United States District Court, D. Minnesota
Calhoun-Lopez, UNITED STATES ATTORNEY'S OFFICE, for
Anthony Pierre Doss, pro se.
Patrick J. Schiltz United States District Judge
matter is before the Court on defendant Anthony Pierre
Doss's motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. ECF No. 541. Doss
argues that his counsel was ineffective in advising him to
plead guilty to conspiring to possess a firearm in connection
with a drug conspiracy that was neither a “controlled
substance offense” nor a “drug trafficking
crime.” See ECF No. 553 at 2-3. Doss also
argues that his prior conviction for first-degree aggravated
robbery is not a “crime of violence” for purposes
of the United States Sentencing Guidelines in light of the
Supreme Court's decision in Mathis v. United
States, 136 S.Ct. 2243 (2016). See ECF No. 553
at 4-8. The Court disagrees on both counts and therefore
denies Doss's § 2255 motion.
pleaded guilty to violating 18 U.S.C. § 924(o) by
conspiring to possess a firearm in furtherance of a
drug-trafficking crime. ECF No. 343 ¶ 1. The underlying
drug-trafficking crime that was identified in the indictment
and the plea agreement was conspiring to distribute cocaine
base and heroin in violation of 21 U.S.C. § 846.
See ECF No. 41 at 3-6; ECF No. 343 ¶ 2.
Doss's sentencing, Doss did not dispute that his prior
conviction for first- degree aggravated robbery was a
“crime of violence” for Guidelines purposes, and
he agreed that his base offense level was therefore 22 under
§ 2K2.1(a)(3) of the Guidelines. See ECF No.
343 ¶ 5(a); ECF No. 433 at 5. The Court concluded that
Doss's total offense level was 30, that his
criminal-history category was IV, and that his recommended
sentence was 135 to 168 months. See ECF No. 463 at
1; ECF No. 549 at 15. The Court then varied downward and
sentenced Doss to 105 months in prison. ECF No. 462 at 2.
Doss did not appeal.
§ 2255 motion cites two reasons why his sentence should
be vacated. The Court will address each claim in turn.
first argues that his counsel was ineffective because his
counsel advised him to plead guilty to conspiring to possess
a firearm in connection with a conspiracy that was neither a
“drug trafficking crime” nor a “controlled
substance offense.” Doss is mistaken.
start with, a violation of 18 U.S.C. § 924(o) does not
require the defendant to conspire to possess a firearm in
connection with a “controlled substance offense.”
Rather, § 924(o) makes it unlawful for a person to
conspire to commit an offense under 18 U.S.C. § 924(c).
Section 924(c), in turn, makes it unlawful for a person to
possess a firearm in furtherance of “any crime of
violence or drug trafficking crime.” The statute does
not use the term “controlled substance offense.”
statute explicitly defines “drug trafficking
crime” to mean “any felony punishable under the
Controlled Substances Act.” 18 U.S.C. § 924(c)(2).
Doss was charged with-and admitted to-possessing a firearm in
furtherance of a conspiracy to distribute cocaine base and
heroin in violation of 21 U.S.C. § 846. Section 846 is
part of the Controlled Substances Act. See United States
v. Bell, 90 F.3d 318, 321 (8th Cir. 1996) (referring to
the Controlled Substances Act as sections 801 to 971 of title
21 of the United States Code). Therefore, a conspiracy to
distribute cocaine base and heroin in violation of § 846
is a “felony punishable under the Controlled Substances
Act.” See United States v. Rolon-Ramos, 502
F.3d 750, 757 (8th Cir. 2007).
argues, however, that he “cannot be convicted under
Sec.924(o) based on a non-overt act drug
‘conspiracy' under 21 USC 846.” ECF No. 553
at 3. But the case on which he primarily relies-United States
v. Martinez-Cruz, 836 F.3d 1305 (10th Cir. 2016)-does
not support his argument. The defendant in
Martinez-Cruz was subject to an enhancement under
the 2014 version of § 2L1.2(b)(1)(B) of the Guidelines
if he had a prior conviction for “a felony drug
trafficking offense.” Application Note 5 to §
2L1.2 provided that a conviction for “conspiring”
to commit a felony drug trafficking offense counted as a
“felony drug trafficking offense.” The question
was whether the defendant's ...