Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Fogg

United States District Court, D. Minnesota

April 10, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
COREY VAMPELT FOGG, Defendant.

          ORDER

          Patrick J. Schiltz United States District Judge.

         This matter is before the Court on defendant Corey Fogg's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Fogg argues that this Court erred when, at Fogg's sentencing, it found that he had “three previous convictions . . . for a violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). For the reasons that follow, Fogg's motion is denied.

         In 2015, a jury convicted Fogg of possessing a firearm as a felon. See ECF No. 84. This offense carried a maximum sentence of 10 years, see 18 U.S.C. § 924(a)(2), unless Fogg had three or more prior convictions for “a violent felony or a serious drug offense, ” 18 U.S.C. § 924(e)(1). If that were true, then the ACCA provided for a mandatory minimum sentence of 15 years and a maximum sentence of life imprisonment. See 18 U.S.C. § 924(e)(1).

         At sentencing, Fogg did not dispute that his prior convictions for first-degree manslaughter (in violation of Minn. Stat. § 609.20, subd. 2) and simple robbery (in violation of Minn. Stat. § 609.24) were violent felonies for ACCA purposes. But Fogg argued that his prior conviction for attempted drive-by shooting (in violation of Minn. Stat. § 609.66, subd. 1e) was not a violent felony.

         The Court disagreed. The Court concluded that Minnesota's drive-by shooting statute was divisible, see ECF No. 108 at 20:16-24:2; found that Fogg was convicted under subsection (b) of the statute, see Id. at 24:3-11; held that subsection (b) defined a violent felony for ACCA purposes, see Id. at 24:11-13; and sentenced Fogg to 235 months in prison, the bottom of the range recommended by the United States Sentencing Guidelines, see ECF No. 102 at 2.

         On appeal, Fogg repeated his argument that his attempted drive-by shooting conviction was not a violent felony under the ACCA. See Appellant's Brief at 11-19, United States v. Fogg, 836 F.3d 951 (8th Cir. 2016) (No. 15-3078), 2016 WL 80230. The United States Court of Appeals for the Eighth Circuit rejected Fogg's argument and affirmed Fogg's sentence. See Fogg, 836 F.3d at 954-56.

         Fogg then brought this § 2255 motion. Fogg now argues that his conviction for simple robbery is not a violent felony for ACCA purposes.[1] See ECF No. 126 at 23 (“Fogg argues that his robbery conviction is not a violent felony.”); id. at 27 (“[Fogg's] robbery conviction does not qualify as a violent felony . . . .”). There are two problems with Fogg's claim:

         First, Fogg's claim is procedurally defaulted. “A § 2255 motion is not a substitute for direct appeal, ” so a defendant “may not obtain § 2255 relief for ‘unappealed errors to which no contemporaneous objection was made' unless he can show both cause and prejudice.” United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (citations omitted). In other words, “[c]laims not made during district court proceedings or on direct appeal are procedurally defaulted and may not be raised for the first time in a § 2255 motion.” United States v. Hamilton, 604 F.3d 572, 574 (8th Cir. 2010). In this case, Fogg did not argue at sentencing or on appeal that his simple-robbery conviction was not a violent felony for ACCA purposes. Fogg makes no attempt to establish cause or prejudice for that omission. Therefore, Fogg cannot raise that argument for the first time in a § 2255 motion.[2]

         Second, Fogg's claim is meritless. Minnesota's crime of simple robbery is a violent felony for ACCA purposes. It was a violent felony before Mathis. See United States v. Raymond, 778 F.3d 716, 717 (8th Cir. 2015) (per curiam). And it remains a violent felony after Mathis. See United States v. Libby, 880 F.3d 1011, 1015-16 (8th Cir. 2018).

         ORDER

         Based on the foregoing, and on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT:

1. Defendant Corey Fogg's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 [ECF No. 125] is DENIED.
2. No certificate of appealability will be ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.