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Ossana v. United States

United States District Court, E.D. Missouri, Southeastern Division

August 5, 2019

TIMOTHY G. OSSANA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          AMENDED MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE.

         These 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.

         PROCEDURAL HISTORY

         Case Number 1:08 CR 00135 SNLJ.

         On 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 counsel.

(Case Number 1:08 CR 00135 SNLJ, DCD 51, p. 3)

         A 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. Section 2K2.1(a).

         A 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.”)

         A 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 to do.
Court: You put your nephew in a position where if you ran over a - - the officer; right?
Ossana: Yes.

(No. 1:08CR00135 SNLJ; Sent. Hrg, Exh. 8. Plea Tr. pp. 7, 8)

         Based on that record, this Court again found Ossana's Arizona Aggravated Assault conviction to be a crime of violence. (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 subsection (A)(2).

Id. at 736.

         This 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)

         Case Number 1:14 CR 00018 SNLJ.

         After 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 know.
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, 13)

         This 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.

         On 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.

         Ossana 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.

         Habeas Petitions 1:18 CV 00011 SNLJ and 1:18 CV 00035 SNLJ.

         In his 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].”)

         Ossana's 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.

         APPLICABLE LAW

         A. Need for Evidentiary Hearing and Burden of Proof:

         28 U.S.C. § 2255 provides, in pertinent part:

Unless the motion and the files and records of the case conclusively show that the prisoner is not entitled to relief, the court shall . ...

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