United States District Court, D. Maryland
Richard D. Bennett United States District
pro se Petitioner Ronald Scott
("Petitioner" or "Scott") has filed a
Motion to Vacate, Set Aside or Correct Sentence, pursuant to
28 U.S.C. § 2255 (ECF No. 54). Petitioner contends that
Judge Andre M. Davis, formerly of this Court and the
sentencing judge in this case, improperly enhanced his
sentence under the Armed Career Criminal Act
("ACCA"), 18 U.S.C. §924(e), in light of the
United States Supreme Court’s intervening decision in
Descamps v. United States, 133 S.Ct. 2276 (2013).
pending before this Court are Petitioner’s Motion to
Vacate (ECF No. 54) and Motions to Appoint Counsel (ECF Nos.
66 and 68). This Court has reviewed the parties’
submissions and finds that no hearing is necessary.
See Local Rule 105.6 (D. Md. 2014). For the
following reasons, Petitioner’s Motion to Vacate, Set
Aside or Correct Sentence (ECF No. 54) is DENIED.
Additionally, Petitioner’s Motions to Appoint Counsel
(ECF Nos. 66 and 68) are also DENIED.
pleading guilty to one count of possession of a firearm by a
felon in violation of 18 U.S.C. § 922(g)(1), Petitioner
Ronald Scott ("Petitioner" or "Scott")
was sentenced by Judge Andre M. Davis, formerly of this
Court. At sentencing, Judge Davis adopted the
findings in the Presentence Report, which indicated that
Scott had several Maryland state convictions predating his
plea, including 1993 and 1995 convictions for distributing
cocaine, a 1999 conviction for second degree assault, and a
2004 conviction for possession with the intent to distribute
cocaine. Presentence Report ¶¶ 30-36.
Accordingly, Judge Davis sentenced Scott to the mandatory
minimum sentence of 180 months (15 years) imprisonment on the
basis that he qualified as an armed career criminal pursuant
to 18 U.S.C. § 924(e).
appealed this Court’s Judgment to the United States
Court of Appeals for the Fourth Circuit, contending that he
was seized in violation of the Fourth Amendment to the United
States Constitution and that this Court improperly denied his
motion to suppress evidence. United States v. Scott,
358 Fed. App’x 392 (4th Cir. 2010). The Fourth Circuit
affirmed Petitioner’s conviction and sentence.
Id. Subsequently, Petitioner filed the pending
Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 54).
filed pro se are "liberally construed" and
are "held to less stringent standards than formal
pleadings drafted by lawyers." Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (citation omitted). Under
28 U.S.C. § 2255, a prisoner in custody may seek to
vacate, set aside or correct his sentence where: (1)
"the sentence was imposed in violation of the
Constitution or laws of the United States;" (2) the
court lacked "jurisdiction to impose the sentence; . . .
[(3)] the sentence was in excess of the maximum authorized by
law; or [(4) the sentence] is otherwise subject to a
collateral attack." 28 U.S.C. § 2255.
Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e) requires a minimum fifteen year sentence for
individuals convicted under 18 U.S.C. § 922(g) who have
had three previous convictions for violent felonies or
serious drug offenses. 18 U.S.C. § 924(e)(1). Here,
Petitioner objects that he was improperly designated an Armed
Career Criminal because his 1997 second degree assault
conviction is not a "violent felony" ACCA.
Petitioner argues that the United States Supreme
Court’s decision in Descamps v. United States,
133 S.Ct. 2276 (2013) and the opinion of the United States
Court of Appeals for the Fourth Circuit in United States
v. Royal, 731 F.3d 333 (4th Cir. 2013) preclude this
Court from using either the "modified categorical
approach" or the "traditional categorical
approach" to determine that his 1997 second degree
assault conviction qualifies as a predicate felony for ACCA
purposes. He contends that both cases apply retroactively to
cases on collateral review, entitling him to relief from his
Petitioner’s Designation as an Armed Career Criminal
Descamps v. United States, the Supreme Court held
that sentencing courts may only apply a "modified
categorical approach" in enhancing an individual’s
sentence in a small set of circumstances. Descamps,
133 S.Ct. at 2279-80. First, the prior conviction at issue
must arise from a "divisible statute", that is, a
statute which sets out one or more elements of an offense in
the alternative. Id. at 2279. Then, after
determining that the predicate conviction arises from a
divisible statute, courts may consult a limited class of
documents to determine which alternative formed the basis of
the defendant’s prior conviction. Id. That
prior conviction can only serve as a predicate offense for
ACCA purposes if the elements of the crime used to convict
the defendant match, or are narrower than, those of the
generic offense. Id.
Descamps, the United States Court of Appeals for the
Fourth Circuit held in United States v. Royal that
Maryland’s second degree assault offense, for which
Petitioner was convicted in 1997, could not be a predicate
offense under the ACCA because it did not comport with the
ACCA’s definition of a "violent felony".
Royal, 731 F.3d at 341-342. Applying the traditional
categorical approach, which looks "only to the statutory
definition of the state crime and the fact of conviction to
determine whether the conduct criminalized by the statute,
including the most innocent conduct, qualifies as a
‘crime of violence’, " the Fourth Circuit
held that because Maryland’s second degree assault
offense "reaches any unlawful touching, whether violent
or nonviolent and no matter how slight, " it could not
be considered a predicate "violent felony" under 18
U.S.C. §924(e)(2)(B). Id. at 342.
contention that his sentence was improperly imposed, in light
of Descamps and Royal, is fundamentally
flawed. First, Judge Davis did not indicate at sentencing
that he relied in any way on the modified categorical
approach to enhance Petitioner’s sentence. Sentencing
Transc., ECF No. 65-1. Additionally, at Petitioner’s
sentencing hearing neither party objected that the elements
of Petitioner’s prior convictions failed to qualify
those convictions as predicate felonies for ACCA purposes.
Id. Furthermore, even assuming arguendo
that the second degree assault charge was rendered
inapplicable under Royal, the ACCA would still
require at least a fifteen year sentence because Petitioner
had three "serious drug offenses". The ACCA
requires a minimum fifteen year sentence for individuals
convicted under §922(g) who have had three previous
convictions for violent felonies or serious drug
offenses. 18 U.S.C. § 922(e)(1) (emphasis added). A
"serious drug offense" under the ACCA includes
offenses under state law involving the distribution of, or
intent to distribute, a controlled substance for which a
maximum term of imprisonment of ten years or more is
prescribed by law. 18 U.S.C. § 922(e)(1)(A)(ii).
Petitioner’s 1993, 1995, and 2005 cocaine distribution
convictions meet these requirements, as they each carry a
maximum penalty of twenty years ...