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Scott v. United States

United States District Court, S.D. Illinois

December 16, 2019

TOMMIE J. SCOTT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          STACI M. YANDLE, UNITED STATES DISTRICT JUDGE

         Petitioner Tommie Scott moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 based upon the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (Doc. 1). The Court appointed the Federal Public Defender's Office to represent Scott (Doc. 2) and Assistant Federal Public Defender Todd M. Schultz entered his appearance as counsel of record (Doc. 4).

         Now pending before the Court is Schultz's Motion to Withdraw (Doc. 5). Schultz asserts that Scott has no meritorious basis for obtaining relief under Johnson. The Government has responded and argues that Scott's Motion should be denied (Doc. 9). For the following reasons, the Motion to Withdraw is GRANTED and Scott's Motion under 28 U.S.C. § 2255 is DISMISSED with prejudice.

         Factual and Procedural Background

         On August 18, 2006, Petitioner Tommie J. Scott was charged by a federal grand jury in a four-count Indictment with:

Count 1: Unlawful Possession of a Firearm by a Previously Convicted Felon in violation of 18 U.S.C. § 922(g)(1);
Count 2: Possession with Intent to distribute a Controlled Substance (“crack cocaine”) in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B);
Count 3: Possession of a Firearm During and in Relation to a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1); and,
Count 4: Forfeiture pursuant to 18 U.S.C. 924(d) and 28 U.S.C. § 2461(c). (see No. 06-CR-30115-SMY, Doc. 1).

         On September 8, 2006, the government filed an Information to Establish Prior Convictions setting forth prior state convictions for unlawful delivery of a controlled substance, unlawful possession of a controlled substance, and distribution of cocaine base, and seeking an enhanced sentence as to Count 2 (Id. Doc. 14).

         Scott pled guilty pursuant to a plea agreement on December 6, 2016 (Id. Docs. 22 and 23). On March 9, 2017, the United States Probation Office filed a Presentence Investigation Report (“PSR”) under seal (Id. Doc. 28). According to the PSR, the statutory range for imprisonment is: a maximum of 10 years for Count 1 pursuant to 18 U.S.C. § 924(a)(2); 10 years to life for Count 2 pursuant to 18 U.S.C. §§ 841(b)(1)(B) and 851; and, not less than 5 years, to run consecutively to any other sentence, for Count 3 pursuant to 18 U.S.C. § 924(c)(1) (Id., Doc. 28, p. 20). Based on a total offense level of 25 and a criminal history category IV, the guideline imprisonment range was calculated as 84 to 105 months with an effective range of 180 months due to the statutory minimum sentence for Count 2 followed by the consecutive minimum sentence for Count 3 (Id.).

         In the plea agreement, the parties agreed Scott had a total offense level of 25 and a criminal history category III[1] resulting in a guideline imprisonment range of 70 to 87 months (Id., Doc. 23, p. 6). The parties nonetheless acknowledged the mandatory minimum sentence of 10 years on Count 2 and the consecutive minimum sentence of 5 years on Count 3 (Id.). Scott agreed to waive any right to contest his conviction and sentence pursuant to Titles 18 and 28 with limited exceptions for collateral challenges of actual innocence due to changes in the law made retroactive or due to beneficial amendments to the guidelines made retroactive (Id, Doc. 23, p. 10).

         On March 9, 2007, the Court sentenced Scott to be imprisoned for a term of 84 months on Count 1, 120 months on Count 2 to be served concurrently, 60 months on Count 3 to be served consecutively to the terms imposed on Counts 1 and 2, for a total term of 180 months -- the mandatory minimum statutory term of imprisonment (Id. Doc. 27). The Court also sentenced Scott to 8 years of supervised release and ordered him to pay a special assessment of $300.00 and a fine ...


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