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Scott v. United States

United States District Court, D. Maryland

December 11, 2018

DEVON SCOTT, Petitioner,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM

          Ellen L. Hollander United States District Judge.

         This 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).[1]

         Initially, 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.

         The 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.

         Under 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.

         For the reasons stated below, I shall dismiss the Petition and deny the Supplemental Petition. A Certificate of Appealability shall not issue.

         I. Background

         Devon 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.

         At 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.

         Specifically, 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, [2] 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.

         Consistent 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.

         Some 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.

         In 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.

         II. ...


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