Richard Vowell v. United States

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 19a0199p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RICHARD L. VOWELL, ┐

Petitioner-Appellant, │

│

> No. 17-5405

v. │

│

│

UNITED STATES OF AMERICA, │

Respondent-Appellee. │

┘

Appeal from the United States District Court

for the Eastern District of Tennessee at Knoxville.

Nos. 3:16-cv-00543; 3:99-cr-00041-1—Thomas A. Varlan, Jr., District Judge.

Decided and Filed: July 12, 2019*

Before: CLAY, MOORE, and DONALD, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN

TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED

STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.

*This decision was originally filed as an unpublished opinion on July 12, 2019. The court has now

designated the opinion for publication.

No. 17-5405 Vowell v. United States Page 2

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Richard Vowell appeals the district court’s

denial of his petition for collateral relief under 28 U.S.C. § 2255, asserting that he is not an

armed career criminal under 18 U.S.C. § 924(e). Although we conclude that Vowell’s appellate

waiver does not preclude Vowell from bringing his § 2255 petition, we AFFIRM the district

court’s judgment because Vowell was properly designated as an armed career criminal under the

Armed Career Criminal Act (“ACCA”).

I. BACKGROUND

In 1999, Vowell pleaded guilty to a single-count indictment for being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g). R. 55-1 (Plea Agreement at 1) (Page

ID #113). Pursuant to his plea agreement, Vowell agreed that his prior criminal history qualified

for a sentence enhancement under 18 U.S.C. § 924(e) of the ACCA. Id. at 2 (Page ID #114).

Additionally, Vowell waived his right to file a motion under § 2255 with the following

exceptions: (1) claims asserting ineffective assistance of counsel; (2) claims asserting

prosecutorial misconduct; and (3) claims asserting “that an applicable change in the case law

renders the defendant’s conduct, as agreed to in the factual basis, not a violation of federal law.”

Id. at 4 (Page ID #116).

Vowell’s presentence investigation report (“PSR”) identified various criminal

convictions: a 1979 conviction for Tennessee second-degree burglary (PSR at ¶ 24) (Page #5); a

1980 conviction for Tennessee armed robbery (id. at ¶ 25) (Page #5); a 1998 conviction for

Tennessee aggravated burglary (id. at ¶ 33) (Page #7); and a 1983 conviction for Georgia

burglary (id. at ¶ 29) (Page #6). The district court determined that Vowell qualified as a career

offender under the ACCA and sentenced him to 180 months of imprisonment and five years of

No. 17-5405 Vowell v. United States Page 3

supervised release. R. 42 (Minute Entry).1 Vowell did not file a direct appeal of his conviction

or sentence.2

On September 7, 2016, Vowell filed a § 2255 motion to set aside his sentence, asserting

that his 1983 conviction for Georgia burglary did not constitute a predicate offense because it

was broader than generic burglary and “portions of Georgia’s burglary statute could only have

qualified as a violent felony under the ACCA’s now-void residual clause,” per Johnson v. United

States, 135 S. Ct. 2551 (2015), and Mathis v. United States, 136 S. Ct. 2243 (2016). R. 46 (Mot.

to Vacate at 5–6) (Page ID #7–8).3 In response, the government asserted that Vowell’s petition

was untimely, as it had been filed nearly seventeen years after his conviction became final and

more than a year after Johnson was filed. R. 49 (Gov’t Response at 3–7) (Page ID #35–39).

Additionally, the government argued Vowell’s petition was barred by the § 2255 waiver in his

plea agreement. Id. at 7–9 (Page ID #39–41). Finally, the government asserted that Johnson was

inapplicable, as Vowell’s predicate offenses were not based on the unconstitutional residual

clause and, moreover, his conviction for Georgia burglary was a conviction for generic burglary

under the ACCA. Id. at 9–17 (Page ID #41–49).

1Because Vowell was sentenced in 1999, electronic records are not attached to the district court’s docket

and it is unclear, precisely, which three convictions the district court considered predicate offenses. See R. 46 (Mot.

Vacate at 4–5) (Page ID #6–7) (explaining that a transcript and recording of the sentencing could not be located).

And although Vowell asserted in his motion to vacate that his conviction for Georgia burglary was listed as a

predicate offense in his PSR, he also stated, “[t]his burglary conviction was not cited as an ACCA predicate.” Id. at

1, 5 (Page ID #3, 7). On appeal, both parties consistently state that (1) the sentencing court determined Vowell’s

Georgia burglary conviction constituted a predicate offense; (2) the sentencing court relied upon his Georgia

burglary conviction in sentencing Vowell; and (3) Vowell was sentenced to 180 months pursuant to the ACCA. See

Appellee Brief at 4; Appellant Brief at 4; see also PSR at ¶ 17 (Page #4) (explaining that Vowell was convicted of

“[b]urglary” on December 8, 1983 and noting that the career offender sentencing guidelines applied to Vowell); id.

at ¶ 29 (Page #6) (indicating that Vowell was arrested for Georgia burglary on October 28, 1983). Consequently, we

will examine Vowell’s appeal in terms of the four predicate offenses listed above.

2Vowell is currently serving a state-court sentence and has not yet begun serving his 180-month federal

sentence.

3Vowell also asserted that (1) pursuant to Mathis and Descamps v. United States, 133 S. Ct. 2276 (2013),

Vowell’s 1998 conviction for Tennessee aggravated burglary no longer constituted a predicate offense; and (2) to

the extent the sentencing court relied upon Vowell’s previous conviction for Georgia escape, such a conviction was

not a predicate offense under the ACCA. R. 46 at 6–13 (Page ID #8–15). Vowell does not raise either argument on

appeal.

No. 17-5405 Vowell v. United States Page 4

On January 30, 2017, the district court dismissed Vowell’s petition with prejudice. R. 51

(Page ID #95). Without reaching the Government’s timeliness or waiver arguments, the court

determined that Georgia’s burglary statute was divisible and that because Vowell was convicted

of burglarizing a “dwelling house,” Vowell had been correctly designated as a career offender.

Id. at 9 (Page ID #103). This timely appeal followed. R. 53 (Notice of Appeal) (Page ID #107);

Fed. R. App. P. 4(a)(1)(B). On October 26, 2017, we granted Vowell a certificate of

appealability on the issue of whether he was properly sentenced under the ACCA. Vowell v.

United States, No. 17-5405 (6th Cir. Oct. 26, 2017) (order); see also 28 U.S.C. § 2253(c).

II. DISCUSSION

We review de novo the issue of whether a prior conviction qualifies as a predicate

offense under the ACCA. Richardson v. United States, 890 F.3d 616, 619 (6th Cir.), cert.

denied, 139 S. Ct. 349 (2018). We may affirm the district court’s judgment on any grounds

supported by the record. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000) (en banc).

A. Predicate Offenses Following United States v. Stitt

As an initial matter, since Vowell filed his appeal, the Supreme Court has held that the

“habitation” definition included in Tennessee’s aggravated burglary statute (one of Vowell’s four

predicate offenses identified by the parties and the PSR) is consistent with generic burglary

under the ACCA. United States v. Stitt, 139 S. Ct. 399, 407–08 (2018), reversing United States

v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc). Additionally, in Vowell’s motion to vacate,

Vowell conceded that both his 1979 conviction for Tennessee second-degree burglary and his

1980 conviction for Tennessee armed robbery constituted violent felonies under the ACCA. R.

46 (Mot. to Vacate at 3) (Page ID #5). According to the government, the Supreme Court’s

decision in Stitt therefore forecloses Vowell’s appeal, since he now has three applicable predicate

offenses: the 1979 Tennessee second-degree burglary conviction; the 1980 Tennessee conviction

for armed robbery; and the 1998 Tennessee conviction for aggravated burglary. See Appellee

Brief at 7–8 n.4 (“Were Stitt overruled by the Supreme Court, Vowell’s Tennessee aggravated

burglary conviction would be another qualifying ACCA predicate.”).

No. 17-5405 Vowell v. United States Page 5

Although the government’s interpretation of Stitt appears to be overbroad,4 a review of

the record shows that the government has either ignored or forgotten its own briefing before the

district court. In Vowell’s § 2255 motion, Vowell asserted that his 1998 Tennessee conviction

for aggravated burglary could not be used as a predicate offense because Vowell “had not been

convicted of the aggravated burglary at the time he committed his federal offense.” R. 46 at 4

(citing 18 U.S.C. § 924(e)(1)). Specifically, Vowell committed his underlying federal offense of

being a felon in possession of a firearm on July 28, 1997. See id.; PSR at ¶ 4 (Page #3). Vowell

did not commit the aggravated burglary in Tennessee until October 29, 1997, however, and he

was not convicted of the crime until November 24, 1998. PSR at ¶ 33 (Page #7). In response to

Vowell’s § 2255 motion, the Government expressly agreed that for purposes of the ACCA,

Vowell’s 1998 conviction was not a predicate offense. See R. 49 (Gov’t Response at 11 n.5)

(Page ID #43) (“The United States agrees with petitioner that his 1998 Tennessee aggravated

burglary conviction does not count as an ACCA predicate because that offense is not a prior

conviction; petitioner committed that offense and was sentenced for it after he unlawfully

possessed the firearm in this case.”). Consequently, to resolve Vowell’s appeal, we must still

determine whether: (1) Vowell has waived his right to file a § 2255 motion pursuant to his plea

agreement, and (2) Vowell’s 1983 conviction for Georgia burglary constitutes a predicate

offense under the ACCA.

B. Vowell’s § 2255 Waiver

On appeal, the government asserts that, pursuant to the knowing and voluntary § 2255

waiver Vowell signed in his plea agreement, Vowell has waived his right to challenge

collaterally his sentence and conviction under § 2255. See Appellee Brief at 13–16; R. 55-1

(Plea Agreement at 4) (Page ID #116).5 In support of this argument, the government points to

this court’s recent decision in Slusser v. United States, 895 F.3d 437 (6th Cir. 2018), cert. denied,

4After all, the Supreme Court examined only the “relevant language” of Tennessee’s definition of

“habitation” and did not consider whether other aspects of Tennessee’s aggravated burglary statute were overbroad.

See Stitt, 139 S. Ct. at 406.

5The government also contends that Vowell’s motion was untimely because it was filed more than a year

after Johnson was decided. Appellee Brief at 8–12. Because we ultimately conclude that Vowell was correctly

sentenced as a career offender, we need not reach this issue.

No. 17-5405 Vowell v. United States Page 6

139 S. Ct. 1291 (2019), in which we concluded that a defendant’s § 2255 waiver precluded the

petitioner’s Johnson challenge to his ACCA designation. Appellee Brief at 14–16. This holding

was in conflict with this court’s previous opinion in United States v. Caruthers, 458 F.3d 459,

472 (6th Cir.), cert. denied, 549 U.S. 1088 (2006), which concluded that “an appellate waiver

does not preclude an appeal asserting that the statutory-maximum sentence has been exceeded.”

In order to resolve this conflict, the panel in Slusser determined that Caruthers’s waiver

statement was dicta, because the Caruthers court ultimately affirmed the defendant’s conviction

and sentence on the merits. Slusser, 895 F.3d at 439–40. Upon careful review, we do not

believe that the conclusion in Caruthers may be swept aside so easily.

In Caruthers, we considered the defendant’s argument on direct appeal that his

designation as a career offender under the ACCA was erroneous and, therefore, his sentence

exceeded the otherwise applicable statutory maximum of ten years for his conviction under 18

U.S.C. § 924(e). Caruthers, 458 F.3d at 464. As part of Caruthers’s plea agreement, Caruthers

waived “the right to appeal any sentence within the maximum provided in the offense level as

determined by the Court or the manner in which that sentence was determined on the grounds set

forth in 18 U.S.C. § 3742 or on any ground whatever.” Id. at 470. Although we concluded that

Caruthers’s argument on appeal clearly fell within his appellate waiver, id. at 470–71, and

Caruthers conceded that he had entered into his agreement knowingly and voluntarily, id. at 470

n.3, we nonetheless explained that, consistent with the decisions of other Circuit courts,

Caruthers’s appellate waiver could be unenforceable to the extent his sentence exceeded the

statutory maximum authorized by law. Id. at 471–72. In applying this rule to Caruthers’s case,

however, we noted that it was unclear whether Caruthers’s claim––that his ACCA designation

rendered his sentence of 180 months in excess of the non-ACCA maximum of ten years––fell

within the previously discussed exception. Id. at 472. Ultimately, we concluded that it was

unnecessary to determine “whether Caruthers’s appeal qualifies as a challenge on the grounds

that his sentence exceeds the statutory maximum,” because Caruthers’s ACCA claim failed on

the merits. Id. Thus, “we assume[d] for present purposes that Caruthers’s appellate waiver

[wa]s unenforceable.” Id. In other words, Caruthers determined that an individual retains the

right to challenge a sentence on the ground that it exceeds the statutory maximum penalty, but it

No. 17-5405 Vowell v. United States Page 7

did not answer the separate question of whether a claim that an ACCA enhancement has been

improperly applied qualifies as a claim that the sentence exceeds the statutory maximum.

Following our decision in Caruthers, this court has restated the rule established in

Caruthers in the general context of appellate and collateral waivers and has cited Caruthers for

the broader proposition that, despite knowingly and voluntarily waiving the right to appeal, a

defendant may nonetheless assert that his sentence was above the statutory maximum. See, e.g.,

United States v. Freeman, 640 F.3d 180, 193–94 (6th Cir. 2011) (explaining that although the

defendant did not argue that his plea agreement was unknowing or involuntary and the defendant

reserved the right to appeal a sentence above the statutory maximum, “even where a defendant

does not reserve the right to appeal a sentence that exceeds the statutory maximum, ‘an appellate

waiver may not bar an appeal asserting that the sentence exceeds the statutory maximum’”

(quoting Caruthers, 458 F.3d at 471–72)); In re Acosta, 480 F.3d 421, 422 n.2 (6th Cir. 2007)

(citing the rule established in Caruthers and noting that, in the context of the defendant’s second

§ 2255 motion, although voluntariness and ineffective assistance of counsel may invalidate a

plea agreement and appellate waiver, “our focus on [those bases] is not intended to suggest that

they constitute an exclusive list”).6

Additionally, subsequent unpublished opinions in this Circuit have correctly

distinguished between the rule established in Caruthers––that an appellate waiver does not

prohibit a defendant from appealing a sentence in excess of the statutory maximum––and the

issue left unresolved by Caruthers––whether an ACCA designation can properly be

characterized as being in excess of the statutory maximum. See United States v. Amos, 604 F.

App’x 418, 422 (6th Cir.), cert. denied, 136 S. Ct. 114 (2015) (“[W]e have held that appeal

waivers do not bar defendants from appealing a sentence above the statutory maximum for the

underlying offense. However, we have yet to settle whether a district court’s error in

6These cases are consistent with how other Circuit courts have articulated the rule discussed in Caruthers.

See, e.g., United States v. Hahn, 359 F.3d 1315, 1329 (10th Cir. 2004) (en banc) (noting that although the defendant

had knowingly and voluntarily entered into the plea agreement, the court could nonetheless refuse to enforce the

agreement if, for instance, the defendant asserted a statutorily impermissible sentence); United States v. Andis, 333

F.3d 886, 891–92 (8th Cir.) (en banc), cert. denied, 540 U.S. 997 (2003); United States v. Phillips, 174 F.3d 1074,

1076 (9th Cir. 1999) (concluding that even if the plea agreement had been entered into knowingly and voluntarily, if

the restitution order was nonetheless in excess of the statutory maximum in violation of the VWPA, and therefore

illegal, the defendant would be permitted to appeal that decision).

No. 17-5405 Vowell v. United States Page 8

determining a defendant to be an armed career criminal results in a supramaximal sentence,

thereby barring an appeal waiver.”); United States v. Stark, 307 F. App’x 935, 938 (6th Cir.

2009) (explaining that it remains unclear “whether a defendant waives his right to appeal a

district court’s application of the ACCA by entering into a waiver of appellate rights”).

The Slusser court, however, concluded that a criminal defendant’s knowing and

voluntary appellate waiver prohibited him from asserting a § 2255 claim that, under Johnson v.

United States, he was no longer a career offender and, therefore, his sentence exceeded the

statutory maximum for his crime. Slusser, 895 F.3d at 439–40. Slusser’s conclusion was

premised, however, on the misunderstanding that Caruthers’s appellate waiver statement was

dicta, and therefore not binding. But the important distinction between the general rule stated in

Caruthers (an appellate waiver may not preclude a claim that a sentence is in excess of the

statutory maximum) and the actual applicability to Caruthers’s case (whether an inaccurate

ACCA designation creates a statutorily excessive sentence) demonstrates why the waiver

statement in Caruthers was not dicta. When the court in Caruthers “assumed” that Caruthers’s

appellate waiver was unenforceable against him, it was assuming that Caruthers’s particular

claim (that he had been incorrectly designated as a career offender) actually fell within the

broader anti-waiver rule the court had just endorsed. Had the general rule not been true or a

definitive holding, this assumption would not have permitted the court to consider the merits of

Caruthers’s ACCA claim, as Caruthers’s waiver would have been enforceable regardless of

whether the court “assumed” that an improper ACCA designation rendered his sentence

excessive. Put differently, if the rule in Caruthers were not true (i.e., if appellate waivers were

enforceable despite a statutorily excessive sentence), it would not matter whether Caruthers’s

ACCA claim could “accurately be called a challenge of his sentence on the grounds that it

exceeds the statutory maximum.” Caruthers, 458 F.3d at 472. Because our waiver

determination was central to our ultimate conclusion, and based on subsequent cases endorsing

the Caruthers rule, we conclude that Caruthers’s general appellate waiver rule is not dictum.

See Richmond Health Facilities–Kenwood, LP v. Nichols, 811 F.3d 192, 201 n.8 (6th Cir. 2016)

(quoting Black’s Law Dictionary (10th ed. 2014) and explaining that dictum is “[a] judicial

comment made while delivering a judicial opinion, but one that is unnecessary to the decision in

the case and therefore not precedential” (emphasis added)). Consequently, under the still-

No. 17-5405 Vowell v. United States Page 9

applicable and binding rule endorsed in Caruthers, defendants should continue to be able to

challenge statutorily excessive sentences, regardless of their appellate waivers.

Moreover, none of the cases upon which Slusser relied support a conclusion that the rule

in Caruthers is incorrect, even if the petitioner’s claim is brought under § 2255 and is premised

on a subsequent change in the law. True, a defendant may waive his constitutional or statutory

rights, including his right to appeal and to attack his sentence collaterally, if the waiver is entered

into “knowingly and voluntarily.” United States v. Bradley, 400 F.3d 459, 463 (6th Cir.), cert.

denied, 546 U.S. 862 (2005). And a subsequent change in the law does not render an appellate

waiver unknowing or involuntary, even if the defendant or petitioner would not have agreed to

the waiver had he known about the subsequent change. Id. Consequently, the government

argues that, because Vowell entered into his waiver knowingly and voluntarily, he cannot now

point to Johnson as a basis for invalidating his waiver and bringing a § 2255 motion. Appellee

Brief at 15; see also Brady v. United States, 397 U.S. 742, 757 (1970) (determining that changes

in the law do not render an appellate waiver invalid); Slusser, 895 F.3d at 438 (concluding that a

§ 2255 petitioner could not use Johnson to argue that his previous sentence was above the

statutory maximum). However, this reasoning conflates two distinct issues.

In Brady, Bradley, and United States v. Morrison, 852 F.3d 488 (6th Cir. 2017), upon

which the government also relies, the Supreme Court and this court concluded that subsequent

changes in the law did not render an otherwise valid waiver unknowing or involuntary. See

Brady, 397 U.S. at 757; Morrison, 852 F.3d at 490–91; Bradley, 400 F.3d at 463. None of these

cases, however, concluded that a defendant would be prohibited from pointing to a change in the

law that renders his sentence in excess of the length authorized by statute, and, therefore, illegal.

And as noted above, a claim that a sentence is statutorily excessive as a basis for invalidating a

waiver is separate and distinct from a claim that the waiver was agreed to unknowingly or

involuntarily; both may form a basis for finding a waiver unenforceable. See In re Acosta, 480

F.3d at 422 n.2. Similarly, although we have previously held that a defendant’s § 2255 waiver is

enforceable if his waiver was knowing and voluntary, see Watson v. United States, 165 F.3d 486,

489 (6th Cir. 1999), the Watson petitioner’s claims were not based on a subsequent change in the

law that rendered his sentence statutorily excessive, id. at 488; cf. Andis, 333 F.3d at 887 n.2 &

No. 17-5405 Vowell v. United States Page 10

891–92 (concluding that a defendant’s waiver could be unenforceable if it was “illegal,” i.e., “in

excess of a statutory provision,” and that the waiver exception would likely apply to both § 2255

motions and direct appeals (internal quotation marks omitted)); United States v. Cockerham,

237 F.3d 1179, 1182–83 (10th Cir. 2001), cert. denied, 534 U.S. 1085 (2002) (determining that

the same waiver exceptions apply to direct appeals and § 2255 motions, including the claim that

the sentence exceeds the statutory maximum). Thus, to the extent cases such as Brady, Bradley,

and Morrison limit a defendant or petitioner’s ability to use subsequent changes in the law to

invalidate his appellate waiver, they logically extend only to situations in which the defendant or

petitioner utilizes those later decisions to argue that his waiver was involuntary or unknowing.

They say nothing of whether an appellate waiver encapsulates a subsequent change of the law

which would otherwise render a defendant or petitioner’s sentence statutorily excessive, i.e.,

illegal.7 Pursuant to Caruthers, therefore, we hold that a defendant or petitioner may challenge

his sentence as being statutorily excessive based on a subsequent change in the law, even if the

waiver was otherwise knowing and voluntary.

As applied to Vowell’s appeal, this court has not yet determined whether a petitioner’s

allegedly incorrect designation as a career offender under the ACCA renders his sentence in

excess of the statutory maximum. See Amos, 604 F. App’x at 422. However, the applicable

sentencing statutes clearly establish this. Had Vowell not been designated as a career offender

under the ACCA, Vowell would have been subjected to a maximum sentence of ten years of

imprisonment. See 18 U.S.C. § 924(a)(2). An ACCA sentence of fifteen years of imprisonment

is, therefore, necessarily in “excess” of that statutory maximum. Id. at § 924(e). Consequently,

Vowell’s appellate waiver does not prohibit him from raising his claims under § 2255. However,

as explained in further detail below, because Vowell was correctly sentenced as a career offender

under the ACCA, we affirm the district court’s denial of Vowell’s § 2255 motion.

7For similar reasons, this court’s recent decision in Cox v. United States, 695 F. App’x 851, 853 (6th Cir.

2017), is not persuasive. The court in Cox did not examine Caruthers and instead relied on cases which discuss only

whether subsequent changes in the law may render an otherwise valid plea agreement unknowing or involuntary.

No. 17-5405 Vowell v. United States Page 11

C. Georgia Burglary Under the ACCA

Pursuant to the ACCA, a felon in possession of a firearm receives a mandatory minimum

180-month sentence if he has previously been convicted of at least three prior “violent

felon[ies].” 18 U.S.C. § 924(e)(1). Before Johnson v. United States, the ACCA defined a

“violent felony” as a felony that (1) “has as an element the use, attempted use, or threatened use

of physical force against the person of another” [the elements clause]; (2) “is burglary, arson, or

extortion, involves use of explosives” [the enumerated-offenses clause]; or (3) “otherwise

involves conduct that presents a serious potential risk of physical injury to another” [the residual

clause]. 18 U.S.C. § 924(e)(2)(B). In Johnson, the Court held that the residual clause was

unconstitutionally vague, although it noted that its findings did not call into question the

constitutionality of the elements clause or enumerated-offenses clause. 135 S. Ct. at 2563.

As applied to Vowell’s burglary conviction, under the enumerated-offenses clause, not

every “burglary” conviction qualifies as an ACCA predicate offense; rather, only “generic

burglary,” or “an unlawful or unprivileged entry into, or remaining in, a building or other

structure, with intent to commit a crime,” qualifies. Taylor v. United States, 495 U.S. 575, 598

(1990). In order to determine whether a previous burglary conviction qualifies as a predicate

offense, courts apply the “categorical approach,” whereby we determine “whether the elements

of the crime of conviction sufficiently match the elements of generic burglary.” Mathis, 136 S.

Ct. at 2248. If the elements are the same as, or narrower than, generic burglary, the statutory

offense is a predicate offense. Taylor, 495 U.S. at 599. This is simple if the statute is indivisible

and sets out singular elements of a crime. When a statute is alternatively phrased, however, the

court must examine whether the statute is “divisible,” meaning the statute lists elements––i.e.,

“the things the prosecution must prove to sustain a conviction,” rather than means––i.e., factual

alternatives for how a defendant may commit a crime. Mathis, 136 S. Ct. at 2248–49 (internal

quotation marks omitted).

If a statute is broader than generic burglary but nonetheless divisible, the court conducts

the “modified categorial approach,” under which the court looks at Shepard-approved documents

to determine the crime, and its elements, for which the defendant was convicted; the court will

then compare that crime with the elements of generic burglary. Id. at 2248–49. These

No. 17-5405 Vowell v. United States Page 12

documents may include the charging documents or indictment, terms of a plea agreement,

transcript of a plea colloquy, and, under our precedent, a final state-court judgment. See id. at

2249 (explaining that under the modified categorical approach, “a sentencing court looks to a

limited class of documents (for example, the indictment, jury instructions, or plea agreement and

colloquy)”); United States v. Davis, 751 F.3d 769, 776 (6th Cir. 2014) (noting that the

defendant’s “Ohio Judgment Entry of Sentence” was an appropriate Shepard document); United

States v. Cooper, 739 F.3d 873, 881 (6th Cir.), cert. denied, 572 U.S. 1008 (2014) (considering

the defendant’s “indictment, plea agreement, and state-court judgment” to determine whether the

defendant pleaded guilty to a particular crime).8

In the current case, Vowell primarily contends that, under Johnson, his 1983 conviction

for Georgia burglary9 is no longer a predicate offense because the Georgia burglary statute is

both broader than generic burglary and indivisible. See Appellant Brief at 9–23. As this court

8On appeal, Vowell contends that courts are not permitted to consider a state court’s judgment in

determining whether a conviction constitutes a predicate offense. Appellant Brief at 23–26. As noted above, this

argument is contrary to our current precedent. Furthermore, because state-court judgments are signed and filed by

the sentencing court and explicitly delineate the particular criminal count or counts for which a defendant has been

convicted, state-court judgments easily meet the threshold certainty required under Taylor. See Shepard v. United

States, 544 U.S. 13, 23 (2005) (noting Taylor’s rule requiring “that evidence of generic conviction be confined to

records of the convicting court approaching the certainty of the record of conviction in a generic crime State”).

Vowell points to two decisions from the Georgia Court of Appeals to suggest that a defendant’s conviction and

indictment are not necessarily based on the same underlying elements and, therefore, this court may not rely on the

listed crime as it appears in his state-court indictment. See Appellant Brief at 11–13 & 23 n.8 (citing Sanders v.

State, 667 S.E.2d 396 (Ga. Ct. App. 2008), and Weeks v. State, 616 S.E.2d 852 (Ga. Ct. App. 2005)). However, in

both of those cases, the defendants asserted that the evidence varied from the allegations in their indictments since

their indictments identified a “dwelling house” but, because the houses were under construction, they were

convicted of burglarizing only a “building.” Sanders, 667 S.E.2d at 399–400; Weeks, 616 S.E.2d at 854–55. Not

only has Vowell produced no evidence (let alone significant argument) indicating that his conviction and indictment

are inconsistent, but both defendants in Sanders and Weeks were still seemingly convicted of a generic burglary, i.e.,

the “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”

Taylor, 495 U.S. at 598 (emphasis added). And as this court noted in Richardson, neither of these state cases “holds

that an indictment may charge a generic burglary (e.g., unauthorized entry into a ‘building or structure’) but that a

jury may instead find a defendant guilty of a non-generic burglary (e.g., unauthorized entry into an aircraft).”

Richardson, 890 F.3d at 626 n.5. This is particularly true because under Georgia law, “where the defendant is

charged with burglary, the indictment must specify the location of the burglary.” Morris v. State, 303 S.E.2d 492,

494 (Ga. Ct. App. 1983).

9At the time of Vowell’s 1983 conviction, Georgia’s burglary statute provided: “A person commits the

offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or

remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such

structure designed for use as the dwelling of another or enters or remains within any other building, railroad car,

aircraft, or any room or any part thereof.” Ga. Code Ann. § 16-7-1(a) (1980). See also Appellant Brief at 10

(stating the applicable statutory language).

No. 17-5405 Vowell v. United States Page 13

recently determined, however, in Richardson v. United States, although Georgia burglary is

broader than generic burglary, the Georgia statute is nonetheless divisible under the test

articulated in Mathis. 890 F.3d at 621–22, 629. Thus, we must now examine the permitted

Shepard documents to determine whether Vowell was convicted of generic burglary. Vowell’s

indictment for Georgia burglary explains that, as to count one, Vowell “did then and there,

unlawfully, without authority and with intent to commit a theft therein, enter and remain within

the residence and dwelling house of Diane Wright.” R. 49-4 (Page ID #53) (emphasis added).

Additionally, Vowell’s state-court judgment explained that Vowell was convicted of “COUNT[]

one (1)” and sentenced to ten years of imprisonment. R. 49-5 (Page ID #54). Because Vowell

was therefore convicted of entering a “dwelling house,” Vowell’s conviction constitutes generic

burglary under the ACCA and it was properly evaluated as a predicate offense. See Richardson,

890 F.3d at 629 (examining the defendant’s indictment and concluding that because he was

indicted and convicted for entering a “dwelling house or building,” he was properly sentenced

under the ACCA). Vowell concedes that two of his other prior convictions constitute violent

felonies under the ACCA. See R. 46 (Mot. to Vacate at 3) (Page ID #5). Consequently, Vowell

was correctly designated as a career offender,10 and we will affirm the district court’s denial of

Vowell’s § 2255 petition.11

10Vowell asserts that he could not waive his right to challenge his sentence on the ground that it was based

on an unconstitutional factor, i.e., the residual clause. Reply Brief at 14–21; see also Johnson, 135 S. Ct. at 2563

(concluding the residual clause of the ACCA was unconstitutionally vague). The government responds that because

Johnson applies only to individuals who are sentenced under the residual clause, it does not apply to Vowell’s

ACCA designation under the enumerated-offense clause. Appellee Brief at 17–18. This court has recently noted,

however, that when the record is silent on which ACCA clause a defendant was sentenced under and a defendant

raises a Johnson claim in his initial § 2255 claim, the court may examine it. See Raines v. United States, 898 F.3d

680, 686 (6th Cir. 2018). Such is the situation here. However, the Raines court also explained that “if [the

defendant’s conviction] falls under the use-of-force clause or the enumerated-offenses clause, it remains a proper

predicate offense in the wake of Johnson” and thus would not be constitutionally invalid. Id. at 688. Because

Vowell’s 1983 conviction for Georgia burglary is a predicate offense under the enumerated-offenses clause of the

ACCA, Johnson does not render Vowell’s sentence unconstitutional based on the residual clause.

11Vowell also asserts that he is a not a career offender because Georgia burglary’s intent requirement is

both indivisible and broader than generic burglary, as it does not require contemporaneous intent. Appellant Reply

Brief at 24–26. The Supreme Court has recently clarified, however, that “we interpret remaining-in burglary under

§ 924(e) to occur when the defendant forms the intent to commit a crime at any time while unlawfully present in a

building or structure.” See Quarles v. United States, No. 17-778, 2019 WL 2412905, at *5 (June 10, 2019).

Consequently, even assuming Georgia burglary does not require contemporaneous intent, Vowell’s argument fails.

No. 17-5405 Vowell v. United States Page 14

III. CONCLUSION

For all of the reasons set forth above, we reaffirm the appellate waiver rule established in

Caruthers: “[A]n appellate waiver does not preclude an appeal asserting that the statutory-

maximum sentence has been exceeded.” 458 F.3d at 471–72. Moreover, the Caruthers rule

extends to motions brought under § 2255, even if the basis for those motions is a subsequent

change in the law that renders the petitioner’s sentence statutorily excessive. However, because

Vowell was correctly sentenced as a career offender under the ACCA, we affirm the district

court’s denial of his § 2255 motion.