
v.
CIVIL ACTION NO. 1:18CV113
CRIMINAL ACTION NO. 1:15CR31
(Judge Keeley)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
Pending before the Court is the amended pro se motion filed by
the petitioner, Michael Sheriff Scott (“Scott”), to vacate, set
aside, or correct a sentence pursuant to 28 U.S.C. § 2255, and his
motion requesting an evidentiary hearing. For the reasons that
follow, the Court DENIES Scott’s amended § 2255 motion, (dkt. no.
14),1 DENIES AS MOOT his motion for evidentiary hearing, (dkt. no.
35), and DISMISSES this case WITH PREJUDICE.
I. BACKGROUND
A.
Procedural History
On May 22, 2015, Scott pleaded guilty to one count of being a
felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2) (Case No. 1:15CR31, Dkt. No. 17).
1
All docket numbers, unless otherwise noted, refer to Case
No. 1:18CV113.
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
On September 29, 2015, the Court sentenced Scott to 77 months of
imprisonment, followed by 3 years of supervised release (Id., Dkt.
No. 27).
On October 7, 2015, Scott appealed to the United States Court
of
Appeals
for
the
Fourth
Circuit,
asserting
this
Court
had
erroneously increased his base offense level based on a prior
conviction that, under Johnson v. United States, 576 U.S. 591, 135
S.Ct. 2551 (2015), was no longer a “crime of violence” (Id., Dkt.
No. 30). On August 25, 2017, the Fourth Circuit affirmed Scott’s
conviction and sentence, and later rejected his petition for
rehearing and rehearing en banc (Id., Dkt. Nos. 41, 42, 44).
On May 14, 2018, Scott filed a motion pursuant to 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence, (dkt. no. 1),
asserting again that, under Johnson, this Court had miscalculated
his base offense level. Thereafter, Magistrate Judge Michael J.
Aloi directed the Government to respond to Scott’s motion (Dkt. No.
3).
But on June 11, 2018, Scott moved to withdraw his § 2255
motion
and
replace
it
with
an
amended
motion
(Dkt.
No.
6).
Magistrate Judge Aloi construed Scott’s motion as a motion for
2
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
leave to amend and granted him leave, but warned Scott to include
all of his claims in the amended § 2255 motion because that amended
motion
would
supersede
Scott’s
earlier
motion
(Dkt.
No.
7).
Magistrate Judge Aloi also vacated his previous order directing the
Government to respond. Id.
On June 14, 2018, Magistrate Judge Aloi notified Scott that
his amended § 2255 motion did not comply with the Local Rules of
Prisoner Litigation Procedure and, consequently, would be stricken
unless re-filed on an approved form (Dkt. No. 11). On June 25,
2018, Scott re-filed his amended motion and also moved for leave to
file excess pages (Dkt. Nos. 14, 15). Magistrate Judge Aloi granted
Scott’s motion and ordered the Government to respond to his amended
§ 2255 motion (Dkt. Nos. 16, 18). Scott has replied to the
Government’s response, (dkt. no. 35), and the matter is ripe for
disposition.2
2
Although Scott has been released from the custody of the
Bureau of Prisons, he is currently serving a term of supervised
release. Consequently, his § 2255 petition is still viable. See
United States v. Pregent, 190 F.3d 279, 283 (4th Cir. 1999) (“A
prisoner on supervised release is considered to be ‘in custody’
for the purposes of a § 2255 motion.”).
3
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
B.
Grounds in § 2255 Motion
Scott raises eight grounds in support of his § 2255 motion,
all of which can be grouped into four separate categories: (1) his
previous conviction for first-degree assault under Maryland law;
(2)
the
Court’s
alleged
errors
in
calculating
his
sentence;
(3) violations of 18 U.S.C. § 3742; and (4) ineffective assistance
of counsel (Dkt. No. 14).
The Government contends that many of Scott’s arguments are
procedurally defaulted because the Fourth Circuit has already
determined that his sentence was not imposed as a result of an
incorrect application of the guidelines (Dkt. No. 29 at 8). The
Government
also
asserts
that
Scott
has
failed
to
establish
ineffective assistance of counsel under Strickland v. Washington,
466 U.S. 668 (1984), and Hill v. Lockhart, 474 U.S. 52 (1985),
because he has not shown either how counsel’s conduct fell below an
objective standard of competence, or that the results of his appeal
were fundamentally unfair. Id. at 4.
II. APPLICABLE LAW
28 U.S.C. § 2255(a) permits federal prisoners who are in
custody to assert the right to be released if “the sentence was
4
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
imposed in violation of the Constitution or laws of the United
States,” if “the court was without jurisdiction to impose such
sentence,” or if “the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack.”
A petitioner bears the burden of proving any of these grounds by a
preponderance of the evidence. See Miller v. United States, 261
F.2d 546, 547 (4th Cir. 1958).
III. DISCUSSION
A.
Grounds One, Three, Four, and Six: Scott’s Challenge to his
Sentence3
Several arguments advanced by Scott are based on his erroneous
assertion that first-degree assault under Maryland law is not a
crime of violence. First, Scott argues that the Government cannot
rely on the residual clause of U.S.S.G. § 4B1.2(a) to determine
whether first-degree assault under Maryland law is a crime of
3
Ground Two of Scott’s § 2255 motion states: “The District Court
committed procedural error and abused its discretion to the extent
it relied on 2K2.1 and PSR to calculate the guidelines range.
Defense Attorney, Ed Rollo committed procedural error when he did
not object nor question the base-offense level enhancement before
the district court” (Dkt. No. 14 at 7). However, in his memorandum,
Scott focuses on his attorney’s alleged error at sentencing and,
therefore, the Court construes this ground to concern alleged
ineffective assistance of counsel.
5
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
violence (Dkt. No. 14 at 6). He also asserts that Beckles v. United
States, __ U.S. __, 137 S.Ct. 886 (2017), does not comprehensively
resolve whether a conviction for first-degree assault qualifies as
a
crime
of
violence
under
the
advisory
federal
sentencing
guidelines. Id. at 9. Finally, Scott contends that the Court
improperly
enhanced
his
base
offense
level
and
engaged
in
impermissible double counting, in violation of his Sixth Amendment
rights. Id. at 7, 10-12.
Even if these arguments are not foreclosed by the Fourth
Circuit’s rejection of his appeal on these points, all are fatally
flawed because (1) first-degree assault under Maryland law is a
crime of violence; (2) Beckles holds that, under the guidelines, a
sentencing enhancement for a crime of violence is not subject to a
void for vagueness challenge; and (3) the Court faithfully followed
the guidelines in calculating Scott’s sentence.
1.
Prior Appeal and Procedural Default
Scott’s
arguments
regarding
his
first-degree
assault
conviction are barred by his prior appeal, and his arguments about
the calculation of his sentence are procedurally defaulted. Issues
fully considered on direct appeal may not be recast under the guise
6
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
of a collateral attack by way of a motion to vacate or correct
sentence. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th
Cir. 1976). Once a defendant has exhausted or waived his right to
appeal, the Court is “entitled to presume he stands fairly and
finally convicted, especially when . . . he already has had a fair
opportunity to present his claims to a federal forum.” United
States v. Frady, 456 U.S. 152, 164 (1982). Therefore, a claim
decided on direct appeal cannot ordinarily be re-litigated in a
§ 2255 motion unless the petitioner can show an intervening change
in the law. Davis v. United States, 417 U.S. 333, 342 (1974).
Because “a final judgment commands respect,” a petitioner’s
failure to raise a claim on direct appeal may bar collateral review
unless he can surmount a significant procedural hurdle. Frady, 456
U.S. at 165. To successfully attack his conviction or sentence
based on errors that could have been raised on appeal, Scott must
show
“cause
and
actual
prejudice”
or
demonstrate
“that
a
miscarriage of justice would result” from the Court’s refusal to
entertain his arguments. United States v. Mikalajunas, 186 F.3d
490, 492-493 (4th Cir. 1999).
First, to prove cause, “a procedural default must turn on
7
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
something external to the defense, such as the novelty of the claim
or a denial of effective assistance of counsel.” Id. Then, the
petitioner must establish actual prejudice by demonstrating that
the
error
works
disadvantage,”
to
the
rather
petitioner’s
than
just
“actual
creating
a
and
substantial
possibility
of
prejudice. Satcher v. Pruett, 126 F.3d 561, 572 (4th Cir. 1997)
(quoting Murray v. Carrier, 477 U.S. 478, 494 (1986)).
“In order to demonstrate that a miscarriage of justice would
result from the refusal of the court to entertain the collateral
attack, a movant must show actual innocence by clear and convincing
evidence.” Mikalajunas, 186 F.3d at 493. “Typically, to establish
actual innocence, a petitioner must demonstrate actual[,] factual
innocence of the offense of conviction, i.e., that petitioner did
not commit the crime of which he was convicted; this standard is
not satisfied by a showing that the petitioner is legally, but not
factually, innocent.” Id. at 494. The petitioner must show that “it
is more likely than not that no reasonable juror would have
convicted him.” Schlup v. Delo, 513 U.S. 298, 327 (1995).
The Fourth Circuit previously rejected Scott’s contention that
his prior conviction for first-degree assault was no longer a crime
8
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
of violence. See United States v. Scott, 696 Fed. App’x 626 (4th
Cir. 2017) (per curiam). Despite raising this issue again in
grounds one and three, Scott has not produced any new evidence that
has come to light since his appeal was decided. Therefore, the
Fourth Circuit’s decision bars Scott’s collateral attack on these
grounds.
Furthermore, grounds four and six of Scott’s amended § 2255
motion are procedurally defaulted. Read liberally, Scott contends
that his appellate attorney failed to raise certain issues on
appeal and, therefore, the cause element is satisfied. However,
Scott fails to establish that he was actually prejudiced when his
attorney failed to raise these issues. In other words, he has not
demonstrated that a decision not to raise any of these grounds on
appeal worked to his actual and substantial disadvantage. Even if
his argument created a mere possibility of prejudice, it fails to
meet the heightened standard required to support a collateral
attack. Moreover, as is discussed later, even if not procedurally
barred, Scott’s arguments in grounds four and six are meritless.
9
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
2.
Grounds One and Three: Maryland’s First-degree Assault
Statute
Scott’s arguments in support of grounds one and three are not
only not viable, they have no merit. As a preliminary matter, since
the Johnson decision, courts have repeatedly held that a violation
of Maryland’s first-degree assault statute qualifies as a crime of
violence. See United States v. Redd, 372 Fed. Appx. 413, 415 (4th
Cir. 2010) (approval noted in United States v. Battle, (4th Cir.
2019); United States v. Zavala Romero, 742 Fed. Appx. 21 (Mem.)
(5th Cir. 2018); United States v. Haight, 892 F.3d 1271, 1281 (D.C.
Cir. 2018), abrogated on other grounds sub nom., Borden v. United
States, __U.S. __, 141 S.Ct. 1817 (2021)); see also Martino v.
United States, No. 1:16-cv-735 (LMB), 2020 WL 3579548 (E.D. Va.
July 1, 2020); Jordan v. United States, No. 1:16-cv-607 (LMB), 2020
WL 3579549 (E.D. Va. July 1, 2020); Tweedy v. United States, No.
1:16-cv-760 (LMB), 2020 WL 3513699 (E.D. Va. June 29, 2020).
Furthermore, the guideline definition of a “crime of violence”
categorically matches the statutory definition of Scott’s prior
first-degree
assault
conviction.
See,
e.g.,
United
States
v.
Dozier, 848 F.3d 180 (4th Cir. 2017) (comparing West Virginia
10
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
conviction to U.S.S.G. § 4B1.1 definition of “controlled substance
offense”).
For a prior conviction to qualify as a predicate offense under
the guidelines, the elements of Scott’s prior felony assault
conviction must correspond in substance to the elements in the
definition of “crime of violence.” See id. Accordingly, the Court
focuses on “whether the defendant was in fact convicted of a crime
that qualifies as a predicate offense.” Id. at 183 (citation
omitted). This categorical approach looks to the elements of the
prior offense rather than the conduct underlying the conviction.
Id.
The definition of “crime of violence” in U.S.S.G. § 4B1.2
states:
(a) The term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for a
term exceeding one year, that–
(1) has an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is a burglary of a dwelling, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury
to another.
11
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
U.S.S.G. § 4B1.2(a) (2014).4 Scott’s arguments concern how the
holding in Johnson applies to this definition - specifically, he
argues that the “residual clause” in subsection (a)(2) of the
guideline is void for vagueness.5 But he overlooks and fails to
address the critical “force clause” in § 4B1.2(a)(1). Because the
elements
of
Maryland’s
first-degree
assault
statute
are
a
categorical match with those found at § 4B1.2(a)(1), Scott’s
argument fails.
Maryland’s first-degree assault statute criminalizes conduct
that
“intentionally
cause[s]
or
attempt[s]
to
cause
serious
physical injury to another.” MD. Crim. Law § 3-202(a)(1) (2005). A
person may also not commit an assault with a firearm. Id. at § 3202(a)(2). A conviction under this statute exposes an individual to
a term of imprisonment not greater than twenty-five (25) years. Id.
at § 3-202(c). Maryland law defines “assault” as “the crimes of
assault, battery, and assault and battery.” Id. at § 3-201(b).
4
The United States Probation Officer used the 2014 United
States Sentencing Commission Guidelines Manual to prepare Scott’s
PSR (Case No. 1:15CR31, Dkt. No. 25 at ¶ 18).
5
Again, the Fourth Circuit squarely rejected this argument
in Scott’s appeal.
12
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
And “serious physical injury” means a “physical injury that creates
a substantial risk of death” or causes permanent or protracted
serious disfigurement or impairment or loss of a bodily member or
organ. Id. at § 3-201(d).
Pursuant
to
U.S.S.G.
§
2K2.1(a)(2),
for
the
purpose
of
applying an increased base offense level if the defendant committed
any part of the instant offense subsequent to sustaining at least
two
felony
convictions
of
either
a
crime
of
violence
or
a
controlled substance offense, the term “crime of violence” has the
same meaning used in § 4B1.2(a) and Application Note 1 of the
Commentary to § 4B1.2.
Comparing the statute at issue with these defined terms
establishes that Maryland’s first-degree assault statute matches
the term “crime of violence.” To commit first-degree assault under
Maryland law, an individual must intentionally cause or attempt to
cause
serious
physical
injury
to
another.
This
tracks
the
requirement in U.S.S.G. § 4B1.2(a) that a crime must have a use or
attempted use of force as an element to qualify as a “crime of
violence.”
Therefore,
Maryland’s
13
first-degree
assault
statute
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
categorically matches the term “crime of violence” for the purpose
of applying a base level enhancement under U.S.S.G. § 4B1.2(a).
a.
Ground One - Government Waived Reliance on the
Residual Clause
Scott alleges that the Government “fail[ed] to assert a
potential basis for ‘crime of violence’ in its answering brief” and
thus waived that issue. Ultimately, however, the Fourth Circuit
upheld the classification as a crime of violence and that judgment
is final. Moreover, as emphasized here, a violation of Maryland’s
first-degree assault statute is a crime of violence based on
U.S.S.G. § 4B1.2(a)’s force clause, not the residual clause.
b.
Ground Three - Beckles
Scott’s argument that Beckles v. United States, __ U.S. __,
137 S.Ct. 886 (2017), does not comprehensively resolve the question
of whether his conviction for first-degree assault qualifies as a
crime of violence under the advisory guidelines is without merit
and irrelevant. Throughout his appeal and collateral attack, Scott
has maintained that the guideline definition of “crime of violence”
is analogous to the statutory definition found in the Armed Career
Criminal Act rejected by the Supreme Court in Johnson v. United
14
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
States, 576 U.S. 591, 135 S.Ct. 2551 (2015). Johnson held that
imposing an increased sentence under the residual clause of the
ACCA
violated
the
Due
Process
unconstitutionally vague. Id.
Clause
because
it
was
Fatal to Scott’s argument here,
however, is the decision of the Supreme Court in Beckles that the
United States Sentencing Guidelines are not subject to a void for
vagueness challenge. Beckles, 137 S.Ct. 886.
Beckles thus completely forecloses Scott’s argument. And even
if it did not, as discussed earlier, the elements of Maryland’s
first-degree assault statute categorically match the elements of a
crime of violence as defined at U.S.S.G. § 4B1.2(a).
3.
Grounds Four and Six - Guideline Range Calculation and
Scott’s Sixth Amendment Rights
a.
Ground Four - Guideline Range Calculation
Scott next argues that, when calculating his guideline range,
the Court double counted his prior convictions for first-degree
assault and a controlled substance offense. He asserts that the
Court not only used them to enhance his base offense level, but by
according each prior conviction three points in his criminal
15
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
history category calculation, also overstated his criminal history
(Dkt. No. 14-2 at 10-11).
U.S.S.G. § 2K2.1 of the guidelines provides the framework for
calculating the offense level for various offenses, including
possession
of
a
firearm
by
a
prohibited
person.
U.S.S.G.
§ 2K2.1(a)(2) establishes a base offense level of 24, based on the
aggravating factor of the defendant’s commission of the instant
offense “subsequent to sustaining at least two felony convictions
of
either
of
a
crime
of
violence
or
a
controlled
substance
offense.”
U.S.S.G. § 4A1.1, on the one hand, outlines the procedure for
calculating a defendant’s criminal history category. It employs a
graduated approach, assessing criminal history points for various
types of aggravating conduct. For instance, three points are
assessed for each “prior sentence of imprisonment” that “exceed[ed]
one year and one month,” U.S.S.G. § 4A1.1(a), while two points are
assessed for “each prior sentence of imprisonment of at least sixty
days not counted in (a).” U.S.S.G. § 4A1.1(b). One point is awarded
for “each prior sentence not counted in (a) or (b), up to a total
of 4 points for this subsection.” U.S.S.G. § 4A1.1(c).
16
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
Based on this, the Court calculated Scott’s base offense level
at a level 24 because of his prior felony convictions for firstdegree
assault
offense level
and
was
conspiracy
reduced
by
to
distribute
three
levels
cocaine.
for
Scott’s
acceptance of
responsibility, U.S.S.G. § 3E1.1, resulting in a total offense
level of 21 (Case No. 1:15CR31, Dkt. No. 25 at 3).
The
Court
adopted
the
PSR’s
calculation
that
Scott
had
nineteen criminal history points, resulting in a criminal history
category VI. Id. at 14. Six of those points stem from his felony
assault and controlled substance convictions. Id. at 6, 9.
“In a literal sense, [Scott’s prior convictions were] counted
twice - [they] were employed to enhance his offense level and
[determine]
his
criminal
history
category.”
United
States
v.
Crawford, 18 F.3d 1173, 1179 (4th Cir. 1994). But Scott has not,
and cannot, argue that the Court did not follow the plain language
of the guidelines as written. Rather, without citing any authority,
he contends the Court double counted these offenses.
“Double counting occurs when a provision of the [g]uidelines
is applied to increase punishment on the basis of a consideration
that had been accounted for by application of another [g]uideline
17
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
provision or by application of a statute.” United States v. Reevey,
364 F.3d 151, 158 (4th Cir. 2004). “The court presumes double
counting is proper where the [g]uidelines do not expressly prohibit
it.” United States v. Ward, 429 F. App’x 279, 280 (4th Cir. 2011)
(citing United States v. Hampton, 628 F.3d 654, 664 (4th Cir.
2010)). “We have repeatedly emphasized that the guidelines should
be applied ‘as written.’” Crawford, 18 F.3d at 1179 (quoting United
States v. Williams, 954 F.2d 204, 206 (4th Cir. 1992)).
Fatal to Scott’s argument is the fact that the guidelines do
not expressly prohibit use of his prior felony convictions to
enhance his base offense level and to assess six criminal history
points. Therefore, the Court correctly applied the guidelines as
written and accurately calculated Scott’s base offense level and
criminal history category. See, e.g., United States v. Hayes, 351
F. App’x 811, 813 (4th Cir. 2009) (A district court complies with
the
Sixth
Amendment
and
judicial
precedent
by
appropriately
treating the guideline range as advisory).
b.
Ground Six - Scott’s Sixth Amendment Rights
Scott also argues that Amendment 798 abolished the residual
clause of U.S.S.G. § 4B1.2(a) and, accordingly, his Sixth Amendment
18
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
rights were violated. In his view, had Amendment 798 been effective
at the time he was sentenced, the Court would have imposed a
reduced sentence (Dkt. No. 14-2 at 14-17).
As amended, U.S.S.G. § 4B1.2(a) now states:
(a) The term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for a
term exceeding one year, that –
(1) has an element the use, attempted use, or threatened
use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping,
aggravated assault, a forcible sex offense, robbery,
arson, extortion, or the use or unlawful possession of a
firearm described in 26 U.S.C. § 5845(a) or explosive
material as defined in 18 U.S.C. § 841(c).
Notably,
Amendment
798
modified
the
definition
of
“crime
of
violence” so that “a crime now constitutes one of violence if the
crime involved the ‘use of force’ or it is one of the enumerated
crimes found in subsection (2).” United States v. Riley, Criminal
No.: ELH-13-0608, 2020 WL 6784467 at *7 (D. Md. Nov. 18, 2020).
Fatal to Scott’s argument is the fact that the force clause of
U.S.S.G. § 4B1.2(a) was not changed by Amendment 798. As noted,
Maryland’s crime of first-degree assault is a categorical match
with the federal force clause and thus constitutes a crime of
violence.
Scott’s
Sixth
Amendment
19
rights
therefore
were
not
Case 1:18-cv-00113-IMK Document 39 Filed 07/30/21 Page 20 of 29 PageID #: 278
SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
violated; even if Amendment 798 had been in effect when he was
sentenced,
the
Court
would
not
have
imposed
a
sentence
of
imprisonment lower than the one he received in 2015.
4.
Ground Seven - 18 U.S.C. § 3742(a)
In ground seven, Scott argues that his sentence was imposed in
violation of 18 U.S.C. § 3742(a)(2), (a)(3), and (a)(4). 18 U.S.C.
§ 3742(a) states, in pertinent part:
A defendant may file a notice of appeal in the district
court for review of an otherwise final sentence if the
sentence . . . was imposed as a result of an incorrect
application of the sentencing guidelines; or is greater
than the sentence specified in the applicable guideline
range . . . or was imposed for an offense for which there
is no sentencing guideline and is plainly unreasonable.
18 U.S.C. 3742(a)(2)-(4).
Even when liberally construed, Scott’s argument fails. As it
has already explained, the Court did not incorrectly apply the
sentencing guidelines, impose a greater-than-specified sentence, or
sentence Scott for an offense for which there is no sentencing
guideline. Therefore, Scott’s allegations in ground seven are
without merit.
20
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
B.
Grounds
Counsel
Scott
Two,
Five,
asserts
and
three
Eight:
Ineffective
grounds
related
Assistance
to
the
of
alleged
ineffectiveness of his counsel both at sentencing and also on
appeal. To succeed on an ineffective assistance of counsel claim,
a “petitioner must show, by a preponderance of the evidence, that
(1) ‘counsel’s performance was deficient,’ and (2) ‘the deficient
performance prejudiced the defense.’” Beyle v. United States, 269
F. Supp. 3d. 716, 726 (E.D. Va. 2017) (quoting Strickland v.
Washington, 466 U.S. 668, 687 (1984)); see also Hill v. Lockhart,
474 U.S. 52, 58-59 (1985) (holding that “the two-part [Strickland
standard]
applies
to
challenges
to
guilty
pleas
based
on
ineffective assistance of counsel.”).
To satisfy the first prong, a petitioner must show that
counsel’s
conduct
reasonableness
Strickland,
466
.
“fell
.
.
U.S.
below
under
at
an
objective
prevailing
687-88.
But
standard
professional
“[j]udicial
of
norms.”
scrutiny
of
counsel’s performance must be highly deferential” because “[i]t is
all
too
tempting
for
a
defendant
to
second-guess
counsel’s
assistance after conviction or adverse sentence, and it is all too
21
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable.” Id. at 689. “Because of the difficulties
inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance.” Id.
To satisfy the second prong, in the context of a guilty plea,
a petitioner “must show there is a reasonable probability that, but
for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill, 474 U.S. at 59. “The
[p]etitioner must ‘satisfy both prongs, and a failure of proof on
either prong
ends
the
matter.’”
Beyle,
269 F.Supp.3d
at
726
(quoting United States v. Roane, 378 F.3d 382, 404 (4th Cir.
2004)).
1.
Grounds Two and Five: Ineffective Assistance of Counsel
at Sentencing
Scott’s assertions about his counsel’s deficient performance
at his plea and sentencing are contradicted by the record. Absent
clear and convincing evidence to the contrary, a defendant is bound
by the representations he makes under oath during a plea colloquy
22
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
or at sentencing. See United States v. Lemaster, 403 F.3d 216, 222
(4th Cir. 2005); Blackledge v. Allison, 431 U.S. 63, 74-75, 97
S.Ct. 1621, 1629-30 (1977)).
Scott neither argues—nor suggests—that the representations he
made during his plea and sentencing were untruthful or involuntary.
He
therefore
is
rightly
bound
by
his
sworn
statements.
The
transcript from his plea hearing confirms that his attorney had
reviewed the plea agreement with him before he signed it (Case No.
1:15CR31, Dkt. No. 36 at 15:8-12). Additionally, at sentencing,
Scott acknowledged he had met with his attorney to review the
information in the PSR and was aware that counsel not only had
filed numerous objections to the PSR but a Sentencing Memorandum as
well (Id., Dkt. No. 37 at 5:25-6:11). These statements bind Scott
unless he can show clear and convincing evidence to the contrary,
which he has failed to do.
Moreover, Scott’s contention that his attorney should have
objected to the guideline range as calculated in the PSR lacks
merit.
See
assessment
Strickland,
of
counsel’s
466
U.S.
conduct
at
689
requires
(noting
an
that
a
fair
evaluation
from
counsel’s perspective at the time); see also United States v.
23
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
Kilmer, 167 F.3d 889, 893 (5th Cir. 1999) (holding that “[a]n
attorney’s failure to raise a meritless argument [ ] cannot form
the
basis
of
a
successful
ineffective
assistance
of
counsel
claim[.]”). Scott’s criminal history supported an increase in his
base offense level based on his prior convictions for a crime of
violence and a controlled substance offense, and established a
criminal history category of VI (Case No. 1:15CR31, Dkt. No. 25 at
5-13); see also U.S.S.G. §§ 2K2.1(a)(2), 4A1.1. The Court correctly
calculated his guideline range according to these parameters, and
any objection regarding Scott’s “crime of violence” base-offense
level enhancement and subsequent sentencing guideline range would
have been meritless. Therefore, Scott’s contentions cannot form the
basis of a successful claim of ineffective assistance of counsel.
Even if Scott’s attorney’s performance in this regard had been
deficient, Scott has failed to allege–let alone establish–that
there is a “reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going
to trial.” Hill, 474 U.S. at 59. Indeed, in his brief, Scott states
that “the plea agreement and the court both agreed that Petitioner
would have been sentenced to the low end of the Guidelines, in this
24
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
case 51 months, without the enhancement, there is a reasonable
probability that the outcome would have been different had the
court been fully briefed of its options” (Dkt. No. 14-2 at 13).
As this argument makes clear, Scott focuses his argument on
his attorney’s alleged failure to inform the Court about the impact
of Johnson on his case, not his intent to go to trial. Therefore,
Scott
has
failed
to
demonstrate
prejudice
under
the
second
Strickland prong, and his arguments in grounds two and five are
meritless.
2.
Ground Eight: Ineffective Assistance of Appellate Counsel
Finally,
Scott
alleges
his
appellate
counsel
rendered
ineffective assistance by failing to file a reply brief. As the
Supreme Court noted in Jones v. Barnes, 463 U.S. 745, 103 S.Ct.
3308 (1983):
There can hardly be any question about the importance of
having the appellate advocate examine the record with a
view to selecting the most promising issues for review.
. . . A brief that raises every colorable issue runs the
risk of burying good arguments–those that, in the words
of the great advocate John W. Davis, “go for the
jugular,”– in a verbal mound made up of strong and weak
contentions.
25
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
Id. at 752, 53, 103 S.Ct. 3308 (quoting Davis, The Argument of an
Appeal, 26 ABAJ 895, 897 (1940)). See also Kilmer, 167 F.3d at 893.
Here, Scott asserts that his attorney “failed to raise . . .
issues on appeal” and by deciding not to reply to the Government’s
argument regarding whether his assault conviction qualified as a
predicate offense for purposes of the enhancement (Dkt. No. 14 at
12).
Counsel is not required to file reply memoranda. Scott’s
argument that his prior assault conviction is not a crime of
violence is wide of the mark, any argument in this vein advanced by
appellate counsel would have been futile. Therefore, Scott cannot
prevail
on
his
claim
of
ineffective
assistance
of
appellate
counsel.
IV. MOTION FOR EVIDENTIARY HEARING
Under § 2255, a court must grant a hearing to “determine the
issues and make findings of fact and conclusions of law” unless it
can
be
“conclusively
shown”
through
the
case
record
that
a
petitioner is not entitled to relief. 28 U.S.C. § 2255(b). Scott
has not raised any material issues that remain in dispute and
therefore cannot demonstrate the need for an evidentiary hearing.
26
Case 1:18-cv-00113-IMK Document 39 Filed 07/30/21 Page 27 of 29 PageID #: 285
SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
United States
v.
Witherspoon, 231
F.3d
923 (4th
Cir.
2000);
McCarver v. Lee, 221 F.3d 583, 598 (4th Cir. 2000). Moreover, an
evidentiary hearing is not necessary when a court can properly
conclude without further production of evidence that an ineffective
assistance of counsel claim is meritless. Strickland, 466 U.S. at
700. As is evident from the discussion above, Scott’s allegations
of ineffective assistance of counsel are entirely without merit,
and an evidentiary hearing would not cure any deficiencies in his
arguments.
V. CONCLUSION
For all the reasons discussed, the Court DENIES Scott’s
amended § 2255 motion, (dkt. no. 14), DENIES AS MOOT the motion for
evidentiary hearing, (dkt. no. 35), and DISMISSES this case WITH
PREJUDICE.
It is so ORDERED.
The Clerk SHALL enter a separate judgment order and transmit
copies of both orders to the pro se petitioner by certified mail,
return-receipt-requested, and to counsel of record by electronic
27
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SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
means. The Court DIRECTS the Clerk to strike this case from the
Court’s active docket.
VI. CERTIFICATE OF APPEALABILITY
Pursuant
to
Rule
11(a)
of
the
Rules
Governing
§
2255
Proceedings, the district court “must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant” in such cases. If the court denies the certificate, “the
parties may not appeal the denial but may seek a certificate from
the court of appeals under Federal Rule of Appellate Procedure 22.”
28 U.S.C. § 2255(a).
The Court finds it inappropriate to issue a certificate of
appealability
in
this
matter
because
Scott
has
not
made
a
“substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by
demonstrating
that
reasonable
jurists
would
find
that
any
assessment of the constitutional claims by the district court is
debatable or wrong and that any dispositive procedural ruling by
the
district
court
is
likewise
debatable.
See
Miller–El
v.
Cockrell, 537 U.S. 322, 336–38 (2003). Upon review of the record,
28
Case 1:18-cv-00113-IMK Document 39 Filed 07/30/21 Page 29 of 29 PageID #: 287
SCOTT V. UNITED STATES
1:15CR31
1:18CV113
MEMORANDUM OPINION AND ORDER DENYING
PETITIONER’S AMENDED § 2255 MOTION [DKT. NO.
14], DENYING AS MOOT PETITIONER’S MOTION FOR EVIDENTIARY
HEARING [DKT. NO. 35], AND DISMISSING CASE WITH PREJUDICE
the Court concludes that Scott has failed to make the requisite
showing
and,
therefore,
DENIES
issuing
a
certificate
of
appealability.
DATED: July 30, 2021
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
29
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