                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a0602n.06

                                             No. 10-4573

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                      FILED
UNITED STATES OF AMERICA,                         )                              Jun 12, 2012
                                                  )                       LEONARD GREEN, Clerk
       Plaintiff-Appellant,                       )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
WAYNE COTTRELL,                                   )    NORTHERN DISTRICT OF OHIO
                                                  )
       Defendant-Appellee.                        )



       Before: MOORE, SUTTON and STRANCH, Circuit Judges.


       SUTTON, Circuit Judge. Wayne Cottrell pled guilty to being a felon in possession of a

firearm. In setting his sentence, the district court determined that Cottrell’s three Ohio convictions

for third-degree burglary did not trigger a sentencing enhancement under the Armed Career Criminal

Act. 18 U.S.C. § 924(e). Based on our intervening decision in United States v. Coleman, 655 F.3d

480, 483 (6th Cir. 2011), we must reverse.


                                                 I.


       A federal grand jury charged Cottrell with being a felon in possession of a firearm. 18 U.S.C.

§ 922(g). To inform his pleading decision, Cottrell asked the district court to make a pre-plea

determination of whether his three prior convictions for third-degree burglary under Ohio law

triggered ACCA’s fifteen-year mandatory-minimum sentence. The district court determined that
No. 10-4573
United States v. Cottrell

they did not. Cottrell pled guilty, reserving the right to withdraw his guilty plea if the Sixth Circuit

reversed the district court’s ACCA determination. The district court sentenced him to thirty-five

months in prison, and the government appealed.


                                                    II.


        This case turns on the interplay of two statutes. The first is Ohio’s third-degree burglary

statute, which provides that “[n]o person, by force, stealth, or deception, shall . . . [t]respass in an

occupied structure . . . with purpose to commit in the structure . . . any criminal offense.” Ohio Rev.

Code § 2911.12(A)(3). The statute defines an occupied structure as:


        any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent,
        or other structure, vehicle, or shelter, or any portion thereof, to which any of the
        following applies:
        (1) It is maintained as a permanent or temporary dwelling, even though it is
        temporarily unoccupied and whether or not any person is actually present.
        (2) At the time, it is occupied as the permanent or temporary habitation of any
        person, whether or not any person is actually present.
        (3) At the time, it is specially adapted for the overnight accommodation of any
        person, whether or not any person is actually present.
        (4) At the time, any person is present or likely to be present in it.


Id. § 2909.01(C).


        The second relevant statute is ACCA, which imposes a fifteen-year mandatory-minimum

sentence for violation of the federal felon-in-possession statute by an individual with “three previous

convictions . . . for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e). In relevant part,

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United States v. Cottrell

ACCA defines a “violent felony” as a felony that “involves conduct that presents a serious potential

risk of physical injury to another.” Id. § 924(e)(2)(B)(ii).


       When the district court sentenced Cottrell, the Sixth Circuit had not decided whether third-

degree burglary under Ohio law is an ACCA violent felony. Since then, Coleman held that

violations of Ohio’s third-degree burglary statute qualify “categorically” because they create a

substantial risk of violent confrontation between the burglar and an unexpected interrupter. 655 F.3d

at 483. Accordingly, the district court erred in holding (or at least in forecasting) that ACCA’s

mandatory-minimum sentence was inapplicable. Cottrell’s three convictions for third-degree

burglary trigger the mandatory minimum.


       Resisting this conclusion, Cottrell points to the state sentencing transcript and journal entry

from his third burglary conviction. Though difficult to parse, they seem to reflect that the sentencing

court (at the request of the prosecutor) deleted the words “present or likely to be present” from the

indictment. R. 24-2. From this, Cottrell argues that “[t]he trial court’s deliberate and purposeful

removal of the language [‘]present or likely to be present[’] creates a situation in which Cottrell’s

conviction would not be classified as a violent felony.” Br. at 8.


       We disagree. ACCA “generally requires the trial court to look only to the fact of conviction

and the statutory definition of the prior offense.” Taylor v. United States, 495 U.S. 575, 602 (1990).

Here, there is no dispute that Cottrell has three prior convictions under Ohio Rev. Code

§ 2911.12(A)(3), and Coleman establishes that violations of that provision categorically are ACCA


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United States v. Cottrell

violent felonies. That is all we need to know. “[T]he particular facts underlying those convictions”

are irrelevant for our purposes, which indeed is the essential point of the categorical approach.

Taylor, 495 U.S. at 600; see also Coleman, 655 F.3d at 484 (“[I]t makes no difference that Coleman

can imagine a non-risky way to burglarize such a structure.”).


       Nor would it make a difference if we treated the state judge’s ambiguous modification of the

indictment as if it were a judicial modification of the burglary statute, as Cottrell’s brief seems to

suggest, though not elaborate. As we said in Coleman, it does not “matter that the ‘presence or likely

presence’ of another person is not a separate requirement of Ohio’s third-degree burglary statute, but

is instead merely one way in which a structure is considered ‘occupied.’” 655 F.3d at 484. “[I]t is

the ‘occupation’ itself—whether the structure is currently occupied or merely maintained as a

dwelling—that increases the odds that a trespass in that structure will be interrupted by an ‘occupant,

caretaker, or some other person who comes to investigate.’” Id. Coleman tells us that a version of

Ohio Rev. Code § 2911.12(A)(3) shorn of the “present or likely to be present” language would still

qualify categorically as an ACCA predicate. Thus, even if the state judge could take his shears to

the statute, Coleman would require the same result.


                                                 III.


       For these reasons, we reverse and remand the case to the district court.




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