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United States v. Doss

United States District Court, D. Minnesota

April 25, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTHONY PIERRE DOSS, Defendant.

          Anthony Pierre Doss, pro se.

          ORDER

          Patrick J. Schiltz United States District Judge

         Defendant Anthony Doss pleaded guilty to violating 18 U.S.C. § 924(o). ECF Nos. 341, 343. Section 924(o) makes it unlawful to conspire to violate 18 U.S.C. § 924(c). Section 924(c)(1)(A), in turn, makes it unlawful possess a firearm in furtherance of “any . . . drug trafficking crime.” And Section 924(c)(2) defines “drug trafficking crime” to mean “any felony punishable under the Controlled Substances Act.” Thus, Doss pleaded guilty to conspiring with others to possess firearms to further felonies that are punishable under the Controlled Substances Act. In his plea agreement and then at his change-of-plea hearing, Doss admitted that he had been a member of a violent street gang; that members of the gang conspired to distribute cocaine base and heroin; and that he and other gang members conspired to possess firearms in furtherance of this drug-distribution conspiracy. ECF No. 343 at 1-2.

         After Doss was sentenced to 105 months in prison, Doss brought a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. ECF No. 541. Doss claimed, among other things, that his lawyer provided ineffective assistance of counsel when he advised Doss to plead guilty to violating § 924(o) because the lawyer should have realized that Doss had not violated the statute. Specifically, Doss argued that “a non-overt act conspiracy under 21 USC 846 cannot support a conviction under 18 USC 924(o), ” relying primarily on the (inapposite) decision of the Tenth Circuit in United States v. Martinez-Cruz, 836 F.3d 1305 (10th Cir. 2016). ECF No. 553 at 3. In other words, Doss argued that a conspiracy to distribute cocaine basis and heroin was “not a qualifying ‘controlled substance offense, ' under [18 U.S.C.] § 924(c)” and his conviction for violating § 924(o) could not “stand as it relies on a violation of § 924(c).” ECF No. 541 at 4-5.

         The Court disagreed and denied Doss's § 2255 motion on the merits. United States v. Doss, No. 15-CR-0106(4) (PJS/FLN), 2017 WL 5891688 (D. Minn. Nov. 28, 2017).

         The Court explained:

The 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).

Doss, 2017 WL 5891688, at *2.

         This matter is before the Court on Doss's motion under Fed. Rule Civ. P. 59(e) to alter or amend the judgment denying his § 2255 motion. ECF No. 561. Doss claims that the Court misread his § 2255 motion and failed to “adequately address petitioner[']s claim for relief or his entitlement to the relief he requested.” Id. at 2.

         Doss begins with the surprising assertion that neither he nor anyone else was charged in the second superseding indictment with violating § 924(o). Id. at 3 (“[N]o individual within the indictment was charged with violating Section 924(o) . . . .”). Doss seems to believe that he was instead charged with violating § 924(c). Doss claims that his attorney advised him to plead guilty under § 924(o)-rather than under § 924(c)-so as to avoid “a ten year mandatory minimum under section 924(c).” Id. at 5. But, Doss insists, he did not actually violate § 924(c):

Petitioner's argument is that there was no basis for conviction or sentencing under 924(c), and although the indictment charged two specific instances of petitioner being convicted of possessing firearms, neither instance was for use or carrying the firearm during and in relation to any charged substantive 21 U.S.C. 841 distribution transaction, nor was petitioner charged with any substantive 841 transaction in which either charged firearm was used or carried. Consequently, there is and was no basis for conviction or sentence under section 924(c).

Id. at 4. Doss concludes by arguing that his attorney acted ineffectively in persuading him to plead guilty to a crime for which he was not charged (a violation of § 924(o)) in order to avoid being convicted of a crime for which he was charged but of which he was innocent (a violation of § 924(c)). The only thing that Doss's attorney accomplished, says Doss, is “negotiating a plea agreement to a statute that subjects petitioner to a greater statutory maximum than that for which he was indicted.” Id.

         The Court denies Doss's Rule 59(e) motion for two reasons:

         First, Doss's Rule 59(e) motion attacks the Court's denial of his § 2255 motion on the merits and seeks to add a new claim. Therefore, Doss's Rule 59(e) motion must be treated as a second or successive § 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524, 530-32 (2005); Ward v. Norris, 577 F.3d 925, 932-35 (8th Cir. 2009); United States v. Moss, 174 Fed.Appx. 358, 358-59 (8th Cir. 2006); cf. Rishor v. Ferguson, 822 F.3d 482, 491 (9th Cir. 2016) (collecting cases from other circuits on whether Gonzalez applies to Rule 59(e) motions as well as Rule 60(b) motions). A defendant seeking to bring a second or successive ยง 2255 motion is required to first obtain authorization from a ...


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