Supplemental Brief — Shannon L. Ferguson, Petitioner v. United States

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NO. 17-7496

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IN THE SUPREME COURT OF THE UNITED STATES

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SHANNON FERGUSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

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ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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SUPPLEMENTAL BRIEF FOR THE PETITIONER

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Erin P. Rust

Assistant Federal Community Defender

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

Counsel for Petitioner

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Shannon Ferguson files this supplemental brief to highlight two recent

developments relevant to the disposition of his petition.

First, the Court’s holding in Quarles v. United States, No. 17-778, does not

reach all of the issues presented by Mr. Ferguson’s case, so does not dictate that his

petition should be denied. Specifically, Mr. Ferguson argues that subsection (a)(3)

of the Tennessee burglary statute, Tenn. Code Ann. § 39-14-402, does not require

proof that a defendant ever developed an intent to commit a further crime. (Pet. 3234; Reply, 5-9.) The Court specifically withheld addressing a similar claim made

by Mr. Quarles regarding the Michigan statute, because “Quarles offers no support

for his suggestion that there is no mens rea requirement. In any event, Quarles did

not preserve that argument, and we do not address it.” Quarles v. United States, __

S. Ct. __, 2019 WL 2412905, *6 n.2 (June 10, 2019).

Unlike in Quarles, here Mr. Ferguson has supported this position, as he has

presented both statutory and case law showing that the further crime can be

committed recklessly. Further, while the government argues to the contrary (BIO

11-12), Mr. Ferguson preserved this claim. (See argument, Reply 5-9). While it was

raised first in the Sixth Circuit Court of Appeals, it was raised in response to the

government’s argument (as detailed in Mr. Ferguson’s Reply 5-9). It is also a purely

legal argument which the appellate courts address de novo, and can consider in the

first instance. Turner v. United States, 885 F.3d 949, 954 (6th Cir. 2018) (en banc),

petition for cert. filed, Turner v. United States (U.S. July 24, 2018, No. 18-106)

(“where a newly-raised issue is ‘purely one of law requiring no new or amplified

factual determination’ and has been ‘fully briefed and argued,’ we may exercise our

discretion to deviate from the general waiver rule”).

Second, the Sixth Circuit recently aligned itself with other Circuits when it

issued an opinion confirming that the district court erred by relying solely upon

indictments charging one crime (aggravated burglary) when he pled guilty to a

separate crime (burglary), as Mr. Ferguson has always maintained (Pet. 34-37).

Dillard v. United States, No. 17-5716, 2019 WL 1579694, at *8 (6th Cir. Apr. 12,

2019) (collecting cases) (“We therefore agree with Dillard that, because he pleaded

guilty to crimes not charged in the indictments and no other Shepard documents

indicate the crime of conviction, his indictments cannot be considered

as Shepard documents under the modified categorical approach.”).

Thus, the government’s argument that the Shepard documents were properly

relied upon by the district court is not supported by current Sixth Circuit law. The

government concedes that the Sixth Circuit did not reach this question, but instead

argues that a ruling in Mr. Ferguson’s favor would not likely benefit him because of

the Shepard documents. Mr. Ferguson refuted this argument in his Reply (3-5), and

notifies the Court of Dillard as additional confirmation that the district court’s

reliance on the respective indictments was clear error which will likely be resolved

in his favor when addressed by the Sixth Circuit on remand.

The Tennessee burglary statute at issue is overbroad, and does not qualify as

a generic burglary because it does not require that the defendant ever develop an

intent to commit a further crime—whether at the time of entry or at any time while

“remaining in.” The petition should be granted.

Respectfully submitted,

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

By:_

Erin P. Rust

Assistant Federal Community Defender

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and exact copy of the foregoing

Reply has been served upon Noel J. Francisco, Counsel of Record with the Solicitor

General, Department of Justice, 10th Street and Constitution Avenue, Washington,

D.C., 20530, by placing a true and exact copy of same with Federal Express, with

sufficient postage thereon to carry the same to its destination, and via e-mail.

This the 12th day of June, 2019.

_

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Erin Rust

Assistant Federal Community Defender

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349