United States District Court, S.D. Illinois
TOMMIE J. SCOTT, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
M. YANDLE, UNITED STATES DISTRICT JUDGE
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).
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
and Procedural Background
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. §
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).
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).
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.).
plea agreement, the parties agreed Scott had a total offense
level of 25 and a criminal history category III 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).
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 ...