Petition for Writ of Certiorari — Larry Braswell, Petitioner v. United States

No.

In the

Supreme Court of t&e AHmtefc ^tatesf

LARRY BRASWELL,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the

Sixth Circuit

PETITION FOR CERTIORARI

Hugh J. Moore, Jr., BPR No. 00883

Counsel of Record

Nathan L. Kinard, BPR No. 035721

CHAMBLISS, BAHNER & STOPHEL, P.C.

Liberty Tower

Chestnut Street, Suite 1700

Chattanooga, TN 37450

Telephone: (423) 756-3000

Email: hmoore@chamblisslaw.com

Email: nkinard@chamblisslaw.com

Counsel for Petitioner

November 17, 2017

QUESTION PRESENTED

Petitioner was convicted of being a felon in possession of a firearm, 18 U.S.C.

§ 922(g), and sentenced under the Armed Career Criminal Act, ibid. § 924(e). He

argued his sentence was enhanced with two prior Tennessee dispositions which,

according to Tennessee law, do not constitute convictions. "What constitutes a

conviction" is defined by the applicable state's law. Ibid. § 921(a)(20).

The question presented is:

Was the Sixth Circuit correct to hold that Petitioner's argument was a

collateral attack prohibited by this Court's decision in Custis v. United States, 511

U.S. 485, 491 (1994), or are the Third and Eleventh Circuits correct that Custis does

not apply?

TABLE OF CONTENTS

QUESTION PRESENTED

i

TABLE OF AUTHORITIES

111

PETITION FOR WRIT OF CERTIORARI

1

OPINIONS BELOW

1

JURISDICTION

1

STATUTORY PROVISIONS INVOLVED

1

STATEMENT OF THE CASE

3

REASONS TO GRANT THE PETITION

4

IL

III.

IV.

V.

What the Phrase "Constitutes a Conviction" in 18 U.S.C. § 921(a)(20)

Means Is an Issue of First Impression for This Court

5

The Sixth Circuit Misinterpreted Custis to Prohibit Claims Under

18 U.S.C. § 921(a)(20).

7

A.

The Decision in Custis v. United States.

7

B.

The Sixth Circuit Erroneously Applied Custis to This Case

8

The Sixth Circuit's Opinion Created a Split with Clear Authority from

the Third and Eleventh Circuits

10

The Sixth Circuit's Decision Created Incongruities with Other Areas of

the Law

11

The Sixth Circuit's Error Dooms Petitioner to a Doubled Sentence

13

14

CONCLUSION

ii

TABLE OF AUTHORITIES

PAGE(S)

CASES

Beecham v. United States,

511 U.S. 368 (1994)

5,6

Caron v. United States,

524 U.S. 308 (1998)

6 , 12

Custis v. United States,

511 US. 485 (1994)

i, 7,8

Daniels v. United States,

532 U.S. 374 (2001)

9

Dickerson v. New Banner Institute,

460 US. 103 (1983)

5,6

In re Winship,

397 U.S. 358 (1970)

1

Jackson v. United States,

No. 2:16-cv-187-GZS, 2016 U.S. Dist. LEXIS 73052 (D. Me. June 6, 2016)

10

Johnson v. United States,

544 U.S. 295 (2005)

9

Logan v. United States,

552 U.S. 23 (2007)

5, 12

McNeill v. United States,

563 U.S. 816(2011) .

6,9

Mitchell v. United States,

No. 2:1 l-cv-08034-IPJ-HGD, 2013 U.S. Dist. LEXIS 104197 (N.D. Ala. June 12, 2013) .. 10

U.S. Nat'I Bankv. Indep. Ins. Agents of Am.,

508 U.S. 439 (1993)

9

United States v. Aguilar-Diaz,

626 F.3d 265 (6th Cir. 2010)

4

United States v. Braswell,

No. 16-6092, 2017 U.S. App. LEXIS 16144, 2017 WL 3588305 (6th Cir. Aug. 21,

2017)

1, 13

United States v. Carey,

716 F. Supp. 2d 56 (D. Me. 2010)

11

United States v. Cordova,

No. 7:13-CR-90-D, 2014 U.S. Dist. LEXIS 125780, at *12-14 & n.5 (E.D.N.C. Sep.

92014)

10

United States v. Curet,

670 F.3d 296 (1st Cir. 2012)

11

in

United States v. Jefferson,

88 F.3d 240 (3d Cir. 1996)

4, 10

United States v. Lalonde,

509 F.3d 750 (6th Cir. 2007)

4

United States v. McCloud,

158 F. Supp. 2d 744 (W.D. Va. 2001)

10

United States v. Santiago,

601 F.3d 1241 (11th Cir. 2010)

4, 10, 13

United States v. Sellers,

784 F.3d 876 (2d Cir. 2015)

12

United States v. Snyder,

235 F.3d 42 (1st Cir. 2000)

13

United States v. Stober,

604 F.2d 1274 (10th Cir. 1979) (en banc)

13

United States v. Willis,

106 F.3d 966 (11th Cir. 1997)

13

White v. Woodall,

134 S. Ct. 1697, 1704 & n.4 (2014)

9

STATUTES

18 U.S.C. §921

3,4,5,6, 7, 13, 14

18U.S.C. § 921 (1982)

5

18 U.S.C. § 921 (2016)

1

i, 2,3,5, 12, 13

18 U.S.C. § 922

2

18 U.S.C. § 922 (2014)

i, 7, 8, 13

18 U.S.C. § 924

18 U.S.C. § 924 (2016)

2

18 U.S.C. § 3006A

1

18 U.S.C. §§ 921-930 .,

8

3,4, 5, 6, 7, 8, 9,10,11,12,13,14

18 U.S.C §921

28 U.S.C. § 1254

1

28 U.S.C. § 1291

1

Firearms Owners' Protection Act, Pub. L. No. 99-308, § 101, 100 Stat. 449, 449 (1986)

5

iv

OTHER

1 Webster's Third New International Dictionary and Seven Language Dictionary 486 (1981) ... 6

Oxford English Dictionary (2d ed. 1989)

6

Webster's Second New International Dictionary 571 (1943)

6

v

PETITION FOR WRIT OF CERTIORARI

Petitioner Larry Braswell respectfully prays that a writ of certiorari issue to

review the judgment of the United States Court of Appeals for the Sixth Circuit in

Case Number 16-6092, entered on August 21, 2017.

OPINIONS BELOW

The District Court's order overruling Petitioner's objection to the Presentence

Investigation Report is unreported. United States v. Braswell, No. l:14-cr-00055001-HSM-CHS (E.D.T.N. June 24, 2016) (attached as Appendix B). The Sixth

Circuit Court of Appeals affirmed the judgment of the District Court in an

unreported opinion. United States v. Braswell, No. 16-6092, 2017 U.S. App. LEXIS

16144, 2017 WL 3588305 (6th Cir. Aug. 21, 2017) (attached as Appendix A).

JURISDICTION

The Court of Appeals rendered judgment on August 21, 2017, and no petition

for rehearing or rehearing en banc was filed. It had jurisdiction under 28 U.S.C.

§ 1291. This Court's jurisdiction is invoked under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 921 (2016):

(a)

As used in this chapter -

(20) The term "crime punishable by imprisonment for a term exceeding one

year" does not include (A) any Federal or State offenses pertaining to antitrust violations,

unfair trade practices, restraints of trade, or other similar offenses

relating to the regulation of business practices, or

1

(B) any State offense classified by the laws of the State as a

misdemeanor and punishable by a term of imprisonment of two

years or less.

What constitutes a conviction of such a crime shall be determined in

accordance with the law of the jurisdiction in which the proceedings were

held. Any conviction which has been expunged, or set aside or for which a

person has been pardoned or has had civil rights restored shall not be

considered a conviction for purposes of this chapter, unless such pardon,

expungement, or restoration of civil rights expressly provides that the person

may not ship, transport, possess, or receive firearms.

18 U.S.C. § 922 (2014):

(g)

It shall be unlawful for any person (1) who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year ...

to ship or transport in interstate or foreign commerce, or possess in

or affecting commerce, any firearm or ammunition; or to receive any

firearm or ammunition which has been shipped or transported in

interstate or foreign commerce.

18 U.S.C. § 924(e) (2016):

(1)

In the case of a person who violates section 922(g) of this title and has

three previous convictions by any court referred to in section 922(g)(1) of this

title for a violent felony or a serious drug offense, or both, committed on

occasions different from one another, such person shall be fined under this

title and imprisoned not less than fifteen years, and, notwithstanding any

other provision of law, the court shall not suspend the sentence of, or grant a

probationary sentence to, such person with respect to the conviction under

section 922(g).

(2)

As used in this subsection(B) the term "violent felony" means any crime punishable by

imprisonment for a term exceeding one year ....

2

STATEMENT OF THE CASE

Petitioner Larry Braswell pleaded not guilty to one count of 18 U.S.C.

§ 922(g). He was convicted by a jury, and judgment was entered on June 28, 2016.

The District Court sentenced petitioner under the Armed Career Criminal Act after

concluding Petitioner had four qualifying "violent felonies." He received a sentence

of 235 months imprisonment, rather than the 10-year maximum he otherwise would

have received for a § 922(g) conviction.

Petitioner objected that he did not have four "violent felonies" because two of

those prior dispositions cannot be counted. He appealed the issue to the Sixth

Circuit Court of Appeals, arguing that pursuant to 18 U.S.C. § 921(a)(20), those two

prior dispositions do not "constitute" convictions. According to Tennessee law, those

dispositions do not "exist," and could not be used in Tennessee courts for sentenceenhancement purposes. Petitioner argued that Custis v. United States prohibited

collateral attacks only against "convictions," which does not foreclose an argument

that a prior disposition does not "constitute" a "conviction." Additionally, Custis did

not prevent attacks authorized by statute, and § 921(a)(20) authorizes claims that a

disposition does not "constitute Q a conviction."

The Court of Appeals denied Petitioner's appeal in a 29-page opinion. (Judge

White concurred in part concerning what mens rea is necessary to establish

spoliation of evidence.) The Court accepted that under Tennessee law, Petitioner's

two prior dispositions at issue were "illegal," which "affects both the underlying

conviction as well as the sentence

(Op. at 22.) The Court never resolved

3

whether Petitioner's prior dispositions "constitute" convictions according to

Tennessee law.

Instead, the court held that "Braswell is unable to challenge his state

aggravated robbery convictions in the context of a federal sentencing." (Op. at 23.)

It relied on prior precedents from the Sixth Circuit which state that Custis v. United

States prohibits at sentencing all collateral attacks on ACCA predicates except for

Sixth Amendment-related arguments. (Op. at 23-24 (discussing United States v.

Aguilar-Diaz, 626 F.3d 265, 269 (6th Cir. 2010); United States v. Lalonde, 509 F.3d

750 (6th Cir. 2007)).)

REASONS TO GRANT THE PETITION

This appeal presents a circuit split over an issue of first impression for this

Court. Can a defendant at sentencing claim that prior state dispositions do not

"constitute a conviction" under 18 U.S.C. § 921(a)(20), and therefore cannot enhance

his sentence under the Armed Career Criminal Act, or is that argument a

prohibited collateral attack under Custis v. United States?

Petitioner argued that two Tennessee dispositions do not constitute

convictions under Tennessee law. His argument would have been considered in the

Third and Eleventh Circuits. See United States v. Santiago, 601 F.3d 1241, 1243

(11th Cir. 2010); United States v. Jefferson, 88 F.3d 240, 242 (3d Cir. 1996). The

Sixth Circuit, however, held Petitioner's argument was foreclosed by Custis. This

Court should take this opportunity to resolve the circuit split, clarify Custis s reach,

and explain for the first time what § 921(a)(20) means when it demurs to state law

to determine what "constitutes a conviction."

4

What the Phrase "Constitutes a Conviction" in 18 U.S.C. § 921(a)(20)

Means Is an Issue of First Impression for This Court.

18 U.S.C. § 921(a)(20) defines what is a "crime punishable by imprisonment

for a term exceeding one year." Before 1986, subsection (a)(20) merely denoted

specific exclusions for business-related convictions and certain misdemeanors

punishable by less than two years. 18 U.S.C. § 921(a)(20) (1982). The statute was

amended in 1986, in response to this Court's decision in Dickerson v. New Banner

Institute, 460 U.S. 103 (1983). See Firearms Owners' Protection Act, Pub. L. No. 99308, § 101, 100 Stat. 449, 449 (1986); Logan v. United States, 552 U.S. 23, 27 (2007).

Dickerson concerned a defendant convicted of 18 U.S.C. § 922(g) who claimed he

was never "convicted" of the predicate felony, because he had pleaded guilty, got

probation, and the record was subsequently expunged. Dickerson, 460 U.S. at 105.

The Court held that "federal law rather than state law controls the definition of

what constitutes a conviction," and found he was "convicted" for federal purposes.

Beecham v. United States, 511 U.S. 368, 374 (1994) (discussing Dickerson s holding).

The 1986 amendment added two new sentences to § 921(a)(20). The first

sentence says, "What constitutes a conviction of such a crime shall be determined in

accordance with the law of the jurisdiction in which the proceedings were held.

The second sentence provides that certain post-conviction events, such as

expungement, preclude a conviction from being defined as a "conviction," unless the

defendant still has certain firearm restrictions.

The first sentence has been called the "choice of law clause." See Beecham,

511 U.S. at 369. Indeed, the first sentence sets out a choice-of-law rule, which has

5

directly been the subject of two cases before this Court. See Caron v. United States,

524 U.S. 308, 316 (1998) (holding federal standard governs what firearm

restrictions prevent § 921(a)(20) exception); Beecham, 511 U.S. at 371 (holding

jurisdiction of conviction determines whether defendant has had civil rights

restored under § 921(a)(20)); cf. McNeill v. United States, 563 U.S. 816, 823 (2011)

(holding state law at the time of conviction of predicate offense controls "serious

drug offense" under ACCA, analogizing to § 921(a)(20)).

There is more to the first sentence than just the choice-of-law aspect,

however. The word "constitute" means "the element or elements of which a thing,

person, or idea is made up." 1 Webster's Third New International Dictionary and

Seven Language Dictionary 486 (1981); see also Oxford English Dictionary (2d ed.

1989) ("To make up, form, compose; to be the elements or material of which the

thing spoken of consists."); Webster's Second New International Dictionary 571

(1943) ("To form; to make up, as being the constitutive element or elements ....").

The plain meaning of the first sentence therefore mandates that state law

determines the elements of which an ACCA-predicate conviction is made up.

The plain meaning of "constitutes a conviction" aligns with Congress's

rejection of the decision in Dicker son. Dickerson inquired into what "constitute[s] a

conviction," concluding that a guilty plea, accepted by the court and followed by

probation, "equates ... with being 'convicted

Dickerson, 460 U.S. at 112-14. In

other words, a federal standard determined the elements of a predicate conviction.

The amended 18 U.S.C. § 921(a)(20) now allows the varying states' policies about

6

what does or does not "constitute Q a conviction" to affect whether a federal

defendant's sentence will be enhanced. Cf. In re Winship, 397 U.S. 358, 366 (1970)

(noting New York's policy "that a finding that a child has violated a criminal law

does not constitute a criminal conviction").

No case from this Court has ever explored what the phrase "constitutes a

conviction" in § 921(a)(20) means. That alone is reason enough to grant this appeal.

The need is all the more pressing now, since the Sixth Circuit has neutered the

effect of the "constitutes a conviction" phrase, based on a misreading of Custis v.

United States.

II.

The Sixth Circuit Misinterpreted Custis to Prohibit Claims Under

18 U.S.C. § 921(a)(20).

A.

The Decision in Custis v. United States.

Custis v. United States held that a defendant at sentencing may not

"collaterally attack the validity of previous state convictions that are used to

enhance his sentence under the ACCA." Custis v. United States, 511 U.S. 485, 487

(1994). The defendant claimed two prior Maryland convictions were obtained in

violation of the Constitution, one for ineffective assistance of counsel, the other for

an involuntary guilty plea. Id. at 488-90. Therefore they were not ACCA predicate

convictions. The Court's response to his argument discussed parts of 18 U.S.C.

§ 921(a) (20):

Absent specific statutory authorization, Custis contends

that an implied right to challenge the constitutionality of prior

convictions exists under § 924(e). Again we disagree. The Gun

Control Act of 1968, of which § 924(e) is a part, strongly indicates

that unchallenged prior convictions may be used for purposes of

§ 924(e). At least for prior violent felonies, § 921(a)(20) describes

7

the circumstances in which a prior conviction may be counted for

sentencing purposes under § 924(e):

"What constitutes a conviction of... a crime shall be

determined in accordance with the law of the

jurisdiction in which the proceedings were held. Any

conviction which has been expunged, or set aside or

for which a person has been pardoned or has had

civil rights restored shall not be considered a

conviction for purposes of this chapter [18 U.S.C.

§§ 921-930]."

The provision that a court may not count a conviction "which has

been .. . set aside" creates a clear negative implication that courts

may count a conviction that has not been set aside.

Custis v United States, 511 U.S. 485, 491 (1994) (omissions in original). The Custis

dissent argued that the defendant's prior convictions should not be counted, not

because they failed to meet the definition of conviction, but because they were not

"lawful convictions." Ibid, at 499 (Souter, J., dissenting) (emphasis added).

B.

The Sixth Circuit Erroneously Applied Custis to This Case.

Custis does not purport to foreclose a § 921(a)(20) claim for two reasons:

(1) The Court assumed that it was dealing with proceedings that constitute

convictions in the first place. When the Court quoted from § 921(a)(20) and said

that "courts may count a conviction that has not been set aside," it had just quoted

from the second sentence of § 921(a)(20), which discusses expungements, pardons,

and the like. The second sentence only applies to proceedings that "constitute"

convictions; there is no need to pardon a defendant that has not been convicted.

(2) The Custis defendant never argued his prior proceedings did not "constitute"

convictions under § 921(a)(20), nor did the Court (or the dissent) consider that

possibility. The defendant's argument was that the ACCA implicitly allowed claims

8

that prior convictions which violated the constitution could not be used for

enhancement.

Subsequent cases referring to Custis have always characterized that opinion

as prohibiting attacks on "prior violent felony conviction[s]," without discussion of

the "constitutes a conviction" clause. See, e.g., McNeill v. United States, 563 U.S.

816, 823 (2011); Johnson v. United States, 544 U.S. 295, 303 (2005); Daniels v.

United States, 532 U.S. 374, 376 (2001).

In sum, the Custis Court was not presented with, did not address, and did not

resolve whether a defendant at sentencing may argue a state disposition does or

does not "constitute!] a conviction" under § 921(a)(20). Therefore, Custis does not

prohibit such an argument. See, e.g., White v. Woodall, 134 S. Ct. 1697, 1704 & n.4

(2014); U.S. Nat'l Bank v. Indep. Ins. Agents of Am 508 U.S. 439, 463 n.ll (1993).

The Sixth Circuit appears to have overextended Custis because of a

superficial similarity between that defendant's argument and Petitioner's claim.

Somewhat like the Custis defendant, Petitioner claims there was an error in his

prior proceeding. But Petitioner is not arguing simply that because the prior

dispositions were due to some legal error, they cannot be ACCA predicates. That

argument is what Custis addressed and rejected. Rather, Petitioner is arguing that

Tennessee law says that "facially invalid" convictions do not constitute convictions,

therefore they fail to meet the ACCA's definition of "conviction" according to

§ 921(a)(20). The effect of the Sixth Circuit's reading of Custis is that no matter

how clear it is that a prior disposition does not "constitute" a conviction under the

9

relevant state's law, and therefore no matter how clear it is that the proceeding at

issue fails to meet the definition of "conviction," Custis prohibits that argument at

sentencing. If the Sixth Circuit is right, the plain meaning of § 921(a)(20) is

negated.

III.

The Sixth Circuit's Opinion Created a Split with Clear Authority

from the Third and Eleventh Circuits.

The Sixth Circuit's interpretation of Custis is directly at odds with holdings

from federal courts in four different circuits. The Eleventh Circuit in United States

v. Santiago entertained a defendant's claim under Florida law that a guilty plea,

without adjudication and followed by probation, does not "constitute" a conviction

under § 921(a)(20). United States v. Santiago, 601 F.3d 1241, 1243 (11th Cir. 2010).

The court rejected his claim, not because of Custis, but because the defendant was

wrong about Florida law. Ibid, at 1245. Similarly, the Third Circuit considered a

defendant's claims under § 921(a)(20) regarding prior proceedings in New Jersey

and Pennsylvania. United States v. Jefferson, 88 F.3d 240, 242 (3d Cir. 1996). The

court concluded that in both states, a guilty plea accepted by the court constitutes a

"conviction." Ibid, at 243, 245. The upshot of these cases is not whether the

contested predicate did or did not constitute a conviction, but that the circuit courts

allowed those defendants to present their argument pursuant to § 921(a)(20).

District Courts in the First, Fourth, and Eleventh Circuits have followed the

approach taken by Santiago and Jefferson.1 For example, the District of Maine held

1 See United States v. McCloud, 158 F. Supp. 2d 744, 745 (W.D. Va. 2001); see also

Jackson v. United States, No. 2:16-cv-187-GZS, 2016 U.S. Dist. LEXIS 73052, at *10

(D. Me. June 6, 2016); United States v. Cordova, No. 7:13-CR-90-D, 2014 U.S. Dist.

10

that a "guilty-filed disposition" in Massachusetts could not be an ACCA predicate

conviction, because it did not "constitute a conviction" according to Massachusetts

law. United States v. Carey, 716 F. Supp. 2d 56, 64-66 (D. Me. 2010).2

If Petitioner had been prosecuted in New Jersey or Florida federal court, his

appeal would have gone quite differently. The circuit court would have weighed his

argument regarding his prior dispositions, determining whether or not Tennessee

law says those prior dispositions "constitute" convictions. Here, the Sixth Circuit

did not even let Petitioner's argument in through the door, concluding that Custis

barred the way. Review from this Court is needed to unify the circuits on this

important issue.

IV.

The Sixth Circuit's Decision Created Incongruities with Other Areas

of the Law.

First, the Sixth Circuit effectively nullified Congress's effort to abrogate the

decision in Dickerson. To apply the ACCA to the Petitioner, the Sixth Circuit must

have concluded, somehow, that he had three prior "convictions." The court certainly

did not look to Tennessee law. Absent a state-law standard, the court necessarily

applied some federal standard for what is or is not a "conviction." The Sixth Circuit

therefore implicitly reinstated Dickerson s holding that a federal standard governs

what constitutes a conviction, which Congress rejected when it amended § 921(a)(20)

LEXIS 125780, at *12-14 & n.5 (E.D.N.C. Sep. 9, 2014); Mitchell v. United States,

No. 2:ll-cv-08034-IPJ-HGD, 2013 U.S. Dist. LEXIS 104197, at *8-9 (N.D. Ala.

June 12, 2013).

2 The First Circuit has withheld judgment on whether Carey was correctly decided.

See United States v. Curet, 670 F.3d 296, 305 n.9 (1st Cir. 2012).

11

in 1986. C f . L o g a n v . U n i t e d S t a t e s , 552 U.S. 23, 33-35 (2007) (discussing that the

amendments to § 921(a)(20) allow for differences in state convictions, in contrast to

Dicker son).

Second, while defendants may argue that a prior disposition fails to meet the

definition of "conviction" due to expungement (the second sentence of § 921(a)(20))

the Sixth Circuit now says that defendants may not make a similar definitional

argument under the "constitutes a conviction" phrase. It is undisputed that

defendants may argue at sentencing, pursuant to § 921(a)(20), that their prior

convictions fail to meet the definition of "conviction" because they have been

expunged, pardoned, set aside, or their civil rights have been restored. This Court

entertained just such an argument in Caron v. United States, 524 U.S. 308, 311

(1998). See also United States v. Sellers, 784 F.3d 876, 884-87 (2d Cir. 2015)

(holding, at sentencing, New York youthful offender adjudication not ACCA

predicate because "set aside" under § 921(a)(20)). The Sixth Circuit offered no

explanation why Custis prohibits definitional arguments as to the "constitutes a

conviction" phrase, but does not prohibit definitional arguments under the second

sentence of § 921(a)(20). The first and second sentences of § 921(a)(20) are now

treated differently in the Sixth Circuit for no good reason.

Third, according to the Sixth Circuit, Custis now prohibits ACCA challenges

based on § 921(a)(20) predicates but not analogous claims against § 922(g)

predicates. Several courts—including the Sixth Circuit—have entertained claims

that § 922(g) predicate convictions do not "constitute" convictions, pursuant to

12

§921(a)(20).3 In United States v. Houston, the Sixth Circuit allowed an argument

that under § 921(a)(20), a Tennessee conviction pending appeal did not

"constitute" a § 922(g) predicate conviction. See F.3d 282, 292-95 (6th Cir. 2016).

Petitioner attempted to rely on Houston below, but the Sixth Circuit distinguished

Houston. It said that at issue in Houston was a § 922(g) predicate, and that the

defendant there did not "argue that the conviction was void or invalid for some

reason" but that he was "not convicted" while pending appeal. (Op. at 24-25.) No

more explanation was given. At least as far as "constitutes a conviction" phrase is

concerned, there is no reason for applying Custis to ACCA predicates but not to

§ 922(g) predicates.4 Section 921(a)(20) applies to all of chapter 44 of title 18,

which includes both § 922(g) and the ACCA. See 18 U.S.C § 921(a).

y.

The Sixth Circuit's Error Dooms Petitioner to a Doubled Sentence.

Larry Braswell is an Armed Career Criminal. At least, that is what the Sixth

Circuit has concluded. He will serve nearly twenty years in prison instead of, at

most, ten years. See 18 U.S.C. § 924(a)(2). Whether or not he had three prior

3 See United States v. Willis, 106 F.3d 966, 968-69 (11th Cir. 1997) (holding Florida

nolo contendere plea without adjudication of guilt not a § 922(g) predicate

conviction); United States v. Sharp, No. l:06-CR-00025-TC, 2008 U.S. Dist. LEXIS

46999, at *5 (D. Utah June 17, 2008) (holding entry of probation without judgment

of conviction in Idaho was a "conviction" for § 922(g); c f . U n i t e d S t a t e s v . S t o b e r , 604

F.2d 1274, 1276 (10th Cir. 1979) (en banc) (holding deferred judgment procedure in

Oklahoma not "conviction' for § 922(h)).

4 Courts have recognized distinctions between ACCA and § 922(g) predicates in

regards to the second sentence of § 921(a)(20). See United States v. Snyder, 235

F.3d 42, 52 (1st Cir. 2000) ("The two situations call for differential treatment.").

Also, the same state proceeding may constitute a § 922(g) conviction but not an

ACCA predicate because the state may define "conviction" differently for different

purposes. See United States v. Santiago, 601 F.3d 1241, 1244-45 (11th Cir. 2010).

13

dispositions that "constitute convictions" as defined by § 921(a)(20) is irrelevant now

in the Sixth Circuit.

Whether Petitioner's prior dispositions actually do or do not "constitute"

convictions is not relevant to this petition; the Sixth Circuit never resolved the

issue, though it did restate significant portions of Petitioner's argument with favor.

The appropriate course of action if this Court were to grant Petitioner's appeal and

rule in his favor would be to remand to the lower court.

CONCLUSION

Does 18 U.S.C. § 921(a)(20) allow a defendant to argue at sentencing that the

Armed Career Criminal Act does not apply, because certain prior state proceedings

do not "constitute" convictions in that state? The Third and Eleventh Circuits say

"yes." The Sixth Circuit says "no," based on Custis v. United States, even though

Custis did not even purport to resolve that question. This case is an opportunity for

this Court to explain for the first time what the "constitutes a conviction" phrase in

§ 921(a)(20) means, clarify how far Custis extends, and bring uniformity to the

federal courts.

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Respectfully submitted,

CHAMBLISS, BAHNER & STOPHEL, P.C.

By:

Hugh J. Moore, Jr. (BPR No.\)00883)

Nate L. Kinard (BPR No. 035721)

Liberty Tower

605 Chestnut Street, Suite 1700

Chattanooga, TN 37450

Telephone: (423) 756-3000

Facsimile: (423) 265-9574

hmoore@chamblisslaw.com

nkinard@chamblisslaw.com

Attorneys for Petitioner

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