Criminal Law-§2255 Motion-Career Offender Designation-Setting Aside Prior Conviction

Defendant appealed the dismissal of his §2255 motion to vacate and correct his sentence. After being convicted of multiple federal felonies, defendant was sentenced as a career offender due to his prior convictions, including a Missouri marijuana-related conviction. Defendant filed his motion after Missouri set aside his marijuana conviction, arguing that the conviction should not count toward his career offender designation.    

Where defendant’s Missouri conviction had not been set aside due to innocence or error of law, the district court could continue to count the conviction for purposes of determining defendant’s career offender status.  

Kelly, J., concurring: “The expungement of Lozano’s prior conviction may not have been related to innocence, error of law, exoneration based on later-discovered evidence, or federal constitutional invalidity. But it is difficult to characterize it as anything other than an ‘expunged conviction; If not for Townsend, I would conclude that it is.” 

Judgment is affirmed. 

Lozano v. U.S. (MLW No. 84533/Case No. 24-3517 – 14 pages) (U.S. Court of Appeals, 8th Circuit, Gruender, J.) Appealed from U.S. District Court, Western District of Missouri, Fenner, J. (Jonathan Theodore Sternberg, of Kansas City, MO for appellant) (Justin G. Davids, AUSA, of Kansas City, MO for appellee)