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United States v. As-Sidiq

United States District Court, D. Minnesota

October 20, 2017





          Patrick J. Schiltz United States District Judge

         Defendant LaQuedrick As-Sidiq pleaded guilty to aiding and abetting the distribution of cocaine in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The Court determined that As-Sidiq's Guidelines range was 151 to 188 months, varied downward, and sentenced As-Sidiq to 120 months in prison. See ECF No. 333 at 1-2; ECF No. 334 at 1. As-Sidiq then brought this motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. See ECF Nos. 365, 394. The Court appointed attorney James Ostgard to represent As-Sidiq in connection with his § 2255 motion.

         As-Sidiq's main argument is that his trial counsel was ineffective for failing to argue that As-Sidiq should not have been sentenced as a career offender under § 4B1.1 of the United States Sentencing Guidelines because two of his prior convictions were not “controlled substance offenses.” The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-86 (1984). To prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) his counsel's performance “fell below an objective standard of reasonableness” and (2) “there is a reasonable probability that, but for [his] counsel's . . . errors, the result of the proceeding would have been different.” Id. at 688, 694.

         To be classified as a career offender, a defendant must have “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a)(3). A “controlled substance offense” is an offense prohibiting the distribution of a controlled substance, or the “possession of a controlled substance . . . with intent to . . . distribute.” U.S.S.G. § 4B1.2(b).

         As-Sidiq has two prior convictions for third-degree sale of narcotics in violation of Minn. Stat. § 152.023, subd. 1(1). Minnesota law defines the word “sale” to mean to distribute or “offer” to distribute a controlled substance. Minn. Stat. § 152.01, subd. 15a(1)-(2). In theory, then, As-Sidiq could have been convicted of third-degree sale of narcotics for offering to sell narcotics without actually distributing narcotics or possessing narcotics with intent to distribute. See State v. Lorsung, 658 N.W.2d 215, 218 (Minn.Ct.App. 2003) (holding that Minnesota's drug-sale statutes do not have a specific-intent requirement).

         Had As-Sidiq's attorney pointed this out to the Court at sentencing, one of two things would have happened. First, the Court may have found that Minn. Stat. § 152.023, subd. 1(1) was indivisible, applied the categorical approach, and found that As-Sidiq's prior convictions were not “controlled substance offenses.” Second, the Court may have followed the lead of United States v. Wright, 567 F. Appʹx 564, 566-68 (10th Cir. 2014), found that Minn. Stat. § 152.023, subd. 1(1) was divisible, applied the modified categorical approach, consulted the Shepard documents, and, depending on what those documents disclosed, found that each of As-Sidiq's prior convictions was or was not a “controlled substance offense.” See Shepard v. United States, 544 U.S. 13 (2005).

         But the question here is not whether As-Sidiq was a career offender. The question here is whether As-Sidiq's lawyer was constitutionally ineffective for failing to argue that As-Sidiq's prior convictions for third-degree sale of narcotics were not “controlled substance offenses” for Guidelines purposes. Again, to establish that he did not receive effective assistance of counsel, As-Sidiq “must show that his counsel's performance was both deficient and prejudicial.” Covington v. United States, 739 F.3d 1087, 1090 (8th Cir. 2014) (citing Strickland, 466 U.S. at 687). In other words, As-Sidiq “must show that his lawyer's performance fell below the minimum standards of professional competence (deficient performance) and that there is a reasonable probability that the result of the proceedings would have been different if his lawyer had performed competently (prejudice).” Id. (citation omitted). In applying the first part of this test, the Court must evaluate the lawyer's performance without the benefit of hindsight, and there is “a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

         A recent Eighth Circuit case illustrates the difficulty of overcoming this presumption. In Kelly v. United States, 819 F.3d 1044 (8th Cir. 2016), the district court sentenced the defendant to 144 months after the defendant's lawyer failed to object to the application of a career-offender enhancement. Id. at 1046. The defendant then filed a § 2255 motion claiming that his lawyer was ineffective for failing to argue that he was not a career offender because “his prior conviction for domestic-abuse assault did not qualify as a crime of violence under U.S.S.G. § 4B1.2(a).” Id. at 1046-47. The defendant identified two Eighth Circuit cases that his lawyer could have cited in support of this argument.

         One of the cases stated that an assault conviction under Iowa law for “placing another in fear of imminent physical contact” was not “an offense that ‘has, as an element, the use or attempted use of force.'” United States v. Smith, 171 F.3d 617, 620 (8th Cir. 1999). The other of the cases held that an assault conviction for “merely insulting or provocative contact” was not a predicate offense for career-offender purposes. United States v. Ossana, 638 F.3d 895, 900, 904 (8th Cir. 2011). The defendant in Kelly argued that Ossana “provide[d] a clear roadmap for a successful objection to the use of his Iowa domestic-abuse-assault conviction as a predicate offense.” Kelly, 819 F.3d at 1049.

         The Eighth Circuit found that the defendant in Kelly had failed to establish that he received ineffective assistance of counsel. The Eighth Circuit pointed out that the statement in Smith was dicta, not binding law. Id. at 1050. And the Eighth Circuit said that Ossana did not “foreclose[]” the district court from using the modified categorical approach to determine whether the defendant had been convicted for something more than “merely insulting or provocative contact.” Id. at 1049-50. In short, neither Smith nor Ossana required the defendant's lawyer to conclude that the defendant's assault conviction was not a predicate offense for career-offender purposes. Therefore, “[g]iven the absence of a clearly controlling precedent requiring a different course of action, and in light of the substantial deference we afford trial counsel, ” the defendant's lawyer's “performance at sentencing was objectively reasonable.” Id. at 1050-51.

         Here, too, when As-Sidiq was sentenced, there was no “clearly controlling precedent” holding that As-Sidiq's prior convictions were not predicate offenses for career-offender purposes. To be sure, there were a few cases that As-Sidiq's lawyer could have cited in making this argument. But none of those cases was “clearly controlling.” For example, As-Sidiq's lawyer could have cited a Fifth Circuit case that held that an offer to sell narcotics under a similar Texas statute was not a “controlled substance offense” for purposes of the Guidelines. See United States v. Price, 516 F.3d 285, 287-89 (5th Cir. 2008). Price would have supported As-Sidiq's position by analogy. But Price said nothing about the Minnesota statute under which As-Sidiq was convicted-and, of course, Price is not binding on this Court or the Eighth Circuit.

         As-Sidiq's lawyer also could have cited Wright, the Tenth Circuit decision mentioned above. But in Wright, the Tenth Circuit merely “assume[d] without deciding that a conviction under § 152.023, subd. 1(1) may be for . . . conduct beyond § 4B1.2(b)'s definition.” Wright, 567 F. ...

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