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United States v. Ove

United States District Court, D. Minnesota

June 15, 2017

United States of America, Plaintiff,
v.
Nielsen Francis Ove, Defendant. Civil No. 16-1667 ADM

          LeeAnn K. Bell, Assistant United States Attorney, on behalf of Plaintiff.

          Nielsen Francis Ove, pro se.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This 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.

         II. BACKGROUND

         On July 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].[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. ¶ 2.

         On July 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.[2] Statement of Reasons ¶ I.B.; Presentence Investigation Report ¶ 19. Ove did not directly appeal his sentence.

         On May 25, 2016, nearly two years after Ove's judgment of conviction became final, [3] 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 Guidelines.

         On July 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, 892 (2017).

         On 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.

         On May 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.”).

         III. DISCUSSION

         28 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, ...


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