Scott v. United States of America

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Case 4:20-cv-04181-KES Document 23 Filed 08/11/21 Page 1 of 39 PagelD #: <pagelD>

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

RODERICK LEON SCOTT, 4:20-CV-04181-KES
Movant,

vs. REPORT AND RECOMMENDATION
UNITED STATES OF AMERICA,

Respondent.

INTRODUCTION

This matter is before the court on the pro se motion pursuant to 28
U.S.C. § 2255 of Roderick Leon Scott, a federal inmate. See Docket No. 1. Now
pending is a motion to dismiss by the respondent, the United States of America
(“government”). See Docket No. 20. Mr. Scott resists the motion. See Docket
No. 22. This matter has been referred to this magistrate judge for a
recommended disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October
16, 2014, standing order of the Honorable Karen E. Schreier, district judge.

FACTS

A. The 2005 Case and the 2018 Indictment

In 2005, Mr. Scott was indicted in this court for conspiracy to distribute

50 grams or more of cocaine base. See United States v. Scott, 4:05-cr-40077-

AUTHENTICATED
U.S. GOVERNMENT
INFORMATION

GPO

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KES-1, Docket No. 1 (D.S.D. Jul. 20, 2005).1 Mr. Scott was convicted by guilty
plea and sentenced to 240 months’ imprisonment. 	CR I Docket Nos. 48, 76.
Mr. Scott’s supervision was revoked for violation behavior involving the
use or distribution of drugs, and he was given a 36-month sentence upon
revocation. 	CR I Docket No. 113. 	On September 28, 2018, Mr. Scott began a
second term of supervised release on his 2005 conviction. 	CR I Docket
No. 116.
Three months later, Mr. Scott was indicted in this court on December 4,
2018, along with co-defendant Curtis Webb. 	See United States v. Scott, 4:18-
cr-40151-KES-2, Docket No. 1 (D.S.D. Dec. 4, 2018).2 Two days later, a
petition to revoke his supervised release was filed in his 2005 conviction case.
CR I Docket No. 116.
The new 2018 indictment charged in its entirety as follows:
Beginning on an unknown date and continuing until on or about
the date of this Indictment, in the District of South Dakota and
elsewhere, Curtis Samuel Webb, a/k/a Corey Shawn Smith, and
Roderick Leon Scott did knowingly and intentionally combine,
conspire, confederate, and agree together with others known and
unknown to the Grand Jury, to knowingly and intentionally
distribute a mixture and substance containing 500 grams or more
of methamphetamine, a Schedule II controlled substance, in
violation of 21 U.S.C. §§ 841(a)(1) and 846.
See CR II Docket No. 1.
1 The court refers to documents from Mr. Scott’s 2005 criminal case with the
prefix “CR I.”
2 The court refers to documents from Mr. Scott’s 2018 criminal case with the
prefix “CR II.”
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Mr. Scott made his initial appearance on the indictment and on the
petition to revoke supervision in this court on December 18, 2018, and this
court appointed attorney Jason Tupman to represent him. 	CR I Docket
No. 121; CR II Docket No. 21. 	Mr. Scott was detained at this time. 	CR I
Docket No. 122; CR II Docket No. 23. 	On August 29, 2019, a plea agreement
was filed along with a plea agreement supplement and a statement of factual
basis. 	CR II Docket Nos. 57-59.
B. 	The Plea Agreement
The plea agreement recited that Mr. Scott would plead guilty to the
indictment. 	CR II Docket No. 57 at p. 2, ¶ C. 	The agreement recited the
mandatory minimum sentence for the crime to which Mr. Scott would plead
guilty was 10 years’ imprisonment and the maximum sentence was life
imprisonment. 	Id. 	In return for Mr. Scott’s plea, the government agreed to
recommend a three-level decrease in his base offense level under the United
States Sentencing Guidelines (“USSG”) for acceptance of responsibility. 	Id. at
pp. 3-4, ¶¶ E, F. 	The plea agreement allowed both parties to argue for and
present evidence in support of any sentence within statutory limits that each
believed to be appropriate. 	Id. at p. 4, ¶ G. 	The plea agreement contained a
waiver of Mr. Scott’s right to appeal his sentence or conviction except in the
case of an upward variance or upward departure by the district court at
sentencing. 	Id. at p. 6, ¶ N.
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Along with the plea agreement, a written statement of facts in support of
the plea was filed. 	CR II Docket No. 58. 	That statement recited the following
facts:
Beginning on an unknown date and continuing until on or
about December 4, 2018, I, along with at least one other person,
reached an agreement or came to an understanding to distribute
500 grams or more of a mixture or substance containing
methamphetamine in the District of South Dakota.
I voluntarily and intentionally joined in the agreement or
understanding to distribute methamphetamine.
At the time I joined in the agreement or understanding to
distribute methamphetamine, I knew the purpose of the agreement
or understanding.
While I was actively involved in furthering the purpose of the
agreement or understanding, I could foresee that the quantity of
methamphetamine involved in the agreement or understanding
exceeded 500 grams of methamphetamine.
During my involvement in the conspiracy, I received several
pounds of methamphetamine from co-conspirators in the District
of South Dakota and elsewhere. 	Based on conversations we had,
my co-conspirators were aware that I intended to sell the
methamphetamine they sold and fronted to me to my own drug
customers.
I intended to distribute the methamphetamine in South
Dakota. 	I was also aware that some of my customers were
distributing the methamphetamine I provided to them to their own
customers.
The parties submit that the foregoing statement of facts
is not intended to be a complete description of the offense or
the Defendant’s involvement in it. 	Instead, the statement is
offered for the limited purpose of satisfying the requirements
of Fed. R. Crim. P. 11(b)(3). 	The parties understand that
additional information relevant to sentencing, including
additional drug quantities, may be developed and attributed
to the Defendant for sentencing purposes.
See id. (emphasis added).
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The final plea agreement document was a plea agreement supplement.
CR II Docket No. 59.
C. 	The Change of Plea Hearing
Mr. Scott appeared before the court on September 5, 2019, and was
placed under oath. 	CR II Docket No. 95 at pp. 1-2. 	Therefore, all the answers
he gave were given under penalty of perjury. 	Id. at p. 2.
Mr. Scott testified he was 43, had his general equivalency diploma, and
was not under the influence of any drug, medication, alcohol, or mental illness.
Id. at p. 3. 	He stated he was fully satisfied with his counsel’s advice and
representation. 	Id.
Mr. Scott stated he had entered into a plea agreement and plea
agreement supplement with the government and had read and discussed those
documents with counsel. 	Id. at p. 4. 	He testified he understood those
agreements. 	Id. 	He denied that anyone had threatened or tried to persuade
him to accept the agreements. 	Id. at pp. 4-5. 	Further, he stated the written
agreements contained the entirety of the parties’ agreements—there were no
promises made that were not written down in the agreements. 	Id. at p. 4.
Mr. Scott stated he was pleading guilty of his own free will because he was
guilty. 	Id. at p. 5. 	Mr. Scott stated he understood the court might impose a
sentence that was more severe than he anticipated. 	Id. at pp. 4-5. 	The court
explained that Mr. Scott would be subject to a minimum sentence of 10 years’
imprisonment and a maximum possible sentence of life imprisonment. 	Id. at
pp. 5-6. 	Mr. Scott testified he understood this. 	Id. at p. 6.
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The court asked if Mr. Scott had discussed his USSG range with counsel.
Id. 	Mr. Scott replied he had. 	Id. 	The court explained it could not predict what
Mr. Scott’s USSG range might be at sentencing because the presentence
investigation report (“PSR”) had to be written first and then the court would
rule on any objections to the PSR. 	Id. 	The court explained that, because of the
uncertainty, Mr. Scott’s actual USSG range might be different than what he
and counsel had discussed. 	Id. at pp. 6-7. 	Mr. Scott testified he understood
this. 	Id. at p. 7. 	The court also explained that once Mr. Scott’s USSG range
was determined, the court would then determine if there were reasons to give
him a higher or lower sentence than the advisory USSG range. 	Id. 	Mr. Scott
stated he understood this. 	Id.
The court explained that, in his plea agreement, Mr. Scott was giving up
the right to appeal everything about his case except jurisdiction and upward
departure or variance. 	Id. 	Mr. Scott stated he understood this. 	Id. at p. 8.
The court then explained Mr. Scott had a right to plead not guilty to the
indictment and to avail himself of his right to a trial by jury. 	Id. 	During the
trial, the court explained it would tell the jury Mr. Scott was presumed
innocent and the burden was on the government to prove his guilt beyond a
reasonable doubt. 	Id.
The court explained Mr. Scott would have the assistance of a lawyer at
trial and at every other stage of the proceedings and that lawyer would be
appointed free of charge to Mr. Scott, if necessary. 	Id. 	The court told Mr. Scott
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he would have the right to see and hear all the witnesses at trial and have
them cross-examined by his lawyer. 	Id.
The court told Mr. Scott he would have the right not to testify at trial
unless he voluntarily gave up that right. 	Id. 	He would also have the right to
subpoena witnesses to testify. 	Id. 	If Mr. Scott elected not to testify, the court
said it would tell the jury it could not use that fact against him. 	Id. 	The court
also explained if Mr. Scott entered a plea of guilty, there would not be a trial
and he would be giving up all the other rights the court just described. 	Id. at
p. 9. 	Mr. Scott testified under oath he understood all this. 	Id.
The court explained the essential elements of the crime of conspiracy to
distribute a controlled substance which the government would be required to
prove beyond a reasonable doubt at trial. 	Id. 	This included proving that the
conspiracy distributed “500 grams or more of methamphetamine.” 	Id.
(emphasis added). 	Mr. Scott stated he understood what he was charged with
and what the government would have to prove at a trial. 	Id.
The court asked Mr. Scott whether he had read the factual basis
statement before signing it. 	Id. at pp. 9-10. 	He stated he had. 	Id. at p. 10.
The court asked whether everything in the statement was the truth. 	Id.
Mr. Scott stated it was. 	Id.
Mr. Scott then entered a plea of guilty to the indictment. 	Id. at p. 11.
Afterward, the court found:
[T]hat the defendant is fully competent and capable of entering an
informed plea. 	That he is aware of the nature of the charges and
the consequences of the plea, and that the plea of gulty is a
knowing and voluntary plea supported by an independent basis in
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fact containing each of the essential elements of the offense. 	The
plea is, therefore, accepted, and the defendant is now adjudged
guilty of that offense.
Id.
D. 	The PSR and Objections
1. 	Draft PSR
On October 16, 2019, a draft PSR was issued. 	CR II Docket No. 78. 	The
PSR attributed 19.73 kilograms of methamphetamine to Mr. Scott. 	Id. at p. 6,
¶ 16. 	Based on that amount of meth, the draft PSR calculated Mr. Scott’s
USSG range as follows:
Base Offense Level Based on Drug Quantity 	36
or
Career Offender Enhancement Base Offense Level 	37
Acceptance of Responsibility 	-3
Total Offense Level 	34
Id. at pp. 7-8, ¶¶ 22-31.
The draft PSR placed Mr. Scott in criminal history category VI based on a
calculation of 11 criminal history points and his career offender status. 	Id. at
p. 15, ¶ 51. 	With a criminal history category of VI and a base offense level of
34, the draft PSR calculated Mr. Scott’s USSG range to be 262 to 327 months’
imprisonment with a minimum statutory sentence of 120 months. 	Id. at p. 24,
¶¶ 98-99.
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2. 	Objections to the Draft PSR
Counsel for Mr. Scott filed objections to the draft PSR on November 4,
2019. 	CR II Docket No. 79. 	Counsel objected to the draft PSR’s calculation of
drug quantity, noting that some of the drugs attributed to Mr. Scott in the
report were exchanged during a time period when Mr. Scott was incarcerated.
Id. at p. 1 (noting Mr. Scott was not released from BOP custody until
September 28, 2018, but the draft PSR attributed drug quantities to him from
the summer through September).
Counsel also objected to Mr. Scott’s classification as a career offender.
Id. at p. 2. 	Counsel argued that neither the instant offense nor Mr. Scott’s
prior federal drug felony constituted a “controlled substance offense” under the
USSG. 	Id. 	Specifically, counsel argued that federal statutory drug conspiracy
under 21 U.S.C. § 846 was outside the definition of “controlled substance
offense” under the USSG because a “controlled substance offense” requires an
overt act, while a violation of § 846 does not require an overt act. 	Id. 	Counsel
also pointed out that USSG § 4B1.2(b) does not list inchoate offenses like
conspiracy in the text of the provision. 	Id. 	Without counting his two federal
felonies, counsel argued that Mr. Scott did not have the requisite prior
convictions to qualify as a career offender. 	Id. at p. 3.
3. 	Final PSR
In response to counsel’s objections to the draft PSR, the PSR was
partially revised and filed November 11, 2019. 	CR II Docket No. 81.
Specifically, the drug quantity calculation was revised to place Mr. Scott’s base
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offense level at a 34 instead of a 36; some drug quantities were subtracted due
to the fact those quantities were exchanged while Mr. Scott was incarcerated.
Id.
As to the objection to the career offender enhancement, the PSR author
rejected that argument, noting that in both his 2005 case and his 2018 drug
case Mr. Scott did not plead guilty solely to conspiracy under § 846, but also to
a violation of 21 U.S.C. § 841(a)(1) which required actual distribution (an overt
act). 	Id. 	In addition, in both cases, Mr. Scott admitted in his plea agreement
to actual distribution of controlled substances. 	Id. 	Therefore, the PSR author
concluded counsel’s “no overt act” argument had no application to the facts of
Mr. Scott’s case. 	Id.
In the final PSR, the drug quantity attributed to Mr. Scott was reduced to
8.84 kilograms based on the period from September 28, 2018, to October 24,
2018. 	CR II Docket No. 80 at p. 6, ¶ 16. 	His criminal history category
remained at VI. 	Mr. Scott’s USSG calculation was as follows:
Base Offense Level Based on Drug Quantity 	34
or
Career Offender Enhancement Base Offense Level 	37
Acceptance of Responsibility 	-3
Total Offense Level 	34
Id. at pp. 7-8, ¶¶ 22-31. 	Mr. Scott’s USSG range remained 262 to 327 months’
imprisonment with a minimum term of imprisonment of 120 months. 	Id.
at p. 24, ¶¶ 99-100.
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E. 	The Sentencing
1. 	Motion for Downward Variance
Prior to sentencing on November 13, 2019, counsel filed a motion for a
downward variance on Mr. Scott’s behalf. 	CR II Docket No. 84. 	Counsel noted
that Mr. Scott’s USSG range was premised on his classification as a career
offender. 	Id. at p. 1. 	Counsel argued that the career offender guideline failed
to meaningfully distinguish among career offenders with different types of
criminal records and resulted in an overly severe sentence in Mr. Scott’s
case. 	Id.
Counsel noted that the United States Sentencing Commission had
proposed changes to the federal statute which, if adopted by Congress, would
result in Mr. Scott not being classified as a career offender. 	Id. at p. 4.
Counsel pointed out that the USSG are not binding on the court and urged the
court to impose a lesser sentence because the USSG sentence was greater than
necessary. 	Id. at p. 5. 	Counsel noted that without the career offender
enhancement, Mr. Scott would have a USSG range of 168-210 months, similar
to the 210-month sentence his co-defendant Mr. Webb received. 	Id. at p. 6;
See also United States v. Webb, 4:18-cr-40151-KES-1, Docket No. 73 (D.S.D.
Sept. 9, 2019).3 Counsel asked the court to impose a similar sentence in
Mr. Scott’s case. 	CR II Docket No. 84 at p. 6.
3 The court refers to documents from Mr. Webb’s criminal case with the prefix
“Webb CR.”
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2. 	Mr. Scott’s Written Allocution Statement
Mr. Scott wrote an allocution statement to the court filed November 13,
2019. 	CR II Docket No. 83. 	In it, he expressed remorse and guilt for his
actions. 	Id. 	He stated he wanted to learn a trade while in prison so that he
could help people. 	Id. 	He expressed sorrow for the harm his actions did to his
family and those who loved him. 	Id.
3. 	Sentencing Hearing
Mr. Scott was sentenced on November 26, 2019, for both his plea of
guilty to the indictment as well as for his supervised release violation in his
2005 case. 	CR II Docket No. 97. 	The court first turned to counsel’s one
remaining objection to the PSR—the objection to the career offender
enhancement. 	Id. at p. 3. 	The court overruled the objection. 	Id. 	The court
noted Mr. Scott did not plead guilty to generic conspiracy, but rather to an
attempt to distribute a controlled substance as part of a conspiracy. 	Id. at
p. 4. 	After overruling the objection, the court announced Mr. Scott’s USSG
advisory range was 262 to 327 months’ custody. 	Id.
Next, Mr. Scott made an admission to allegation number three in his
petition to revoke supervised release. 	Id. at p. 5. 	The government supplied the
factual basis for the admission. 	Id. at p. 6. 	The court announced the USSG
advisory sentencing range for the supervised release violation was 46 to 57
months’ imprisonment. 	Id.
Counsel argued for a downward variance for Mr. Scott, emphasizing his
difficult life circumstances, the proposed changes to the career offender
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enhancement pending before Congress, and the sentence that co-defendant
Curtis Webb received, who was also a career offender with the same criminal
history as Mr. Scott. 	Id. at pp. 6-9. 	Counsel specifically asked for a sentence
of 200 months’ imprisonment. 	Id.
The court noted Mr. Webb was sentenced to 210 months’ imprisonment.
Id. at p. 13. 	However, the court noted Mr. Webb’s situation was distinguished
from Mr. Scott’s case because Mr. Webb was not on supervised release at the
time he committed the instant crime while Mr. Scott was on supervised
release. 	Id. 	The court told Mr. Scott the fact he committed the instant crime
so close in time to when he finished his prison sentence in the 2005 case
showed that he had not learned anything from his time in custody. 	Id. 	He was
not interested in changing the pattern of his life. 	Id. 	The court expressed the
opinion that there was an extremely high likelihood Mr. Scott would reoffend
again if released. 	Id. at p. 14. 	The court also said Mr. Scott’s career offender
classification accurately reflected his record based on his prior drug
convictions and the fact he committed the instant crime while on supervised
release. 	Id.
The court refused to downward vary or depart, but stated it would
sentence Mr. Scott at the very bottom of his USSG range. 	Id. 	The court also
rejected the government’s request for the two sentences to run consecutive and
instead announced the two sentences would run concurrent to one another.
Id. 	The court sentenced Mr. Scott to 262 months’ imprisonment on the
indictment and 46 months on the petition to revoke, for an effective sentence of
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262 months. 	Id. at pp. 15, 18. 	The court advised Mr. Scott that, although he
had waived his right to appeal in his plea agreement, if he believed he had an
issue that was preserved for appeal, he must file his notice of appeal within 14
days. 	Id. at p. 17. 	Mr. Scott did not file a direct appeal of his conviction
or sentence.
F. 	Claims Raised in Mr. Scott’s § 2255 Motion
Mr. Scott timely filed the instant motion to vacate, set aside, or correct
his sentence. 	Docket No. 1. 	Mr. Scott raises the following claims for habeas
relief in his § 2255 motion:
1. 	His Fourth Amendment rights were violated by the traffic stop
being unreasonably prolonged.
2. 	His Sixth Amendment right to effective assistance of counsel was
violated in the following ways:
a. 	counsel failed to show an adversarial stance in arguing
against the career offender enhancement
b. 	counsel failed to object to the use of a prior conviction to
enhance his sentence where the prior convition resulted in
only a sentence of probation
c. 	counsel failed to object to the miscalculation of his drug
quantity
d. 	counsel failed to assert that Mr. Scott’s sentence was
disproportionate to the sentence of a co-defendant, Curtis
Webb, who was on probation for a previous
methamphetamine conviction at the time he was arrested on
this case with Mr. Scott and Mr. Scott was a subordinate to
Mr. Webb in the conspiracy
e. 	counsel failed to move to suppress the evidence from the
traffic stop
f. 	counsel failed to challenge the indictment as defective
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3. 	Mr. Scott’s Fifth and Sixth Amendment rights were violated when
the court found facts as to drug quantity without a jury where that
drug quantity finding increased Mr. Scott’s sentence
4. 	The indictment was a legal nullity and Mr. Scott’s conviction
thereon must be vacated because the indictment is missing an
essential element of the crime.
5. 	The sentence imposed created a disparity.
See Docket No. 1 at pp. 3-30. 	The government now moves to dismiss
Mr. Scott’s § 2255 motion without holding an evidentiary hearing. 	See Docket
No. 20. 	Mr. Scott resists. 	See Docket No. 22.
DISCUSSION
A. 	Scope of a § 2255 Motion
Section 2255 of Title 28 of the United States Code was enacted to
supersede habeas corpus practice for federal prisoners. 	Davis v. United States,
417 U.S. 333, 343-44 (1974). 	Section “2255 was intended to afford federal
prisoners a remedy identical in scope to federal habeas corpus.” 	Id. at 343.
Prior to the enactment of ' 2255, habeas claims had to be brought in the
district where the prisoner was confined, resulting in overburdening those
districts where federal correctional institutions were located and presenting
logistical issues because the record in the underlying criminal case was often
in a distant location. 	United States v. Hayman, 342 U.S. 205, 212-16 (1952).
The enactment of ' 2255 resolved these issues by requiring that the motion be
filed in the sentencing court. 	Id.
The scope of a ' 2255 motion is seemingly broader than the scope of a
habeas petition, the latter of which is typically limited to allegations of a
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constitutional dimension. 	Section 2255 allows a federal prisoner to “vacate, set
aside or correct” a federal sentence on the ground that “the sentence was
imposed in violation of the Constitution or laws of the United States, or that
the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack.” 	See 28 U.S.C. ' 2255(a). 	Where the allegation for
relief is not based on a violation of a Constitutional or federal statutory right or
an assertion that the court was without jurisdiction, the Supreme Court has
read a “fundamentality” requirement into ' 2255—relief is available for only
those errors which constitute a “fundamental defect which inherently results in
a complete miscarriage of justice” or “an omission inconsistent with the
rudimentary demands of fair procedure.” 	Hill v. United States, 368 U.S. 424,
428 (1962); see Peguero v. United States, 526 U.S. 23, 27-30 (1999).
Generally, petitioners are precluded from asserting claims pursuant to
' 2255 that they failed to raise on direct appeal. 	United States v. Frady, 456
U.S. 152, 167-68 (1982); McNeal v. United States, 249 F.3d 747, 749 (8th Cir.
2001). 	When a ' 2255 petitioner asserts a claim that is procedurally defaulted
because it was not raised on direct appeal, the claim can only proceed after the
petitioner has shown either: 	(1) actual innocence or (2) that the procedural
default should be excused because there was both cause for the default and
actual prejudice to the petitioner. 	Bousley v. United States, 523 U.S. 614,
621-22 (1998); McNeal, 249 F.3d at 749. 	Therefore, barring a claim of actual
innocence, a petitioner must show both cause for why he failed to raise an
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issue on direct appeal as well as actual prejudice caused by the alleged errors.
If a movant fails to demonstrate prejudice, the court need not address whether
cause exists to excuse a procedural default. 	Moore-El v. Luebbers, 446 F.3d
890, 898 (8th Cir. 2006).
Appellate courts generally refuse to review claims of ineffective assistance
of counsel on direct appeal; such claims are, therefore, properly addressed in a
28 U.S.C. ' 2255 motion such as the one here. 	See United States v. Campbell,
764 F.3d 880, 892-93 (8th Cir. 2014); United States v. Lee, 374 F.3d 637, 654
(8th Cir. 2004) (ineffective assistance of counsel claims are not generally
cognizable on direct appeal and will be heard only to prevent a miscarriage of
justice or in cases where the district court has developed a record on the
issue). 	Therefore, no procedural default analysis is required before examining
petitioner=s claims of constitutionally deficient counsel.
B. 	Mr. Scott’s Pre-Plea Claims
Mr. Scott has two claims that do not fall under the umbrella of ineffective
assistance of counsel and which concern matters that could have been
addressed prior to his plea. 	Those claims are his Fourth Amendment claim
related to his traffic stop and the alleged defectiveness of the indictment. 	The
court notes that Mr. Scott at no time alleges his plea of guilty suffers from any
constitutional infirmities. 	The court concludes these two claims are precluded
by Mr. Scott’s knowing, intelligent and voluntary plea.
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When a § 2255 petitioner has been convicted in his direct criminal
proceedings by entering a guilty plea, the scope of issues available to him to be
raised in habeas proceedings is curtailed. 	As the Supreme Court has stated:
[A] guilty plea represents a break in the chain of events which has
preceded it in the criminal process. 	When a criminal defendant
has solemnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise
independent claims relating to the deprivation of constitutional
rights that occurred prior to the entry of the guilty plea. 	He may
only attack the voluntary and intelligent character of the guilty
plea by showing that the advice he received from counsel was not
within the standards set forth in [McMann v. Richardson, 397 U.S.
759 (1970)].
A guilty plea, voluntarily and intelligently entered, may not be
vacated because the defendant was not advised of every
conceivable constitutional [issue] he might have to the charge, no
matter how peripheral such a plea might be to the normal focus of
counsel’s inquiry. 	And just as it is not sufficient for the criminal
defendant seeking to set aside such a plea to show that his counsel
in retrospect may not have correctly appraised the constitutional
significance of certain historical facts, . . ., it is likewise not
sufficient that he show that if counsel had pursued a certain
factual inquiry such a pursuit would have uncovered a possible
constitutional infirmity in the proceedings.
Tollett v. Henderson, 411 U.S. 258, 267 (1973).
The Supreme Court has explained why a guilty plea cuts off all
constitutional claims that predate a plea. 	Pleas are necessarily based on
imperfect knowledge of the law and facts—one can only know what the result of
a full-blown jury trial will be after the trial has been had, and, even then, truth
is still often in dispute. 	McMann, 397 U.S. 769-70. 	If a defendant admits his
commission of a crime, upon good-faith, reasonably competent advice from his
counsel, the defendant assumes the risk that his attorney might be wrong
about the facts or the outcome of a legal issue. 	Id. at 774.
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The issue presented in habeas proceedings is not whether—in
retrospect--counsel was right or wrong about a certain fact or legal analysis,
but rather, whether the defendant’s plea was made voluntarily and intelligently
and upon advice from his attorney that was “within the range of competence
demanded of attorneys in criminal cases.” 	Id. at 770-71. 	Therefore, a
defendant who pleaded guilty because of a prior coerced confession that he
believed would be used against him at trial is not entitled to an evidentiary
hearing in a habeas proceeding without showing other, extenuating
circumstances. 	Id. at 771.
A voluntary and knowing plea is not transformed into a coerced plea
simply because the defendant pleaded guilty to obtain a lesser sentence than
the maximum possible penalty that would have been applicable if defendant
had been convicted at trial. 	Brady v. United States, 397 U.S. 742, 751 (1970);
Parker v. North Carolina, 397 U.S. 790, 795 (1970). 	Guilty pleas are valid if
the court record affirmatively discloses the plea was both voluntary and
intelligent. 	Boykin v. Alabama, 395 U.S. 238, 242 (1969).
A plea is voluntary if it is made by a defendant who is “fully aware of the
direct consequences, including the actual value of any commitments made to
him by the court, prosecutor, or his own counsel,” and so long as the plea was
not induced by threats, misrepresentation, or by promises that are improper,
unfulfilled, or unfulfillable. 	Brady, 397 U.S. at 755.
A plea is intelligently made if the defendant was aware of the nature of
the charge against him, and he was mentally competent and in control of his
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mental faculties. 	Brady, 397 U.S. at 756. 	A plea is not rendered
unintelligently made simply because, long after the plea was entered, the
defendant realizes his cost-benefit analysis as to whether to go to trial or to
plead guilty did not correctly take into account every relevant factor which
entered into his decision. 	Id. at 756-57.
Here, Mr. Scott’s plea was constitutional. 	He knew the nature of the
charges against him, the mandatory minimum and maximum penalties, and
the fact that his USSG range might be higher than anticipated. 	The record
establishes he was mentally competent, not under the influence of any drug or
alcohol, and knowlegeable about his rights and the fact he would be giving up
those rights if he pleaded guilty. 	He had no complaints about his lawyer’s
representation of him or the advice counsel had given him. 	The court made
abundantly clear that, if Mr. Scott entered a guilty plea, he would be giving up
the right to contest his guilt as well as every other issue in his case except the
court’s jurisdiction and an upward variance or departure.
The Fourth Amendment violation Mr. Scott wishes to raise here stems
from the traffic stop in his case. 	He alleges the police unlawfully extended the
duration of the stop, thus violating Mr. Scott’s constitutional rights. 	This is an
issue that could have been raised pre-plea and that is now barred by
Mr. Scott’s constitutional plea of guilty.
Likewise, the claim that the indictment was defective (Mr. Scott does not
identify a constitutional right he believes to have been violated here), is a claim
that could have been raised before his plea. 	At his plea hearing, the court
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explained the essential elements the government would have to prove at trial in
order to convict Mr. Scott. 	Any claim that the indictment failed to set forth the
elements of the crime is a claim that was precluded the moment Mr. Scott
entered his guilty plea.
Because both claims described above are precluded by the entry of a
valid plea of guilty by Mr. Scott, the court recommends the government’s
motion to dismiss those claims with prejudice be granted.
C. 	Mr. Scott’s Claim Regarding the Court’s Error as to Drug Quantity
Mr. Scott alleges the district court violated his rights under the Fifth and
Sixth Amendments by finding facts (drug quantities) which served to increase
his sentence instead of submitting those matters to a jury to determine. 	As
stated above, this claim is procedurally defaulted because it was not raised in a
direct appeal. 	Frady, 456 U.S. at 167-68; McNeal, 249 F.3d at 749. 	It is
noteworthy that Mr. Scott never alleges he told his trial counsel to file an
appeal. 	Because this claim is defaulted, the court considers whether there is
cause to excuse the default and prejudice.4 Bousley, 523 U.S. at 621-22;
McNeal, 249 F.3d at 749.
Mr. Scott alleges counsel was constitutionally ineffective for failing to
raise this issue and, thus, that he has established cause which should excuse
his procedural default. 	Docket No. 1 at p. 17. 	Mr. Scott does not address the
prejudice prong of the inquiry. 	Id.
4 Mr. Scott does not assert that he is actually innocent, in fact admitting that
he broke the law and must serve some type of prison sentence. 	Docket No. 1 at
p. 27. 	Therefore, the court does not discuss the actual innocence exception.
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The court finds Mr. Scott has not and cannot establish prejudice. 	The
drug quantity calculation affected Mr. Scott’s base offense level for the
conviction for conspiracy to distribute methamphetamine. 	See USSG § 2D1.1.
The final PSR attributed 8.84 kilograms of meth to Mr. Scott. 	CR II Docket
No. 80 at p. 6, ¶ 16. 	If one is convicted of distributing at least 5 kilograms of
methamphetamine but less than 15 kilograms, the base offense level for the
crime is 34. 	USSG § 2D1.1(c)(3).
However, Mr. Scott was classified as a career offender under USSG
§ 4B1.1(a) because he was at least 18 years old at the time of the instant
offense, his instant offense was a controlled substance offense, and he had at
least two prior convictions of either a crime of violence or a controlled
substance offense. 	See USSG § 4B1.1(a). 	When a defendant qualifies as a
career offender, the offense level under § 4B1.1 applies instead of the otherwise
applicable base offense level if the § 4B1.1 offense level is higher. 	See USSG
§ 4B1.1(b).
The base offense level under § 4B1.1 is determined by reference to the
statutory maximum penalty for the offense of conviction. 	Id. 	If the offense
statutory maximum is life in prison, as it was in Mr. Scott’s case, the base
offense level under § 4B1.1(b) is 37. 	Id. 	Here, the PSR and the court began
Mr. Scott’s USSG calculation with a base offense level of 37 as dictated by
USSG § 4B1.1, and then reduced it to a total offense level of 34 based on a
three-point adjustment for acceptance of responsibility. 	CR II Docket No. 80 at
p. 8, ¶¶ 27-31; CR II Docket No. 97 at p. 4. 	Thus, the drug quantity
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calculation, even if it was in error, even if it violated Mr. Scott’s constitutional
rights, did not prejudice him. 	His USSG range was determined by the
application of § 4B1.1, the career offender provision, not by § 2D1.1(c), the
drug quantity provision.5
Where a § 2255 movant has not demonstrated prejudice, the court need
not address cause. 	Moore-El, 446 F.3d at 898. 	Here, the court concludes
Mr. Scott has failed to carry his burden of establishing he was prejudiced by
any error of the court in determining the drug quantities attributed to him.
Therefore, the court recommends his claim concerning that error be dismissed
because it is procedurally defaulted and cause and prejudice are not
established. 	A dismissal based upon procedural default is a dismissal with
prejudice. 	Armstrong v. Iowa, 418 F.3d 924, 925, 927 (8th Cir. 2005); Ogle v.
Johnson, 488 F.3d 1364, 1370 (11th Cir. 2007).
D. 	Mr. Scott’s Claim Regarding Sentence Disparity
Mr. Scott asserts that his 262-month sentence is constitutionally
disparate compared to the 210-month sentence imposed on his co-defendant,
Curtis Webb, and another co-conspirator, Gabriel Orlando Ramirez.6 Mr. Scott
argues that Mr. Webb’s role in the conspiracy was more involved and Mr. Scott
5 The court notes that while Mr. Scott emphasizes repeatedly that he only
entered a guilty plea to distributing 500 grams of meth, really he pleaded guilty
to distributing 500 grams or more of meth. 	In addition, he admitted in his
factual basis statement to distributing “several pounds” of meth. 	CR II Docket
No. 58.
6 Mr. Scott does not recite what Mr. Ramirez’s sentence in his case was.
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had only been involved in “[Mr.] Webb’s conspiracy” for two months (because
he had been in prison prior thereto). 	Docket No. 1 at p. 26.
At sentencing, the court dispensed with this argument by noting that the
distinguishing feature between Mr. Scott and Mr. Webb was that Mr. Scott
committed this new drug conspiracy crime while he was still on supervised
release for his 2005 federal drug conviction. 	Mr. Webb was not similarly
situated according to the court. 	Although Mr. Webb had a sufficiently severe
criminal history to place him within the career offender classification,
apparently the court thought he was not under supervision at the time he
committed the 2018 charge.
But Mr. Scott alleges Mr. Webb, like himself, committed the instant
crime while still under supervision for a prior drug felony. 	Docket No. 1 at
p. 10. 	There appears to be some merit to this factual assertion, although
Mr. Webb’s prior offense for which he was under supervision was a state court
conviction and Mr. Scott’s was a federal court conviction. 	Webb CR Docket
No. 65 at p. 10, ¶ 39 (assessing two extra criminal history points because Mr.
Webb committed the instant offense while on parole for a state court felony
drug conviction). 	Thus, there is some superficial appeal to Mr. Scott’s
argument that, contrary to what the court stated at his sentencing, he and Mr.
Webb were similarly situated in that both committed the instant offense while
they were still under supervision for a prior drug felony and both Mr. Scott and
Mr. Webb were classified as career criminals.
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The government does not address this claim in its motion. 	The court
notes that this claim is procedurally defaulted because Mr. Scott did not raise
the claim in a direct appeal. 	Therefore, in order for the court to consider the
claim on the merits, it is Mr. Scott’s burden to show cause and prejudice.
Mr. Scott alleges as “cause” the assertion that counsel was ineffective.
Although in some instances ineffective assistance of counsel can constitute
cause excusing a procedural default (see Dansby v. Hobbs, 766 F.3d 809, 834
(8th Cir. 2014)), as discussed below, the court finds factual issues remain
regarding whether counsel was ineffective in connection with Mr. Scott’s
argument that his sentence was disparate when compared to Mr. Webb’s.
Counsel did raise this proportionality argument both in a pre-sentencing
written motion and orally in argument before the court at the sentencing
hearing, but it is unknown whether he made any attempts to ascertain whether
Mr. Webb was on parole at the time of the instant offense.
To highlight the importance of this fact, the court recites the following
exchange which occurred between the court and counsel in the midst of
counsel’s disparate sentence argument:
THE COURT: 	Mr. Tupman, the codefendant was not on supervised
release at the time that he was engaged in the offense; was he?
MR. TUPMAN: 	Well, I don’t have [Mr. Webb’s] PSR, but certainly
he had prior convictions that got him to be a career offender.
I don’t know if he was on probation, supervised release, what have
you. 	The Court would have access to that, not me.
CR II Docket No. 97 at p. 9, lines 18-25.
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When Mr. Scott addressed the court, the court raised the issue again:
THE COURT: 	So you were on supervision when this happened,
and the amount of meth that was found on you was quite a
substantial amount. 	Did being on supervised release have any
impact on you?
Id. at p. 10, lines 6-9.
Finally, when the court was explaining its sentence, the court said the
following:
When I look at a sentence that I think is appropriate, your
codefendant [Curtis Webb] received 210 months in custody. 	But
he wasn’t on supervised release at the time that this happened.
Your other offense is so close in time, when you consider the
amount of time that you spent in custody, that it really shows me
that you didn’t learn anything from that prior time you were in
custody. 	You weren’t interested in changing your pattern of life.
You go from one time being in custody to another time being in
custody, most of them drug offenses. 	So I think your likelihood of
reoffending again once you’re release is extremely high that you’ll
get back into the drug business again.
So because—I think this is a time when being a career
offender accurately reflects what your record is, based on the
number of prior drug convictions that you have and the fact that
this was committed while you were on supervised release. 	So I am
not going to downward depart or downward vary . . . .
Id. at pp. 13-14.
As discussed in more detail below, Mr. Scott had nine felony drug
convictions at the time of his sentencing, but Mr. Webb had five felony drug
convictions at the time of his sentencing, four of which were drug felonies.
Compare Webb CR Docket No. 65 at pp. 8-10; with CR II Docket No. 80 at pp.
10-14. 	Both men, by virtue of the application of the career offender
enhancement, were in criminal history category VI. 	Thus, both men had many
prior drug felonies and both men committed the instant offense while still
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under supervision for a prior drug felony. 	Clearly, based on what the court
stated at Mr. Scott’s sentencing, the fact that Mr. Scott was on supervision was
an important sentencing factor to the court. 	Mr. Webb’s USSG range was
identical to Mr. Scott’s. 	Compare CR II Docket No. 80 at p. 24, ¶ 100, with
Webb CR Docket No. 65 at p. 17, ¶ 70 (both setting forth a USSG range of 262
to 327 months). 	Both defendants entered guilty pleas with the same
approximate degree of promptness (within two months of each other).
So, these two defendants appear nearly identical on paper, but in one
case, Mr. Webb’s, the court varied downward from the 262-month bottom-of-
the-Guidelines range and in the other case, Mr. Scott’s, the court refused to
grant a variance. 	Compare Webb CR Docket No. 73-1 (statement of reasons as
to variance in Mr. Webb’s case), with CR II Docket No. 87-1 (statement of
reasons as to no variance in Mr. Scott’s case).
Moreover, although the Eighth Circuit has refused to entertain claims of
disparate sentencing when the defendant making the claim was sentenced
before his co-defendants (see United States v. Fry, 792 F.3d 884, 891-92
(8th Cir. 2015)), here, Webb was sentenced before Mr. Scott, so that rationale
for rejecting a disparate sentence argument does not apply in this case.7 At the
time the court sentenced Mr. Scott, it already knew what sentence had been
imposed on Mr. Webb.
7 Mr. Webb was sentenced on September 9, 2019, while Mr. Scott was
sentenced on November 26, 2019. 	See Webb/Scott, 4:18-cr-40151 at Docket
Nos. 72 and 86. 	Both men were sentenced by the same district court judge.
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Mr. Scott must show not only cause for his procedural default, but also
that he is raising a substantial claim. 	Dansby, 766 F.3d at 834. 	A substantial
claim is one that “has some merit.” 	Id. (citing Martinez v. Ryan, 566 U.S. 1,
14 (2012)).
The Eighth Amendment’s prohibition on cruel and unusual punishment
includes a prohibition on sentences that are disproportionate. 	Solem v. Helm,
463 U.S. 277, 284, 286 (1983). 	Successful proportionality challenges are
“exceedingly rare” outside the context of death penalty cases. 	Id. at 289-90.
Nevertheless, it is not entirely inapplicable to cases involving mere prison
sentences. 	Id. at 290. 	In applying the proportionality analysis, courts apply
three objective factors: 	“(i) the gravity of the offense and the harshness of the
penalty; (ii) the sentences imposed on other criminals in the same jurisdiction;
and (iii) the sentences imposed for commission of the same crime in other
jurisdictions.” 	Id. at 292. 	The Eighth Circuit applies a “grossly
disproportionate” analysis under the Eighth Amendment. 	United States v.
Jefferson, 819 F. App’x 474, 475 (8th Cir. 2020) (per curiam).
In the Jefferson case, the court rejected a disproportionality argument on
similar facts to Mr. Scott’s case. 	Jefferson had pleaded guilty to conspiracy to
distribute 500 grams or more of methamphetamine. 	Id. 	He was classified as a
career criminal and had a USSG range of 360 months to life imprisonment. 	Id.
The district court sentenced him to 300 months’ imprisonment, and Jefferson
argued in his direct appeal that this sentence was constitutionally
disproportionate to the crime. 	Id. 	The court acknowledged that Jefferson’s
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sentence was long, but noted it was less than the statutory maximum of life
imprisonment and less than the USSG range minimum of 360 months. 	Id.
The court found Jefferson’s case did not present “the rare case” in which the
sentence ran afoul of the Eighth Amendment. 	Id. 	So, this court concludes
Mr. Scott’s sentence is not disproportionate to the crime.
The Jefferson decision involved a comparison between the sentence
imposed and the crime of conviction. 	Id. 	Here, Mr. Scott posits a
proportionality argument based on a comparison between his sentence and
that of his co-defendant, which presents a different argument from that
considered in Jefferson.
The courts have fairly routinely rejected claims of disproportionality
based on comparisons between co-defendants. 	See United States v. Johnson,
495 F.3d 951, 960-62 (8th Cir. 2007) (rejecting comparison between alleged
principal’s life sentence and co-defendant’s death sentence) (citing McCleskey
v. Kemp, 481 U.S. 279, 306-07 (1987) (rejecting proportionality argument as
between co-defendants); United States v. Chauncey, 420 F.3d 864, 876 (8th
Cir. 2005) (stating that a defendant’s sentence is not disproportionate under
the Eighth Amendment merely because it exceeds his co-defendant’s
sentence)). 	See also United States v. Brown, 634 F.3d 435, 440 (8th Cir. 2011)
(rejecting argument that sentence was disproportionate to co-defendant’s);
United States v. Ramos, 358 F. App’x 754, 754 (8th Cir. 2009) (per curiam)
(rejecting defendant’s proportionality argument based on co-defendant’s lower
sentence); Holloway v. United States, 960 F.2d 1348, 1352 (8th Cir. 1992)
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(rejecting § 2255 petitioner’s claim that his sentence was disproportionate to
co-defendant’s based on “bald assertion[]” that co-defendant was more
culpable).
However, the Eighth Circuit has often noted distinguishing features
between one co-defendant and another in rejecting claims of intra-case
proportionality, thereby suggesting such comparisons are not rejected
categorically. 	For example, the court has observed that disparate sentences
are justified where one co-defendant cooperated with the government and the
other did not. 	United States v. Garcia, 512 F.3d 1004, 1006 (8th Cir. 2008);
United States v. Chauncey, 420 F.3d 864, 876 (8th Cir. 2005). 	Or where one
co-defendant’s criminal history was more serious than the other co-
defendant’s. 	Chauncey, 420 F.3d at 876. 	The court has rejected intra-case
proportionality claims where the sentencing court found “meaningful
distinctions between the two defendants’ cases.” 	United States v. Jones, 718 F.
App’x 443, 447 (8th Cir. 2017).
Here, this court can discern no “meaningful distinction” between
Mr. Scott and Mr. Webb. 	Both had lengthy criminal histories which included
four or more felony drug crimes. 	Both committed the instant offense while
under supervision for a prior drug felony. 	Both pleaded guilty instead of going
to trial. 	Both fell within the career offender classification. 	Furthermore, the
one distinction relied upon and articulated by the court appears to be in error
or at least not a material distinction—Mr. Scott committed the instant crime
while on federal supervision for a prior felony drug crime while Mr. Webb
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committed the instant crime while on state supervision for a prior felony drug
crime. 	On these facts, the court cannot conclude that Mr. Scott has failed to
make out a substantial case. 	The court accordingly recommends denying
respondent’s motion to dismiss as it applies to the claim that Mr. Scott’s
sentence is disproportionate when compared to Mr. Webb’s sentence.
E. 	Ineffective Assistance of Counsel
Mr. Scott asserts a litany of claims that his counsel was ineffective, thus
allegedly violating Mr. Scott’s Sixth Amendment right to effective assistance of
counsel. 	The government argues Mr. Scott has not met his burden to show
both deficient conduct by counsel and prejudice to him as a result.
1. 	Standard for Ineffective Assistance of Counsel Claims
Unlike the above-discussed claims, claims of ineffective assistance of
counsel are generally not heard on direct appeal. 	Campbell, 764 F.3d at
892-93; Lee, 374 F.3d at 654. 	Therefore, ineffective assistance claims can
permissibly be raised for the first time in a § 2255 motion.
The Sixth Amendment of the Constitution of the United States affords a
criminal defendant with the right to assistance of counsel. 	U.S. Const.
amend. VI. 	The Supreme Court “has recognized that ‘the right to counsel is the
right to the effective assistance of counsel.’ ” 	Strickland v. Washington, 466
U.S. 668, 686 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14
(1970)). 	Strickland is the benchmark case for determining if counsel’s
assistance was so defective as to violate a criminal defendant’s Sixth
Amendment rights and require reversal of a conviction. 	Id. at 687. 	“When a
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convicted defendant complains of the ineffectiveness of counsel’s assistance,
the defendant must show that counsel’s representation fell below an objective
standard of reasonableness.” 	Id. at 687-88. 	The defendant must also show
that counsel’s unreasonable errors or deficiencies prejudiced the defense and
affected the judgment. 	Id. at 691. 	The defendant must show “there is a
reasonable probability that, absent the errors, the factfinder would have had a
reasonable doubt respecting guilt.” 	Id. at 695. 	In sum, a defendant must
satisfy the following two-prong test. 	Id. at 687.
First, the defendant must show that counsel’s performance was
deficient. 	This requires showing that counsel made errors so
serious that counsel was not functioning as the “counsel”
guaranteed the defendant by the Sixth Amendment. 	Second, the
defendant must show that the deficient performance prejudiced the
defense. 	This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. 	Unless a defendant makes both showings, it
cannot be said that the conviction or death sentence resulted from
a breakdown in the adversary process that renders the result
unreliable.
Id.
“There is a presumption that any challenged action was sound trial
strategy and that counsel rendered adequate assistance and made all
significant decisions in the exercise of professional judgment.” 	Hall v.
Luebbers, 296 F.3d 685, 692 (8th Cir. 2002) (quotation omitted). 	It is the
petitioner’s burden to overcome this presumption, and a “petitioner cannot
build a showing of prejudice on a series of errors, none of which would by itself
meet the prejudice test.” 	Id. 	Counsel’s conduct must be judged by the
standards for legal representation which existed at the time of the
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representation, not by standards promulgated after the representation. 	Bobby
v. Van Hook, 558 U.S. 4, 7-9 (2009). 	American Bar Association standards and
similar directives to lawyers are only guides as to what reasonableness of
counsel’s conduct is; they are not its definitive definition. 	Id.
The Supreme Court distinguishes between those cases in which the new
evidence “would barely have altered the sentencing profile presented to the
sentencing judge,” and those that would have had a reasonable probability of
changing the result. 	Porter v. McCollum, 558 U.S. 30, 41 (2009) (quotation
omitted). 	In assessing the prejudice prong, it is important for courts to
consider “the totality of the available mitigation evidence—both that adduced at
trial, and the evidence adduced in the habeas proceeding—and reweigh it
against the evidence in aggravation.” 	Id. at 41 (internal quotation omitted,
cleaned up). 	It is not necessary for the petitioner to show “that counsel’s
deficient conduct more likely than not altered the outcome” of his case, only
that there is “a probability sufficient to undermine confidence in [that]
outcome.” 	Id. at 44 (quotations omitted). 	Judicial scrutiny of attorney
performance is highly deferential, with a strong presumption that counsel’s
conduct falls within the range of reasonable professional conduct. 	Strickland,
466 U.S. at 698.
2. 	Career Offender Enhancement
Mr. Scott argues that counsel failed to argue against the career offender
enhancement. 	He is wrong, factually. 	Counsel raised this issue both in
objections to the draft PSR and in objections to the final PSR at Mr. Scott’s
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sentencing hearing. 	The court ruled against him, but counsel was not deficient
in failing to raise the issue and argue in favor of Mr. Scott on the issue. 	The
court recommends dismissing this claim without holding an
evidentiary hearing.
3. 	Objection to Prior Felony Which Resulted in Probation
In order to qualify for the career offender classification, Mr. Scott needed
two prior convictions that were either violent felonies or controlled substance
felonies. 	See USSG 4B1.1(a). 	He argues one of his prior convictions used as a
predicate for placing him in the career offender category was not a felony
conviction because he received only a sentence of probation. 	He asserts
counsel was deficient in failing to make this argument.
Mr. Scott’s PSR reveals that he had been convicted of nine (9) felony
controlled substance crimes at the time of his sentencing. 	CR II Docket No. 80
at pp. 10-14, ¶¶ 35-46. 	Two of those convictions received sentences of
probation. 	Id. at p. 10, ¶¶ 35-36. 	The other seven (7) felony drug convictions
received sentences of incarceration. 	Id. at pp. 10-14, ¶¶ 37-46. 	Thus, even if
Mr. Scott’s assertion was correct that probationary sentences cannot be
counted as prior felony controlled substance offenses under USSG § 4B1.1(a),
he had more than enough prior drug felonies where he did receive a sentence of
imprisonment to qualify him as a career offender.
In addition, Mr. Scott is wrong about the law. 	A prior felony controlled
substance offense counts under USSG § 4B1.1(a) even if it resulted in a
sentence of probation. 	See USSG § 4B1.2, cmt. 1. 	Counsel was not deficient
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in failing to make the argument that Mr. Scott’s probationary sentences did not
count as felony controlled substance convictions. 	If he had made that
argument, it would have been rejected as wrong under the law. 	Finally, even if
counsel had made the argument and the court accepted it, Mr. Scott still had
sufficient other convictions to qualify as a career offender. 	The court
recommends this claim be dismissed without holding an evidentiary hearing.
4. 	Miscalculation of Drug Quantity
Mr. Scott argues that counsel was ineffective for failing to object to the
miscalculation of his drug quantity. 	It is unclear whether Mr. Scott is arguing
the amount itself was inaccurately arrived at or whether this is part of his
argument that the court was not allowed to find facts which increased his
sentence and counsel should have objected on that basis. 	The court notes that
counsel did object to the drug quantity contained in the draft PSR and that
objection resulted in a final PSR that set forth a much lower drug quantity.
In any event, Mr. Scott is unable to carry the prejudice prong of the
Strickland analysis for the same reasons discussed above. 	The career offender
provision, USSG § 4B1.1, determined Mr. Scott’s sentence, not the drug
quantity provision, USSG § 2D1.1, because the career offender provision
resulted in a greater base offense level. 	Thus, even if the court erred in
calculating the drug quantities attributable to Mr. Scott and counsel failed to
object to the calculation, he cannot show prejudice because, ultimately, those
drug quantities did not inform his USSG caculation. 	The court recommends
dismissal of this claim without holding an evidentiary hearing.
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5. 	Disproportionate Sentence Compared to Webb
The court understands Mr. Scott to be raising both a stand-alone claim
that his sentence was constitutionally disproportionate as well as a claim that
counsel failed to argue his sentence was disparate as compared to Mr. Webb.
The government does not address either argument.
Counsel does however address the issue in his affidavit. 	Docket No. 10
at p. 5, ¶ 12. 	Counsel correctly points out that he did raise the issue of
sentencing disparity with Mr. Webb in both his motion for downward departure
(CR II Docket No. 84 at p. 6) and orally at the sentencing hearing (CR II Docket
No. 97 at pp. 7-9). 	The court finds counsel’s affidavit to be entirely accurate.
So counsel did argue that Mr. Scott’s USSG range of 262 months was
disproportionate to Mr. Webb’s USSG range of 210 months.
As discussed above, at sentencing the court distinguished Mr. Webb from
Mr. Scott by asserting that Mr. Scott committed the instant offense while on
supervised release and Mr. Webb did not. 	While that is technically accurate
(“supervised release” is a term that does not apply to Mr. Webb’s situation—he
was on “parole” at the time he committed the instant offense), the substance of
the distinction is not accurate.
Counsel’s affidavit does not address whether he considered efforts to find
out whether Mr. Webb was on parole at the time he committed the instant
offense. 	Mr. Webb had already been sentenced in September, and Mr. Scott
was not sentenced until November, so Mr. Webb may have been willing to
share information about his circumstances with counsel without fear that it
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would result in a harsher sentence for himself. 	Counsel did not have access to
Mr. Webb’s PSR to be able to know that Mr. Webb had been on parole, but his
comments at Mr. Scott’s sentencing hearing indicate he was at least aware of
facts that might suggest Mr. Webb had been on parole at the time (i.e. counsel
knew Mr. Webb had qualified for the career offender classification). 	Because
counsel’s affidavit does not address whether he considered trying to find out
Mr. Webb’s circumstances, or whether he made efforts in that regard, the court
recommends holding an evidentiary hearing on this claim of ineffective
assistance of counsel as well as the related Eighth Amendment
proportionality claim.
CONCLUSION
Based on the foregoing law, facts and analysis, this magistrate judge
respectfully recommends granting in part and denying in part the government’s
motion to dismiss [Docket No. 20]. 	The court recommends dismissing all of
Mr. Scott’s claims except the claim that his sentence violated the Eighth
Amendment because it was disproportionate to Mr. Webb’s sentence and that
counsel was ineffective in failing to bring out facts showing Mr. Scott and
Mr. Webb were similarly situated.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this report and
recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
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Objections must be timely and specific in order to require de novo review by the
district court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED August 11, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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