United States District Court, S.D. West Virginia, Huntington Division
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley United States Magistrate Judge
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.
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.
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”). (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.
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.
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.
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
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.
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).
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.
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).
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 ...