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United States v. Scott

United States District Court, M.D. Louisiana

February 23, 1989




         Before the Court is Cedrick Scott's Motion to Alter or Amend Judgment Denying Petition for Writ of Habeas Corpus brought pursuant to Rule 59(e) of the Federal Rules of Civil Procedure.[1]The Government has filed a Response and does not oppose Scott's Motion.[2] Petitioner has also filed a Supplemental Memorandum in Support of his Motion.[3] For the following reasons, the Motion shall be granted.


         In December 1999, Scott pled guilty to one count in violation of 18 U.S.C. § 922(g)(1) for possession of a firearm by a convicted felon (Count 1), one count in violation of 21 U.S.C. § 841(a)(1) for possession with intent to distribute cocaine base (Count 2), and one count in violation of 18 U.S.C. § 924(c)(1) for carrying a firearm in relation to a drug trafficking crime (Count 3).[4]Judge Polozola sentenced Scott to a term of 300 months on Count 1 and 240 months on Count 2 to be served concurrently, and to a term of 60 months on Count 3 to be served consecutively on Counts 1 and 2.[5] Petitioner was subject to the fifteen-year mandatory minimum sentence under the Armed Career Criminal Act (“ACCA”) based on the following prior convictions: one count of simple burglary under Louisiana law; one count of attempted manslaughter under Louisiana law; and one count of possession with intent to distributed cocaine under Louisiana law.[6]

         On July 5, 2016, Petitioner filed a Motion for Authorization to File a Successive 28 U.S.C. § 2255 Petition.[7] The Fifth Circuit granted Scott's Motion on August 1, 2016, and transferred the motion and related pleadings to this Court for filing as a Section 2255 motion.[8] On March 3, 2017, Scott, joined by the Government, moved this Court to grant his Section 2255 Motion to Vacate.[9]Relying upon the United States Supreme Court's decision, Johnson v. United States, [10] the parties agreed that Scott no longer qualified as an armed career criminal.[11] On March 6, 2017, this Court granted Petitioner's Motion to Vacate.[12] However, on August 10, 2017, the Court issued a Ruling, sua sponte, which vacated its March 6, 2017 Order, in which the Court denied the Petitioner's Motion to Vacate his sentence.[13] In its Ruling, the Court concluded that there was no residual clause error in this matter that would have given the Petitioner any relief under Johnson.[14]

         Petitioner now moves the Court to reconsider its August 10, 2017 Ruling. The Government agrees with Scott's position and requests that the Court grant Petitioner's Motion and vacate his sentence.


         A. RULE 59(e)

         Pursuant to Rule 59(e), a “motion to alter or amend a judgment must be filed no later than 28 days after the entry of the judgment."[15] The Federal Rules of Civil Procedure are applicable to federal habeas practice only “to the extent that they are not inconsistent with any statutory provisions or these rules.”[16] In order to prevail on a Rule 59(e) motion to alter or amend judgment, the movant must show (1) an intervening change in controlling law; (2) the availability of new evidence no previously available; or (3) a manifest error of law or fact. Essentially, a Rule 59(e) motion “calls into question the correctness of a judgment.”[17] Courts have “considerable discretion” to grant or deny a Rule 59(e) motion.[18] Overall, “[r]econsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly.”[19]

         B. Armed Career Criminal Act

         The Armed Career Criminal Act (“ACCA”) provides in pertinent part as follows:

[T]he term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-
(i) has an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, [or] involves the use of explosives [enumerated offense clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another [residual clause]; . . . .[20]

         In Johnson v. United States, the Supreme Court declared the residual clause of the ACCA to be unconstitutionally vague, [21] and in Welch v. United States, the Court held that Johnson applies retroactively on collateral review.[22]

         III. ANALYSIS

         Petitioner asserts, and the Government concurs, that this Court made a manifest error of fact when it found that “Judge Polozola was clear that he was relying on the enumerated clause” in imposing the ACCA sentencing enhancement.[23] Based upon this erroneous factual finding, the Petitioner further asserts that the Court made a manifestly erroneous legal finding by concluding that there was no residual clause error.

         The Court has reviewed the transcript from Petitioner's sentencing, the Presentence Investigation Report (PSR), the Objections to the PSR, and the Addendum to the PSR.[24]According to his PSR, in regard to his simple burglary conviction, Scott “was originally charged and billed with simple burglary of an inhabited dwelling. On the date of Scott's plea, the bill of information was amended to simple burglary. However, this document charges that he committed the offense of simple burglary, in that, he burglarized a dwelling, to wit: a residence belonging to Jerry Johnson.”[25] As a result, the Probation Officer determined that Scott had three prior convictions for a “violent felony” or a “serious drug offense, ” and therefore, qualified as an armed career criminal. The PSR does not reference which clause defining “violent felony” under 18 U.S.C. § 924(e)(2)(B) was relied upon in concluding that simple burglary qualified as a “violent felony.”

         In Objection No. 2, Scott clearly disagreed with the PSR on whether his guilty plea of simple burglary qualified as “a crime of violence for purposes of enhancement under 18 U.S.C. § 924(e).”[26] He argued that while simple burglary of an inhabited dwelling “involves the potential risk of physical injury . . . simple burglary lacks the element of habitation that gives risk to this potential.”[27] Notably, in this particular Objection, Scott quoted the express language of the residual clause of the ACCA.

         In response to Scott's argument regarding the residual clause language, the ...

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