United States v. Anthony Lomax, 51 F.4th 222

In 2014 Anthony Lomax was convicted of heroin distribution and being a felon in possession of a firearm; prior felony convictions led to enhanced penalties and a 400‑month sentence.
This Court vacated Lomax’s conspiracy conviction on appeal; on remand he was resentenced in 2017 to 400 months with a career‑offender designation increasing his criminal‑history category.
In 2019 Lomax filed a pro se 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel for failing to investigate whether his 2001 Indiana cocaine conviction qualified as a federal "felony drug offense" under 21 U.S.C. § 841.
The district court construed the motion as asserting actual innocence of the § 841 enhancement, found the Indiana cocaine conviction did not qualify under then‑controlling Seventh Circuit law, vacated the sentence, and ordered resentencing without the § 841 enhancement.
At the 2021 resentencing the court again applied the career‑offender designation (denying Lomax’s renewed objection that his attempted‑murder conviction is not a crime of violence) and imposed a 300‑month sentence.
Lomax appeals, raising (1) whether the district court abused its discretion by not holding a § 2255 evidentiary hearing on ineffective assistance (as to pretrial counsel) and (2) whether his prior attempted‑murder conviction qualifies as a "crime of violence" under U.S.S.G. § 4B1.2.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court abused its discretion by not holding an evidentiary hearing on ineffective assistance of counsel (pretrial conduct)	Lomax: his pro se § 2255, when liberally read, includes a claim that pretrial counsel gave ineffective advice and thus an evidentiary hearing was required	Government: Lomax did not present any pretrial‑ineffectiveness allegations to the district court, so the claim is forfeited; no exceptional circumstances warranting plain‑error review	Forfeiture: claim was not raised below and is forfeited; appellate court declines to excuse forfeiture and finds no abuse in denying a hearing
Whether attempted murder is a "crime of violence" under U.S.S.G. § 4B1.2	Lomax: Application Note 1 unlawfully expands the Guidelines by treating attempts as enumerated crimes; Taylor supports excluding attempted offenses under an elements‑clause analysis	Government: Application Note 1 is binding in this Circuit and explicitly includes attempts to commit enumerated offenses (murder), so attempted murder is a crime of violence	Affirmed: attempted murder qualifies as a crime of violence under § 4B1.2 by application of Application Note 1; Taylor (on § 924(c)) does not control this result

Perrone v. United States, 889 F.3d 898 (7th Cir. 2018) (describing the actual‑innocence exception permitting defaulted habeas claims)
Stinson v. United States, 508 U.S. 36 (1993) (Application Notes to the Guidelines are binding unless unconstitutional, contrary to statute, or plainly erroneous)
United States v. Taylor, 142 S. Ct. 2015 (2022) (Supreme Court held attempted Hobbs Act robbery is not a "crime of violence" under § 924(c) elements clause)
United States v. Smith, 989 F.3d 575 (7th Cir. 2021) (applied Stinson and treated Application Note 1 to § 4B1.2 as authoritative in the Seventh Circuit)
United States v. Lomax, 816 F.3d 468 (7th Cir. 2016) (prior appeal vacating Lomax’s conspiracy conviction)
Harris v. United States, 13 F.4th 623 (7th Cir. 2021) (forfeiture and plain‑error review standards in collateral proceedings)
United States v. Adams, 934 F.3d 720 (7th Cir. 2019) (discussing inclusion of inchoate offenses under § 4B1.2 Application Note 1)