United States District Court, E.D. Missouri, Southeastern Division
TIMOTHY G. OSSANA, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.
cases are before the Court on two motions to set aside two
previous sentences pursuant to Title 28, United States Code,
Section 2255. Both motions arise from pleas of guilty
petitioner entered for separate offenses of Felon in
possession of a Firearm. His first Motion, filed in Case
Number 1:08 CR 00135 SNLJ, was filed on January 22, 2108. His
second Motion, filed in Case Number 1:14 CR 00018 SNLJ, was
filed on February 16, 2018. Both motions seek the same result
and both issues can be addresses together. These cases are
fully briefed, though petitioner filed no replies to the
government's responses in opposition, and though
petitioner was repeatedly granted leave to do so.
Number 1:08 CR 00135 SNLJ.
October 16, 2008, Timothy Ossana was indicted by a grand jury
for the Eastern District of Missouri, Southeastern Division,
for a single count of Felon in Possession of a Firearm. (Case
Number 1:08 CR 00135 SNLJ, DCD 1) On September 9, 2009,
Ossana pled guilty to the charge in the Indictment,
accompanied by a written plea agreement. (Case Number 1:08 CR
00135 SNLJ, DCD 51) That plea agreement contained an
agreement between the parties to the effect that Ossana
waived his right to bring a habeas petition:
(2) Habeas Corpus: The defendant acknowledges being guilty of
the crime to which a plea is being entered, and further
states that neither defense counsel nor the government has
made representations which are not included in this document
as to the sentence to be imposed. The defendant further
agrees to waive all rights to contest the conviction or
sentence to be imposed. The defendant further agrees to waive
all rights to contest the conviction or sentence in any
post-conviction proceeding, including one pursuant to Title
28, United States Code, Section 2255, except for claims of
prosecutorial misconduct or ineffective assistance of
(Case Number 1:08 CR 00135 SNLJ, DCD 51, p. 3)
Presentence Investigation Report was prepared for
Ossana's sentencing. That report reflected that Ossana
had a prior conviction for Arizona Aggravated Assault. (Case
Number 1:08 CR 00135 SNLJ, DCD 73) The PSR classified that
conviction as a crime of violence, thereby raising
Ossana's base offense level from 14 to 20 under U.S.S.G.
sentencing hearing was held for Ossana on May 14, 2010. At
that time, this Court sentenced Ossana to a term of
imprisonment of 63 months. Ossana appealed that sentence,
asserting that his prior conviction was improperly classified
as a crime of violence. The first decision on the merits of
this classification, United States v. Ossana, 638
F.3d 895 (8th Cir. 2011) (Ossana I), decided that
the record was- insufficient for the district court to find
the conviction to be a crime of violence. Id. at
904. (“Here, given the vagueness of Ossana's
objections below, we believe it is appropriate to permit the
government to expand the sentencing record and permit the use
of additional Shepard-qualifying materials (if any
exist) at resentencing.”)
second sentencing hearing was held on July 12, 2011. Upon
remand, the Government introduced a transcript of the plea
colloquy from the Arizona conviction. A portion of that plea
transcript read as follows:
Court: Okay. So why don't you go ahead and tell me what
happened on or about June 24th, 1998?
Ossana: Um, okay. On June 23rd, I guess June 24, I __ I was
in my vehicle. I was parked in a motel parking lot talking to
a friend. He was leaned up against the passenger side of the
car. I had a passenger in the car. Two police officers
approached me, one ordered me to turn off the vehicle. I
asked he [sic] why. Um, had I broken the law? He says no,
turn it off. And in the meantime, another officer approached
the driver's side of the vehicle and asked me to turn the
car off and roll down the window. He asked me to roll down
the window. I rolled down my window. I asked him what he
wanted and he said, I said turn off the car. He started
hitting my window with the stick and __ a baton, whatever. So
I took off my __ my car and I ran over his bicycle.
Def. Atty.: They were bicycle cops, Your Honor. Bike was in
back of car. He ran over it at the same time the officer was
__ had to jump out of the way of the vehicle.
Court: You could have run over an officer; right?
Ossana: Unintentionally. I know it wasn't a smart thing
Court: You put your nephew in a position where if you ran
over a __ the officer; right?
(Case No. 1:08CR00135 SNLJ; Sent. Hrg, Exh. 8. Plea Tr. pp.
on that record, this Court again found Ossana's Arizona
Aggravated Assault conviction to be a crime of violence.
(Case No. 1:08CR00135 SNLJ, DCD 106, p. 18) Ossana again
appealed. The Eighth Circuit affirmed this Court's
finding that the conviction was a crime of violence in
United States v. Ossana, 679 F.3d 733 (8th Cir.
2012) (“Ossana II”). That decision
includes references to the Arizona statutes of conviction,
Ossana's charging documents, and the transcript of
Ossana's plea colloquy. Id. at 734-36. This
Court found that Ossana committed his crime by violating the
second subsection of Arizona Aggravated Assault by
intentionally placing another person in reasonable
apprehension of imminent physical injury and that the crime
was a crime of violence:
Here, the record shows the officer was in fear of imminent
harm-he was forced to jump out of the way of a moving vehicle
that ultimately ran over his bicycle. Based upon this fact,
it is reasonable to infer that the officer
successfully jumped from harm's way and was not
injured. In the absence of an injury, we must infer the
conviction did not stem from a violation of Ariz.Rev.Stat.
§ 13-1203(A)(1) and therefore must have involved
Id. at 736.
Court's decision finding that Ossana's prior
conviction for Arizona Aggravated Assault was a crime of
violence was affirmed, as well as Ossana's sentence.
Ossana served his sentence and was released on supervised
release on May 8, 2013. On December 9, 2013, that supervised
release was revoked and Ossana sentenced to another term of
imprisonment of four months. He was released on March 21,
2014, subject to another two years of supervised release.
(Case Number 1:14 CR 00018 SNLJ; PSR; DCD 30, p. 14)
Number 1:14 CR 00018 SNLJ.
his release from his first prison sentence for Felon in
Possession of a Firearm, Ossana was once again found in
possession of a firearm. On March 20, 2014, Ossana was
charged by a grand jury for the Eastern District of Missouri,
Southeastern Division, for Felon in Possession of a Firearm.
Ossana pled guilty to that charge on May 27, 2014. Another
PSR was prepared for Ossana, again finding that his previous
conviction for Arizona Aggravated Assault was a crime of
violence. A sentencing hearing was held on September 8, 2014,
in which this Court found again that Ossana's disputed
conviction was a crime of violence. As part of the sentencing
announcements, this Court stated:
First of all, the sentence I'm going to impose I would
impose against you whether or not this prior felony
conviction in Arizona was considered a felony __ an
aggravated felony or violent felony or not, so I just want to
make that clear that it's not __ that the actual legal
categorization of the term is not in any way affecting the
sentence that I'm giving you now even though it would
reduce theoretically the guideline provisions down from the
51 months to 63 months. What I'm more concerned is that,
you know, you just for some reason cannot abide by the terms
of your supervised release. You continue to use firearms or
possess firearms I should say. And why in the world you would
risk everything again by possessing a firearm I don't
You know, I regret having to impose another sentence against
you like the one that was imposed the last time around, but
what am I supposed to do? I mean, you do the same things over
and over. I mean, you know they're felonies. You know
you're going to go back to prison, and, you know, you can
only blame your background only so much.
I mean, you've got a lot going for you. You're a very
intelligent person. I think you really can make it I'm
sure if you'd just get a little bit of self discipline in
your life somehow, some way.
(Case Number 1:14 CR 00018 SNLJ, DCD 51, Sent. Tr., p. 12,
Court then imposed a sentence of 60 months imprisonment,
followed by a two-year term of supervised, and a special
assessment of $100. There were no objections to the manner in
which this Court imposed its sentence.
September 16, 2014, Ossana filed a Notice of Appeal,
challenging once again the classification of his conviction
for Arizona Aggravated Assault as a crime of violence. In
United States v. Ossana, 607 Fed.Appx. 599
(8th Cir. 2015) (Ossana III), the Eighth Circuit
reaffirmed is previous decision that Ossana's crime was a
crime of violence, holding that: “We addressed the
classification of the same Arizona conviction in depth in
Ossana II, and Ossana raises no new evidence nor
arguments to cast doubt upon our prior holding or require a
different result. The district court in the present case
properly determined that the Arizona conviction qualifies as
a crime of violence.” Ossana III, 607
Fed.Appx. at 600.
asked for certiorari review from the Supreme Court as to his
issues. That request was denied, with the final denial coming
on October 8, 2016, when that Court denied Ossana's
Motion for Reconsideration. (Ossana's Petition; Case
Number 1:18 CV 00035 SNLJ; p. 10) That date is a significant
date for the resolution of Ossana's issues here, because
it marks the date when Ossana's second Felon in
Possession of a Firearm sentence became final.
Petitions 1:18 CV 00011 SNLJ and 1:18 CV 00035 SNLJ.
petitions, Ossana notes that his Arizona court of conviction
amended his plea agreement to eliminate any reference to the
subsections of Ariz.Rev.Stat. 13-1204. This amendment
occurred on March 2, 2017. Ossana contends that this
modification clearly demonstrates that he actually pled
guilty to recklessly assaulting his victim, now no longer
referred to as a peace officer, and that this crime could not
be a crime of violence. (“Judge Miller has removed the
citations to subsections “(A)(2) and (C)” of
A.R.S. 13-1204 as well as the language referring to the
victim as a “a peace officer, while engaged in the
execution of any official duty, ” from that Plea
Agreement so that it now reflects the offense of Aggravated
Assault, a class three felony violation of simply
“A.R.S. § 13-1204, [punishable by] § 13-603,
. . . [Arizona's general sentencing statutes].”)
complaint revolves around the classification of one of his
prior convictions as a crime of violence for sentencing
purposes. This issue is important for the calculation of
Ossana's Guideline offense levels for his offenses of
Felon in Possession of a Firearm under U.S.S.G. Section
2K2.1. A defendant with no prior felony convictions for a
crime of violence (or controlled substance offense) will have
a base offense level of 14. U.S.S.G., Section 2K2.1(a)(6). A
defendant who has one prior felony conviction for a crime of
violence (or controlled substance offense) will have a base
offense level of 20. U.S.S.G., Section 2K2.1(a)(4)(A). A
defendant with two prior convictions for crimes of violence
(and/or controlled substance offenses) will have a base
offense level of 24. U.S.S.G., Section 2K2.1(a)(2). Ossana
was found to have one conviction for a crime of violence for
purposes of his previous two sentences, that of Arizona
Aggravated Assault. In his current Motions, Ossana claims
that this conviction is no longer a crime of violence. He
requests resentencing without the increased offense levels
due to that crime being classified as a crime of violence.
Need for Evidentiary Hearing ...