United States District Court, D. Minnesota
P. STEINKAMP, UNITED STATES ATTORNEY'S OFFICE, FOR
E. OSTGARD, FOR DEFENDANT.
Patrick J. Schiltz United States District Judge
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.
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.
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).
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).
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).
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.
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.
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.
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.
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.
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. ...