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

NO.

17-7496

IN THE SUPREME COURT OF THE UNITED STATES

SHANNON FERGUSON,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STA TES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

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

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................... ii

TABLE OF AUTHORITIES .................................................. .......................... iii

ARGUMENT ..................................... .......... ....... ............. ....... .... 1

I.

Stitt Does Not Control This Case ................................ .. ....2

II.

This Case is An Equally Good Vehicle, ifNot Better,

Than Quarles ......... . ........ ....... . ..... . .......... ...... . .. . ........ .3

III.

The Recklessness Argument is Properly Before This Court,

and Shows That Subsection (a)(3) Does Not Require the

Defendant to Ever Form Intent to Commit a Further Crime.... ...5

IV.

This Court Can Request Briefing Regarding Whether the

ACCA is Unconstitutionally Vague in Whole or in Part ...... . ... . 9

V.

Conclusion .............. ............. . ......... .. ..... . ...... .. ......... 12

CERTIFICATE OF SERVICE ................................. . ......... . .... . ..... 13

ii

TABLE OF AUTHORITIES

United States Supreme Court Cases:

Johnson v. United States, 135 S. Ct. 2551 (2015) ................................. 10

Mathis v. United States, 136 S. Ct. 2243 (2016) ................................... .4

Taylor v. United States, 495 U.S. 575 (1990) .............................. 8, 11, 12

Quarles v. United States, No. 17-778 ......................................... 2, 3, 12

United States v. Begay, 553 U.S. 137 (2008) ........................................ 8

United States v. Herrold, No. 17-1445 ............................................... 2

United States v. Stitt, No. 17-765 ..................................................... 2

United States Court of Appeals Cases:

Perez v. United States, 885 F.3d 984 (6th Cir. 2018) ............................. 11

United States v. Ferguson, 868 F.3d 514 (6th Cir. 2017) ......................... 1

United States v. Herrera-Montes, 490 F.3d 390 (5th Cir. 2007) ................... 1

United States v. Panzo-Acahua, 182 F. App'x 582 (7th Cir. 2006)

(unpublished) ........................................................................4

United States v. Priddy, 808 F.3d 676 (6th Cir. 2015) ............................. 1

United States v. Spell, 44 F.3d 936 (11th Cir. 1995) ................................5

United States v. Turner, 349 F.3d 833 (5th Cir. 2003) ......... .................... 5

iii

Federal Statutes:

18 U.S.C. § 924(e), the "ACCA" ............ .. .................................passim

State Statutes:

Tenn. Code Ann. § 39-11-301 .................... ....................... . .............9

Tenn. Code Ann. § 39-13-101 ................. . .. ....................... ........ .... ..8

Tenn. Co de Ann. § 3 9-14-40 1.... ................................ ............ . ........2

Tenn. Code Ann.§ 39-14-402 . .... . . .. .. .. .. ... .. . .... .. . . . . ... . .. ...... . .. . ...passim

Tenn. Code Ann.§ 39-14-403 .................... ........... .......... . ...... ....... ..2

Rules:

Supreme Court Rule 15.2 .................................... . ............... .......... 7

Supreme Court Rule 15.6 ..................................... ................. . ....... 6

Federal Rule of Appellate Procedure 28(c) ............... .. .......... .. .. .... .. .. . .. 6

Other Sources:

7 Tenn. Prac. Pattern Jury Instr. T.P.1.-Crim. 14.02 ............ ..................... 9

iv

ARGUMENT

This case presents the best vehicle for evaluating whether the Taylor

definition of generic burglary requires intent to commit a further crime at the

time of initial entry or initial unlawful remaining.

It addresses Tennessee's

burglary statute, Tenn. Code Ann.§ 39-14-402(a)(3), which is the subject of an

entrenched circuit split.

One circuit has held this statute does qualify as a

"violent felony" under the ACCA, while another circuit has held it does not

qualify.

Compare United States v. Priddy, 808 F.3d 676 (6th Cir. 2015), and

United States v. Ferguson, 868 F.3d 514 (6th Cir. 2017) (the instant case,

relying on Priddy); with United States v. Herrera-Montes, 490 F.3d 390 (5th

Cir. 2007) (evaluating the statute under the very similar crime of violence

definition in the United States Sentencing Guidelines).

Thus, whether an individual will face the ACCA's mandatory minimum

of 15 years - or not - depends not on his prior record, but upon whether he is

unlucky enough to be convicted in one circuit as opposed to another.

At a

minimum, this case should be consolidated with other petitions for certiorari

currently pending that also address the intent element of generic burglary.

The Government agrees that the question presented in this case merits

review from this Court.

(BIO 7.)

However, the Government argues that

other petitions for certiorari (Quarles v. United States, No. 17-778; and United

States v. Herrold, No. 17-1445) present better vehicles.

(Id. at 8.)

The

Government also suggests that this Court's review of a somewhat related case,

United States v. Stitt, No. 17-765, which addresses Tennessee's aggravated

burglary statute, could also impact the results here.

(Id.)

But the

Government has not provided compelling reasons to hold a decision in this case

pending the outcome of Quarles, Herrold and/or Stitt.

I.

Stitt Does Not Control This Case.

The Government has the relationship between this case and Stitt

backwards.

Tennessee's aggravated burglary statute, Tenn. Code Ann. § 39-

14-403 (the statute at issue in Stitt) is defined by reference to the statute at issue

here, § 39-14-402.

Tennessee Code § 39-14-403(a) provides, "[a]ggravated

burglary is burglary of a habitation as defined in§§ 39-14-401 and 39-14-402."

The Stitt case deals with the definition of habitation as defined in§ 39-14-401,

and whether it is limited to "buildings or structures" under Taylor's generic

burglary definition.

Thus, it does not directly impact the issues here.

But,

because the aggravated burglary statute also incorporates § 3 9-14-402 (the

statute at issue here), a decision in this case regarding intent directly impacts

whether Tennessee aggravated burglary qualifies as a Taylor generic burglary.

2

Thus, if anything, the Stitt case should be held pending a resolution of the

instant case, or conversely, the two should be consolidated.

II.

This Case is An Equally Good Vehicle, if Not Better, Than Quarles.

The Government's attempt to diminish the importance of the instant case

in light of Quarles is similarly unavailing.

This case and Quarles address the

same question - Does generic burglary require intent to commit a further crime

at the time of initial entry or initial remaining unlawfully?

The Government

argues that "petitioner would not likely benefit from a decision in his favor,"

because the district court reviewed Shepard documents during application of

the modified categorical approach.

(BIO 10).

Mr. Ferguson challenged the

reliance on the modified categorical approach from the beginning and has

preserved those arguments at every stage of his case.

The Sixth Circuit did not reach this question, however, as it found that

subsection (a)(3) always qualifies as a Taylor generic burglary. While a

decision in Mr. Ferguson's favor will still require application of the modified

categorical approach by the lower courts before he may personally benefit from

a favorable decision, the same is true in Quarles. See Petition for Certiorari at

6 n.2, 26-27, Quarles v. United States, No. 18-778.

3

Further, the district court's error is clear.

It should not have relied

solely upon indictments charging one crime (Tennessee aggravated burglary)

when Mr. Ferguson pied guilty to a wholly different crime (Tennessee

burglary).

The district court's decision, which was issued on October 8, 2015

(see Pet. App. 05), pre-dated this Court's holding in Mathis.

The assumptions

made by the district court are not appropriate considerations under Mathis.

136 S. Ct. 2243, 2252 (2016) (a sentencing court is "barred from making a

disputed determination about "what the defendant and state judge must have

understood as the factual basis of the prior plea,"); see also id. at 2272 ("record

materials will not in every case speak plainly, and if they do not, a sentencing

judge will not be able to satisfy 'Taylor's demand for certainty"'). A favorable

ruling on the burglary question is thus likely to result in a favorable ruling on

remand regarding the modified categorical approach in light of Mathis.

Further, multiple circuits have held that a sentencing court cannot apply

the ACCA ( or the similar career offender enhancement found in the Guidelines)

based on information in an indictment when the defendant pied guilty to a

different or lesser included crime.

United States v. Panzo-Acahua, 182 F.

App'x 582, 585 (7th Cir. 2006) (unpublished) (a defendant's "conviction for a

crime that is not only ,different but lesser than that alleged in the [charging

4

document] in no way shows that he admitted the [document's] version of the

facts" (citations omitted)); see also United States v. Spell, 44 F.3d 936, 940

(11th Cir. 1995); United States v. Turner, 349 F.3d 833, 836 (5th Cir. 2003).

Thus, just as Mr. Quarles, and with the guidance provided by Mathis,

Mr. Ferguson will likely show on remand that the Government did not meet its

burden to prove he was convicted of a generic burglary.

III.

The Recklessness Argument is Properly Before This Court, and

Shows That Subsection (a)(3) Does Not Require the Defendant

to Ever Form Intent to Commit a Further Crime.

Mr. Ferguson also argues that the burglary statute does not require an

individual to ever develop intent to commit a further crime.

(Pet. Br. 32-34.)

This is because the crime after entry or unlawful remaining can be committed

recklessly.

(Id.)

The Government has not presented a compelling reason

why this argument should be ignored by this Court.

The Government posits

that this Court should avoid this argument because it was first raised in a reply

brief before the Sixth Circuit, and further argues that the ACCA's enumerated

offenses do not require intentional conduct.

(BIO 11-12.)

Neither position

is availing.

First, in its own brief filed in the instant case, the Government argues

that the Sixth Circuit was correct in concluding that "under any of these variants

5

[of Tennessee Class D burglary, i.e. Tenn Code Ann.§ 39-14-402(a)(l)-(3)],

petitioner necessarily had to form the intent to commit a felony, theft, or

assault, either before he entered the building or while he was still inside." (BIO

9).

Thus, the Government argues, because a crime was eventually committed,

we can assume that he intended to commit that crime.

(Id.)

Because that

crime was committed while the defendant was in a building without the

effective consent of the owner, the Government argues, we should construe this

as developing the necessary intent while "unlawfully remaining".

(Id.)

The Government also argued this same point in its response brief before

the Sixth Circuit, noting "a person who enters a building or structure and, while

inside, commits or attempts to commit a felony will necessarily have remained

inside the building or structure with the intent to commit a crime." (Gov. App.

Br., 6th Cir. No. 15-6303, Doc. 32 at 30 (filed September 28, 2016) (citations

omitted) (emphasis added)).

argument.

Mr. Ferguson was entitled to reply to this

Fed. R. App. P. 28(c) ("the appellant may file a brief in reply to

the appellee's brief'); Sup. Ct. R. 15.6 ("[a]ny petitioner may file a reply brief

addressed to new points raised in the brief in opposition . . . .").

Mr.

Ferguson's recklessness argument-that under subsection (a)(3) of Tennessee

burglary the commission of a further crime does not require proof that the crime

6

was intentional - is a direct response to the Government's assertion that a

defendant necessarily developed such an intent.

Because subsection (a)(3)

does not require that the further crime be committed intentionally, the

Government's theory falls apart.

This argument was, and remains, properly raised, and preserved.

It

further notifies this Court, as it did the Sixth Circuit, of inaccuracies in the

Government's position.

Cf. Sup. Ct. R. 15.2 (noting that a brief in opposition

to a petition for certiorari should address any perceived misstatements, and

further noting "Counsel are admonished that they have an obligation to the

Court to point out in the brief in opposition, and not later, any perceived

misstatement made in the petition").

In further response to Mr. Ferguson's argument that subsection (a)(3) of

Tennessee's burglary statute does not require the defendant to ever develop an

intent to commit a further crime, the Government apparently asserts that there

is no intent requirement in the Taylor definition of generic burglary.

(BIO 12

(asserting that Mr. Ferguson has "confuse[d] different portions of the ACCA's

definition of a ~violent felony"' because he cites cases holding that recklessness

is an insufficient mens rea under the residual and use of force clauses)).

Regardless of whether recklessness is ever a sufficient mens rea under any

7

portion of the ACCA, this Court's Taylor definition of generic burglary

explicitly requires intent to commit a further crime.

A "generic burglary" is

the "unlawful or unprivileged entry into, or remaining in, a building or

structure, with intent to commit a crime."

Taylor v. United States, 495 U.S.

575, 599 (1990) (emphasis added).

Moreover, the reason this Court concluded that crimes committed

unintentionally did not qualify under the residual clause in Begay is because it

noted that all of the enumerated offenses (which include burglary) "involve

purposeful, 'violent,' and 'aggressive' conduct." United States v. Begay, 553

U.S. 137, 144-45 (2008).

This Court then specifically identified crimes

committed "recklessly" as failing to meet this standard. Id. at 146-4 7 ("[w ]e

have no reason to believe that Congress intended to bring within the statute's

scope these kinds of crimes, far removed as they are from the deliberate kind

of behavior associated with violent criminal use of firearms").

Tenn. Code Ann.§ 39-14-402(a)(3) provides that an individual is guilty

of burglary when he, without the effective consent of the property owner,

"[e]nters a building and commits or attempts to commit a felony, theft or assault

...."

Tennessee law specifically provides that assaults, like many felonies,

can be committed recklessly.

Tenn. Code Ann. § 39-13-10 l (a) ("a person

8

commits assault who: (1) Intentionally, knowingly, or recklessly causes bodily

injury to another ..." (emphasis added)).

Unlike the other subsections of

Tennessee's burglary statute, subsection (a)(3) does not add the requirement

that a defendant have an intent to commit a further crime - it only requires that

a crime is in fact committed.

Subsection (a)(3) of Tennessee burglary specifically encompasses the

commission of the further crime with mere recklessness.

See Tenn. Code

Ann.§ 39-l 1-30l(c); 7 Tenn. Prac. Pattern Jury Instr. T.P.I.-Crim. 14.02.

A

defendant can be convicted of Tennessee burglary without ever developing an

intent to commit a fm1her crime after entry.

The Government's assertion that

subsection (a)(3) necessarily requires the defendant to develop an intent to

commit a crime while he remains inside the building is legally incorrect.

(BIO

9).

IV.

This Court Can Request Briefing Regarding Whether the ACCA is

Unconstitutionally Vague in Whole or in Part.

What Mr. Ferguson has not previously raised, but raises now in light of

the continuing struggle to define and apply Hgeneric burglary," (including this

Court's recent grant of certiorari in Stitt) is that the statute is unconstitutionally

vague.

Evaluation of this issue is not required for this Court to rule in Mr.

Ferguson's favor, however, and as he has not previously raised it, he concedes

9

it could be deemed to have been waived.

briefing on this issue.

However, this Court could request

See Order dated January 9, 2015 in Johnson v. United

States, No. 13-7120 (ordering briefing on the constitutionality of the residual

clause).

In

concluding that the

residual

clause

of the

ACCA

was

unconstitutionally vague, this Court explained that "[t]he Fifth Amendment

provides that '[n]o person shall ... be deprived of life, liberty, or property,

without due process of law,"' and that its "cases establish that the Government

violates this guarantee by taking away someone's life, liberty, or property under

a criminal law so vague that it fails to give ordinary people fair notice of the

conduct it punishes, or so standardless that it invites arbitra,y enforcement."

Johnson v. United States, 135 S.Ct. 2551, 2556 (2015) (citation omitted)

(emphasis added). Thus, "[t]he prohibition of vagueness in criminal statutes

'is a well-recognized requirement, consonant alike with ordinary notions of fair

play and the settled rules of law,' and a statute that flouts it 'violates the first

essential of due process."' Id. at 2556-57 (quotation omitted).

This case evidences the inability of the lower courts to consistently apply

a "generic" definition of the enumerated offenses (particularly burglary) and

also highlights inconsistencies in applying the modified categorical approach.

10

Instead of being solved by this Court's prior attempts to define what falls under

the ACCA, these issues are becoming more and more pervasive.

Despite this

Court's best efforts, and the efforts of the lower courts, application of the

ACCA continues to evade the most thoughtful legal minds, and leads to

arbitrary application throughout the country.

In Perez v. United States, a panel of the Sixth Circuit noted that ''[u]nder

the categorical approach ... we map a hypothetical test case under an oftevolving state law onto a federal law that itself can change from time to time."

Perez v. United States, 885 F.3d 984, 991 (6th Cir. 2018). "The

[categorical] approach creates serial opportunities for uncertainty. It 1s no

exaggeration to say that interpretive complications in this area, like a flu virus,

can spread exponentially."

Id.

Thus, ''it is easy to wonder whether an

ordinary person knows what law applies to him," as even "the federal courts of

appeals find themselves twisted in knots trying to figure out whether a crime is

divisible into parts, involves physical force capable of causing injury, or sweeps

more broadly than a common law analog ...."

Id.

But, perhaps the most telling are the issues raised in the instant case and

in Stitt, regarding the definition of burglary.

This Court first defined burglary

in 1990 in its Taylor decision, yet 28 years later there is still uncertainty about

11

what crimes comes within that definition.

495 U.S. 575. This indicates the

far-reaching struggles of the courts to consistently apply the ACCA, and further

evidences the absolute inability of the general public to predict what behaviors

will subject them to the ACCA and what behaviors will not.

only

invites,

but appears unable to

The ACCA not

escape, arbitrary enforcement.

Undersigned would be happy to submit briefing on this issue, should the Court

so desire.

V.

Conclusion.

In consideration of the foregoing, Petitioner continues to urge the Court

to grant certiorari review in order to resolve important questions regarding the

intent element of Taylor's generic burglary definition.

Petitioner also

respectfully submits that this case could be consolidated with Quarles, No. 17778 and/or other petitions currently pending before this Court addressing the

same issue.

12

Respectfully submitted,

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

By:

- ~::::::-.. ::::-_-_ f2

_- _J.

__( _ _

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 3rd day of May, 2018.

Erin Rust

Assistant Federal Community Defender

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

13