United States District Court, D. Maryland
L. Hollander United States District Judge.
Memorandum resolves a motion to vacate under 28 U.S.C. §
2255, filed by the self-represented Petitioner, Devon Scott,
on March 10, 2016. ECF 35 (the “Petition”). Three
months later, on June 14, 2016, Petitioner filed a
supplemental motion to vacate (ECF 39, “Supplemental
Petition”), based on Johnson v. United States,
__U.S.__, 135 S.Ct. 2551 (2015).
the United States moved for a stay (ECF 37), because of
pending court cases that, upon disposition, might provide
clarity to the claims. The Court granted the stay.
See ECF 38 (Order of March 14, 2016). However, by
Order of November 22, 2017, I directed the government to
respond to the Petition.
government responded by way of a motion to dismiss. ECF 43.
The Court subsequently received correspondence from
Petitioner on December 12, 2017. ECF 45. By letter of the
same date, I notified Petitioner of his right to file a reply
to the government's motion to dismiss. See ECF
46. No. reply was filed.
28 U.S.C. § 2255(b), the Court must hold a hearing
“[u]nless the motion and the files and records
conclusively show that the prisoner is entitled to no relief
. . . .” See, e.g., United States
v. White, 366 F.3d 291, 302 (4th Cir. 2004). This is
such a case. No. hearing is necessary.
reasons stated below, I shall dismiss the Petition and deny
the Supplemental Petition. A Certificate of Appealability
shall not issue.
Scott, Petitioner, entered a plea of guilty on November 21,
2012, to the offense of possession of a firearm by a felon,
in violation of 18 U.S.C. § 922(c). ECF 21. The plea was
entered pursuant to a plea agreement. ECF 22. In particular,
pursuant to ¶ 10 of the Plea Agreement, the guilty plea
was entered under Fed. R. Crim. P. 11(c)(1)(C), by which the
parties stipulated to a sentence of 92 months'
imprisonment as the appropriate disposition of the case.
sentencing on March 19, 2013, the Court reviewed the advisory
sentencing guideline calculations contained in the
Presentence Report. ECF 25 (“PSR”). In addition,
the Court reviewed the sentencing memorandum submitted by
defense counsel. See ECF 26. The Court agreed with
the advisory sentencing guideline calculations contained in
the PSR, which were consistent with the calculations to which
the parties had agreed, as set forth in ¶ 6 of the Plea
Agreement. See ECF 22.
Petitioner had a base offense level of 20, because he
committed the underlying offense after having sustained one
felony conviction for a crime of violence. See ECF
25, ¶ 16. That crime was an armed robbery. See
ECF 25, ¶¶ 48-51. Two levels were added because the
firearm at issue here was stolen, and four more levels were
added because the firearm was possessed in connection with a
robbery. ECF 25, ¶¶ 17, 18. After deductions for
acceptance of responsibility (id. ¶¶ 24,
25), defendant was found to have a final offense level of 23,
with 13 criminal history points,  and a criminal history
category of VI. See ECF 25, ¶¶ 52-54. The
defendant's advisory sentencing guidelines range called
for a period of incarceration of 92 to 115 months.
with the terms of the C plea, the Court sentenced Petitioner
to a term of imprisonment of 92 months. See ECF 29
(Judgment). No. appeal was filed.
three years later, on March 10, 2016, Scott filed his
Petition under 28 U.S.C. § 2255. ECF 35. In the
Petition, he claims that his sentence was unlawfully enhanced
based on a prior robbery conviction, the guidelines were
miscalculated, and his attorney provided ineffective
assistance for failing to object to the enhancement. On June
14, 2016, the Federal Public Defender filed a Supplemental
Petition, asserting that the sentencing enhancement for a
prior “crime of violence” conviction was
unconstitutional in light of Johnson v. United
States, __U.S.__, 135 S.Ct. 2551 (2015). ECF 39.
2017, the Supreme Court decided Beckles v. United
States, 137 S.Ct. 886 (2017). Thereafter, the Federal
Public Defender moved to withdraw as counsel. ECF 40. The
Court granted that motion. ECF 41. The government's
motion to dismiss followed on November 30, 2017. ECF 42.