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Scott v. United States

United States District Court, S.D. Ohio, Eastern Division

February 12, 2018

ANTHONY D. SCOTT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          EDMUND A. SARGUS, JR. CHIEF JUDGE.

          REPORT AND RECOMMENDATION

          Elizabeth A. Preston Deavers, United States Magistrate Judge.

         Petitioner has filed a Motion to Vacate under 28 U.S.C. § 2255. (ECF No. 64.) This matter is before the Court on the instant motion and Memorandum of Law in Support (ECF No. 72), Respondent's Response in Opposition (ECF No. 75), Petitioner's Reply and Notice of Santillana v. Upton (ECF Nos. 76, 77), and the exhibits of the parties. For the reasons that follow, the Magistrate Judge RECOMMENDS that the Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 64) be DISMISSED.

         Facts and Procedural History

         The United States Court of Appeals for the Sixth Circuit summarized the facts and procedural history of the case as follows:

In October 2013, Scott was charged with four counts of possession with intent to distribute heroin, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) (Counts 1 through 4), possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A)(i) (Count 5), and a forfeiture count, requiring Scott to forfeit five firearms in the event of his conviction. In February 2014, after an initial plea agreement was entered and then abrogated by the replacement of Scott's counsel, Scott signed the same plea agreement, agreeing to plead guilty to Count 4; he also acknowledged his liability for the firearm forfeiture. The agreement provided that, in exchange for Scott's plea, the government would dismiss the remaining charges and would not seek to enhance Scott's sentence pursuant to 21 U.S.C. § 851(a)(1). For sentencing purposes, the parties agreed that: Scott's base offense level would be 38 because the death of Robert Ruffing resulted from the use of heroin that Scott distributed; he would receive a two-level enhancement for his possession of a firearm in furtherance of his commission of Count 4; and the government would recommend a three-level reduction for acceptance of responsibility. At Scott's plea hearing, counsel admitted the accuracy of the government's statement of facts, but noted that Scott personally disputed that Ruffing died as the result of the heroin that Scott sold to him. Following the colloquy, the district court accepted Scott's plea.
A presentence report calculated Scott's total offense level as 37 and his criminal history category as III, resulting in a guidelines range of imprisonment of 262 to 327 months. The applicable guidelines range became 240 months, however, because it was the maximum term of imprisonment for the offense. See USSG § 5G1.1(a). Scott filed a motion for a downward departure, suggesting a 156-month sentence. At Scott's sentencing hearing, the district court granted a motion filed by the government to reduce Scott's offense level consistent with the anticipated drug sentence reductions promulgated by the Sentencing Commission, revising Scott's guidelines range to 210 to 262 months of imprisonment. The district court denied Scott's motion for a downward departure and imposed a 240-month term of imprisonment, to be followed by six years of supervised release.

(ECF No. 58.) Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967). On March 2, 2017, the Sixth Circuit affirmed the judgment of this Court. (ECF No. 58.) On May 18, 2015, the United States Supreme Court denied the petition for a writ of certiorari. (ECF No. 61.)

         On May 25, 2016, Petitioner filed the instant Motion to Vacate under 28 U.S.C. § 2255. Petitioner asserts that his recommended sentence under the advisory United States Sentencing Guidelines was incorrectly calculated, based on an intervening change in the law, i.e., the Supreme Court's decision in Molina-Martinez v. United States, ___ U.S. ___, 136 S.Ct. 1338 (2016) (claim one); and that he was denied the effective assistance of counsel, because his attorney told him that his recommended sentence would not be enhanced based on the death of Robert Ruffing if he entered a guilty plea (claim two). It is the position of the Respondent that Petitioner's claims fail to provide a basis for relief.

         Standard of Review

         To obtain relief under 28 U.S.C. § 2255, a defendant must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States or the trial court was without jurisdiction or the sentence is in excess of the maximum sentence allowed by law, or is “otherwise subject to collateral attack.” United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). Apart from constitutional error, the question is “whether the claimed error was a ‘fundamental defect which inherently results in a complete miscarriage of justice, ' ” Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428-429 (1962); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). A petitioner under § 2255 waives any non-constitutional claims he failed to raise at trial or on direct appeal except where the errors amount to something akin to a denial of due process. Mistakes in the application of the sentencing guidelines will rarely, if ever, warrant relief from the consequences of waiver. Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996).

         It is well-established that a § 2255 motion “is not a substitute for a direct appeal.” Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013) (quoting Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained via a motion under § 2255 unless the petitioner shows: (1) cause and actual prejudice to excuse his failure to raise the claims previously; or (2) that he is “actually innocent” of the crime. Ray, 721 F.3d at 761 (citing Bousley v. United States, 523 U.S. 614, 622 (1998) (internal citations omitted).

         Claim One

         Petitioner asserts that he has been improperly sentenced under the advisory United States Sentencing Guidelines, because his base offense level was enhanced pursuant to U.S.S.G. § 2D1.1(a)(2) based on the death of Robert Ruffing, resulting in a total offense level of 38. See PreSentence Investigation Report, § 32.

         The United States Court of Appeals for the Sixth Circuit has already affirmed Petitioner's sentence, and in so doing, held that Petitioner had waived his claim that his sentence had been improperly enhanced as a result of Ruffing's death under the terms of his negotiated Plea Agreement:

Scott [] stated that he understood, by pleading guilty, he was waiving all of the rights associated with a jury trial. The government then summarized the parties' plea agreement. . . [T]he parties agreed to a base offense level of 38 due to the fact that the death of an individual resulted from the use of heroin that Scott distributed; Scott would receive a two-level enhancement for possessing a weapon in furtherance of his drug trafficking crime; and the government would recommend a three-level decrease for Scott's timely acceptance of responsibility. Scott confirmed that he understood the agreement and that there were no additional promises made that were not contained in the agreement. . . . Scott reaffirmed that current counsel had explained the offense level, and that Scott both understood it and agreed to it. Scott finally stated that it was his “free and voluntary act” to plead guilty because he was in fact guilty of the offense.
. . . Scott admitted that he sold heroin and that the drugs found in the residence were his; Scott sold heroin to Robert Ruffing on August 4 and, the next day, Ruffing was found deceased; after an autopsy, Ruffing's death was determined to have been caused by a heroin overdose; Scott was among the last individuals that Ruffing called before his death; and Scott admitted, in recorded phone calls with a confidential informant, that a man to whom he had previously sold heroin had died after overdosing on heroin Scott had provided to him. Scott noted that he did not dispute the government's evidence and acknowledged what he said on the recorded telephone conversations; nevertheless, Scott personally did not agree to the fact that Ruffing died as the result of an overdose of heroin that he provided.
***
[No] arguable issue [can] be raised on appeal in connection with the imposition of the 240-month term of imprisonment. . . .
Scott can raise no arguable issue on appeal concerning the procedural reasonableness of his sentence. At Scott's sentencing hearing, Scott noted that he had no objections to the presentence report. The district court summarized the calculation of the guidelines range in the presentence report and the sentencing memoranda filed by the parties. As stated above, the district court noted Scott's revised guidelines sentencing range of 210 to 262 months and considered letters and testimony from Scott's family and from Scott himself. After consideration, the district court concluded that a sentence of 240 months was appropriate. These facts do not demonstrate a non-frivolous issue in connection with the procedural reasonableness of his sentence, as the district court not only properly calculated Scott's guidelines range, but it also considered the 18 U.S.C. § 3553(a) sentencing factors and the arguments of the parties, and explained the chosen sentence of 240 months.
Likewise, Scott cannot raise an arguable issue to rebut the presumptive substantive reasonableness of his sentence. Vonner, 516 F.3d at 389. Prior to imposing sentence, the district court noted that the circumstances of Scott's offense were “horrible” in that someone died from the heroin he was selling. Although the court acknowledged that Ruffing was a participant in his own death, it further acknowledged that Congress intended severe penalties for the distributors of drugs when death results. Likewise, although Scott urged the court to consider his family when imposing his sentence, the court stated that it also had to consider Ruffing's family. The district court noted that Scott had four prior convictions for drug-related offenses and the current offense was committed while he was on probation for another drug offense. The district court stated that a serious sentence was necessary both to promote respect for the law and to afford adequate deterrence to others. Considering the guidelines range of 210 to 262 months and the benefit that Scott received from his plea agreement, the court imposed a sentence of 240 months. The record therefore does not reflect that the district court selected the 240-month sentence arbitrarily, failed to consider pertinent sentencing factors, or gave an unreasonable amount of weight to any factor. As a result, Scott can raise no arguable issue on appeal to rebut the presumption that his within-guidelines sentence was substantively unreasonable.
With respect to Scott's pro se brief, all of the claims he raises regarding the sentencing enhancement as a result of Ruffing's death are precluded by Scott's plea agreement. Despite Scott's statements at his plea hearing that he did not agree that he was responsible for Ruffing's death, he admitted the accuracy of the government's evidence, including his own statements in telephone conversations soon after Ruffing's death that a man died as the result of heroin that Scott sold to him. Further, in his plea agreement - which the record establishes was entered into knowingly and voluntarily. . . Scott stipulated that his base offense level would be 38 on the basis that Ruffing's death resulted from his ...

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