Opinion
2:22-cr-0118
01-25-2023
UNITED STATES OF AMERICA, Plaintiff, v. ROSS A. NIGH, Defendant.
OPINION & ORDER
ALGENON L. MARBLEY, CHIEF UNITED STATES DISTRICT JUDGE
This matter is before this Court on Defendant Ross A. Nigh's objection regarding his Initial Presentence Report (“PSR”), contesting the designation of his prior abduction conviction as a “crime of violence” for purposes of assigning a Base Offense Level of 20 under the United States Sentencing Guidelines (“U.S.S.G.”) §2K2.1(a)(4)(A). (ECF No. 20-2). For the reasons stated below, this Court OVERRULES Defendant's Objection.
I. BACKGROUND
A. Factual Background
On March 20, 2022, Defendant Nigh abandoned a stolen Toyota Tacoma truck with five firearms and Defendant's personal belongings near Logan, Ohio. (ECF No. 20, ¶¶ 8-10). On April 7, 2022, the truck was recovered by Hocking County Sheriff's deputies, who arrested Defendant, who has multiple prior felony convictions, for having a weapon while under disability. (Id., ¶ 11). After waiving Miranda, Defendant admitted to possessing the truck and firearms, but claimed he purchased the truck, guns, and methamphetamine from someone else. (Id., ¶ 11). Further investigation revealed that four of the firearms had been reported stolen from a residential burglary the day prior to recovery, but Nigh claimed he was unaware the trucks and guns were stolen and there was no evidence to suggest he was involved in the burglary. (Id., ¶¶ 10- 11).
The Federal Bureau of Investigations (“FBI”) took over the case from Hocking County because of Defendant's extensive criminal history. (ECF No. 21 at 2). Nigh was indicted on July 5, 2022 by a Grand Jury for one count of felon in possession of multiple firearms pursuant to 18 U.S.C. §§ 922(g)(1) and 924(a). (ECF No. 20, ¶¶ 1-2). On August 26, 2022, Defendant pled guilty to Count One of the Indictment pursuant to a binding plea agreement under Rule 11(c)(1)(C) calling for a sentence of 36-72 months of imprisonment, followed by three years of supervised release. (Id., ¶¶ 4-5).
On October 7, 2022, the Probation Office released Defendant's Initial PSR, establishing Defendant's base offense level as 20 under U.S.S.G. § 2K2.1(a)(4)(A), because the Probation Office classified Defendant's prior, third degree felony conviction for abduction as a crime of violence. (ECF No. 18). Defendant objected to the Probation Office's classification of the abduction conviction as a crime of violence. (ECF No. 20-1). On November 22, 2022, the Probation Office released Defendant's Final PSR, which calculated a Total Offense Level of 21 and Criminal History of IV, yielding a recommended sentencing range of 57-71 months. (ECF No. 20, ¶ 83).
B. Procedural History
On January 10, 2023, this Court sentenced Defendant to 42 months of incarceration and three months of supervised release on Count 1 of the Indictment. (ECF No. 26). This Court orally overruled Defendant's objection at the hearing. This Court memorializes its oral ruling below.
C. Parties' Arguments
1. Defendant's Position
Defendant agrees that the applicable sentencing guideline for Defendant's conviction is U.S.S.G. § 2K2.1(a)(4)(A) but disagrees that his prior conviction for abduction under Ohio Revised Code § 2905.02 qualifies as a crime of violence. (ECF No. 20-1 at 1). Abduction under the Ohio Revised Code is defined as:
(A) No person, without privilege to do so, shall knowingly do any of the following:
(1) By force or threat, remove from another place where the other person is found;
(2) By force or threat, restrain the liberty of another person under circumstances that create a risk of physical harm to the victim or place the other person in fear;
(3) Hold another in a condition of involuntary servitude.
Ohio Rev. Code § 2905.02(A). Defendant alleges that subdivisions (A)(1) and (A)(2) are the only third-degree felonies in the statute; therefore, either must be a crime of violence for the U.S.S.G. base offense level enhancement to apply. (ECF No. 20-1 at 2). Defendant states that a prior offense can only be a crime of violence if “either it is one of several ‘enumerated' offenses (for example, kidnapping) or has an element ‘the use, attempted use, or threatened use of physical force against the person of another.'” (Id.).
Defendant cites U.S. v. Soto-Sanchez for the proposition that “the generic offense of kidnapping requires restraint plus the presence of some aggravating factors, such as circumstances that create a risk of physical harm to the victim, or movement of the victim from one place to another.” 623 F.3d 317, 323 (6th Cir. 2010). Defendant maintains that (A)(1) meets the generic definition of kidnapping, but (A)(2) encompasses a broader definition than the generic definition of kidnapping because it can be committed by placing “the other person in fear.” (ECF No. 20-1 at 2 (citing Ohio Rev. C. § 2905.02(A)(2)). Defendant argues that the Court in Soto-Sanchez did not consider placing another person in fear as an aggravating factor, therefore abduction under (A)(2) cannot categorically qualify as generic kidnapping. (ECF No. 20-1 at 2).
Although previously acknowledging that (A)(1) does meet the generic definition of kidnapping, Defendant subsequently argues that if (A)(1) and (A)(2) do not meet the generic definition of kidnapping, they have to qualify as a crime of violence under the elements clause of U.S.S.G. § 4B1.2(a), which requires “the use, attempted use, or threatened use of physical force against the person of another.” (Id. at 2-3). Defendant argues that some persuasive authority exists that abduction under Ohio law cannot meet the elements clause because the terms “force” and “threat” under Ohio law do not require violence against a person. (Id. at 3). Therefore, Defendant concludes, that his Base Offense Level should be 14, but with additions and acceptance of responsibility, Defendant's guideline range should be a Base Offense Level of 15 and Criminal History Category of IV resulting in a recommended 30-37 months of imprisonment. (Id.).
2. Government's Arguments
The Government agrees with the Probation Office's calculation of Defendant's Base Offense Level and the analytical framework laid out by Defendant. (ECF No. 20-2 at 1). The Government argues, however, that neither (A)(1) nor (A)(2) qualify under the elements cause of U.S.S.G. §4B1.2(a)(1), because neither necessarily require as an element “the use, attempted use, or threatened use of physical force against the person of another.” (Id. at 2). Therefore, the Government asserts, to count as a crime of violence, Defendant's abduction conviction must qualify as a generic kidnapping under the enumerated-offense clause of U.S.S.G. §4B1.2(a)(2). (Id.). Also citing Soto-Sanchez, the Government argues that the generic offense of “kidnapping requires more than the unlawful confinement or restraint of the victim,” but does not “necessarily require . . . one of the specific purposes identified by the [Model Penal Code].” (Id. (citing Soto-Sanchez, 623 F.3d at 323. The Government asserts that (A)(1) and (A)(2) if committed under circumstances that create a risk of physical harm to the victim, meet the generic definition of kidnapping. (Id.).
Where an (A)(2) violation occurs under circumstances that “place the [victim] in fear,” however, the Government disagrees with Defendant, arguing that it still qualifies as a generic kidnapping because the two aggravating factors mentioned in Soto-Sanchez were “illustrative examples, not [] an exhaustive list.” (Id. at 3). In Soto-Sanchez, the Court explained that generic kidnapping was defined as “restraint plus the presence of some aggravating factor, such as circumstances that create a risk of physical harm to the victim, or movement of the victim from one place to another.” Soto-Sanchez, 623 F.3d at 323. The Government argues that the Court's use of the phrase “such as” suggests introduction of examples of a class not limited to the two mentioned by the Court. (ECF No. 20-2 at 3). Additionally, the Government cites to additional language from Soto-Sanchez, which offers several other aggravating factors that would bring an offense within the generic definition of kidnapping such as: (1) nefarious purposes set forth in the Model Penal Code; (2) confinement or imprisonment that is secret; (3) a kidnapper who has the intent to extort money or something else of value; (4) a kidnapper who intends to hold the victim for service against him will. (Id. (citing Soto-Sanchez, 623 F.3d at 322-24)). Placing the “other person in fear,” is an aggravating factor, the Government maintains, because Ohio already has the lesser-include offense of unlawful restraint, which does not qualify as a crime of violence, because it simply requires forcible confinement of the victim. (Id. (citing Ohio Rev. C. § 2905.03 and Soto-Sanchez, 623 F.3d at 324)).
Therefore, the Government argues that whether Defendant was convicted of abduction under (A)(1) or (A)(2), both qualify under the generic definition of kidnapping and constitute crimes of violence per U.S.S.G. § 4B1.2(a)(2). The Government asserts that this results in a Base Offense Level of 20 under the firearm guidelines from U.S.S.G. § 2K2.1(a)(4)(A).
II. LAW & ANALYSIS
Under the U.S. Sentencing Guidelines, a “crime of violence” means:
(a) Any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in 28 U.S.C. § 5845(a) or explosive material as defined in 18 U.S.C. § 841(c).U.S.S.G. § 4B1.2. If any of a defendant's previous convictions is classified as a crime of violence under U.S.S.G., career offenders receive a Base Offense Level enhancement. U.S.S.G. § 4B1.1.
Under the Model Penal Code (“MPC”), in order for a crime to constitute “kidnapping,” the perpetrator must have a specific purpose other than confining his victim or removing his victim from one place to another. Model Penal Code § 212.1. The Supreme Court in Taylor v. U.S., however, held that the generic, contemporary meaning of a criminal offense “is the way the offense is defined by the criminal codes of most states.” 495 U.S. 575, 598 (1990). Nearly half of U.S. states adopt the MPC's approach to kidnapping, which requires a specific, nefarious purpose other than merely restraining an individual. Soto-Sanchez, 623 F.2d at 322-23. Ohio requires an additional aggravating factor, such as exposing the victim to a risk of physical injury, to constitute kidnapping. Ohio Rev. C. § 2905.01. Ohio courts have established that kidnapping (§ 2905.01) and abduction (§ 2509.02) are different offenses as abduction is a lesser included offense of kidnapping. State v. Smith, 2020-Ohio-573, ¶¶ 7-8, 2020 WL 837410 at 1-2 (Ohio Ct. App. 2020) (citing State v. Mauer, 473 N.E.2d 768, 796 (Ohio 1984)). The Ohio court explained that the primary difference between kidnapping and abduction “involves the offender's mental culpability” because “kidnapping involves a purposeful removal or restraint, while abduction involves a knowing removal or restraint.” Id., ¶ 8 (quoting Mauer, 473 N.E.2d at 796). While Ohio state regulation may distinguish between these offenses, abduction is most analogous to the general definition of kidnapping as set forth by Sixth Circuit precedent. See U.S.S.G. § 1B1.2(a) (directing a sentencing court to the “most analogous guidelines”); U.S. v. Gibson, 409 F.3d 325, 339 (6th Cir. 2005) (noting that “the district court's choice of an analogy should be upheld if it is reasonable”).
Over time, the Sixth Circuit has adopted the widely accepted, generic definition of kidnapping. See U.S. v. Mullet, 822 F.3d 842, 850 (6th Cir. 2016) (“‘kidnapping' means to restrain and confine a person by force, intimidation, or deception, with the intent to terrorize or cause bodily injury to that person, or to restrain a person's liberty in circumstances that create a substantial risk of bodily harm to that person”); Soto-Sanchez, 623 F.3d at 323 (holding that “the generic offense of kidnapping requires restraint plus the presence of some aggravating factor, such as circumstances that create a risk of physical harm to the victim or movement of the victim from one place to another”); U.S. v. Gray, 16 F.3d 681, 684 (6th Cir. 1994) (explaining that unlawful restraint under U.S.S.G. § 2A4.1 is designed to encompass all forms of physical or forcible restraint of a victim, including kidnapping); accord U.S. v. De Jesus Ventura, 565 F.3d 870, 877-78 (D.C. Cir. 2009) (“The most common approach defines kidnapping to include a particular nefarious purpose. And the majority approach requires some kind of heightened intent beyond the mere intent to restrain the victim's liberty. Most critically, a substantial majority of jurisdictions . . . require some additional element of intent or severity.).
As previously outlined, the types of abduction under the Ohio law that are pertinent to Defendant's conviction include: (1) unlawful restraint plus movement of the victim; and (2) unlawful restraint plus risk of physical harm to the victim or placing the victim in fear. Ohio Rev. C. § 2905.02(A). While it is true that Ohio's abduction statute is more analogous to the generic definition of kidnapping adopted by this Circuit, this Court must decide whether abduction under Ohio state law constitutes a crime of violence as defined by the U.S.S.G.
Ohio Rev. C. § 2905.02: (A) No person, without privilege to do so, shall knowingly do any of the following:
(1) By force or threat, remove from another place where the other person is found;
(2) By force or threat, restrain the liberty of another person under circumstances that create a risk of physical harm to the victim or place the other person in fear ....
Courts are required to take a different analytical approach depending on whether the state statute defines a crime more broadly than the generic offense set out in the sentencing guidelines. Soto-Sanchez, 623 F.3d at 320. When deciding whether an indivisible state statute is a crime of violence under the U.S.S.G., the Supreme Court has instructed federal sentencing courts to apply the categorical approach. Descamps v. U.S., 570 U.S. 254, 260-61 (2013). The categorical approach does not allow a court to consider the particular facts underlying the conviction but allows it to consider only “the fact of conviction and the statutory definition of the prior offense in determining whether the defendant has committed” a crime of violence. Taylor v. U.S., 495 U.S. 575, 600 (1990).
Where a statute is divisible-setting out one or more elements in the alternative and “thereby defin[ing] multiple crimes”-and at least one of the statute's alternative sets of elements matches the U.S.S.G. and at least one does not, this Court can apply the modified categorical approach to analyzing the statute. U.S. v. Burris, 912 F.3d 386, 393 (6th Cir. 2019) (citing Mathis v. U.S., 579 U.S. 500, 505 (2016)). The modified categorical approach allows the sentencing court “to consult a limited class of documents . . . to determine which alternative formed the basis of the defendant's prior conviction.” Descamps, 570 U.S. at 257. These documents are largely limited to “the indictment, jury instructions, or plea agreement and colloquy” (Mathis, 579 U.S. at 505-06) but can include “comparable judicial record[s]” such as a state court judgment of conviction entered in the state court journal. U.S. v. Adkins, 729 F.3d 559, 567-68 (6th Cir. 2013). A sentencing court may only use these additional materials to “determine which crime within a statute the defendant committed, not how [the defendant] committed that crime.” Soto-Sanchez, 623 F.3d at 320.
Finally, as explained more fully below, this Court will not consider the possibility that Defendant was convicted under § 2905.02(A)(3). Per Ohio Rev. C. § 2905.02(C), only provisions (A)(1) and (A)(2) are considered third-degree felonies under Ohio law, while a conviction under (A)(3) is considered a second-degree felony. Per Defendant's guilty plea, he pled guilty to “Count 1, as amended to abduction, ORC 2905.02, F3, a stipulated lesser included offense,” and his Judgment Entry stated that he “entered a plea of guilty to . . . Abduction . . . a Felony of the Third Degree.” (ECF No. 20-1 at 2). As explained more fully below, this Court can consider these documents when assessing whether § 2905.02 is a crime of violence under the federal sentencing guidelines through the modified categorical analytical approach.
A. Elements Clause
Once faced with a state statute in the elements-clause context, a court should conduct an “overbreadth analysis to determine whether the statute in question is too broad to categorically qualify as a [crime of violence] predicate because it criminalizes more conduct than is described in the . . . [U.S.S.G.] elements clauses.” Burris, 912 F.3d at 393. Here, this Court agrees with the parties that § 2905.02(A)(1) and (A)(2) do not qualify as crimes of violence under the elements clause of U.S.S.G. § 4B1.2(a)(1). A comparison of the state statute to the sentencing guidelines demonstrates a discrepancy because subsections (A)(1) and (A)(2) of the state statute do not necessarily require “the use, attempted use, or threatened use of physical force against the person of another.” § 2905.02(A)(1) and (A)(2); U.S.S.G. § 4B1.2(a)(1). An individual can be convicted of abduction by non-physical “threat,” which makes the Ohio abduction provisions broader than the U.S.S.G.'s elements clause.
Other district courts in Ohio have similarly concluded that abduction can occur without the use, attempt, or threat of physical force when analyzing whether conviction under Ohio Rev. C. § 2905.02 qualified as a violent felony in the related context of the Armed Career Criminal Act (“ACCA”). U.S. v. McBee, No. 1:07-cr-362, 2017 WL 2378086, at * 3-4 (N.D. Ohio Jun. 1, 2017), vacated and remanded on other grounds, 751 Fed. App'x 892 (6th Cir. 2019). Citing a previous decision, in U.S. v. Pruitt, the court explained:
[T]he Pruitt court examined the nature of “physical force” as that term appears in the use-of-force clause. The Supreme Court has held that “physical force” as used in the ACCA means “‘violent force-that is, force capable of causing physical pain or injury to another person.'” Id. (quoting Johnson v. United States, 559 U.S. 133, 134 (2010)). The Pruitt court then considered the meaning of the term “physical” and found that it “‘plainly refers to force exerted by and through concrete bodies- distinguishing physical force from, for example, intellectual force or emotional force.'” Id. (quoting Johnson, 599 U.S. at 138).
In its next step, the Pruitt court examined the language of [Ohio Rev. C.] 2905.02(A)(1), under which the defendant/petitioner in that case had been charged. Id. “The key question [in Pruitt was] whether removing someone from a place ‘by force or threat' necessarily implicates the ‘use, threatened use, or attempted use of physical force.'” Id. The court found that it did not. “Under Ohio law, ‘force' is ‘any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing.'” Id. (quoting [Ohio Rev C.] 2901.01(A)(1)). The Ohio code does not define “threat,” so the court looked to the definition set forth in the Ohio pattern jury instructions. Ohio's pattern jury instructions define “threat” as “‘a (statement), (conduct), (* * * other means of communication), whether direct or indirect, exerting pressure sufficient to (overcome the will of another) (make another fearful or apprehensive of injury or harm).'” Id. (quoting 2 OJI-CR505.2). Thus, unlike “force,” a “threat” can be constituted by non-physical conduct or communication.
On this basis, the Pruitt court concluded that “Ohio's abduction statute would be a crime of violence if it could be accomplished only by ‘force.'” Id. However,
because “removing another from the place where the other person is found” under R.C. 2905.02(1) could also be accomplished by a non-physical “threat” the abduction statute is broader that the ACCA's use-of-force clause. Id. Thus, Ohio's abduction statute punishes conduct not proscribed by the ACCA's use-of force clause. Because R.C. 2905.02(1) is broader than the ACCA, it does not qualify as a violent felony and is not a proper predicate for armed career criminal status under the ACCA. Id.McBee, 2017 WL 2378086, at * 3-4 (citing Pruitt, 2017 WL 35905, at *3 (N.D. Ohio Jan. 25, 2017)). Because there exists persuasive authority that the terms “force” and “threat” are not interpreted under Ohio law to require violent, physical force against a person, an individual can be convicted of abduction absent any use of physical force. Therefore, Ohio's abduction laws criminalize more conduct than is described in U.S.S.G.'s elements clause and does not meet the guideline's definition of a crime of violence under § 4B1.2(a)(1).
B. Generic Kidnapping Definition
Where a statute is divisible-setting out one or more elements in the alternative and “thereby defin[ing] multiple crimes”-and at least one of the statute's alternative sets of elements matches the U.S.S.G. and at least one does not, this Court can apply the modified categorical approach to analyzing the statute. Burris, 912 F.3d at 393 (citing Mathis, 579 U.S. at 505). Therefore, this Court must first determine whether one of the alternative sets of elements in § 2905.02 matches the generic definition of kidnapping in the federal sentencing guidelines and whether one does not.
The Sixth Circuit defines kidnapping as (1) restraint of an individual, and (2) the presence of an aggravating factor. Mullet, 822 F.3d at 850; Soto-Sanchez, 623 F.3d at 323. The aggravating factor can include circumstances that create a risk of physical harm to the victim, movement of the victim from one place to another, and intent to terrorize or cause the victim fear for their safety, among other factors. Id. Additionally, a kidnapping conviction requires proof of intent on behalf of the perpetrator-in Ohio, that the perpetrator “knowingly” carried out the act of restraint. Ohio Rev. C. §2905.02(A).
1. Ohio Rev. C. § 2905.02(A)(1)
Section 2905.02(A)(1) states that a person commits abduction where “[b]y force or threat, [the perpetrator] remove[s] [the victim] from another place where the other person is found.” The Court agrees with both parties that §2905.02(A)(1) meets the generic definition of kidnapping because it requires restraint of a victim and movement of the victim as an aggravating factor. The Sixth Circuit in Soto-Sanchez specifically stated that movement of a victim constitutes an aggravating factor necessary for kidnapping. 623 F.3d at 323. Therefore, if Defendant was convicted of abduction under § 2905.02(A)(1), that conviction meets the generic definition of kidnapping. Because kidnapping is one of generic offenses listed under U.S.S.G. § 4B1.2(a)(2) as a crime of violence, if Defendant was convicted of abduction under (A)(1), his actions constitute a crime of violence, and the Probation Office was correct to recommend a Base Offense Level enhancement for Defendant's recent sentence. Further, because this provision meets the generic definition of kidnapping, the first element required to apply the modified categorical approach to analyzing the statute-that at least one of the statute's alternative sets of elements matches the U.S.S.G. definition of kidnapping-is met. Burris, 912 F.3d at 393 (citing Mathis, 579 U.S. at 505).
2. Ohio Rev. C. § 2905.02(A)(2)
The Court finds the Government's argument regarding § 2905.02(A)(2) most persuasive. Defendant agrees with the Government to a certain extent and acknowledges that (A)(2) meets the restraint prong of the generic kidnapping definition and the aggravating factor of risk of physical harm laid out in Mullet and Soto-Sanchez. Mullet, 822 F.3d at 850; Soto-Sanchez, 623 F.3d at 323.
Defendant argues, however, that the alternative aggravating factor laid out in the statute-placing the victim in fear-was not an aggravating factor that the Sixth Circuit laid out in Soto-Sanchez. The aggravating factors described by the Sixth Circuit in Mullet and Soto-Sanchez, however, are not meant to be an exhaustive list.
Preceding the examples of aggravating factors, the Sixth Circuit used the term “such as.” Soto-Sanchez, 623 F.3d at 323. Merriam Webster Dictionary defines the term “such” as an adjective meaning “of a kind or character to be indicated or suggested.” Such, Merriam-Webster Dictionary (2022). Where the language of a statute is unambiguous, coherent, and consistent, the generally accepted canons of language interpretation instruct this Court to read a statute according to its plain meaning. U.S. ex rel. Felten v. William Beaumont Hosp., 993 F.3d 428, 431 (6th Cir. 2021). That is the approach the Sixth Circuit adopted when considering the meaning of the term “such as.” Specifically, the Court stated that when the term “such as” proceeds a list of factors, it is meant to imply that the factors listed represent examples of the factors “of the kind” enumerated by the Court. Maple Drive Farms Ltd. P'ship v. Vilsack, 781 F.3d 837, 853 (6th Cir. 2015). It is reasonable for the aggravating factor of “placing a victim in fear” to be considered an example of the kind of aggravating factors laid out in Soto-Sanchez and Mullet. The aggravating factors transform the restraint of an individual into a kidnapping by adding a nefarious element, as required by the MPC and many jurisdictions. See De Jesus Ventura, 565 F.3d at 877-78. Placing an individual in fear brings a nefarious element to a kidnapping, just as creating circumstances that could result in physical harm to the victim. Therefore, this Court finds that the Government's argument is reasonable, based on the plain reading of the statute and the Sixth Circuit's precedent. As such, § 2905.02(A)(2) meets the generic definition of kidnapping, making it a crime of violence worthy of a Base Offense Level enhancement under U.S.S.G. §4B1.2(a)(2).
3. Modified Categorical Approach
Section 2509.02 is a divisible statute, meaning that it delineates multiple different crimes by setting out elements of the crime in the alternative. An individual convicted under the Ohio abduction statute can be convicted by either, knowingly: (1) “[b]y force or threat, remove [a person] from another place where the other person is found”; or (2) “[b]y force or threat, restrain the liberty of another person under circumstances that create a risk of physical harm to the victim or place the other person in fear.” Ohio Rev. C. § 2509.02(A). Because Ohio's abduction statute is divisible and has at least one alternative set of elements (§ 2905.02(A)(1)) exceeds the scope of the U.S.S.G.'s definition of a crime of violence and one does not (§2905.02(A)(2)), this Court applies a modified categorical approach to determine if an abduction conviction constitutes a crime of violence under the federal sentencing guidelines.
Both parties were justified in referencing Defendant's plea agreement and journal entry of judgment in advancing their arguments. Further, this Court was justified in considering these documents to determine that both (A)(1) and (A)(2) under Ohio's abduction statute constitute crimes of violence. Because it is uncontroverted that Defendant was convicted under one of those two provisions, and both meet the U.S.S.G. crime of violence definition, Defendant's previous abduction should have resulted in a Base Offense Level increase, as set forth in the PSR provided to this Court by the Probation Office.
III. CONCLUSION
For the foregoing reasons, this Court OVERRULES Defendant's Objection. As set out at Defendant's sentencing hearing, held on January 13, 2023, this court sentences Defendant to forty-two (42) months of incarceration on Count 1 of the Indictment, three (3) years of supervised release, forfeiture as outlined in the Forfeiture Allegation of the Indictment, and a special assessment of $100.
IT IS SO ORDERED.