United States District Court, D. Minnesota
K. Bell, Assistant United States Attorney, on behalf of
Nielsen Francis Ove, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Nielsen Francis Ove's pro se
Petition to Vacate Sentence Under 28 U.S.C. § 2255(f)(3)
[Docket No. 50] (the “Motion”). For the reasons
stated below, the Motion is denied.
23, 2013, Ove was indicted for being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g).
Indictment [Docket No. 1]. Ove reached a Plea Agreement [Docket
No. 38] with the Government and entered a plea of guilty on
November 19, 2013. In the Plea Agreement, the parties stated
that they believed the base offense level was either 20 or
24, depending on whether Ove's prior felony convictions
were “crimes of violence” as defined by §
4B1.2 of the United States Sentencing Guidelines. Plea
Agreement ¶ 5(a). The parties agreed that Ove had the
following prior convictions: (1) a January 5, 2006 felony
conviction in Nicollet County, Minnesota for assault in the
second degree - dangerous weapon; (2) an August 11, 2009
conviction in LeSueur County, Minnesota for one count of
fleeing a police officer; and (3) a January 29, 2013
conviction in Blue Earth County, Minnesota for terroristic
threats, which he committed on March 18, 2012. Id.
9, 2014, the Court sentenced Ove to 110 months'
imprisonment and three years' supervised release.
Sentencing J. [Docket No. 48]. Ove's base offense level
was determined to be 24 pursuant to § 2k2.1(a)(2) of the
Sentencing Guidelines because Ove had committed the instant
offense after having at least two prior felony convictions
for “crimes of violence” as defined by Sentencing
Guideline § 4B1.2. Statement of Reasons ¶ I.B.;
Presentence Investigation Report ¶ 19. Ove did not
directly appeal his sentence.
25, 2016, nearly two years after Ove's judgment of
conviction became final,  Ove filed the present Motion under 28
U.S.C. § 2255(f)(3). Ove initially argued that in light
of the Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), none of his three prior
three felony convictions qualify as “crime[s] of
violence” under § 4B1.2(a) of the Sentencing
20, 2016, the Motion was stayed pending resolution of
Beckles v. United States. See Order [Docket
No. 55]. The question presented in Beckles was
whether Johnson's holding-that the residual
clause of the Armed Career Criminal Act (“ACCA”)
is unconstitutionally vague-extended to the identically
worded residual clause in § 4B1.2(a)(2) of the
Sentencing Guidelines. Because Beckles was likely to
have a significant effect on the resolution of Ove's
Motion, the Government's Motion to Stay [Docket No. 54]
was granted. On March 6, 2017, the Supreme Court held the
residual clause in § 4B1.2(a)(2) is not void for
vagueness. Beckles v. United States, 137 S.Ct. 886,
March 14, 2017, the Government filed a Response [Docket No.
56] to Ove's Motion. The Government argued that the
Motion must be denied because it rests entirely upon the
contention that the § 4B1.2(a)(2) residual clause is
void for vagueness, and this contention has now been rejected
by the Supreme Court in Beckles.
1, 2017, Ove filed a Reply [Docket No. 61] in which he
abandoned his vagueness argument under Johnson and
instead argued that his “prior crime of fleeing police
in a motor vehicle would not be a crime of violence if looked
at through Mathis v. United States.” Reply at
1 (“My argument changes from whether my enhancement is
unconstitutionally vague to; does [sic] my prior crimes even
qualify me for the enhancement.”).
U.S.C. § 2255 provides a person in federal custody with
a limited opportunity to collaterally attack the
constitutionality, jurisdictional basis, or legality of his
sentence. See United States v. Addonizio, 442 U.S.
178, 185 (1979). Relief is reserved for violations of
constitutional rights and for a narrow range of injuries
which were outside a direct appeal and which, if untreated,