Scott v. United States

Background

Antonio Scott, through counsel, moved for a certificate of appealability, which is a court document needed to appeal the denial of certain federal post-conviction motions. His motion concerned the court’s June 6, 2023 denial of his motion under 28 U.S.C. § 2255. The United States opposed the motion.

Scott had been convicted after a jury trial on four counts. The relevant convictions were Count Three, for attempting to possess marijuana with intent to distribute under 21 U.S.C. § 841, and Count Four, for using, carrying, or possessing a firearm during and in relation to, or in furtherance of, a crime of violence or drug-trafficking crime under 18 U.S.C. § 924(c).

After appeals and remands, the court reconsidered whether Count Four remained valid after the Supreme Court held in United States v. Taylor that Hobbs Act robbery was not a qualifying crime of violence for purposes of § 924(c). The court previously concluded that Count Three independently supplied a valid predicate, or underlying offense, for Count Four. Scott sought a certificate of appealability on that issue.

Legal standard

A certificate of appealability may issue only when the petitioner makes a substantial showing that a constitutional right was denied. This standard is met when reasonable judges could disagree with the district court’s decision or conclude that the issue deserves further review.

Section 924(c) covers firearm possession during and in relation to, or possession in furtherance of, either a crime of violence or a drug-trafficking crime. A drug-trafficking crime includes any felony punishable under the federal Controlled Substances Act. Section 841(a)(1) prohibits knowingly or intentionally possessing a controlled substance with intent to distribute it. Section 841(b)(1)(D) generally provides for a prison term of up to five years, making the offense a felony, subject to an exception for certain small marijuana distributions without payment.

Scott’s argument

Scott argued that the court should use the categorical approach to determine whether his conviction qualified as a drug-trafficking crime. That approach examines the elements or statutory requirements of an offense rather than the particular facts of the defendant’s conduct. He relied on Supreme Court decisions including Taylor, United States v. Davis, and Moncrieffe v. Holder. He also argued that a higher court should review the district court’s reliance on United States v. Outen in treating a conviction under § 841(b)(1)(D) as a felony by default.

Court’s analysis

The court explained that Taylor and Davis applied the categorical approach to the separate § 924(c) category for crimes of violence, not to drug-trafficking crimes. In the court’s view, Davis distinguished the treatment of crime-of-violence predicates from drug-trafficking predicates.

The court also found that Moncrieffe did not support Scott’s position. Moncrieffe involved using a state drug conviction in an immigration case where the state offense was not necessarily punishable as a federal felony. Scott, by contrast, had already been convicted in federal court of a felony under the Controlled Substances Act. The court stated that there was no hypothetical or comparison-based inquiry because Scott’s federal drug offense had been tried before a jury, and he had the opportunity to present exceptions and defenses, including the misdemeanor exception in § 841(b)(4).

The court therefore concluded that Scott’s federal § 841 conviction was a drug-trafficking crime within the meaning of § 924(c), and that reasonable judges could not debate the application of Outen or the court’s refusal to extend Moncrieffe’s categorical approach to this federal conviction.

Ruling

Judge Loretta A. Preska held that Scott had not made a substantial showing that a constitutional right was denied. The court denied Scott’s motion for a certificate of appealability and directed the clerk to close docket entry 175.