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United States v. Scott

United States District Court, M.D. Louisiana

August 10, 2017

UNITED STATES
v.
CEDRICK SCOTT

          ORDER

          JAMES J. BRADY UNITED STATES DISTRICT JUDGE

         RULING

         The following case is before the Court on a Motion to Vacate Pursuant 28 U.S.C. § 2255 (Doc. 145) brought by the Petitioner, Cedrick Scott. On April 26, 2016, Mr. Scott filed a Motion for Authorization to File a Successive 28 U.S.C. § 2255 petition. On August 1, 2016, the Fifth Circuit granted the Motion, and transferred the case to this Court for filing as a § 2255 Motion.[1]On March 3, 2017, Mr. Scott filed an Unopposed Motion for Summary Disposition of his Motion to Vacate Pursuant to 28 U.S.C. § 2255 (Doc. 148). After reviewing Mr. Scott's brief, and because the Motion was unopposed, the Court summarily granted the Motion and ordered a presentence investigation and a resentencing hearing.[2] However, upon further review of the facts of this case and the holding of Johnson v. United States, [3] the Court finds that it committed an error in granting the Motion to Vacate Mr. Scott's Sentence. Accordingly, the Court's Order (Doc. 149) is VACATED, and the Petitioner's Motion to Vacate his Sentence (Docs. 145 & 148) is DENIED.

         I. Legal Framework

         18 U.S.C. § 922(g)(1) prohibits any person who has been convicted of a felony from possession a firearm. On its own, this crime is punishable by a maximum of 10 years' imprisonment.[4] However, the Armed Career Criminal Act (“ACCA”) mandates a minimum 15 year sentence for a defendant who illegally possesses a firearm in violation of 18 U.S.C. § 922(g) and “has three previous convictions for a violent felony or a serious drug offense.”[5]

         A serious drug offense is an offense under federal law for which a maximum term of imprisonment of ten years or more is prescribed by law, or an offense under state law involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance, for which a maximum term of imprisonment of ten years or more is prescribed by law.[6]Violent felony is defined as: “any crime punishable by imprisonment for a term of one year” that meets one of three requirements: (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another” (“force clause”); (2) “is burglary, arson, or extortion, [or] involves the use of explosives” (“enumerated offense clause”); or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another” (“the residual clause”).[7] In Johnson, the Supreme Court declared the last clause unconstitutionally vague, [8] and in Welch v. United States, the Court held that this ruling applies retroactively.[9]

         To prevail on a motion for resentencing under Johnson, a petitioner must (1) demonstrate that the sentencing court committed a constitutional error and (2) show that the error was prejudicial.[10] The petitioner can satisfy the first requirement by showing that the sentencing court may have relied on the residual clause during sentencing.[11] To satisfy the second requirement, a petitioner needs to show that absent the residual clause, he no longer has three convictions for violent felonies.[12]

         II. Background

         In December 1999, Mr. 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).[13]Judge Polozola sentenced the Petitioner to 300 months on Counts 1 and 2 to be served concurrently, and a term of 60 months on Count 3 to be served consecutively.[14] Mr. Scott was subject to the 15-year mandatory minimum under the 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 distribute cocaine under Louisiana law.[15] The Presentence Report (“PSR”)[16], the objections to the PSR[17], and the sentencing transcript[18] all make clear that Judge Polozola, at least for the simple burglary conviction, was relying on the enumerated clause rather than the residual clause.

         Despite the fact that his Motion to Vacate is unopposed, for the reasons explained below, the Court is bound to deny this Motion.[19]

         III. Analysis

         In his Unopposed Motion to Vacate, the Petitioner attempts to argue that Johnson applies to his case as follows:

The Supreme Court's decisions in Taylor v. United States, et al., make clear that the Louisiana Simple Burglary statute is broader than generic burglary and, thus, cannot be considered a violent crime under the “enumerated clause”…Since the Louisiana Simple Burglary statute does not qualify as a “violent felony” under the enumerated clause, the residual or “default” clause of the Armed Career Criminal Act would have provided the only avenue for Louisiana Simple Burglary to serve as a predicate offense under the ACCA. After the Supreme Court struck down the residual clause in Johnson…Mr. Scott can no longer be subject to the Armed Career Criminal penalties and his enhanced sentence under the Armed Career Criminal Act cannot stand.[20]

         The Petitioner's argument appears to proceed as follows: (1) based on the current understanding of the law, especially the case of Mathis v. United States[21], Mr. Scott's conviction for Louisiana simple burglary could not have been a violent felony under the enumerated clause; (2) therefore, simple burglary could only have been counted as a predicate offense through reliance on the now-void residual clause; (3) accordingly, Johnson applies to Mr. Scott's case. This argument is defective because it rearranges the steps that constitute a proper Johnson inquiry.

         Under a proper Johnson inquiry the Court must first analyze whether the sentencing court relied on the residual clause. “[T]he vast majority of the district courts that have considered the issue have decided that a petitioner meets his burden of proving constitutional error if the record is unclear and the petitioner shows that the sentencing court may have relied on the residual clause in calculating the sentence.”[22] Then, and only then, can a court move to the second step to determine whether, even without the residual clause, the offense would still count as a predicate offense for enhancement purposes: “Once Johnson permits a Defendant to collaterally ...


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