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An Indianapolis heroin dealer who had already convinced the 7th Circuit Court of Appeals once to reduce his prison time has failed to persuade the judges to shave more time off his sentence.
In 2012, a grand jury indicted Anthony Lomax and his two cousins for conspiring to possess and distribute heroin. Lomax was subsequently charged with five counts of distributing heroin and one count of unlawfully possessing a firearm as a felon.
Later, the government filed a notice indicating its intention to seek an enhanced sentence for the heroin charges based on Lomax’s prior Indiana felony conviction for cocaine possession in 2001.
In February 2014, a jury found the defendants guilty on all counts, and Lomax was later sentenced to more than 33 years in prison.
However, Lomax had his conspiracy conviction vacated on appeal after judges found the U.S. District Court for the Southern District of Indiana erred by declining to give a certain jury instruction.
In a revised presentence investigation report, a probation officer recommended application of the career offender enhancement, which applies if a defendant “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” Lomax objected to his designation as a career offender, arguing that his Indiana conviction for attempted murder in 2004 did not constitute a crime of violence.
At a resentencing hearing in 2017, the district court overruled Lomax’s objection, concluding the application of the career offender enhancement did not increase Lomax’s total offense level. It did, however, increase his criminal history category from a V to a VI.
With a total offense level of 39 and a criminal history category of VI, the district court found that the applicable range under the sentencing guidelines was 30 years to life imprisonment. So, Lomax again was sentenced to 400 months in prison and again appealed.
Back before the 7th Circuit, Lomax argued that his attempted murder conviction was not a crime of violence, but judges rejected that argument and affirmed his sentence in 2018.
Lomax then filed a pro se motion pursuant to 28 U.S.C. § 2255 in 2019, alleging ineffective assistance of counsel in violation of his Sixth Amendment rights and asking the district court to “vacate, set aside or correct his sentence as would have been appropriate absent his Attorney’s errors.”
Specifically, Lomax argued his attorney failed to investigate at sentencing whether his prior Indiana conviction for cocaine possession constituted a predicate felony drug offense subject to enhanced penalties under 21 U.S.C. § 841. He also contended that his Indiana conviction for cocaine possession was broader than its federal counterpart, so his attorney should have challenged his enhanced sentence under § 841.
The district court construed Lomax’s argument “as asserting that he is actually innocent of the § 841(b)(1)(C) sentence enhancement because his 2001 Indiana conviction for possession of cocaine is not a ‘felony drug offense’ under current Seventh Circuit precedent.”
Relying on the actual innocence exception, the court went on to find that under current law, Lomax’s prior Indiana cocaine conviction does not qualify as a felony drug offense under § 841(b)(1)(C) and, therefore, Lomax was “actually innocent of the enhanced sentence.”
Without the § 841 enhancement, the court concluded Lomax would be subject to a statutory maximum sentence of 20 years imprisonment for the heroin offenses. Accordingly, in February 2021, the court granted Lomax’s § 2255 motion, vacated his sentence and ordered another resentencing hearing.
At the resentencing hearing in June 2021, the district court determined that although the statutory maximum sentence for Lomax’s heroin offenses decreased, the guidelines calculation remained the same.
With the assistance of counsel, Lomax renewed his objection to his designation as a career offender. However, the district court denied the objection for the same reasons, and Lomax was resentenced to a total of 25 years’ imprisonment for the heroin and firearm offenses.
Back before the 7th Circuit in the instant appeal, Lomax raised two issues: whether the district court abused its discretion by not holding a § 2255 evidentiary hearing regarding his ineffective assistance of counsel allegations and whether his prior attempted murder conviction constitutes a crime of violence under U.S.S.G. § 4B1.2.
This time around, Lomax wasn’t successful.
First, the appellate judges declined to review his argument with respect to any alleged deficiencies in his counsel’s performances during the pretrial proceedings.
“Even when liberally construed, Lomax’s § 2255 motion does not encompass the pretrial proceedings,” Judge Joel Flaum wrote. “… Lomax’s motion does not contain any allegations regarding his decision to proceed to trial or regarding an available plea deal.
“… Moreover,” Flaum continued, “in the motion, Lomax specifically distinguished his claim from one in ‘a plea agreement context’ when relying on Brock-Miller v. United States, 887 F.3d 298, 310 (7th Cir. 2018), a case regarding a counsel’s failure to appropriately challenge the government’s sentencing enhancement notice prior to the defendant accepting a plea agreement.”
The appellate court also concluded that the attempted murder charge was a crime of violence even with the U.S. Supreme Court decision in United States v. Taylor, which held that, under 18 U.S.C. § 924(c), attempted Hobbs Act robbery does not qualify as a “crime of violence.”
“Although § 924(c) and § 4B1.2(a) share a similar elements clause, the district court did not apply § 4B1.2(a)’s elements clause in finding that Lomax’s attempted murder conviction constituted a crime of violence,” Flaum wrote. “… Thus, the Supreme Court’s analysis of § 924(c) is not determinative here.”
The case is United State of America v. Anthony Lomax, also known as ANT, 21-2274.
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