United States v. Anthony Lomax

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2274
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTHONY LOMAX, also known as ANT,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 12-cr-00189-3 — Sarah Evans Barker, Judge.
____________________
ARGUED SEPTEMBER 21, 2022 — DECIDED OCTOBER 11, 2022
____________________
Before FLAUM, SCUDDER, and KIRSCH, Circuit Judges.
FLAUM, Circuit Judge. In 2014, a jury convicted Anthony
Lomax of heroin distribution and firearm offenses. Lomax’s
prior felony convictions for drug and violent offenses sub-
jected him to increased penalties at sentencing. As a result, the
district court sentenced Lomax to a term of 400 months’ im-
prisonment. On remand from an appeal in 2017, the district
court again sentenced Lomax to 400 months’ imprisonment.
In 2019, Lomax moved, pro se, to vacate his sentence pursuant
2 No. 21-2274
to 28 U.S.C. § 2255, alleging his counsel performed deficiently
during his 2017 resentencing by failing to investigate whether
Lomax’s prior Indiana cocaine conviction constituted a “fel-
ony drug offense” under 21 U.S.C. § 841. The district court
construed Lomax’s motion as arguing that he was actually in-
nocent of the § 841 sentencing enhancement and agreed that
he was. Accordingly, the district court granted Lomax’s mo-
tion and vacated his sentence. Lomax was then resentenced in
2021, without application of the § 841 sentencing enhance-
ment, to a term of 300 months’ imprisonment.
Lomax now raises two issues on appeal: first, whether the
district court abused its discretion by not holding a § 2255 ev-
identiary hearing regarding his ineffective assistance of coun-
sel allegations; and second, whether his prior attempted mur-
der conviction constitutes a crime of violence under U.S.S.G.
§ 4B1.2. For the following reasons, we affirm the district
court’s disposition of Lomax’s § 2255 motion and his sen-
tence.
I. Background
Lomax and his two cousins sold heroin in Indianapolis. In
2012, a grand jury indicted them for conspiring to possess and
distribute heroin. 21 U.S.C. § 846. Subsequent superseding in-
dictments charged Lomax with five counts of distributing
heroin, 21 U.S.C. § 841(a)(1), and one count of unlawfully pos-
sessing a firearm as a felon, 18 U.S.C. § 922(g)(1). The govern-
ment later filed a notice indicating its intention to seek an en-
hanced sentence for the heroin charges under § 841(b)(C)
based on Lomax’s prior Indiana felony conviction for cocaine
possession in 2001.
No. 21-2274 3
In February 2014, a jury found the defendants guilty on all
counts. Lomax was later sentenced to 400 months’ imprison-
ment. On appeal, this Court vacated Lomax’s conspiracy con-
viction after concluding that the district court erred by declin-
ing to give a certain jury instruction. United States v. Lomax,
816 F.3d 468, 477 (7th Cir. 2016). On remand, the government
dismissed the conspiracy charge against Lomax and the dis-
trict court proceeded to resentence him on the heroin and fire-
arm offenses.
In the revised presentence investigation report, a proba-
tion officer determined the following adjusted offense levels:
thirty-nine for the heroin offenses and thirty-four for the fire-
arms offense. The officer also recommended application of
the career offender enhancement, which applies, in relevant
part, if the defendant “has at least two prior felony convic-
tions of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 4B1.1(a). Lomax objected to his designa-
tion as a career offender, arguing that his Indiana conviction
for attempted murder in 2004 did not constitute a crime of vi-
olence as defined in U.S.S.G. § 4B1.2(a).
At the June 27, 2017 resentencing hearing, the district court
overruled Lomax’s objection. Application of the career of-
fender enhancement did not increase Lomax’s total offense
level, but it did increase his criminal history category from a
V to a VI. With a total offense level of thirty-nine and a crimi-
nal history category of VI, the district court found that the ap-
plicable range under the Sentencing Guidelines was 360
months’ to life imprisonment. Lomax was again sentenced to
400 months’ imprisonment.
Once more, Lomax appealed. As it pertains to the present
dispute, Lomax argued that his attempted murder conviction
4 No. 21-2274
is not a crime of violence under § 4B1.2(a). This Court rejected
Lomax’s argument and affirmed his sentence. United States v.
Lomax, 743 F. App’x 678, 683–84 (7th Cir. 2018).
On September 10, 2019, Lomax filed a pro se motion pur-
suant to 28 U.S.C. § 2255, alleging ineffective assistance of
counsel in violation of his Sixth Amendment right and asking
the district court to “vacate, set aside or correct his sentence
as would have been appropriate absent his Attorney’s errors.”
Section 2255 provides:
Unless the motion and the files and records of
the case conclusively show that the prisoner is
entitled to no relief, the court shall cause notice
thereof to be served upon the United States at-
torney, grant a prompt hearing thereon, deter-
mine the issues and make findings of fact and
conclusions of law with respect thereto. If the
court finds … that the sentence imposed was
not authorized by law[,] … the court shall va-
cate and set the judgment aside and shall dis-
charge the prisoner or resentence him or grant a
new trial or correct the sentence as may appear
appropriate.
28 U.S.C. § 2255(b).
Lomax argued, in relevant part, that his attorney failed to
investigate at sentencing whether his prior Indiana conviction
for cocaine possession constituted a predicate felony drug of-
fense subject to enhanced penalties under 21 U.S.C. § 841. Lo-
max contended that his Indiana conviction for cocaine posses-
sion was broader than its federal counterpart and, therefore,
No. 21-2274 5
his attorney should have challenged his enhanced sentence
under § 841.
The district court construed Lomax’s argument “as assert-
ing that he is actually innocent of the § 841(b)(1)(C) sentence
enhancement because his 2001 Indiana conviction for posses-
sion of cocaine is not a ‘felony drug offense’ under current
Seventh Circuit precedent.” See Perrone v. United States, 889
F.3d 898, 903 (7th Cir. 2018) (explaining that a habeas peti-
tioner may invoke the “actual innocence exception, which
permits a petitioner to assert a defaulted claim if he can
demonstrate that he is actually innocent of the crimes of
which he was convicted” (citation and internal quotation
marks omitted)). Relying on the actual innocence exception,
the court went on to find that under current law, Lomax’s
prior Indiana cocaine conviction does not qualify as a felony
drug offense under § 841(b)(1)(C) and, therefore, Lomax was
“actually innocent of the enhanced sentence.”
Without the § 841 enhancement, the court concluded that
Lomax would be subject to a statutory maximum sentence of
240 months’ imprisonment for the heroin offenses. Given that
Lomax was “entitled to relief on this basis,” the district court
explained that it “w[ould] not address his additional argu-
ments.” Accordingly, on February 9, 2021, the court granted
Lomax’s § 2255 motion, vacated his sentence, and ordered an-
other resentencing hearing.
At the resentencing hearing on June 29, 2021, the district
court determined that, although the statutory maximum sen-
tence for Lomax’s heroin offenses decreased from 360 to 240
months’ imprisonment, the Guidelines calculation remained
6 No. 21-2274
the same (360 months’ to life imprisonment). 1 With the assis-
tance of counsel, Lomax renewed his objection to his designa-
tion as a career offender, and the district court denied the ob-
jection for the same reasons. Lomax was resentenced to a total
of 300 months’ imprisonment for the heroin and firearm of-
fenses. 2 Lomax now appeals.
II. Discussion
A. Section 2255 Evidentiary Hearing
The first issue on appeal is whether the district court erred
in granting Lomax’s § 2255 motion without first holding an
evidentiary hearing regarding his ineffective assistance of
counsel claim. In his motion, Lomax argued that his counsel
failed to investigate whether his Indiana conviction for co-
caine possession constituted a predicate felony drug offense
under § 841 for purposes of his 2017 resentencing. However,
on appeal, Lomax contends that, when liberally construed, his
pro se briefing also includes a claim that his counsel’s pretrial
advice regarding whether to proceed to trial or plead guilty
was ineffective. As a result, Lomax asserts that the district
court abused its discretion by not holding an evidentiary
hearing regarding his pretrial ineffective assistance of counsel
claim. It bears emphasizing that, at oral argument, Lomax’s
counsel confirmed that Lomax is not arguing that the district
1 While the statutory maximums within § 841(b) depend on a defend-
ant’s criminal history, the Guidelines calculations largely depend on the
quantity of drugs involved in the instant offense.
2 The district court sentenced Lomax to 240 months’ imprisonment for
the heroin offenses and 120 months’ imprisonment, with half the term to
run concurrently, for the firearm offense.
No. 21-2274 7
court should have ordered an evidentiary hearing regarding
his counsel’s failure to challenge the § 841 enhancement at the
2017 resentencing; he is only arguing that his counsel’s pretrial
conduct warranted an evidentiary hearing.
Section 2255 allows a federal prisoner to seek relief if their
“sentence was imposed in violation of the Constitution or
laws of the United States.” 28 U.S.C. § 2255(a). When consid-
ering the disposition of a § 2255 motion, “we review the dis-
trict court’s legal conclusions de novo, its factual findings for
clear error, and its decision not to hold an evidentiary hearing
for an abuse of discretion.” Bridges v. United States, 991 F.3d
793, 799 (7th Cir. 2021). The parties primarily focus on
whether Lomax’s ineffective assistance of counsel allegations
sufficed to warrant an evidentiary hearing, but procedural
barriers prevent us from reaching that issue.
The government contends that Lomax forfeited his pre-
trial ineffective assistance of counsel claim because he failed
to raise it to the district court. Forfeiture is the failure to timely
raise an argument due to “inadvertence, neglect, or over-
sight.” Harris v. United States, 13 F.4th 623, 628 (7th Cir. 2021)
(citation omitted). Lomax concedes that in his § 2255 motion,
he framed his ineffective assistance of counsel claim in terms
of the 2017 resentencing. Yet Lomax posits that when constru-
ing his pro se motion liberally, it also challenges the effective-
ness of his counsel during the pretrial proceedings.
However, even when liberally construed, Lomax’s § 2255
motion does not encompass the pretrial proceedings. A § 2255
“movant must present his specific theory of ineffectiveness in
the district court.” Harris, 13 F.4th at 627. Lomax’s motion
does not contain any allegations regarding his decision to pro-
ceed to trial or regarding an available plea deal. See Martin v.
8 No. 21-2274
United States, 789 F.3d 703, 707 (7th Cir. 2015) (concluding that
a § 2255 movant must provide “some threshold showing of the
evidentiary basis, beyond mere conclusory allegations, that
supports a finding that the government in fact offered a plea
deal” to support an ineffective assistance of counsel claim re-
lated to plea negotiations); Wyatt v. United States, 574 F.3d 455,
459 (7th Cir. 2009) (“Pro se collateral review filings are con-
strued liberally. As here, however, where a § 2255 motion
makes absolutely no mention of a claim, we will not entertain
an argument pertaining to that claim on appeal.” (citations
omitted)). Moreover, in the motion, Lomax specifically distin-
guished his claim from one in “a plea agreement context”
when relying on Brock-Miller v. United States, 887 F.3d 298, 310
(7th Cir. 2018), a case regarding a counsel’s failure to appro-
priately challenge the government’s sentencing enhancement
notice prior to the defendant accepting a plea agreement.
Thus, Lomax’s § 2255 motion cannot be fairly read to in-
clude a claim for the ineffective assistance of his counsel dur-
ing the pretrial proceedings. As a result, he has forfeited any
argument related to that claim on appeal. See Harris, 13 F.4th
at 629 (noting that “it [is] not [a district] court’s duty to imag-
ine every possible argument for [a § 2255 movant], even when
liberally construing his pro se filings”); cf. Frazier v. Varga, 843
F.3d 258, 262–63 (7th Cir. 2016) (declining to review an inef-
fective assistance of counsel argument raised for the first time
on appeal because “[e]ven with the generous reading that we
give pro se filings … this claim simply was not presented to
the district court”).
We must next decide whether to forgive the forfeiture and
consider Lomax’s argument. “[I]n the context of a collateral
attack on a criminal sentence, a forfeited issue may be
No. 21-2274 9
reviewed for plain error where a party can demonstrate that:
(1) exceptional circumstances exist; (2) substantial rights are
affected; and (3) a miscarriage of justice will occur if plain er-
ror review is not applied.” Harris, 13 F.4th at 628 (citation and
internal quotation marks omitted). “The determination of
what circumstances fit these criteria is solely within our dis-
cretion.” Bourgeois v. Watson, 977 F.3d 620, 629–30 (7th Cir.
2020) (citation omitted). As to the first factor, “exceptional cir-
cumstances include when a forfeited ground is founded on
concerns broader than those of the parties, such as comity,
federalism interests, and the conservation of judicial re-
sources.” Harris, 13 F.4th at 628 (citation and internal quota-
tion marks omitted).
No such circumstances exist here, and Lomax does not
contend otherwise. Moreover, a miscarriage of justice will not
occur if plain error review is not applied because the district
court has already granted Lomax extraordinary relief by va-
cating his sentence and resentencing him without applying
the § 841 enhancement. See White v. United States, 8 F.4th 547,
552 (7th Cir. 2021) (“Relief under § 2255 is available only in
extraordinary situations, such as an error of constitutional or
jurisdictional magnitude or where a fundamental defect has
occurred which results in a complete miscarriage of justice.”
(citation and internal quotation marks omitted)). Under these
circumstances, forgiving Lomax’s forfeiture is not warranted.
Therefore, we decline to review Lomax’s argument with re-
spect to any alleged deficiencies in his counsel’s performance
during the pretrial proceedings.
B. Attempted Murder as a Crime of Violence
Lomax’s second argument on appeal is that the district
court erred in applying the career offender sentencing
10 No. 21-2274
enhancement because his prior Indiana conviction for at-
tempted murder does not qualify as a crime of violence as de-
fined in U.S.S.G. § 4B1.2(a). “We review the district court’s ap-
plication of the Sentencing Guidelines de novo.” United States
v. Smith, 989 F.3d 575, 583 (7th Cir. 2021). The career offender
enhancement applies if:
(1) the defendant was at least eighteen years old
at the time the defendant committed the instant
offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of vi-
olence or a controlled substance offense; and
(3) the defendant has at least two prior felony
convictions of either a crime of violence or a
controlled substance offense.
U.S.S.G. § 4B1.1(a).
The Guidelines define a “crime of violence” as any felony
offense that:
(1) has as an element the use, attempted use, or
threatened use of physical force against the per-
son of another, or
(2) is murder, voluntary manslaughter, kidnap-
ping, aggravated assault, a forcible sex offense,
robbery, arson, extortion, or the use or unlawful
possession of a firearm described in 26 U.S.C.
§ 5845(a) or explosive material as defined in 18
U.S.C. § 841(c).
Id. § 4B1.2(a). Application Note 1 to § 4B1.2 further provides
that crimes of violence “include the offenses of aiding and
abetting, conspiring, and attempting to commit such of-
fenses.” Id. § 4B1.2, cmt. n.1.
No. 21-2274 11
During the 2021 resentencing, Lomax renewed his objec-
tion to his designation as a career offender, arguing that his
prior attempted murder conviction did not constitute a crime
of violence. The district court denied the objection, determin-
ing that attempted murder is effectively an enumerated of-
fense under § 4B1.2(a). In other words, because Application
Note 1 includes attempting to commit the listed offenses, and
murder is one such listed offense, attempted murder consti-
tutes a crime of violence under § 4B1.2(a)(2). Lomax now ar-
gues that Application Note 1 unlawfully expands, as opposed
to interprets, the crime of violence definition within § 4B1.2
and, therefore, this Court should not apply it when determin-
ing whether his prior attempted murder conviction consti-
tutes a crime of violence.
In United States v. Smith, this Court applied Application
Note 1 to § 4B1.2 to conclude that a “controlled substance of-
fense” as defined in § 4B1.2 encompasses conspiring to commit
a controlled substance offense. 989 F.3d at 585–86. In doing so,
this Court reasoned that “[a] corresponding application note
is binding authority ‘unless it violates the Constitution or a
federal statute, or is inconsistent with, or a plainly erroneous
reading of, that guideline.’” Id. at 584 (quoting Stinson v.
United States, 508 U.S. 36, 38 (1993)). We acknowledged that a
circuit split exists “as to whether courts are to defer to Appli-
cation Note 1 when applying § 4B1.2.” Id. However, we made
clear that in this Circuit, Application Note 1 is “authoritative.”
Id. at 585; see United States v. Adams, 934 F.3d 720, 729 (7th Cir.
2019) (“There cannot be a conflict because the text of
§ 4B1.2(a) does not tell us, one [way] or another, whether in-
choate offense[s] are included or excluded.” (citation omit-
ted)). Lomax acknowledges our position on this issue but
12 No. 21-2274
states that, given the circuit split, he is raising it to preserve
for potential further review by the Supreme Court.
While this appeal was pending, the Supreme Court de-
cided United States v. Taylor, which held that, under 18 U.S.C.
§ 924(c), attempted Hobbs Act robbery does not qualify as a
“crime of violence.” 142 S. Ct. 2015, 2021 (2022). Section
924(c)(3)(A) defines a “crime of violence” in similar terms as
U.S.S.G. § 4B1.2(a)(1): offenses that “ha[ve] as an element the
use, attempted use, or threatened use of physical force against
the person or property of another.” 18 U.S.C. § 924(c)(3)(A).
This provision is often referred to as the “elements clause.”
Taylor, 142 S. Ct. at 2019. Applying the categorical approach,
the Supreme Court concluded that because “no element of at-
tempted Hobbs Act robbery requires proof that the defendant
used, attempted to use, or threatened to use force,” the de-
fendant’s prior conviction for attempted Hobbs Act robbery
did not constitute a crime of violence under § 924(c)(3)(A). Id.
at 2020–21.
In response to Taylor, Lomax argued that the Supreme
Court’s analysis of attempt law in Taylor supports the conclu-
sion that Lomax’s attempted murder conviction does not con-
stitute a crime of violence under § 4B1.2(a). We disagree. Alt-
hough § 924(c) and § 4B1.2(a) share a similar elements clause,
the district court did not apply § 4B1.2(a)’s elements clause in
finding that Lomax’s attempted murder conviction consti-
tuted a crime of violence. Instead, the district court consid-
ered § 4B1.2(a)(2) (enumerating murder as a violent crime) in
conjunction with Application Note 1 (including attempted of-
fenses). Thus, the Supreme Court’s analysis of § 924(c) is not
determinative here.
No. 21-2274 13
Because Taylor did not impact this Circuit’s precedent re-
garding Application Note 1 to § 4B1.2, we agree with the dis-
trict court’s conclusion that Lomax’s prior attempted murder
conviction constitutes a crime of violence under § 4B1.2.
III. Conclusion
For the foregoing reasons, we AFFIRM the district court’s
disposition of Lomax’s § 2255 motion and his sentence.