United States v. Scott

Decision Date22 February 2021
Docket NumberCRIMINAL NO. 1:09-CR-72
Citation521 F.Supp.3d 538
CourtU.S. District Court — Middle District of Pennsylvania
Parties UNITED STATES of America v. Donald A. SCOTT, Defendant

Dennis C. Pfannenschmidt (T), Michael A. Consiglio, Eric Pfisterer, U.S. Attorney's Office, Harrisburg, PA, for United States of America.

MEMORANDUM

Christopher C. Conner, United States District Judge

A jury convicted defendant Donald A. Scott of multiple offenses, including four counts of possessing, using, and carrying a firearm in furtherance of Hobbs Act robbery and carjacking in violation of 18 U.S.C. § 924(c)(1)(A). Scott moves pursuant to 28 U.S.C. § 2255 to vacate his Section 924(c) convictions based on the United States Supreme Court's decision in United States v. Davis, 588 U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019).

I. Factual Background & Procedural History

In February 2009, a federal grand jury returned a 15-count indictment charging Scott and four codefendants (Chance D. Bonner, DeShawn Livingston, Lori Ann Miller, and Miqual Hodge) with conspiracy against the United States and various Hobbs Act robbery, carjacking, and firearms offenses. The charges arose from a string of armed robberies and carjackings in southcentral Pennsylvania. The indictment charged Scott in Counts 1 through 10 and Counts 12 through 15.

Count 1 charged that Scott conspired with others to commit multiple offenses against the United States—"namely interference with interstate and foreign commerce by threats and violence, carjacking, possession of firearms by a convicted felon, transfer of firearms knowing that such firearms will be used in a crime of violence, and possessing, using, and carrying firearms during and in relation to a crime of violence"—in violation of 18 U.S.C. § 371. (See Doc. 1 at 1-3). Counts 2, 4, 6, 8, and 12 charged that Scott and others committed, attempted to commit, conspired to commit, or aided and abetted the commission of Hobbs Act robbery in violation of 18 U.S.C. §§ 2 and 1951. Specifically, those counts charged that defendants, by robbery, did

obstruct, delay, and affect interstate and foreign commerce and the movement of any article or commodity in commerce ... and attempted and conspired so to do, and did commit and threaten physical violence to any person or property in furtherance of a plan or purpose to do so, and did aid and abet.

(See Doc. 1 at 3-4, 4-5, 5-6, 6-7, 8-9). Counts 9 and 13 charged that Scott and others committed, attempted to commit, or aided and abetted the commission of carjacking; that is, defendants "with the intent to cause death or serious bodily harm took and attempted to take from the person or presence of another by force, violence, and intimidation a motor vehicle that has been transported in interstate commerce, ... and did aid and abet" in violation of 18 U.S.C. §§ 2 and 2119. (See Doc. 1 at 7, 9).

Counts 3, 5, and 7 charged Scott and others with possessing, using, and carrying a firearm, and aiding and abetting same, "during, in relation to, and in furtherance of a crime of violence for which he could be prosecuted in a court of the United States, namely interference with commerce by threats or violence," in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A)(i). (See Doc. 1 at 4, 5, 6). Counts 10 and 14 also charged Section 924(c) violations, except those counts identified the underlying crimes of violence as both "interference with commerce by threats or violence and carjacking." (See id. at 7-8, 9-10).1

Scott and Livingston proceeded to trial in August 2010.2 After five days of evidence, the jury found Scott guilty on all but Counts 2 and 3. As to each of the Hobbs Act robbery convictions (Counts 4, 6, 8, and 12), the jury found that Scott "did commit, or attempted to commit, or aided and abetted [another in] the commission of, a Hobbs Act robbery." (Doc. 403 at 2, 3, 4, 5). On the carjacking convictions (Counts 9 and 13), it found that Scott "with the intent to cause death or serious bodily harm, took or attempted to take from a person or presence of another by force, violence, and intimidation, a motor vehicle ... or aided and abetted another in commission of such an offense." (Id. at 4; see id. at 5 ("... or aided and abetted another in doing so")). For the Section 924(c) convictions, it found that Scott "did possess, use, and carry a firearm in furtherance of the commission of a Hobbs Act robbery" (Counts 5 and 7) or "in furtherance of the commission of a Hobbs Act robbery and carjacking offense" (Counts 10 and 14) or "aided and abetted another in doing so." (Id. at 3, 4, 5, 6).

The court sentenced Scott to an aggregate term of 1,276 months’ imprisonment, driven in large part by an 84-month statutory mandatory minimum term on Count 5 and three 300-month statutory mandatory minimum terms on each of Counts 7, 10, and 14, all of which were required by statute to be served consecutively to each other and to all other counts. (See Doc. 470 at 3); see also 18 U.S.C. § 924(c)(1)(A), (C) (2011). Scott appealed his convictions to the Third Circuit Court of Appeals, which affirmed on November 15, 2012. See United States v. Scott, 504 F. App'x 157 (3d Cir. 2012) (nonprecedential). Scott then timely filed his first motion under 28 U.S.C. § 2255, raising claims of ineffective assistance of trial counsel, actual innocence, and sentencing error. We denied Scott's motion, see United States v. Scott, No. 1:09-CR-72, 2015 WL 1912604 (M.D. Pa. Apr. 27, 2015) (Conner, C.J.), and the court of appeals denied a certificate of appealability, see United States v. Scott, No. 15-2226 (3d Cir. Nov. 10, 2015).

Scott filed a second Section 2255 motion through appointed counsel in June 2016, invoking the Supreme Court's decision in Johnson v. United States, 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Scott's appointed counsel applied to the Third Circuit for authorization to proceed with a second or successive motion in this court and, at counsel's request, we stayed Scott's motion while the court of appeals considered his application. Proceedings here and in the court of appeals remained stayed while the Johnson progeny unfolded at the Supreme Court. See Welch v. United States, 578 U.S. 120, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016) ; Sessions v. Dimaya, 584 U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018) ; United States v. Davis, 588 U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019).

On August 15, 2019, following the Supreme Court's Davis decision, the court of appeals granted Scott's application (along with the applications of approximately 200 other defendants) for leave to proceed with his second or successive Section 2255 motion in this court. In re Scott, No. 16-2137 (3d Cir. Aug. 15, 2019) (citing In re Matthews, 934 F.3d 296 (3d Cir. 2019) ). We promptly entered this judicial district's standing order appointing counsel to file any supplemental Section 2255 motion that may be warranted based on Davis. Appointed counsel filed a supplemental motion on March 13, 2020, and that motion is fully briefed and ripe for disposition. (See Docs. 644, 652, 653, 659).

II. Legal Standard

Under Section 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. 28 U.S.C. § 2255. Courts may afford relief under Section 2255 on a number of grounds including, inter alia , "that the sentence was imposed in violation of the Constitution or the laws of the United States." Id. § 2255(a) ; see also 28 U.S.C. § 2255 Rule 1(a). The statute provides that, as a remedy for an unlawfully imposed sentence, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). The court accepts the truth of the defendant's allegations when reviewing a Section 2255 motion unless those allegations are "clearly frivolous based on the existing record." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005).

III. Discussion

Scott seeks to vacate his multiple Section 924(c) convictions and the consecutive, mandatory minimum sentences required by statute based on the Supreme Court's decision in United States v. Davis, 588 U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). We address two threshold issues before turning to the merits of his motion.

A. Second or Successive Jurisdiction

The instant motion is Scott's second pursuant to 28 U.S.C. § 2255. See United States v. Scott, No. 1:09-CR-72, 2015 WL 1912604 (M.D. Pa. Apr. 27, 2015) (Conner, C.J.). Scott must thus secure prior authorization from the Third Circuit Court of Appeals to proceed with his motion, and thereafter demonstrate to this court that his motion is grounded in "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h)(2) ; see also 28 U.S.C. § 2244(b)(3)(C).

The court of appeals conducted its preliminary examination in this case and concluded that Scott had made the requisite prima facie showing that his motion satisfies these criteria. See In re Scott, No. 16-2137 (3d Cir. Aug. 15, 2019) (citing In re Matthews, 934 F.3d 296 (3d Cir. 2019) ). This authorization, however, evinces only that Scott has made a sufficient showing of possible jurisdiction to warrant "fuller exploration by the district court." See Goldblum v. Klem, 510 F.3d 204, 219 (3d Cir. 2007) (quoting Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997) ). As our court of appeals has explained: "The District Court is not bound by our preliminary examination of the gatekeeping requirements, nor should it rest on our determination; it must conduct an independent inquiry." See United States v. Peppers, 899 F.3d 211, 221 (3d Cir. 2018) (citing Goldblum, 510 F.3d at 219-20 ). The court of appeals has described our gatekeeping function as requiring a "more extensive, more thorough, and ... fuller" jurisdictional review before we...

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    ...Middle District of Pennsylvania did last year in Bonner v. United States, 521 F.Supp.3d 554 (M.D. Pa. 2021) and United States v. Scott, 521 F.Supp.3d 538 (M.D. Pa. 2021). Given this request by Respondent, this Court will assume arguendo that Petitioners have cleared the procedural default h......
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    ...Middle District of Pennsylvania did last year in Bonner v. United States, 521 F.Supp.3d 554 (M.D. Pa. 2021) and United States v. Scott, 521 F.Supp.3d 538 (M.D. Pa. 2021). Given this request by Respondent, this Court will assume arguendo that Petitioners have cleared the procedural default h......
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    ...that supported the novelty exception for Johnson motions would support its application to Davis motions.” United States v. Scott, 521 F.Supp.3d 538, 545 (M.D. Pa.) (citing cases), appeal filed, No. 21-1539 (3d Cir. Mar. 22, 2021). The Court will assume arguendo that Petitioner has cleared t......

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