United States v. Scott
| Decision Date | 26 May 2020 |
| Docket Number | Also 2:16-cv-466,Case No. 2:13-cr-223 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY SCOTT, Defendant. |
| Court | U.S. District Court — Southern District of Ohio |
This criminal case is before the Court on Defendant Anthony Scott's Motion for Relief from Judgment (ECF No. 86). The Magistrate Judge reference in the case has recently been transferred to the undersigned to help balance the Magistrate Judge workload in this District (ECF No. 89). Post-judgment motions in § 2255 cases are referred gto the Magistrate Judge under 28 U.S.C. § 636(b)(3) for a report and recommendations.
Anthony Scott was indicted by a grand jury of this District on October 1, 2013, on charges of possession of heroin with intent to distribute it (Counts 1, 2, 3, and 4); and possession of a firearm in furtherance of drug trafficking (Count 5)(Indictment, ECF No. 10). On November 12, 2013, Scott entered into a Plea Agreement with the United States in which he acknowledged "the offense of conviction establishes that the death of an individual resulted from the use of the heroin that was distributed, the defendant 's base offense level is 38" and he "possessed a dangerous weapon (a firearm) at the time of and in furtherance of the commission of Count Four of the Indictment and he will receive a 2 level enhancement over and above his base offense level." (ECF No. 19, PageID 38).
Thereafter Scott obtained new counsel and entered into a new Plea Agreement (ECF No. 34). The acknowledgements quoted from the prior Plea Agreement did not change. Id. at PageID 65. On May 29, 2014, having reviewed a presentence investigation report and the parties' sentencing memoranda, Judge Frost sentenced Scott to twenty years imprisonment (ECF Nos. 45 and 46).
Scott appealed and the Sixth Circuit affirmed. United States v. Scott, Case No. 14-3521 (6th Cir. Mar. 2, 2015)(unpublished; slip opinion at ECF No. 58), cert. denied Case No. 14-9351 (May 18, 2015(Notice at ECF No. 61).
Upon Judge Frost's retirement, the case was reassigned to Judge Sargus. Scott filed his Motion to Vacate under 28 U.S.C. § 2255 on May 25, 2016 (ECF No. 64). Magistrate Judge Elizabeth Preston Deavers recommended the Motion be denied (ECF No. 78) and Chief Judge Sargus adopted that recommendation over Scott's Objections (ECF No. 82). Scott again appealed, but the Sixth Circuit denied him a certificate of appealability on August 16, 2018, (ECF No. 85) and the instant Motion followed on February 1, 2019.
Scott brings his Motion under Fed.R.Civ.P. 60(b)(6). He claims there is a fundamental defect in the prior proceeding, to wit, a failure to properly construe his pro se pleading in accord with Erickson v. Pardus, 551 U.S. 89 (2007). He asserts:
Primarily, Petitioner attempted to challenge the Government's failure to prove that Robert Ruffin's1 death was due to him allegedly providing the herion [sic] that contributed to Mr. Ruffin' s death. However, Petitioner's argument was reframed as an error by his filing of a judicial notice and trying to add a new claim under the Confrontation Clause as the Court noted that the Petitioner waived his right to challenge the enhancement of his recommended guideline sentence under the "explicit terms of his negotiated Plea Agreement.
(Motion, ECF No. 86, PageID 322.)
Next he claims his guilty plea was not knowing, intelligent, and voluntary because his attorney did not explain to him the but-for causality requirement of Burrage v. United States, 571 U.S. 204 (2014). Id. at PageID 322. "Specifically," he says, Id.
In a case where death results enhancement in 21 U.S.C. § 841(b) is applied, this is an element that must be submitted to a jury and found beyond a reasonable doubt or admitted by the defendant. Here, the Petitioner has never admitted that heroin that he distributed caused Mr. Ruffin' s death. Notably, Petitioner denied such during the process of plea colloquy.
Id. at PageID 324. Scott then broadens his argument to claim that Ruffing did not actually die of a heroin overdose and attaches the Franklin County Coroner's Report to attempt to prove that. Id. at PageID 324-25 and attached PageID 330-37.
Id.. at PageID 326.
In Burrage, supra, the defendant had been convicted by a jury of unlawfully distributing heroin which caused the death of another person, in violation of 21 U.S.C.S. § 841(b)(1)(C), and was sentenced to twenty years' imprisonment, the mandatory minimum penalty for that violation. Burrage sold heroin to another person who used the heroin and other drugs and died the following day. After expert witnesses testified at trial that it was impossible to determine if the decedent died from the heroin use alone, the district court instructed the jury that it could find defendant guilty of violating 21 U.S.C.S. § 841(b)(1)(C) with the "death results" enhancement if it found that the heroin he distributed was a contributing cause of the decedent's death. The Supreme Court held that where use of a drug distributed by a defendant was not an independently sufficient cause of a victim's death or serious bodily injury, the defendant could not be liable for the death results penalty enhancement under § 841(b)(1)(C) unless such use was a "but-for" cause of the death or serious injury.
Since causation is an element of the "death results" enhancement under § 841(b)(1)(C), the Government would have to plead and then prove to a jury beyond a reasonable doubt that the drugs a defendant sold were a but-for cause of death. Burrage, 571 U.S. at 210. Burrage was decided January 27, 2014, after Scott entered his plea but before he was sentenced. If he had been tried on an 841(b)(1)(C) count with a "death results" enhancement and the jury had been instructed that contributing cause was sufficient, then Burrage would have been applicable on appeal.
But Scott was never charged under 21 U.S.C. § 841(b)(1)(C) with a "death results" enhancement. The Indictment does not include such an enhancement and Scott did not plead guilty to a "death results" enhancement. Therefore Burrage has no application to the case and it cannot have been ineffective assistance of trial counsel for Scott's trial attorney not to "use" Burrage in defense or to explain to Scott the impact of Burrage on this case.
Under § 841(b)(1)(C) with the death results enhancement, the mandatory minimum sentence is twenty years; without the death results enhancement, the maximum sentence is twenty years.
Both Plea Agreements Scott signed, having obtained new counsel before the second one, provide:
By entering into the Plea Agreement, Scott not only avoided a "death results" enhancement under the statute. but also the possibility that the Government would file an Information to prove his prior drug convictions, which would have elevated the base offense level to 43.
At the plea colloquy hearing on February 20, 2014, Scott acknowledged that his attorney, Mr. Sanderson, had fully explained the plea agreement to him in a way his prior counsel had not (Transcript, ECF No. 56, PageID 132-33). He acknowledged his understanding that the maximum penalty was twenty years' imprisonment. Id. at PageID 134. The Assistant United States Attorney read a statement of facts supporting the conviction:
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