United States District Court, D. Maryland
RICHARD D. BENNETT, District Judge.
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 sentence.
Petitioner's Designation as an Armed Career Criminal was
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 ...