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Nosse v. United States

United States District Court, S.D. West Virginia, Huntington Division

March 9, 2018

JOHN JOSEPH NOSSE, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley United States Magistrate Judge

         Pending before the court are Movant, John Joseph Nosse's (hereinafter “Defendant”) pro se Letter-Form Motion to Reduce Sentence (ECF No. 48) and his Emergency Motion to Vacate, Set Aside or Correct Sentence (ECF No. 51), which was filed by counsel. This matter is assigned to the Honorable Robert C. Chambers, United States District Judge, and it is referred to the undersigned United States Magistrate Judge for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B).

         PROCEDURAL HISTORY

         On June 16, 2003, Defendant pled guilty, pursuant to an Information filed in this United States District Court, to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), which carried a maximum sentence of ten years (or 120 months) in prison. (ECF No. 23). However, the Information further charged that Defendant had three prior felony convictions: two convictions for aggravated burglary, in violation of Ohio Rev. Code Ann. § 2911.11(A)(3) and one conviction for burglary, in violation of Ohio Rev. Code Ann. § 2911.12(A)(1). (ECF No. 12). All three convictions occurred in 1991.[1]

         At sentencing, which occurred on August 25, 2003, this Court found, based upon the 1991 convictions, that Defendant had committed three prior felony offenses categorized as “violent felonies” under 18 U.S.C. § 924(e)(2)(B) (the “Armed Career Criminal Act” or “ACCA”).[2] (ECF No. 32 at 4). While the District Court did not specify under which clause of secti0n 924(e)(2)(B) each of the prior convictions qualified as “violent felonies, ” under the law at the time of sentencing, the parties did not dispute that Defendant qualified for an enhanced sentence under the ACCA.

         Because Defendant was classified as an armed career criminal, he was subject to a mandatory minimum sentence of fifteen years (or 180 months) of imprisonment, pursuant to 18 U.S.C. § 924(e)(1) on his felon in possession conviction. Such enhancement increased his applicable Sentencing Guideline range to 188-235 months.

         Defendant was sentenced to serve 210 months in prison, followed by a five-year term of supervised release. (Judgment, ECF No. 26). His sentence was affirmed on appeal by the United States Court of Appeals for the Fourth Circuit. United States v. Nosse, 91 Fed.Appx. 310 (4th Cir. 2004). Until the filing of the present motion, Defendant had not sought collateral relief concerning his conviction and sentence.

         On June 26, 2015, the Supreme Court decided United States v. Johnson, 135 S.Ct. 2551 (2015), holding that the residual clause of the ACCA is unconstitutionally vague and further finding that imposition of an increased sentence thereunder violates due process. Therefore, a prior conviction can now only qualify as a “violent felony” under the ACCA if it is one of the enumerated offenses (burglary, arson, extortion, or use of explosives) or if it falls within the force clause (which requires the crime to have “an element the use, attempted use, or threatened use of physical force against the person of another”).

         On September 24, 2015, Defendant filed a Letter-Form Motion to Reduce Sentence (ECF No. 48) seeking relief under Johnson. That motion is still pending. On November 12, 2015, the Federal Public Defender was appointed to represent Defendant for the purpose of determining whether he qualifies for federal habeas relief in light of Johnson. (ECF No. 50). On January 27, 2016, Defendant, by counsel, filed the instant Emergency Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255 addressing his Johnson claim (hereinafter “Defendant's section 2255 motion”). (ECF No. 51).

         Defendant's section 2255 motion asserts that his 1991 Ohio burglary conviction no longer constitutes a “violent felony” under the ACCA because it no longer qualifies as such under the now-stricken residual clause and does not meet the criteria under either the force or enumerated offense clauses. Consequently, the motion further asserts that Defendant's sentence exceeds the statutory maximum and violates due process, and should be corrected through his section 2255 motion, which he asserts was timely filed under 28 U.S.C. § 2255(f)(3). (Id. at 5-10). Defendant requests that the court vacate his sentence and re-sentence him to time served in prison and reduce his term of supervised release from five years to three years. (Id. at 10).

         On April 18, 2016, the Supreme Court decided Welch v. United States, 136 S.Ct. 1257 (2016), in which the Court determined that Johnson changed the substantive reach of the ACCA and, therefore, is a new substantive rule that applies retroactively to cases on collateral review.

         On May 10, 2016, the United States (hereinafter “the government”) filed a Response to Defendant's section 2255 motion. (ECF No. 57). The government's Response asserts that it is unclear from the record whether the District Court invoked the residual clause in making the determination that Defendant's burglary conviction constituted a violent felony, and further asserts that Ohio burglary can be considered a violent felony under the enumerated offense clause by applying the “modified categorical approach.” (Id. at 3-4).

         The government contends that both United States v. Coleman, 655 F.3d 480 (6th Cir. 2011) and United States v. Dowlen, 616 Fed.Appx. 209 (6th Cir. 2015), upon which Defendant relies, found that Ohio burglary was a violent felony under the residual clause, and that, although Coleman found that the Ohio burglary statute swept more broadly than the generic burglary definition in Taylor under the categorical approach, that court failed to address whether Ohio burglary qualified as a “violent felony” using the modified categorical approach. (ECF No. 57 at 3-4). The government further asserts that Defendant's Ohio burglary conviction meets the generic definition of burglary based upon the modified categorical approach. As noted in the government's brief:

The Supreme Court defined generic burglary as “any crime . . . having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a ...

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