The Armed Career Criminal Act imposes a mandatory minimum 15 year prison term on a

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defendant convicted of possessing a firearm under 18 U.S.C. §922(g)(1). 18 U.S.C. §924(e).

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

:

: NO. 04-659

 v. :

:

LAMONT COKER :

MEMORANDUM OPINION

Savage, J. December 3, 2008

The defendant, who was convicted of possession of a firearm by a convicted

felon and sentenced as an armed career criminal, has filed a pro se motion under 28

U.S.C. §2255. He argues that his attorney was ineffective at sentencing because he had

failed to investigate and challenge the defendant’s prior convictions that were used to

categorize him as an armed career criminal, thus enhancing his sentence . Essentially, 1

the defendant’s argument is that the prior drug convictions were not for “serious drug

offenses” and should not have been counted as prior convictions for armed career criminal

purposes. 

The defendant’s argument has no merit. More importantly, the Third Circuit has

already deemed his sentence legal, specifically ruling that the three prior drug convictions

had been properly counted in characterizing him as a career criminal. United States v.

Coker, 223 Fed. Appx. 136 (3d Cir. 2007). He cannot re-litigate the same issue that has

already been determined by the appellate court. Therefore, his motion will be denied.

Case 2:04-cr-00659-TJS Document 52 Filed 12/03/08 Page 1 of 5
The facts surrounding the defendant’s arrest and the search of the vehicle are set forth in the 2

Memorandum Opinion of August 22, 2005 and the Findings of Fact. See Docket Nos. 35 and 36. Thus,

they will not be repeated here.

The defendant was charged with a single count of possession of a firearm by a

convicted felon in violation of 18 U.S.C. §922(g)(1). After a hearing, the defendant’s

motion to suppress evidence of the gun that was recovered by the police from the glove

compartment of a vehicle in which he was an occupant was denied. The defendant then

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entered a conditional guilty plea, preserving his right to appeal the denial of his

suppression motion and the sentencing proceedings.

On August 23, 2005, after taking into consideration the advisory guideline range and

the factors set forth in 18 U.S.C.§3553(a), I sentenced the defendant to 191 months in

prison. As an armed career criminal, the defendant’s sentencing guideline range was 210 -

262 months imprisonment. Thus, his sentence varied below the advisory guideline range.

The defendant filed a timely notice of appeal to the Third Circuit Court of Appeals,

raising the issues he had preserved at the time of his guilty plea. The appellate court

affirmed the conviction, rejecting the defendant’s arguments that the firearm and his

statements to the police should have been suppressed, and that the evidence was

insufficient to classify him as an armed career criminal. 

Now, in the guise of an ineffectiveness of counsel claim, the defendant renews his

challenge to his having been sentenced as an armed career criminal. He contends that

his counsel should have investigated the three predicate drug convictions and should have

argued that they were not “serious drug offenses,” qualifying him as an armed career

criminal. 

The Third Circuit determined that the prior three drug convictions had been proven

Case 2:04-cr-00659-TJS Document 52 Filed 12/03/08 Page 2 of 5
A “serious drug offense” is defined as “an offense under State law, involving manufacturing,

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distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a

maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. §924(e)(2)(A)(ii).

at sentencing by the certified copies of judgments of conviction from the state court. As

the Third Circuit concluded, “The information provided in these documents ‘enabled the

district court to ascertain with certainty the statutes of conviction [35 Pa. Cons. Stat. §780-

113(a)(3)] and [that] the statutes of conviction encompass only conduct that falls within the

definition of ‘serious drug offense.’” (citing United States v. Watkins, 54 F. 3d 163, 168 (3d

Cir. 1995)). Accordingly, the appellate court found that reliance on the judicial records

alone was sufficient to determine the defendant’s status as an armed career criminal.

An ineffective assistance of counsel claim is evaluated under the two-step Strickland

test which considers whether counsel’s performance was so deficient as to constitute a

denial of counsel; and, if so, whether the alleged errors prejudiced the defendant by

depriving him of a fair proceeding. Strickland v. Washington, 466 U.S.668, 687 (1984).

Here, the defendant cannot demonstrate that his attorney’s performance was

deficient or that he suffered any prejudice as a result of his counsel’s not arguing that the

prior drug convictions were not “serious” predicate offenses . As the Third Circuit found, 3

the certified copies of judgment relied upon at sentencing were sufficient to show that the

three prior drug convictions qualified as serious ones under the armed career criminal

framework. 

Had counsel objected to the sentencing court’s reliance on the state court’s records,

the objection would have been rejected. Counsel cannot be considered ineffective for not

making meritless arguments. United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).

Furthermore, there was nothing for counsel to investigate. The information required to

Case 2:04-cr-00659-TJS Document 52 Filed 12/03/08 Page 3 of 5
make a determination as to whether the prior convictions qualified as predicate serious

drug offenses was contained in the court records. Therefore, the claim of ineffectiveness

of counsel will be denied.

Conclusion

The defendant’s petition is an improper attempt to re-litigate an issue already

decided by the Third Circuit Court of Appeals. Furthermore, he was not denied

effective assistance of counsel at his sentencing. Therefore, his motion will be denied.

Case 2:04-cr-00659-TJS Document 52 Filed 12/03/08 Page 4 of 5
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : CRIMINAL ACTION

:

: NO. 04-659

 v. :

:

LAMONT COKER :

ORDER

AND NOW, this 3rd day of December, 2008, upon consideration of the Pro Se

Motion to Vacate/Set Aside/Correct Sentence under 28 U.S.C. §2255 (Document No. 

 47), the government’s response and the defendant’s reply, it is ORDERED as follows:

1. The defendant’s motion is DENIED, and

2. The defendant having failed to make a substantial showing of the denial

of a constitutional right, there is no ground to issue a certificate of appealability.

 /Timothy J. Savage 

TIMOTHY J. SAVAGE, J.

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