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Lomax v. United States

United States District Court, M.D. Pennsylvania

September 12, 2019

REGINALD LOMAX, JR., Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          MEMORANDUM

          MALACHY E. MANNION, UNITED STATES DISTRICT JUDGE

         Pending before the court is the pro se Motion to Vacate, Set Aside or Correct, filed by petitioner Reginald Lomax, Jr., pursuant to 28 U.S.C. §2255, with regard to his 180-month sentence of imprisonment imposed on June 27, 2017. (Doc. 84). In his motion, Lomax claims that one of his prior Pennsylvania drug convictions did not qualify as a predicate offense under the Armed Career Criminal Act (“ACCA”), and that his sentence, after he pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §922(g)(1), should not have been enhanced under the ACCA. In considering Lomax's motion, the government's response, and the record, the motion will be DENIED without an evidentiary hearing. Lomax's motion for appointment of counsel, (Doc. 86), will also be DENIED. The court will not issue a certificate of appealability.

         I. BACKGROUND [1]

         On June 16, 2016, Lomax pled guilty to a violation of 18 U.S.C. §922(g), being a felon in possession of a firearm. (Doc. 54). A pre-sentence report (“PSR”) was prepared which found that Lomax's three prior Pennsylvania convictions, (Doc. 58, PSR ¶¶ 33, 35 and 36), were serious drug offenses qualifying him as an armed career criminal under 18 U.S.C. §924(e), the ACCA.[2]

         Lomax objected to the PSR and its finding that he was an armed career criminal.

         On March 6, 2017, the court[3] found that Lomax's 2008 Pennsylvania conviction for possession with intent to deliver cocaine, (PSR ¶36), in violation of 35 Pa. Stat. Ann. §780-113(a)(30), was a serious drug offense under the ACCA. (Doc. 68 at 3).

         The court also found that Lomax's 2006 Pennsylvania conviction for possession with intent to deliver marijuana, (PSR ¶35), in violation of 35 Pa. Stat. Ann. §780-113(a)(30), qualified as a predicate offense under the ACCA because it “involve[d] a controlled substance for which a maximum ten-year sentence has been authorized.” (Doc. 68 at 7). As this court previously found, no doubt that if Lomax's marijuana charge was a first offense, a marijuana conviction would have carried a maximum penalty of five years imprisonment. However, since Lomax's marijuana charge was subsequent to a prior drug trafficking conviction, i.e., his 2003 Pennsylvania conviction for possession with intent to deliver cocaine, (PSR ¶33), the maximum penalty under Pennsylvania law Lomax faced regarding his 2006 marijuana conviction was ten years. See 35 P.S. §780-115. See also Lomax, 744 Fed.Appx. at 757 (Third Circuit held that although possession with intent to deliver marijuana in violation of §780-113(a)(30) carries a statutory maximum of five years' imprisonment, 35 Pa. Stat. Ann. §780-113(f)(2), “Lomax was subject to a maximum sentence of ten years because he was a recidivist.”) (citing §780-115). (See also Doc. 65 at 2-7). Thus, this court found that Lomax's 2006 Pennsylvania conviction for possession with intent to deliver marijuana qualified as a serious drug offense under the ACCA, 18 U.S.C. §924(e).

         On June 28, 2017, Lomax was designated as an armed career criminal and sentenced by the court to 180 months' imprisonment. (Doc. 77).

         On July 11, 2017, Lomax appealed his judgment of sentence claiming, in part, that the district court erred when it designated him an armed career criminal, and that his sentence should not have been enhanced under the ACCA. (Doc. 80). In particular, Lomax claimed that the district court erred in finding that this 2008 conviction for possession with intent to deliver cocaine and his 2006 conviction for possession with intent to deliver marijuana were serious drug offenses based on the categorical approach that must be applied according to Mathis v. United States, 136 S.Ct. 2243, 2248 (2016).See Lomax, 744 Fed.Appx. at 757.

         After hearing oral argument, Lomax's appeal was denied on August 10, 2018 by the Third Circuit and, the district court's judgment of conviction and sentence was affirmed. (Docs. 89 & 89-1). See United States v. Lomax, 744 Fed.Appx. 754 (3d Cir. 2018). In its decision, the Third Circuit found, in pertinent part, that the district court did not err in determining that Lomax's 2008 conviction for possession with intent to deliver cocaine and his 2006 conviction for possession with intent to deliver marijuana were serious drug offenses and qualified as predicates under the ACCA.[4] See Lomax, 744 Fed.Appx. at 757-58.

         The Third Circuit first considered Lomax's 2006 conviction and explained as follows:

Lomax counters that his 2006 conviction cannot be a serious drug offense because, under Mathis v. United States, 136 S.Ct. 2243 (2016), “a state crime cannot qualify as an ACCA predicate if its elements are broader than those of a listed generic offense.” Lomax Br. 28-29 (citing Mathis, 136 S.Ct. at 2251). Specifically, he argues that the recidivist statute (section 780-115) is broader than ACCA's definition of a serious drug offense since it “does not distinguish between controlled substances and counterfeit controlled substances” and instead increases the penalties for distributing either. Id. at 28.
Lomax's argument fails because it is based on the fallacy that the ACCA predicate offense is section 780-115. The true predicate offense in this case is section780-113(a)(30). See Lomax, 2017 WL 878404, at *4 (explaining that section 780-115 “simply . . . enhances a sentence for a substantive offense occurring under section ...

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