Petition for Writ of Certiorari — Danetrius J. Tolliver, Petitioner v. United States

No.

IN THE

SUPREME COURT OF THE UNITED STATES

DANETRIUS TOLLIVER,

Petitioner

V.

UNITED STATES OF AMERICA

Respondent

On Petition for A Writ of Certiorari

From The United States Court of

Appeals For The Sixth Circuit

PETITION FOR WRIT OF CERTIORARI

With Appendix

*John Allen Brooks

707 Georgia Avenue, Suite 103

P.O. Box 466

Chattanooga, TN 37401

423/266-9404

*Counsel of Record

*Counsel for Petitioner

QUESTION PRESENTED FOR REVIEW

The Appellant’s Appeal was denied on January 19, 2018 by the Sixth Circuit

Court of Appeals. In this case, the Appellant raised one (1) issue for determination

by this Court. That issue is a Tennessee Burglary conviction based on T.C.A. 49-

14-402 qualifies as a predicate offense for Armed Career Criminal Act

consideration. The Appellant objected to the inclusion of the Burglary convictions

as predicate offenses because of the Tennessee Burglary Statute covers more

ground than a generic Burglary. The burglary convictions allowed his sentence to

be enhanced in the Armed Career Criminal Act (ACCA, 18 U.S.C. §924(c)). The

Appellant objected to the use of these Burglary convictions to make him eligible

for this enhanced punishment. At the Sentencing Hearing the Defendant argued

that none of the five (5) Tennessee Burglary convictions qualified as a violent

felony predicate offense. The Appellant was sentenced to one hundred and eighty

(180) months. The sentence was ordered by the Honorable Judge Mattice of the

United States District Court, Eastern District of Tennessee.

The Sixth Circuit, in U.S. v. Stitt No. 14-6158 an (en banc decision), (6" Cir.

decided June 27, 2017), concluded that an aggravated burglary conviction from

The State of Tennessee under T.C.A. 49-14-401 cannot be used as a predicate

offense to qualify under The Armed Career Criminal Act based on the Tennessee

Burglary Statute. This case was decided four months after the Appellant was

sentenced.

The en banc decision in Stitt held that,

“The Supreme Court has determined that under the

ACCA, a generic Burglary means an unlawful or

unprivileged entry into or remaining in a, building or

structure with the intent to commit a crime.” Taylor,

495, U.S. at 598.

The Sixth Circuit went on to say in the Stitt decision that the Supreme Court left

“building or other structure” undefined. The Supreme Court has held repeatedly

that vehicles, moving enclosures, e.g., cars, motorcars, tents and booths, fall

outside the definition and differential sweep of “building or other structure.” See

Mathis v. U.S 136 S. Ct. 2243, 2250 (2016) The Supreme Court held that when

considering the Iowa Burglary statute that it covers more ground than generic

Burglary because it reaches a broader range of places, and because of that, it was

broader than what a generic Burglary was, and because of that an lowa Burglary

conviction could not be used as a predicate offense for ACCA purposes.

The Sixth Circuit in Stitt went on to look at the fact that mobile homes, trailers

and tents as well as any other self propelled vehicle that Tennessee’s Aggravated

Burglary statute includes exactly the kinds of vehicles and moving enclosure the

Supreme Court excludes from generic Burglary. The Court went on to look at one

(1) specific part of T.C.A. §39-14-401 (1), which criminalizes the unauthorized

entry into vehicles and movable enclosures with criminal intent only designed for

other accommodations or persons, and found that the statue was broader than a

generic Burglary, and excluded Tennessee’s Aggravated Burglaries as a predicate

offense for ACCA purpose.

The Sixth Circuit in the Stitt decision, found that an Aggravated Burglary

conviction from The State of Tennessee pursuant to T.C.A. §49-13-403 was not

qualified as a predicate offense under the Armed Career Criminal Act. Further,

that the definition of what a habitation is under the Aggravated Burglary

conviction is defined in T.C.A. §39-14-401 and T.C.A. §39-14-402. T.C.A. §39-

14-402 (a)(4) states,

“Provides the entry into any freight, passenger car,

automobile, truck, trailer, boat airplane or other motor

vehicle with attempt to commit a Felony, Theft or

Assault or an attempt to commit a Felony, Theft or

Assault was qualified.”

The fact that a Tennessee Burglary conviction could also be completed by entry

into a variety of self-propelled vehicles in the Tennessee Burglary Statute is key.

The Tennessee Burglary statue includes the same type of vehicles and movable

structures, and is broader than the definition of generic burglary and as such, a

conviction under this statue does not qualify as an ACCA predicate offense but the

Court ignored this argument and relied on prior decisions without considering the

Stitt decision.

LIST OF PARTIES

Danetrius Tolliver

Reg No: 51472074

Federal Correctional Institution

P.O. Box 34550

Memphis, TN 38184

Chris Poole

Assistant U.S. Attorney

US. Attorney’s Office

1110 Market Street, Suite 515

Chattanooga, TN 37402

TABLE OF CONTENTS

Question Presented for REVICW ........cccccseseeseeteeseeteeerseteteteesenerersenersesensnsseeneesereeesessenenens 1

List Of Parties ......cceeccccscccscccsceseccssecsseeeceeceaeceneecesecesseecsseecssesensesessesessuecssessssesnaecteeesnneeraae 5

Table of Contents ....ccccccccecsecsscssesscsseccseeceesecseceseeesesssscessessessesseeseesneesisesseseeesseseneeneeey 6

Table of Authorities ..0....cccccccccccsecssccsccsscesecsseceseceecsaecesesesesesesseueessecaesesscssesseesseecnerarenatey 7

Opinions Below..........ececcseceesssseseeesseseecssesseseseseneneneneeseasnenseeeensesesesesssesssssanssseneneeenensereseeans 9

Jurisdictional Statement ..........ccccccceceeseccececeeeesecssesscesecsessesseesesessesseeeesenseeesneeeaeeseeneeetes 10

Constitutional Provisions Involved ..........:ccescccsssecesscessseseseceneeeeseeseseeeseeenneesseeseeeerseeenaneans 11

Statement of the Case .i...ccciccccccsscsssccsscscsseecsecsneesesecesseesaeeessesessescsseseseeesseeceseeesarersesersgecegs 12

ALQUMENL oc eeeececeeececeeeeeseeeeneessesesseeesaesecnecseesenseneeeeeececnessesscaersessecsasseesesaseessesseenecneraeeey 15

Conclusion .....c.ceeccceesesesscessccessecesscceeeseeccececseeesaeessssesseessseecesesenseesesesesseeetaeeesererstersiserseten 22

APpPeDdix ....c.ececcececeeceeeeeseeseseseseessseseeecsesesensesenenacaenenecaeseeevacsenessesessnsesessensnassesenesecseneneenensngy 24

TABLE OF AUTHORITIES

Statutes and Rules

18 U.S.C. §924(C).ccccccccecececsceeceeeevsseesussenstessensteestessecesecseesnseeeseses 1

T.C.A. S49-14-40 1 .cccccccccccececeseeeseccsecsssesseestesstessteestesueeseesrens 1,3, 14

T.C.A. §49-14-401(L)ccccccceccccccesecsecesecscesscsssestesssesecstesscsnsesesseesessss 3,17

T.C.A. §49-14-401(1)(A).ccccccccecsecseceseceseeseenssevstesstecseseestststeseesseenees 15

T.C.A. §49-13-403....cccccecccececeseceseveevecteseeesseateetensseesecseesteeeeees 3,15

T.C.A. §39-14-402. 00. ccccccceccsccseveceesescestessestessssscteseessesssessesseens 3,14

T.C.A. §39-14-402 (a)(4).ccccccccececeseescessessecstessseaecscesessesseesestseeseenes 3

28 U.S.C. 1254 (L)sccccccececececesecessevseceseessevsteestcestesstessscsescssuecseeeseeeee 9

18 U.S.C. §922 (g)(L).cceccceccecsceceseceseesscesecessessesssessseseesseessecsneeseeees 1

18 U.S.C. §924 (€).cccccececececesecesceessvsscesscesseestecssessteseecsesestesseuesteeenes 11

18 U.S.C. §922(2)..ccccccececescecsceeseesseseserseesseestesseseetsssscssesesseeseeeses 14,17

18 U.S.C. 8924 ()(L).cecceccccccescessevsevecesseseevssessseateseesseeeceeeesestseeseene 17

Ark. Code Ann. §5-39-101(4)(A)..ccccceccceeececscevsceesesersseusteetetenstteneeeen 19

Circuit Court Cases

U.S. v. Victor J. Stitt

14-6158 an (en banc decision), (6" Cir. decided June 27, 2017).......... 1,15

U.S. v. Christopher Ritchey

15-2460(6" Cir. Oct. 2016).......ccccccccccceeee eee eeetteeeeeesneeeeeeenenneeen 18

U.S. Vv. SUNS ccc ccc ccc ccc cc cece eee heen eee e eee eee eee E EERE E EE EE EE EEE EEE ESEE EEE EES OE o eee EEE ES 19

U.S. v. Forrest

611 F. 3d 908, 913 (3 O50) 0) 19

Supreme Court Cases

Mathis v. U.S.

136 S. Ct. 2243, 2250 (2016)... cece cece cence eter eeeee een eee ene ens 2, 14, 16

Descamps v. U.S.

133 S. Ct. 2276, 2281 (2013)... cece cece eee n eee ee ne eee e ne eneenees 15

Taylor v. U.S.

495 U.S. 575,598. ccc cece cece eee e eee eeee een eee eee e rest nese rete ee nner sneer eet 17

Nijhawan vy. Holder

557 USS. 29, 35 (2009)... cece ceece cece nee ee eee e enter eee n ene nen eee eres ees 16

Gonzales v. Duenas-Alvarez

549 U.S. 183, 186-87 (2007)... ccc cece cence eee ee nee eneenene rae e ener eas 16

Shepard v. U.S.

544 U.S. 13, 15-16 (2005)... cece cence been n eee enone teres

Id Apprendi v. New Jersey

530 U.S. 466, 490(2000)

Descamps v. U.S.

Pee ee errr ere eer ever Hee Heese DeoeeEeeoeeeeDaereeeeerrsesesrersee

133 S. Ct. 2276, 2281 (2013)... cece nee e reece nent eee ee ee

OPINIONS BELOW

l. Opinion, United States Court of Appeals for the Sixth Circuit, United States

of America v. Danetrius J.Tolliver, C.A. No.17-5298, January 19, 2018, (not

recommended for full text publication).

2. Judgment in a Criminal Case, United States District Court for the Eastern

District of Tennessee at Chattanooga, United States of America v. Danetrius J. Tolliver,

District Court No. 1:16-CR-42, March 6, 2017.

JURISDICTIONAL STATEMENT

The United States Court of Appeals for the Sixth Circuit entered its Opinion in

this case on January 19, 2018. This Court’s jurisdiction is invoked under Title 28

U.S. Code 1254 (1). Rule 13 of the Supreme Court allows ninety (90) days within

which to file a Petition for Writ of Certiorari after entry of the Judgment by the

Appellate Court for the denial of a Petition for rehearing, whichever is later.

Accordingly, this Petition is timely filed.

The Petitioner, Danetrius J. Tolliver, respectfully prays that a Writ of

Certiorari issue to review the Judgment of the District Court and the Opinion of the

United States Court of Appeals for the Sixth Circuit. In that Opinion, the Sixth

Circuit Affirmed the District Court and found no error in the sentence of the

Petitioner.

10

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the U.S. Constitution.

11

STATEMENT OF THE CASE AND RELEVANT FACTS

The Defendant, Danetrius Tolliver, pled guilty to a one (1) count Indictment

charging him with a violation of 18 U.S.C. §922 (g)(1) and was sentenced to one

hundred eighty (180) months pursuant to the Armed Career Criminal Act (ACCA,

18 U.S.C. §924 (e)). He now challenges the District Court’s determination that he

was an Armed Career Criminal based on convictions of the Tennessee Burglary

Statute which were ruled to be predicate offense.

On January 16, 2016 the Chattanooga Police Department responded to a

residence in Chattanooga, Tennessee on a report of an attempted home invasion.

When they arrived at the scene responding officers were advised by the residents

that the suspect had fled the scene in a blue Silverado pickup truck. The

Chattanooga Police Department spotted a truck matching the description in the

area. After officers attempted to stop the vehicle, the truck sped away and wrecked

into a ditch nearby. The Chattanooga Police Department arrested the Defendant in

the truck. A firearm was found in the vehicle and the Appellant waived his

Miranda Rights and made a statement to the police stating that the firearm was his.

The Presentence Report designated Mr. Tolliver as an Armed Career Criminal with

a mandatory minimum sentence of one hundred eighty (180) months based on his

12

five (5) Tennessee Burglary convictions as a predicate offense. The Appellant was

sentenced to one hundred eighty (180) months, the mandatory minimum sentence

by the District Court. The District Court relied on the Presentence Report (PSR)

and found Mr. Tolliver to be an Armed Career Criminal for sentencing. The Court

rejected the Defendant’s/Appellant’s Objections to the PSR that the Burglary

convictions in the State of Tennessee would not apply because of the Tennessee

Burglary Statute being over-broad in its definition of a Burglary.

The Court rejected the argument that the Burglary convictions would not

apply as predicate offense. The District Court held that based upon the current

state of the law at that time in the Sixth Circuit, that it was necessary to designate

the Appellant as an Armed Career Criminal. The Court did not make a separate

determination as to what the sentence would have been if Mr. Tolliver was not

found to be an Armed Career Criminal under the ACCA. Because the Court did

not rule on other objections in regards to the PSR based on the fact that that would

not change the potential sentence of the Appellant if he was classified as an Armed

Career Criminal. The Court stated,

“Okay. Having made all the rulings I’m going to make

today, I’m going to order the presentence investigation

report be made a part of the record in Mr. Tolliver’s case.

I further find the Presentence investigation report

accurately reflects the facts stated therein; and, to the

extent we are bound by the armed career criminal statute,

13

reflects an advisory guideline range that would yield a

sentence lower that that mandatory minimum. Okay?”

The U.S. Attorney also agreed that all other objections made to the

Presentence Report were reserved if and when there was a favorable ruling in

regards to the Appellant’s Appeal. At that time, the Defendant/Appellant was

sentenced to a term of one hundred eight (180) months and the

Defendant/Appellant timely Appealed.

14

ARGUMENT

The Appellant, Danetrius Tolliver, pled guilty to possession of a firearm as a

convicted felon in violation of 18 U.S.C. §922(g). The Presentence Report

prepared for the Court stated that, the Appellant was subject to being an Armed

Career Criminal under the ACCA. The Appellant had five (5) prior Burglary

convictions under the Tennessee Burglary Statute T.C.A. §39-14-402. The

Presentence Report held that the Burglary convictions qualified as predicate

offense. The Appellant objected to the use of the convictions under the Tennessee

Burglary Statute T.C.A. §39-14-402. The Appellant filed written objections to the

Presentence Report. The Appellant raised an objection stating that the Tennessee

Burglary Statute and all convictions under the Burglary Statute should not count as

predicate offenses based on the U.S. Supreme Court’s decision in Mathis v. The

United States, 136. S. Ct. 2243 (2016). His objections are based on the fact that

the Tennessee Burglary Statute T.C.A. §39-14-401, which defines Burglary, was

overly broad. The text of T.C.A. §39-14-402,

(a) a person who commits Burglary who without

the effective consent of the property owner (4)

enters a freight or passenger car, automobile,

truck, trailer or other motor vehicle with the intent

to commit a Felony, Theft or Assault or attempt to

commit a Felony, Theft or Assault.

15

The statute is overly broad for ACCA purposes. And as such, a conviction

under this statute should not qualify as an ACCA predicate offense.

The Sixth Circuit in a case decided on June 27, 2017 United States of America

v. Victor J. Stitt, held that the Tennessee Aggravated Burglary Statute should not

apply. The Sixth Circuit , in the Stitt decision stated,

“To determine whether Stitt’s aggravated-burglary

convictions qualify, we apply the “categorical approach”.

Descamps v. United States, 133 S. Ct. 2276, 2281 (2013).

Under this approach, we compare the statutory elements

of Tennessee aggravated burglary to the elements of

“generic burglary”. See id. If the elements of Tennessee

aggravated burglary “are the same as, or narrower than,

those of [generic burglary,]” Stitt convictions as violent

felonies under the ACCA. Jd.

“Tennessee defines aggravated burglary as the “burglary

of a habitation,” Tenn. Code Ann. §39-14-403, and

defines “habitation” as “any structure...which is

designed or adapted for the overnight accommodation of

persons,” id. §39-14-401(1)(A). The term “habitation”

includes “mobile homes, trailers, and tents,” as well as

any “self-propelled vehicle that is designed or adapted

for the overnight accommodations of persons and is

actually occupied at the time of initial entry by the

defendant.” Jd.

When this Court applied the categorical approach to the Tennessee

Aggravated Burglary Statute, the Court decided that because the statute

specifically allowed non-buildings to be subject to the Aggravated Burglary

16

Statute, that that itself made the statute too broad. The Supreme Court has

determined under the ACCA that generic Burglary means, an unlawful or

unprivileged entry into, or remaining in, a building or structure with the intent to

commit a crime. The Sixth Circuit Court went on to state in the majority Opinion,

“By contrast, the Supreme Court has determined that

under the ACCA, “generic burglary” means “an unlawful

entry into, or remaining in, a building or other structure,

with intent to commit a crime.” Taylor, 495 U.S. at 598.

Although the Court left “building or other structure”

undefined, it has confirmed repeatedly that vehicles and

movable enclosures (e.g., railroad cars, tents and booths)

fall outside the definitional sweep of “building or other

structure”. See id at 599; Mathis v. United States, 136 S.

Ct. 2243, 2250 (2016) (explaining that lowa’s burglary

statute “covers more conduct than generic burglary”

because it “reaches a broader range of places”: ‘any

building, structure, [or] land, water, or air vehicle,”

(alteration in original) (citations omitted)); Nijhawan v.

Holder, 557 U.S. 29, 35 (2009) (differentiating between

breaking into a “vessel,” which would not qualify as

generic burglary, and “breaking into a building,” which

would). Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186-

87 (2007) (noting that Massachusetts defines burglary to

include breaking into a vehicle, “which falls outside the

generic definition of ‘burglary,’ for a car is not a

‘building or structure’” (citations omitted)); Shepard v.

United States, 544 U.S. 13, 15-16 (2005) (“The [ACCA]

makes burglary a violent felony only if committed in a

building or enclosed space...not a boat or motor

vehicle.”).

“By including “mobile homes, trailers, and tents,” as well

as any “self-propelled vehicle,” Tennessee’s aggravatedburglary statute includes exactly the kinds of vehicles

17

and movable enclosures that the Court excludes from

generic burglary. But the statute comes with a wrinkle: it

criminalizes the unauthorized entry into vehicles and

movable enclosures (with criminal intent) only if they are

“designed or adapted for the overnight accommodation of

persons.” Tenn. Code Ann. § 39-14-401(1). In other

words, it restricts the ambit of the statute to only those

vehicles and movable enclosures that are habitable.

This court went on to find that if the Burglary statute covers vehicles or

other movable enclosures, then that the statute was too broad to qualify as a

predicate offense under the ACCA. That is also true for a Tennessee Burglary

decision.

Under ACCA, a defendant who violates 18 U.S.C. §922 (g) is subject to a

fifteen (15) year mandatory minimum sentence if he has three (3) previous

convictions by any Court for a crime punishable by the serving of a term exceeding

one (1) year and those convictions constitute violent Felonies and/or serious drug

offenses or both at times different from one another. 18 U.S.C. §924 (e)(1), 922

(g)(1). ACCA defines a violent felony

“As acrime punishable by imprisonment for a term

exceeding one (1) year, or any act of juvenile

delinquency involving the use or carrying of a firearm,

knife or destructive device that would be punishable by

imprisonment for such a term if committed by an adult

that:

(i) the use, attempted use or threatened use of physical

force against the person, or

18

(ii) is burglary, arson, extortion involves use of

explosives or otherwise involves conduct that presents a

serious potential risk of physical injury to another.”

The Sixth Circuit Court faced a similar issue in another recent case from the

State of Michigan. United States v. Christopher Ritchey, No. 15-2460(6" Cir. Oct.

2016) which dealt with a Burglary from the State of Michigan, and the Michigan

Statute that defined what a Burglary conviction was. The Court, in that decision,

discussed the Supreme Court’s decision in Mathis. The Supreme Court in that

case, stated,

“A state crime cannot qualify as an ACCA predicate if its

elements are broader than those of a listed generic

offense.”

The Court held,

“A conviction under the statute cannot serve as an ACCA

predicate because the elements of Iowa’s burglary statute

covers a greater swath of conduct than the elements of

generic burglary.”

The decision goes on to say,

“In reaching this conclusion, the Court noted that under

generally established principals, “the ‘underlying brute

facts or means’ of commission are irrelevant for purposes

of ACCA. Id. “Even if his conduct fits within the generic

offense, the mismatch of elements saves the Defendant

from an ACCA sentence.” Jd. Thus, the Court clarified

that Sentencing Courts should engage in “an elementsonly inquiry” [a]ll the counts under the ACCA are the

19

elements of a statute of conviction.” Jd. At 2251-52. This

is true even if the “sentencing Judge knows (or can easily

discover) that the Defendant carried out a ‘real’

Burglary.” Jd. at 2251.

“The Court gave three basic justifications in Mathis for

limiting the ACCA inquiry to elements, rather than

treating as divisible a non-generic Burglary statute that

lists alternative means for satisfying a particular element.

First, it determined that the ACCA text favors this result.

Second, a construction of ACCA allows a Sentencing

Judge to go any further would raise Sixth Amendment

concerns because only a jury and not a judge may find

facts that includes the maximum penalty. Except for the

simple fact of a prior convictions. Jd Apprendi v. New

Jersey, 530 U.S. 466, 490(2000) and third “an elementsfocus avoids unfairness to the Defendant given that

“[s]tatement of ‘non-elemental fact’ in the records a prior

convictions are prone to error, precisely because the

proof is unnecessary.” Jd. At 2253 (citing Descamps, 133

S. Ct. at 2288-89).

In another recent decision from the Eighth Circuit, United States v. Sims,

which was filed on April 27, 2017, the Eighth Circuit, held that the residential

Burglary convictions from Arkansas did not qualify as ACCA predicate offenses,

“Tt is inconsequential that Arkansas’s statute confines

residential burglary to vehicles “{iJn which any person

lives” or [t]hat [are] customarily used for overnight

accommodation.” Ark. Code Ann. §5-39-101(4)(A); see

also United States v. Forrest, 611 F. 3d 908, 913 (3° Cir.

2010) (finding a Colorado burglary statute was

categorically broader than generic burglary because it

covered vehicles adapted for overnight

accommodations). We therefore conclude that Arkansas

residential burglary categorically sweeps more broadly

20

than generic burglary.”

In this case, the Tennessee Burglary Statute is clearly overbroad under the

Mathis decision, and a conviction under the Tennessee Burglary Statute should not

be used as a predicate offense for ACCA consideration.

The Tennessee Burglary Statute specifically allows that a Burglary can occur

either by a freight or passenger car, automobile, truck, trailer, boat or other motor

vehicle. This clearly makes the Tennessee Burglary Statute overbroad and a

conviction under the Tennessee Burglary Statute cannot be a predicate offense

under the ACCA.

21

CONCLUSION

Based on the forgoing facts, the Petitioner respectfully prays that this Court issue a Writ

of Certiorari to review the substantial and important Federal issues outlined above and to

reverse the decision of the Sixth Circuit Court of Appeals and the Judgment of the United

States District Court, Eastern District of Tennessee in Chattanooga.

Respectfully submitted,

JOHN ALLEN BROOKS

hn Li bbn. raz)

ttorney for Danetrius J. Tolliver

07 Georgia Avenue, Suite 103

P.O. Box 466

Chattanooga, TN 37401

423/266-9404

BPR # 006395

22