NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0602n.06 No. 10-4573 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellant,

v. WAYNE COTTREL L , Def endant- Appellee

. ) ) ) ) ) ) ) ) ) ON APPEALFROM THE U NI TED STATES DI STRI CT COURT FOR THE NORTHERN DI STRI CT OF OH I O

Be fore : MOORE, SUTTON and STRANCH, Circuit J udg es.
S UT T ON , C i rcuit J udg e. Way ne Cottrell pled g uilty to being a felon in possession of a firea rm. I n setting his sentenc e, the district court deter mined that Cottrell’s three Ohio convictions for third-deg ree burg lary did not trig g er a sentenc ing enhanc ement under the Armed Caree r Criminal Act. 18 U.S.C. § 924(e)

. Ba sed on our intervening decision in United States v. Coleman , 655 F.3d 480, 483 (6th Cir. 2011), we must re verse .
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A fede ral g rand jury char g ed Cottrell with being a felon in possession of a firea rm. 18 U.S.C. § 922(g ). To inform his pleading decision, Cottrell asked the d i s t ri ct co u rt to make a pre- plea deter mination of whet h er h is three prior convictions for third-deg ree burg lary under Ohio law trig g ere d ACCA’s fiftee n-y ear mandatory -minimum sentenc e. The distric t co u rt deter mined thatNo. 10-4573

United States v. Cottrell they did not. Cottrell pled g uilty , rese rving the rig ht to withdraw his g uilty plea if the Six th Circuit

reve rs ed t h e d istrict court’s ACCA deter mination. The district court sentenc ed him to thirty -five months in prison, and the g overnme nt appea led.

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This case turns on the interplay of two statutes. T h e fi rs t is Ohio’s third-deg ree burg lary statute, which provides that “[ n ] o person, by forc e, st ealth, or dece ption, shall

. . . [t ]respass in an occupie d structure
. . . with purpose to commit in the structure
. . . any criminal offe nse.” Ohio Rev. Code § 2911.12(A) (3). The statute define s an occ upied structure as:

any house, building, outbuilding, water cra ft, airc raf t, railroa d car , truck, trailer, tent, or other structure , vehicle, or shelter, or any portion there of, to which any of the following applies: (1) I t is maintained as a perma n ent or temporar y dwelling , even though it is temporar ily

unoccupie d and whe ther or not a ny person is ac tually

prese nt. (2 ) At the time, it is occupie d as the perma nent or temporar

y habitation of any person, whe ther or not a

ny person is ac tually

prese nt. (3) At the time, it is specia lly adapte d for the overnig h t ac co m m o d ation of any person, whe ther or not a

ny person is ac tually

prese nt. (4) At the time, a

ny person is pre sent or likely to be pre sent in it.
Id. § 2909.01(C).
The second rele vant statute is ACCA, which imposes a fiftee n-y ear mand atory -minimum sentenc e for violation of the fede ral felon-in- possession statute by an individual with “thre e previous convictions

. . . for a violent felony or a serious drug offe nse.” 18 U.S.C. § 924(e)

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United States v. Cottrell ACCA define s a “violent felony ” as a felony that “involves conduct that prese nts a serious potential risk of phy sical injury

to another.” Id. § 924(e) (2)( B) (ii).
When the district court sentenc ed Cottrell, the Six th Circuit had not decide d whether thirddeg ree burg lary under Ohio law is an ACCA violent felony

. Since then, Coleman hel d t hat viola t i o n s of Ohio’s third-deg ree burg lary statute qualify “categ orica lly ” beca use they cre ate a substantial risk of violent confr ontation betwee n the burg lar and an unexpected interrupter

. 655 F.3d at 483. Acc ording ly , the dis t ri ct court err ed in holding (or at least in fore casting ) that ACCA’s mandatory -minimum sentenc e was inap p l i cable. Cottrell’s three convictions for third-deg ree burg lary trig g er the mandatory

minimum

. Resisting this conclusion, Cottrell points to the state sentenc ing transcr ipt and journal entry from his third burg lary conviction. Thoug h difficult to parse , they seem to ref lect that the sentenc ing court (at the reque st of the prosec utor) deleted the words “pre sent or likely to be prese nt” from the indictment. R. 24-2. Fr om this, Cottrell arg ues that “[ t] he trial court’s delibera te and purposef ul

remova l of t he langua g e [ ‘]present or likely to be present[’] cre ates a situation in which Cottrell’s conviction would not be cla ssified as a violent f elony .” B r. at 8.

We disag ree . ACCA “g ener ally require s the trial court to look only to the fac t of conviction and the statutory definition of the prior offe nse.” Taylor v. United States , 495 U.S. 575, 602 (1990). Her e, there i s n o dispute that Cottrell has three prior convictions under Ohio Rev. Code § 2911.12(A)( 3), and Coleman establishes that violations of that provision cate g orica lly are ACCA
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United States v. Cottrell violent felonies. That is all we need to know. “[T] he particula r fac ts underly

ing those convictions”

are i rr el ev ant for our purposes, which indeed is the essential point of the cate g orica l approa ch. Taylor , 495 U.S. at 600; see also Coleman , 655 F.3d at 484 (“[I ]t makes no differ ence that Coleman can imag ine a non- risky

way to burg larize such a struc ture.” ).

Nor would it make a differ ence if we trea ted the state judge ’s ambig uous modification of the indictment as i f i t wer e a judicial modification of t he burgla ry statute, as C o t t re l l’s brief seems t o sug g est, though not elabor ate. As we said in Coleman , it does not “matter that the ‘pre sence or likely prese nce’ of another person is not a separ ate require ment of Ohio’s third-deg ree burg lary statute, but is instea d mere ly one way in which a struc ture is consider ed ‘oc cupied.’ ” 655 F .3d at 484. “[I ]t is the ‘occ upation’ itself—whether the structure is curr ently o ccupied or mere ly maintained as a dwelling —that incre ases the odds that a trespass in that structure will be interrupted by an ‘occ upant,

car etake r, or some other person who comes to investiga te.’” Id. Coleman tells us that a version of Ohio Rev. Code § 2911.12(A)( 3) shorn of the “pre sent or likely to be prese nt” lang uag e would still qualify cate g orica lly

as an A CCA predica

te. Thus, even if the s tate judge c ould take his shear s to the statute, Coleman would require the same r esult.

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For these re asons, we r ever se and r emand the c ase to the district c ourt.

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