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United States v. Lomax

United States District Court, M.D. Pennsylvania

March 6, 2017

UNITED STATES OF AMERICA,
v.
REGINALD L. LOMAX, JR., Defendant

          MEMORANDUM

          William W. Caldwell United States District Judge

         Defendant pled guilty to a violation of 18 U.S.C. § 922(g), being a felon in possession of a firearm. A presentence report (PSR) was prepared which concludes that Defendant has three prior Pennsylvania convictions (PSR ¶¶ 33, 35 and 36) that are serious drug offenses qualifying Defendant as an armed career criminal under 18 U.S.C. § 924(e), the Armed Career Criminal Act (ACCA). We are addressing four objections Defendant made to the presentence report (PSR), three of which he briefed in a sentencing memorandum, filed December 20, 2016. Two of them deal with Defendant's status as an armed career criminal.

         A. The objection dealing with defendant's 2008 cocaine offense

         Defendant's first objection is that his 2008 cocaine offense (PSR ¶ 36) is not a serious drug offense because it was treated in state court as a third-degree felony punishable by only a maximum sentence of seven years, not the maximum sentence of ten years required for a serious drug offense under the ACCA.

         In pertinent part, the ACCA defines a serious drug offense as follows:

(A) the term “serious drug offense” means -
. . . .
(ii) an offense under state law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law; . . .

18 U.S.C. § 924(e)(2)(A)(ii).

         In support of his claim that the offense does not qualify as a serious drug offense, Defendant relies on the written guilty-plea colloquy and the oral guilty-plea colloquy from the records in state court. In the written colloquy, Defendant is told that the charge is “delivery of cocaine” for which the “maximum term of confinement” is “7 years” and a “maximum fine” of “$15, 000.” (Doc. 64-1, ECF p. 6). In the oral colloquy, the court informs Defendant that he could face up to seven years in jail and a fine of up to $15, 000. (Doc. 64-2, ECF p. 2). Defendant observes that a third-degree felony is punishable with a maximum sentence of seven years, 18 Pa. Cons. Stat. Ann. § 106(b)(4), and that a maximum fine of $15, 000 is consistent with a third-degree felony. See 18 Pa. Cons. Stat. Ann. § 1101(3). Defendant therefore concludes that his 2008 cocaine offense does not qualify as a serious drug offense because it was treated as a third-degree felony under state law.

         We reject this argument, essentially for the reasons the government advances. The government argues that the reference to a seven-year maximum sentence is simply a mistake that does not control the issue here. It maintains the offense qualifies as a serious drug offense because it meets the definition of “serious drug offense” in the ACCA. We agree.

         Defendant was charged in the affidavit of probable cause and in the criminal information with a violation of 35 Pa. Stat. Ann. § 780-113(a)(30), (Doc. 67-1, ECF p. 3, 6), with both documents charging that Defendant made a delivery of cocaine.

         In pertinent part, section 780-113(a)(30) makes the following illegal:

the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act, or a practitioner not registered or licensed by the appropriate State board, or knowingly creating, delivering or ...

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