United States v. Scott

• Decision Date: 06 December 2021
• Docket Number: CRIMINAL ACTION 18-547
• Parties: UNITED STATES OF AMERICA v. TERIELL SCOTT
• Court: U.S. District Court — District of New Jersey

UNITED STATES OF AMERICA
v.
TERIELL SCOTT

CRIMINAL ACTION No. 18-547

United States District Court, D. New Jersey

December 6, 2021

NOT FOR PUBLICATION

SUPPLEMENTAL

MEMORANDUM OPINION

(UNDER TEMPORARY SEAL)

MICHAEL A. SHIPP, UNITED STATES DISTRICT JUDGE

This matter comes before the Court on the sentencing of Defendant Teriell Scott ("Scott"). On December 6, 2021, the Court held a hearing, where it sentenced Scott following his conviction on a one-count indictment charging him with unlawful possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). Before the sentencing, the U.S. Probation Office (the "Probation Office") issued its Final Presentence Report (the "Report" or "PSR") regarding Scott. Scott objected to the sentencing calculations in the Report, the Government opposed certain of Scott's objections, and Scott replied. The Court has carefully considered the parties' submissions and oral arguments and issues this Supplemental Memorandum Opinion adding to its findings and conclusions at the December 6, 2021 hearing.

I. BACKGROUND

The Court provides a brief background of the facts and procedural posture of this matter. Scott is a 34-year-old male from Asbury Park, New Jersey. (PSR 2 & ¶ 32.) He has two young children and lives with his mother. (Id. ¶¶ 56-57.) Scott has been diagnosed with bipolar disorder and an unspecified psychotic disorder but is not currently taking medication to treat either. (Id. ¶¶ 60-61.) As a young adult, Scott was also diagnosed with cannabis dependence and began attending a drug treatment program. (Id. ¶ 62.) He earned his GED sometime in 2010 and, as of

1

the date of the Report, works as a barber at a barbershop in Asbury Park. (Id. ¶¶ 66-67.) Before working as a barber, Scott "maintained odd jobs to support himself," including working as a heavy equipment operator for a waste management company, a full-time gas station attendant, and a golf course custodian. (See Id. ¶¶ 68-73.)

As relevant here, Scott has two prior state law felony convictions that exceeded one-year terms of imprisonment. In 2009, Scott pled guilty to one count of aggravated assault, in violation of N.J. Stat. Ann. § 2C: 12-1(b)(1), and was sentenced to a term of three years' incarceration. (Id. ¶ 38.) Later, in 2016, Scott pled guilty to one count of intent to distribute crack cocaine, in violation of N.J. Stat. Ann. § 2C:35-5(b)(3), and, in 2017, was sentenced to another term of three years' incarceration. (Id. ¶ 39.)

While under a supervisory program for the latter sentence, in September 2018, Scott was arrested for the instant offense. (Id. ¶ 6.) Specifically, officers arrested Scott for renting and firing two firearms at Shore Shot Pistol Range (the "Range") in Lakewood, New Jersey, in June 2018. (Id. ¶ 11.) Scott found himself at the Range because his then-girlfriend, Jackie Bekier ("Bekier"), purchased a discounted group ticket from a company called Groupon to go on a date to a shooting range with him.^[1] Bekier testified that she purchased the Groupon voucher online at home, drove to the Range with Scott, and presented the Groupon voucher to the attendant at the Range. (Trial Tr. 235:1-13 (Bekier Direct).) At some point, Scott posted to his social media account pictures and videos, which showed him shooting at the Range. (PSR ¶16.) A detective for the Monmouth

2

County Prosecutor's Office, who monitored social media as part of his job duties, observed Scott's social media posts and alerted the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") of his findings. (Trial Tr. 25:19-27:4, 31:2-9 (Lao Direct).) Ultimately, ATF officers arrested Scott (while he was working) for violating 18 U.S.C. § 922(g)(1), which prohibits knowingly possessing a firearm with a previous felony conviction with a term of imprisonment greater than one year. (See PSR ¶ 1.)

The Court held a jury trial in October 2019, and a jury found Scott guilty of one count of unlawful possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). Before sentencing, the Probation Office calculated an advisory sentencing range of 92 to 115 months, based on a total offense level of 24 and Scott's criminal history category of V. (See Id. ¶ 81.) In calculating Scott's offense level, the Probation Office applied a base-level sentencing enhancement under section 2K2.1(a)(2) of the U.S. Sentencing Guidelines Manual (the "Guidelines") for "sustaining at least two felony convictions of either a crime of violence or a controlled substance offense"-namely Scott's aggravated assault and intent-to-distribute convictions. (See Id. ¶ 22.)

On April 12, 2021, Scott submitted correspondence objecting to various portions of the Probation Office's calculations. (See generally Def.'s Apr. 2021 Submission.) In that correspondence, Scott argues that his offense level should start at level 14 because neither his aggravated assault conviction nor intent-to-distribute conviction counts as a crime of violence or a controlled substance offense. See U.S. Sent'g Guidelines Manual § 2K2.1(a)(6) (U.S. Sent'g Comm'n 2021). According to Scott, the aggravated assault offense does not qualify as a crime of violence because New Jersey law requires extreme indifference recklessness, whereas comparable laws require a higher mens rea. (See Def.'s Apr. 2021 Submission 3-6.) In addition, Scott asserts that his intent-to-distribute offense does not qualify because New Jersey law prohibits Ioflupane

3

and positional isomers of cocaine, whereas the federal Controlled Substances Act (the "Act") and implementing federal regulations do not. (See Id. at 11-12.) Although the bulk of Scott's correspondence concerns these issues, he also contends that he committed the instant offense while possessing firearms solely for a lawful sporting purpose, thereby meriting an offense-level decrease to six. (See Id. at 12 (citing U.S. Sent'g Guidelines Manual § 2K2.1(b)(2).) Scott also requests a two-point reduction for acceptance of responsibility. (See Id. at 12-13 (citing U.S. Sent'g Guidelines Manual § 3E1.1(a).)

On June 9, 2021, the Government opposed certain of Scott's objections to the Probation Office's calculations. (See generally Gov't's June 2021 Submission.) Relying on an earlier-filed brief, the Government contends that Scott's aggravated assault conviction is a crime of violence because it closely tracks the elements of a generic aggravated assault crime. (See Gov't's Nov. 2020 Submission 3-10.) Further, the Government counters that the plain text of the Guidelines allows predicate drug offenses to encompass federal and state convictions for any substance-not just substances defined federally. (See Gov't's June 2021 Submission 6-26.) The Government further argues that Scott is not entitled to a two-point reduction for acceptance of responsibility because he contested his guilt at trial. (See Gov't's Nov. 2020 Submission 10-11.) The Government did not respond to Scott's argument that he possessed the firearms solely for a lawful sporting purpose.^[2]

4

II. LEGAL STANDARD

This Court has jurisdiction under 18 U.S.C. § 3231. See United States v. Chapman, 866 F.3d 129, 131 (3d Cir. 2017). District courts engage in a familiar three-step process when sentencing criminal defendants:

A district court must begin the process by first calculating the applicable Guidelines range. After that initial calculation, the court must then rule on any motions for departure and, if a motion is granted, state how the departure affects the Guidelines calculation. Finally, after allowing the parties an opportunity for argument, the court must consider all of the § 3553(a) factors and determine the appropriate sentence to impose, which may vary from the sentencing range called for by the Guidelines.

United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (quoting United States v. Levinson, 543 F.3d 190, 194-95 (3d Cir. 2008)). As the parties' dispute largely centers on the proper Guidelines range under the first step of the sentencing analysis, the Court notes that "[t]he government bears the burden of establishing, by a preponderance of the evidence, prior convictions and career offender status." United States v. Howard, 599 F.3d 269, 271-72 (3d Cir. 2010) (citations omitted).

III. DISCUSSION

The Probation Office calculated a proposed sentence of 92 to 115 months for Scott. Scott presents three objections to that sentence. First, Scott argues that neither of his aggravated assault or intent-to-distribute convictions is a predicate offense under section 2K2.1(a)(2) of the Guidelines. Second, assuming the Court agrees with his first argument, Scott argues that he committed the instant offense with a lawful sporting purpose and that the Court should therefore reduce his offense level to six under section 2K2.1(b)(2) of the Guidelines. Finally, Scott proffers that the Probation Office failed to credit his acceptance of responsibility with a two-point reduction to his offense level under section 3E1.1(a) of the Guidelines.

The Court will consider each argument in turn but first provides a brief overview of the math behind the relevant Guidelines range for this case. Both the Probation Office and the

5

Government request that Scott start at offense level 24 based on a ten-point sentencing enhancement that purportedly applies because Scott has two prior predicate felony convictions. See U.S. Sent'g Guidelines Manual § 2K2.1(a)(2). Scott contests that those felony convictions do not qualify as predicate offenses and therefore argues that his offense level should start at level 14. See U.S. Sent'g Guidelines Manual § 2K2.1(a)(6). Next, Scott argues that he qualifies for an eight-point offense-level reduction because he committed the instant offense with a lawful sporting purpose. See U.S. Sent'g Guidelines Manual § 2K2.1 (b)(2). Notably, in this case, that offense-level reduction applies only...