Petition for Writ of Certiorari — Dalton Crutchfield, Petitioner v. United States

APPENDIX A

Neutral

As of: October 25, 2019 8:56 PM Z

United States v. Crutchfield

United States Court of Appeals for the Sixth Circuit

August 26, 2019, Filed

File Name: 19a0450n.06

Nos. 17-6358, 17-6360

Reporter

2019 U.S. App. LEXIS 25527 *; 2019 FED App. 0450N (6th Cir.); __ Fed. Appx. __; 2019 WL

4013408

UNITED STATES OF AMERICA,

Plaintiff-Appellant, v. DALTON

CRUTCHFIELD, Defendant-Appellee.

Notice: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS

REPRODUCED.

Crutchfield v. United States, 2017 U.S. Dist.

LEXIS 155984 (W.D. Tenn., Sept. 25, 2017)

Case Summary

Overview

HOLDINGS: [1]-The order granting

defendant's 28 U.S.C.S. § 2255 petition for

habeas corpus was reversed, and the case

was remanded for the reinstatement of his

original 180-month sentence since his

Tennessee aggravated burglary conviction

categorically qualified as an ACCA

predicate, his argument regarding entry was

Subsequent History: Rehearing denied by, forfeited, as he did not assert that argument

in his § 2255 motion in the district court,

En banc United States v. Crutchfield, 2019

even if defendant had not forfeited that

U.S. App. LEXIS 27782 (6th Cir., Sept. 13,

argument, it would still fail, and his second

2019)

new argument on appeal, which focused on

Prior History: [*1] ON APPEAL FROM the intent element of Tennessee's burglary

THE UNITED STATES DISTRICT statute, likewise failed as that argument

COURT FOR THE WESTERN DISTRICT concerning the intent element of burglary

OF TENNESSEE.

had already been addressed and dismissed

by the United States Supreme Court.

Page 2 of 7

United States v. Crutchfield

Outcome

Reversed and remanded.

LexisNexis® Headnotes

Criminal Law &

Procedure > ... > Sentencing

Guidelines > Adjustments &

Enhancements > Armed Career

Criminals

Criminal Law & Procedure > ... > Theft

& Related Offenses > Burglary &

Criminal Trespass > Burglary

Criminal Law &

Procedure > ... > Adjustments &

Enhancements > Criminal

History > Prior Felonies

HN1[ ] Adjustments & Enhancements,

Armed Career Criminals

Aggravated

burglary

in

Tennessee

categorically qualifies as an Armed Career

Criminal Act predicate.

Criminal Law & Procedure > ... > Theft

& Related Offenses > Burglary &

Criminal Trespass > Burglary

HN2[ ] Burglary & Criminal Trespass,

Burglary

Burglary of a vehicle adapted for overnight

accommodation constitutes a generic

burglary under the Taylor decision.

Criminal Law &

Procedure > ... > Sentencing

Guidelines > Adjustments &

Enhancements > Armed Career

Criminals

Criminal Law & Procedure > ... > Theft

& Related Offenses > Burglary &

Criminal Trespass > Burglary

Criminal Law &

Procedure > ... > Adjustments &

Enhancements > Criminal

History > Prior Felonies

HN3[ ] Adjustments & Enhancements,

Armed Career Criminals

Tennessee aggravated burglary describes

generic burglary and qualifies as a violent

felony under the Armed Career Criminal

Act.

Criminal Law &

Procedure > ... > Sentencing

Guidelines > Adjustments &

Enhancements > Armed Career

Criminals

Criminal Law &

Procedure > ... > Appeals > Standards of

Review > De Novo Review

Criminal Law &

Procedure > ... > Adjustments &

Enhancements > Criminal

History > Prior Felonies

Criminal Law &

Procedure > ... > Standards of

Review > De Novo

Page 3 of 7

United States v. Crutchfield

Review > Conclusions of Law

Counsel: For DALTON ERIC

CRUTCHFIELD, Petitioner - Appellee (17HN4[ ] Adjustments & Enhancements, 6358): Madelyn Dianne Smothers, Federal

Armed Career Criminals

Public Defender, Federal Public Defender,

An appellate court reviews de novo a Memphis, TN.

district court's determination regarding For UNITED STATES OF AMERICA,

whether a prior conviction constitutes a Respondent - Appellant (17-6358): Annie

violent felony under the Armed Career Tauer Christoff, Office of the U.S.

Attorney, Western District of Tennessee,

Criminal Act.

Memphis, TN.

Criminal Law &

Procedure > ... > Sentencing

Guidelines > Adjustments &

Enhancements > Armed Career

Criminals

Criminal Law &

Procedure > ... > Adjustments &

Enhancements > Criminal

History > Prior Felonies

Criminal Law &

Procedure > Sentencing > Ranges

For UNITED STATES OF AMERICA,

Plaintiff - Appellant (17-6360): Annie Tauer

Christoff, Office of the U.S. Attorney,

Western District of Tennessee, Memphis,

TN.

For DALTON ERIC CRUTCHFIELD,

Defendant - Appellee (17-6360): Madelyn

Dianne Smothers, Federal Public Defender,

Federal Public Defender, Memphis, TN.

Judges: BEFORE: CLAY, LARSEN, and

READLER, Circuit Judges.

Opinion by: CLAY

HN5[ ] Adjustments & Enhancements,

Opinion

Armed Career Criminals

The Armed Career Criminal Act (ACCA)

provides that a person who violates 18

U.S.C.S. 922(g) and also has three prior

convictions for a violent felony shall be

subjected to a fifteen-year mandatory

minimum sentence of imprisonment. 18

U.S.C.S. § 924(e)(1). The ACCA defines a

violent felony as any crime punishable by

imprisonment for a term exceeding one year

that is burglary, arson, or extortion, or

involves use of explosives. 18 U.S.C.S. §

924(e)(2)(B)(ii).

CLAY, Circuit Judge. The government

appeals the district court's order granting

Dalton Crutchfield's petition for habeas

corpus under 28 U.S.C. § 2255, and the

district court's subsequent resentencing of

Crutchfield to time served. The district court

resentenced Crutchfield based on this

Court's determination that Tennessee

aggravated burglary, Tenn. Code Ann. § 3914-403(a) (1997), does not qualify as a

predicate offense under the Armed Career

Criminal Act ("ACCA"). See United States

Page 4 of 7

United States v. Crutchfield

v. Stitt, 860 F.3d 854, 864-65 (6th Cir.

2017) (en banc) [*2] ("Stitt I"). But the

Supreme Court reversed Stitt I. See Stitt v.

United States, 139 S. Ct. 399, 407-08, 202

L. Ed. 2d 364 (2018) ("Stitt II"). And a

recent panel of this Court, in a published

decision, affirmed this Court's pre-Stitt I

decisions holding that HN1[ ] aggravated

burglary in Tennessee categorically

qualifies as an ACCA predicate. See

Brumbach v. United States, 929 F.3d 791,

794-95 (6th Cir. 2019). Therefore, we

REVERSE the district court's order

granting Crutchfield habeas relief and

REMAND for the reinstatement of his

original sentence.

BACKGROUND

On February 22, 2011, a grand jury indicted

Crutchfield of being a felon in possession of

a firearm, in violation of 18 U.S.C. §§

922(g) and 924(a), (e). Crutchfield pleaded

guilty pursuant to a written plea agreement.

Upon

receiving

the

presentence

investigation report ("PSR"), Crutchfield

filed a sentencing position statement noting

that he had no objections to the PSR. At the

sentencing

hearing,

Crutchfield

acknowledged that he qualified as an armed

career criminal based on his four prior

convictions for Tennessee aggravated

burglary and requested to be sentenced to

the statutory minimum term of 180 months

of incarceration. On September 14, 2011,

the district court sentenced Crutchfield to

180 months of incarceration out of a

guidelines range maximum of 210 months

of incarceration.

On June [*3] 17, 2016, Crutchfield filed a

28 U.S.C. § 2255 motion to vacate his

sentence based on the Supreme Court's

decision striking down the ACCA's residual

clause. See Johnson v. United States, 135 S.

Ct. 2551, 192 L. Ed. 2d 569 (2015). While

his § 2255 motion was pending, the en banc

Sixth Circuit decided Stitt I. In Stitt I, the

original panel had held that this Court's

prior decisions in United States v. Priddy,

808 F.3d 676 (6th Cir. 2015) and United

States v. Nance, 481 F.3d 882 (6th Cir.

2007) foreclosed the argument that

Tennessee aggravated burglary did not

qualify as a violent felony. See United

States v. Stitt, 637 F. App'x 927, 930-32 (6th

Cir. 2016). On June 27, 2017, this Court,

sitting en banc, reversed the original Stitt

panel, overruled Nance and Priddy, and

held that Tennessee aggravated burglary

was not generic burglary because it included

burglary of vehicles adapted for overnight

accommodation. Stitt I, 860 F. 3d at 857-63.

In light of our decision in Stitt I, the

government conceded with hesitation that

Crutchfield's

prior

convictions

for

Tennessee aggravated burglary were no

longer predicate offenses that subjected him

to the mandatory minimum sentence he

received. The district court granted

Crutchfield's § 2255 motion and

resentenced him to time served and three

years of supervised release. However, the

government maintained that Stitt I was

incorrectly decided. It appealed the district

court's granting of Crutchfield's § 2255

motion and the district court's [*4]

amended judgment, and this Court stayed

the consolidated appeals pending the

Supreme Court's decision in Stitt II. In Stitt

Page 5 of 7

United States v. Crutchfield

II, the Supreme Court explicitly overruled

our en banc decision in Stitt I, holding that

HN2[ ] burglary of a vehicle adapted for

overnight accommodation constitutes a

generic burglary under Taylor. See Stitt II,

139 S. Ct. at 407.

In a recent published decision, Brumbach v.

United States, 929 F.3d 791, (6th Cir.

2019), this Court considered, for the first

time, whether a conviction under

Tennessee's aggravated burglary statute

qualifies as a violent felony under the

ACCA in light of the Supreme Court's

reversal of Stitt I in Stitt II. In Brumbach,

this Court held that because of Stitt II's

reversal of Stitt I, Nance and Priddy once

again constitute binding Sixth Circuit

precedent and that, therefore, HN3[ ]

Tennessee aggravated burglary describes

generic burglary and qualifies as a violent

felony under the ACCA. Id. at 794

(reversing the district court's order granting

the petitioner's habeas petition and

remanding for reinstatement of the

petitioner's original sentence).

DISCUSSION

I. Standard of Review

HN4[ ] This Court reviews "de novo a

district court's determination regarding

whether a prior conviction constitutes a

'violent felony' under the ACCA."

Brumbach, 929 F.3d at 794 (quoting

Braden v. United States, 817 F.3d 926, 930

(6th Cir. 2016)).

II. Analysis [*5]

The government's primary argument on

appeal is that in light of the Supreme Court's

decision in Stitt II, we have returned to the

time when this Circuit treated Tennessee

aggravated burglary categorically as a

violent felony under the ACCA. On that

account, the government asserts that

Crutchfield's prior convictions place him

back in ACCA mandatory minimum

sentence territory, and therefore we should

reverse the district court's granting of

Crutchfield's § 2255 motion and reinstate

his original sentence.

Crutchfield pleaded guilty to being a felon

in possession of a firearm under 18 U.S.C. §

922(g). He has four prior convictions for

Tennessee aggravated burglary. HN5[ ]

The ACCA provides that a person who

violates 922(g) and also has three prior

convictions for a "violent felony" shall be

subjected to a fifteen-year mandatory

minimum sentence of imprisonment. See 18

U.S.C. § 924(e)(1). Relevant to our analysis,

the ACCA defines a "violent felony" as

"any crime punishable by imprisonment for

a term exceeding one year . . . that is

burglary, arson, or extortion, [or] involves

use

of

explosives[.]"

Id.

at

§

924(e)(2)(B)(ii). At issue in this appeal is

whether Tennessee's aggravated burglary

statute falls within the ACCA's generic

definition of burglary. Binding [*6]

precedent in our Circuit holds that it does.

See Brumbach, 929 F.3d at 794; see also

Mann v. United States, 773 Fed. Appx. 308,

309 (6th Cir. 2019) (citing Brumbach, 929

F.3d at 794-95) (explaining that, due to the

Supreme Court's reversal of Stitt I,

Page 6 of 7

United States v. Crutchfield

"Tennessee aggravated burglary is an

ACCA predicate"). Crutchfield's case is one

of many that contain the very issue that this

Court decided in Brumbach.

Brumbach considered whether, following

Stitt II, this Court's decisions in Nance and

Priddy were once again good law. 929 F.3d

at 794-95. In Brumbach, this Court held that

because the Supreme Court "reverse[d] the

rationale by which we overruled Nance[,] . .

. it necessarily follows that Nance's holding

. . . is once again the law of this circuit." Id.

at 794. Concluding that Stitt II had

reinstated this Court's pre-Stitt I decisions in

Nance and Priddy, Brumbach then held that

these decisions foreclosed new arguments

that Tennessee aggravated burglary is not

generic burglary. Id. at 795. Brumbach's

holding regarding the preclusive force of

Nance and Priddy controls this case. Salmi

v. Sec'y of Health & Human Servs., 774

F.2d 685, 689 (6th Cir. 1985) (explaining

that a panel of this Court cannot overrule a

prior panel decision absent an inconsistent

decision of the Supreme Court or this Court

sitting en banc).

Crutchfield raises two new issues on appeal

that he did not raise in the district court. He

separately [*7] challenges both the "entry"

and "intent" elements of Tennessee's

burglary statute. First, he argues that

"[b]ecause Tennessee law endorses such a

broad concept of 'entry,' no Tennessee

burglary conviction after 1974 can count as

a generic burglary, or consequently, as an

ACCA predicate." (Appellee Br. at 7.)

Crutchfield's argument regarding entry is

forfeited, as he did not assert this argument

in his § 2255 motion in the district court.

Frazier v. Jenkins, 770 F.3d 485, 497 (6th

Cir. 2014) ("Generally, we will not address

arguments raised for the first time on

appeal, . . . [and] we decline to do so here.")

And even if Crutchfield had not forfeited

this argument, it would still fail because

Brumbach advanced an identical argument,

and the Court dismissed it as precluded by

controlling Sixth Circuit precedent.

Brumbach, 929 F.3d at 795 ("Even if there

is merit to Brumbach's arguments

concerning Tennessee's definition of entry,

a panel of this court cannot overrule

Nance.").

Crutchfield's second new argument on

appeal, which focuses on the "intent"

element of Tennessee's burglary statute,

likewise fails. Crutchfield challenges

"whether § 39-14-402(a)(3) fits within the

generic definition of burglary because it

allows a defendant to be convicted of

burglary if he enters a building and [*8]

then forms the requisite intent to commit a

crime while inside." (Appellee Br. at 28)

(emphasis in original). Crutchfield forfeited

this argument by failing to raise it below.

See Frazier, 770 F.3d at 497. The argument

also fails on the merits; this argument

concerning the "intent" element of burglary

has already been addressed and dismissed

by the Supreme Court. See Quarles v.

United States, 139 S. Ct. 1872, 1880, 204 L.

Ed. 2d 200 (2019) (decided during the

pendency of Crutchfield's case and

concluding "that generic remaining-in

burglary occurs when the defendant forms

the intent to commit a crime at any time

while unlawfully remaining in a building or

structure").

Page 7 of 7

United States v. Crutchfield

CONCLUSION

Crutchfield's main issue on appeal—

whether his convictions for Tennessee

aggravated burglary qualify as violent

felonies under the ACCA—has been

addressed by this Court's recent published

decision in Brumbach. Therefore, even if

Crutchfield had not forfeited his new

arguments by failing to raise them in the

district court, both new arguments are

foreclosed by existing precedent of this

Court and the Supreme Court. Based on the

foregoing, we REVERSE the district

court's order granting Crutchfield habeas

relief under § 2255 and REMAND for the

reinstatement of his original 180-month

sentence.

End of Document

Neutral

As of: October 25, 2019 8:57 PM Z

United States v. Crutchfield

United States Court of Appeals for the Sixth Circuit

September 13, 2019, Filed

Nos. 17-6358/6360

Reporter

2019 U.S. App. LEXIS 27782 *

UNITED STATES OF AMERICA,

Plaintiff-Appellant, v. DALTON

CRUTCHFIELD, Defendant-Appellee.

Prior History: United States v. Crutchfield,

2019 U.S. App. LEXIS 25527 (6th Cir.) (6th

Cir. Tenn., Aug. 26, 2019)

Counsel: [*1] For Dalton Eric Crutchfield

(17-6360, 17-6358), Petitioner - Appellee,

Defendant - Appellee: Madelyn Dianne

Smothers, Federal Public Defender, Federal

Public Defender, Memphis, TN.

the issues raised in the petition were fully

considered upon the original submission

and decision of the cases. The petition then

was circulated to the full court.* No judge

has requested a vote on the suggestion for

rehearing en banc.

Therefore, the petition is denied.

End of Document

For United States of America (17-6360, 176358), Respondent - Appellant, Plaintiff Appellant: Annie Tauer Christoff, Office of

the U.S. Attorney, Western District of

Tennessee, Memphis, TN.

Judges: BEFORE: CLAY, LARSEN, and

READLER, Circuit Judges.

Opinion

ORDER

The court received a petition for rehearing

en banc. The original panel has reviewed

the petition for rehearing and concludes that

* Judge Donald recused herself from participation in this ruling.

Neutral

As of: October 25, 2019 8:59 PM Z

Jackson v. United States

United States Court of Appeals for the Sixth Circuit

September 17, 2019, Filed

Nos. 17-6080/6081

Reporter

2019 U.S. App. LEXIS 27959 *

PATRICK JACKSON, aka Patrick Jones,

Petitioner-Appellee, (No. 17-6080) v.

UNITED STATES OF AMERICA,

Respondent-Appellant.UNITED STATES

OF AMERICA Plaintiff-Appellant, (No. 176081) v. PATRICK JACKSON, aka Patrick

Jones, Defendant-Appellee.

Counsel: For Patrick Jackson, aka: Patrick

Jones (17-6080, 17-6081), Petitioner Appellee: Mary C. Jermann-Robinson,

Assistant Federal Public Defender, Federal

Public Defender, Memphis, TN.

For United States of America (17-6080, 176081), Respondent - Appellant: Naya

Notice: NOT RECOMMENDED FOR Bedini, Office of the U.S. Attorney,

FULL-TEXT PUBLICATION. SIXTH Western District of Tennessee, Memphis,

CIRCUIT RULE 28 LIMITS CITATION TN.

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A Judges: Before: GUY, COOK, and

PROCEEDING IN A COURT IN THE GRIFFIN, Circuit Judges.

SIXTH CIRCUIT. IF CITED, A COPY

Opinion

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS ORDER

REPRODUCED.

The United States appeals a district court

Prior History: [*1] ON APPEAL FROM judgment granting Patrick Jackson's motion

THE UNITED STATES DISTRICT to vacate his sentence under 28 U.S.C. §

COURT FOR THE WESTERN DISTRICT 2255, as well as the amended judgment in

his criminal proceeding. The appeals have

OF TENNESSEE.

been consolidated. The parties have waived

oral argument, and this panel unanimously

agrees that oral argument is not needed. See

United States v. Jackson, 2015 U.S. Dist.

Fed. R. App. P. 34(a).

LEXIS 17925 (W.D. Tenn., Feb. 13, 2015)

Page 2 of 3

Jackson v. United States

In 2015, Jackson entered a guilty plea to a

charge of being a felon in possession of a

firearm. Because he had six prior

convictions of aggravated burglary in

Tennessee, he was sentenced under the

Armed Career Criminal Act (ACCA) to 190

months of imprisonment. His conviction

was affirmed on direct appeal.

In his motion to vacate, Jackson argued that

his prior aggravated burglaries in Tennessee

did [*2] not qualify as violent felonies

under the ACCA, relying on a case pending

in this court at the time raising the argument

that aggravated burglary under Tennessee

law was broader than generic burglary

because it included burglaries of vehicles

used for overnight accommodation. After

this court's en banc decision agreeing that

aggravated burglary in Tennessee was not a

qualifying conviction under the ACCA, the

district court granted the motion and

resentenced Jackson to 51 months of

imprisonment to run concurrently with a

state sentence he was serving. The

government appealed from both judgments.

The appeals were held in abeyance pending

the Supreme Court's consideration of the

case relied on by Jackson. The Supreme

Court reversed this court's decision in

United States v. Stitt, 139 S. Ct. 399, 406,

202 L. Ed. 2d 364 (2018), and the

government's brief asks that the district

court's decisions be reversed and the

original sentence reinstated, citing United

States v. Moody, 206 F.3d 609, 616 (6th

Cir. 2000).

the entry of a habitation to include an entry

by an instrument not intended to be used to

commit a felony, relying on State v. Crow,

517 S.W.2d 753, 755 (Tenn. 1974). Jackson

also argues that the district court should

consider

on

remand [*3]

whether

aggravated burglary in Tennessee may be

committed by forming an intent to commit a

felony while remaining in a building rather

than at the time of entry, citing Quarles v.

United States, 850 F.3d 836, 840 (6th Cir.

2017), aff'd, 139 S. Ct. 1872, 204 L. Ed. 2d

200 (2019).

We review the district court's decision de

novo. See Davis v. United States, 900 F.3d

733, 735 (6th Cir. 2018), cert. denied, 139

S. Ct. 1374, 203 L. Ed. 2d 612 (2019).

In United States v. Nance, 481 F.3d 882,

888 (6th Cir. 2007), we held that

Tennessee's aggravated burglary statute

constituted a violent felony for purposes of

the ACCA. See United States v. Priddy, 808

F.3d 676, 684 (6th Cir. 2015). Our decision

in Stitt, overruling Nance, has now been

reversed by the Supreme Court, and Nance

is once again the law of this circuit.

Brumbach v. United States, 929 F.3d 791,

2019 WL 3024727, at *3 (6th Cir. 2019).

Jackson's new arguments were not

presented in the district court and are not

properly before the court. See Weinberger v.

United States, 268 F.3d 346, 352 (6th Cir.

2001). In any event, a panel of this court

cannot overrule Nance's holding. See

Brumbach, 929 F.3d 791, 2019 WL

Jackson now argues that his aggravated 3024727, at *3; United States v. Elbe, 774

F.3d 885, 891 (6th Cir. 2014). Also, the

burglary convictions do not qualify under

Supreme Court has now held that criminal

the ACCA because Tennessee law defines

Page 3 of 3

Jackson v. United States

intent for burglary can be formed at any

time while unlawfully remaining in a

building. Quarles v. United States, 139 S.

Ct. 1872, 1880, 204 L. Ed. 2d 200 (2019).

Accordingly, we REVERSE the district

court's judgments and REMAND with

instructions to reinstate the original

sentence.

End of Document

Neutral

As of: October 25, 2019 8:58 PM Z

United States v. Kemmerling

United States Court of Appeals for the Sixth Circuit

September 17, 2019, Filed

Nos. 17-6515/6516

Reporter

2019 U.S. App. LEXIS 27960 *

UNITED STATES OF AMERICA,

Plaintiff-Appellant, v. JOSEPH

KEMMERLING, Defendant-Appellee.

Overview

HOLDINGS: [1]-Even if there were merit

to appellant's argument that his aggravated

burglary conviction should not have counted

as an ACCA predicate, a panel of the

appellate court could not overrule case law

holding that a Tennessee conviction for

aggravated burglary was a violent felony for

purposes of the ACCA. Rather, that could

only be done by an inconsistent decision of

the United States Supreme Court or a

decision of the en banc appellate court.

Notice: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY Outcome

DISPLAYED IF THIS DECISION IS Judgment granting motion to vacate

REPRODUCED.

reversed; case remanded with instructions to

Prior History: [*1] ON APPEAL FROM reinstate original sentence. Motions to file

THE UNITED STATES DISTRICT surreply and supplemental brief denied.

COURT FOR THE WESTERN DISTRICT LexisNexis® Headnotes

OF TENNESSEE.

United States v. Kemmerling, 612 Fed.

Appx. 373, 2015 U.S. App. LEXIS 13443

(6th Cir.) (6th Cir. Tenn., July 30, 2015)

Governments > Courts > Judicial

Precedent

Case Summary

HN1[ ] Courts, Judicial Precedent

Page 2 of 4

United States v. Kemmerling

A panel of the appellate court cannot

overrule a judicial holding that a Tennessee

conviction for aggravated burglary is a

violent felony for purposes of the ACCA.

Rather, that can only be done by an

inconsistent decision of the United States

Supreme Court or a decision of the en banc

appellate court.

Counsel: For United States of America,

Plaintiff - Appellant (17-6515): Naya

Bedini, Office of the U.S. Attorney,

Western District of Tennessee, Memphis,

TN.

For Joseph Kemmerling, Defendant Appellee (17-6515): Madelyn Dianne

Smothers, Federal Public Defender, Federal

Public Defender, Federal Defender,

Memphis, TN.

For Joseph Kemmerling, Petitioner Appellee (17-6516): Madelyn Dianne

Smothers, Federal Public Defender, Federal

Public Defender, Federal Defender,

Memphis, TN.

For United States of America, Respondent Appellant (17-6516): Naya Bedini, Office

of the U.S. Attorney, Western District of

Tennessee, Memphis, TN.

Kemmerling from his enhanced sentence

under the Armed Career Criminal Act

("ACCA") (No. 17-6516) and the amended

judgment imposed following the grant of §

2255 relief (No. 17-6515). Kemmerling

seeks leave to file a surreply and a

supplemental brief. The parties have waived

oral argument, and this panel unanimously

agrees that oral argument [*2] is not

needed. See Fed. R. App. P. 34(a).

In 2014, Kemmerling pleaded guilty to

being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). The

district court found that he was an armed

career criminal under the Armed Career

Criminal Act ("ACCA") based on two prior

Tennessee convictions for aggravated

burglary and one prior Tennessee conviction

for robbery. The district court therefore

sentenced him, pursuant to 18 U.S.C. §

924(e), to 180 months of imprisonment and

2 years of supervised release. This court

affirmed. United States v. Kemmerling, 612

F. App'x 373 (6th Cir. 2015).

In June 2016, Kemmerling filed a motion to

vacate arguing that his aggravated-burglary

convictions no longer qualified as predicate

offenses in light of Johnson v. United

States, 135 S. Ct. 2551, 192 L. Ed. 2d 569

Judges: Before: GUY, COOK, and

(2015), and United States v. Stitt, a thenGRIFFIN, Circuit Judges.

pending appeal before the en banc court.

Opinion

After the en banc court overruled United

States v. Nance, 481 F.3d 882 (6th Cir.

2007), and held that aggravated burglary in

Tennessee, see Tenn. Code Ann. §§ 39-14ORDER

401, 39-14-402, 39-14-403, does not qualify

In these consolidated cases, the United as a violent felony pursuant to 18 U.S.C. §

States appeals a district court order granting 924(e)(2)(B)(ii) due to the overbreadth of its

relief under 28 U.S.C. § 2255 to Joseph definition of a "habitation," United States v.

Page 3 of 4

United States v. Kemmerling

Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc)

("Stitt I"), Kemmerling filed a supplement

requesting

that

the

district

court

immediately grant his motion. The

government conceded that Kemmerling was

entitled to relief if the decision in Stitt I

stood but preserved its argument that Stitt I

was wrongly decided and might [*3] be

overturned by the Supreme Court. The

district court then granted the motion to

vacate and resentenced Kemmerling to 84

months of imprisonment and 2 years of

supervised release. The government

appealed, and this court held the case in

abeyance pending the Supreme Court's

evaluation of Stitt I. On December 10, 2018,

the Supreme Court held that burglary of a

structure or vehicle that has been adapted or

is customarily used for overnight

accommodation qualifies as the enumerated

violent felony of burglary for purposes of 18

U.S.C. § 924(e)(2)(B)(ii). United States v.

Stitt, 139 S. Ct. 399, 403-04, 202 L. Ed. 2d

364 (2018) ("Stitt II").

In light of the Supreme Court's decision, the

government argues that this court should

reverse the district court's grant of

Kemmerling's motion and remand to the

district court to reinstate the original

sentence. In response, Kemmerling claims

for the first time on appeal that Tennessee

aggravated burglary does not qualify as a

predicate offense because Tennessee's

interpretation of "entry" creates an

overbroad definition when compared to

generic burglary. Kemmerling also seeks

permission to file a surreply on the basis

that the government raises new arguments

in its reply, but the government's reply

simply responds to his newly raised

argument, and [*4] his proposed surreply

expands on the arguments made in his

response brief. A surreply is not justified

here. See Modesty v. Shockley, 434 F. App'x

469, 472 (6th Cir. 2011).

We review the district court's decision de

novo. See Davis v. United States, 900 F.3d

733, 735 (6th Cir. 2018), cert. denied, 139

S. Ct. 1374, 203 L. Ed. 2d 612 (2019).

Kemmerling argues that his aggravated

burglary conviction should no longer count

as an ACCA predicate because the

Tennessee courts define the entry element

of the State's burglary statutes more broadly

than generic burglary by including

intrusions by instrument that are the

functional equivalent of attempted burglary.

But as the government argues—and we

recently held—Nance "is once again the law

of this circuit." Brumbach v. United States,

929 F.3d 791, 794 (6th Cir. 2019).

Accordingly, even if there were merit to

Kemmerling's argument, HN1[ ] a panel of

this court cannot overrule Nance's holding

that a Tennessee conviction for aggravated

burglary is a violent felony for purposes of

the ACCA. See id. Rather, that "can only be

done by an 'inconsistent decision' of the

Supreme Court or, like we did briefly with

Stitt I, a decision of the en banc court." Id.

at 795 (quoting Salmi v. Sec'y of Health &

Human Servs., 774 F.2d 685, 689 (6th Cir.

1985)).1

1 Kemmerling

briefly argues without development that Tennessee

aggravated burglary sweeps more broadly than generic burglary

because it does not contain an element of criminal intent at the time

of entry, but that argument is also foreclosed by binding precedent.

See United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017)

(citing United States v. Priddy, 808 F.3d 676, 684-85 (6th Cir.

Page 4 of 4

United States v. Kemmerling

Accordingly, we REVERSE the district

court's judgment granting the motion to

vacate and REMAND to the district court

with instructions to reinstate Kemmerling's

original sentence. The motions [*5] to file a

surreply and to file a supplemental brief are

DENIED.

End of Document

2015)), cert. denied, 139 S. Ct. 2712 (2019); see also Quarles v.

United States, 139 S. Ct. 1872, 1880, 204 L. Ed. 2d 200 (2019).

Neutral

As of: October 25, 2019 9:00 PM Z

United States v. Rogers

United States Court of Appeals for the Sixth Circuit

September 17, 2019, Filed

Nos. 17-5914/5917/6489

Reporter

2019 U.S. App. LEXIS 27956 *

UNITED STATES OF AMERICA,

Plaintiff-Appellant, v. DEMARCUS

ROGERS, DefendantAppellee.DEMARCUS ROGERS,

Petitioner-Appellee, v. UNITED STATES

OF AMERICA, Respondent-Appellant.

Counsel: For United States of America (175914, 17-6489, 17-5917), Plaintiff Appellant: Kevin G. Ritz, Assistant U.S.

Attorney, Office of the U.S. Attorney,

Western District of Tennessee, Memphis,

TN.

Notice: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS

REPRODUCED.

For Demarcus Rogers (17-5914, 17-6489),

Defendant - Appellee: Tyrone Jemal Paylor,

Federal Public Defender, Federal Defender,

Memphis, TN.

For Demarcus Rogers, Petitioner - Appellee

(17-5917): Kevin G. Ritz, Assistant U.S.

Attorney, Office of the U.S. Attorney,

Western District of Tennessee, Memphis,

TN.

Judges: Before: GUY, COOK, and

GRIFFIN, Circuit Judges.

Prior History: [*1] ON APPEAL FROM Opinion

THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF TENNESSEE.

ORDER

United States v. Rogers, 261 Fed. Appx.

849, 2008 U.S. App. LEXIS 1026 (6th Cir.)

(6th Cir. Ky., Jan. 10, 2008)

In these consolidated cases, the government

appeals a district court order granting relief

under 28 U.S.C. § 2255 to DeMarcus

Rogers from his enhanced sentence under

Page 2 of 3

United States v. Rogers

the Armed Career Criminal Act (ACCA)

(No. 17-5917), the amended judgment

entered in the criminal case (No. 17-5914),

and the subsequent judgment entered by the

district court in the § 2255 proceeding (No.

17-6489). The parties have waived oral

argument, and this panel unanimously

agrees that oral argument is not needed. See

Fed. R. App. P. 34(a).

In 2006, Rogers pleaded guilty to being a

felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g), and [*2] was

sentenced as an armed career criminal to

327 months in prison, followed by three

years of supervised release. We affirmed his

conviction and sentence, United States v.

Rogers, 261 F. App'x 849, 850 (6th Cir.

2008), and the denial of his first § 2255

motion, Rogers v. United States, 561 F.

App'x 440, 444 (6th Cir. 2014).

In 2016, Rogers received permission to file

a second or successive § 2255 motion

challenging his armed career criminal

designation based on Johnson v. United

States, 135 S. Ct. 2551, 192 L. Ed. 2d 569

(2015), on the ground that his Tennessee

aggravated burglary conviction no longer

qualified as a violent felony for purposes of

the ACCA. While that § 2255 motion was

pending, we overruled circuit precedent, see

United States v. Nance, 481 F.3d 882 (6th

Cir. 2007), and held that a conviction under

Tennessee's aggravated burglary statute did

not qualify as an ACCA predicate because

the statute swept more broadly than generic

burglary by including habitable vehicles and

movable enclosures. United States v. Stitt,

860 F.3d 854, 858 (6th Cir. 2017) (en banc)

("Stitt I"). Based on that decision, the

district court granted Rogers's § 2255

motion, resentencing him to time served and

the same three-year period of supervised

release.

The government appealed, and we granted

its request to hold the case in abeyance

while it sought Supreme Court review in

Stitt. The Supreme Court granted certiorari

and reversed our decision in Stitt I, holding

that Tennessee's aggravated burglary statute

is not rendered [*3] overly broad by its

coverage of movable structures "designed or

adapted for overnight use." United States v.

Stitt, 139 S. Ct. 399, 407, 202 L. Ed. 2d 364

(2018) ("Stitt II").

The government now argues that, in light of

the Supreme Court's decision, Rogers is no

longer entitled to relief from his ACCA

sentence, so the district court's judgment

should be reversed and the case remanded

for reinstatement of his original sentence.

Rogers does not dispute that he is no longer

entitled to relief based on Stitt I but offers

two alternative arguments for why the

district court's judgment should be affirmed:

1) the entry element of Tennessee's burglary

statutes is defined more broadly than the

entry element of generic burglary, and 2)

Tennessee's burglary statutes are overly

broad because their "remaining in" variants

do not require the perpetrator to have the

intent to commit a crime at the time of

entry.

We review the district court's decision de

novo. See Davis v. United States, 900 F.3d

733, 735 (6th Cir. 2018), cert. denied, 139

S. Ct. 1374, 203 L. Ed. 2d 612 (2019).

Rogers first argues that his aggravated

Page 3 of 3

United States v. Rogers

burglary conviction should no longer count original sentence. Rogers's motion to file a

as an ACCA predicate because the supplemental brief is DENIED.

Tennessee courts define the entry element

of the state's burglary statutes more broadly

End of Document

than generic burglary by including

intrusions by instrument that are the

functional equivalent [*4] of attempted

burglary. But as the government argues—

and we recently held—Nance "is once again

the law of this circuit." Brumbach v. United

States, 929 F.3d 791, 794 (6th Cir. 2019).

Accordingly, even if there were merit to

Rogers's argument, a panel of this court

cannot overrule Nance's holding that a

Tennessee conviction for aggravated

burglary is a violent felony for purposes of

the ACCA. See id. at 795. Rather, that "can

only be done by an 'inconsistent decision' of

the Supreme Court or, like we did briefly

with Stitt I, a decision of the en banc court."

Id. (quoting Salmi v. Sec'y of Health &

Human Servs., 774 F.2d 685, 689 (6th Cir.

1985)).

Rogers's second argument—that the

"remaining in" variants of Tennessee's

burglary statutes are broader than generic

burglary because they do not contain an

element of criminal intent at the time of

entry—is also foreclosed by binding

precedent. See United States v. Ferguson,

868 F.3d 514, 515 (6th Cir. 2017) (citing

United States v. Priddy, 808 F.3d 676, 68485 (6th Cir. 2015)), cert. denied, 139 S. Ct.

2712 (2019); see also Quarles v. United

States, 139 S. Ct. 1872, 1880, 204 L. Ed. 2d

200 (2019).

For these reasons, we REVERSE the

district court's grant of § 2255 relief and

REMAND with instructions to reinstate the

Neutral

As of: October 25, 2019 9:01 PM Z

Finch v. United States

United States Court of Appeals for the Sixth Circuit

September 18, 2019, Filed

No. 17-5965

Reporter

2019 U.S. App. LEXIS 28335 *

OWEN LEWIS FINCH, PetitionerAppellee, v. UNITED STATES OF

AMERICA, Respondent-Appellant.

Notice: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS

REPRODUCED.

HOLDINGS: [1]-A petitioner was not

entitled to relief under 28 U.S.C.S. § 2255

from his enhanced sentence under the

Armed Career Criminal Act (ACCA)

because a panel of the U.S. Court of

Appeals for the Sixth Circuit could not

overrule United States v. Nance's holding

that a Tennessee conviction for aggravated

burglary was a violent felony for purposes

of the ACCA; [2]-The petitioner's argument

that the "remaining in" variants of

Tennessee's burglary statutes were broader

than generic burglary because they did not

contain an element of criminal intent at the

time of entry was also foreclosed by binding

precedent.

Prior History: [*1] ON APPEAL FROM

THE UNITED STATES DISTRICT Outcome

COURT FOR THE WESTERN DISTRICT Judgment reversed and remanded.

OF TENNESSEE.

LexisNexis® Headnotes

Finch v. United States, 2017 U.S. Dist.

LEXIS 131134 (W.D. Tenn., Aug. 17, 2017)

Case Summary

Overview

Criminal Law &

Procedure > Appeals > Procedural

Matters > Notice of Appeal

Page 2 of 4

Finch v. United States

HN1[ ] Procedural Matters, Notice of Appellant: Annie Tauer Christoff, Office of

the U.S. Attorney, Western District of

Appeal

Tennessee, Memphis, TN.

A mistake in designating the judgment

appealed from is not always fatal, so long as Judges: Before: GUY, COOK, and

the intent to appeal from a specific ruling GRIFFIN, Circuit Judges.

can fairly be inferred by probing the notice

and the other party was not misled or Opinion

prejudiced.

ORDER

Criminal Law &

Procedure > ... > Sentencing

Guidelines > Adjustments &

Enhancements > Armed Career

Criminals

Governments > Courts > Judicial

Precedent

Criminal Law &

Procedure > ... > Burglary & Criminal

Trespass > Burglary > Penalties

HN2[ ] Adjustments & Enhancements,

Armed Career Criminals

United States v. Nance is once again the law

of the U.S. Court of Appeals for the Sixth

Circuit. A panel of the Sixth Circuit cannot

overrule Nance's holding that a Tennessee

conviction for aggravated burglary is a

violent felony for purposes of the ACCA.

Rather, that can only be done by an

inconsistent decision of the U.S. Supreme

Court or a decision of the en banc court.

Counsel: For Owen Lewis Finch, Petitioner

- Appellee: Tyrone Jemal Paylor, Federal

Public Defender, Federal Defender,

Memphis, TN.

For United States of America, Respondent -

The government appeals a district court

judgment granting relief under 28 U.S.C. §

2255 to Owen Finch from his enhanced

sentence under the Armed Career Criminal

Act ("ACCA"). The parties have waived oral

argument, and this panel unanimously

agrees that oral argument is not needed. See

Fed. R. App. P. 34(a).

The district court sentenced Finch as an

armed career criminal to 180 months of

imprisonment followed by three years of

supervised release after he pleaded guilty to

being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g). United

States v. Finch, No. 1:07-cr-10099 (W.D.

Tenn. May 21, 2008). Subsequently, Finch

filed a § 2255 motion, arguing that, in light

of the Supreme Court's decision in Johnson

v. United States, 135 S. Ct. 2551, 192 L. Ed.

2d 569 (2015), his Tennessee conviction for

aggravated burglary no longer qualified as

an enumerated offense under the ACCA.

While the § 2255 motion was pending, we

overruled [*2] prior circuit precedent, see

United States v. Nance, 481 F.3d 882 (6th

Cir. 2007), and held that a conviction under

Tennessee's aggravated burglary statute did

not qualify as an ACCA predicate offense

Page 3 of 4

Finch v. United States

because the statute swept more broadly than

generic burglary by including habitable

vehicles and movable enclosures. United

States v. Stitt, 860 F.3d 854, 858 (6th Cir.

2017) (en banc) ("Stitt I"). Based on that

decision, the district court granted Finch's §

2255 motion and resentenced him to time

served followed by three years of

supervised release.

The government appealed, and briefing was

held in abeyance pending the Supreme

Court's decision in United States v. Stitt,

139 S. Ct. 399, 202 L. Ed. 2d 364 (2018)

("Stitt II"). In Stitt II, the Supreme Court

reversed this court's decision, holding that

Tennessee's aggravated burglary statute was

not rendered overly broad by its coverage of

mobile structures "designed or adapted for

overnight use." Id. at 407. The government

now argues that, in light of the Supreme

Court's decision in Stitt II, Finch is no

longer entitled to relief under § 2255 and

that the case should be remanded for

reinstatement of Finch's original sentence.

Finch does not dispute that he is no longer

entitled to relief based on Stitt I but argues

that (1) this court lacks jurisdiction over an

appeal of his amended judgment; (2) the

entry element of Tennessee's [*3] burglary

statutes is defined more broadly than the

entry element of generic burglary; and (3)

Tennessee's burglary statutes are overly

broad because their "remaining in" variants

do not require the perpetrator to have the

intent to commit a crime at the time of

entry.

S. Ct. 1374, 203 L. Ed. 2d 612 (2019).

Finch first argues that because the

government failed to appeal the amended

judgment entered in his criminal case, we

lack jurisdiction to hear this appeal.

However, HN1[ ] "[a] mistake in

designating the judgment appealed from is

not always fatal, so long as the intent to

appeal from a specific ruling can fairly be

inferred by probing the notice and the other

party was not misled or prejudiced."

Ramsey v. Penn Mut. Life Ins., 787 F.3d

813, 819 (6th Cir. 2015) (alteration in

original) (quoting Sanabria v. United States,

437 U.S. 54, 67 n.21, 98 S. Ct. 2170, 57 L.

Ed. 2d 43 (1978)). Because the notice of

appeal filed by the government references

both the civil and criminal cases, the

government's intent is clear and we have

jurisdiction over the appeal.

Finch also argues that his aggravated

burglary conviction should no longer count

as an ACCA predicate offense because

Tennessee courts define the entry element

of the state's burglary statutes more broadly

than generic burglary by including

intrusions by instrument [*4] that are the

functional equivalent of attempted burglary.

But as the government argues—and we

recently HN2[ ] held—Nance "is once

again the law of this circuit." Brumbach v.

United States, 929 F.3d 791, 794 (6th Cir.

2019). Accordingly, even if there were

merit to Finch's argument, a panel of this

court cannot overrule Nance's holding that a

Tennessee conviction for aggravated

We review the district court's decision de burglary is a violent felony for purposes of

novo. See Davis v. United States, 900 F.3d the ACCA. See id. Rather, that "can only be

733, 735 (6th Cir. 2018), cert. denied, 139 done by an 'inconsistent decision' of the

Page 4 of 4

Finch v. United States

Supreme Court or, like we did briefly with

Stitt I, a decision of the en banc court." Id.

at 795 (quoting Salmi v. Sec'y of Health &

Human Servs., 774 F.2d 685, 689 (6th Cir.

1985)).

Finally, Finch's argument that the

"remaining in" variants of Tennessee's

burglary statutes are broader than generic

burglary because they do not contain an

element of criminal intent at the time of

entry is also foreclosed by binding

precedent. See United States v. Ferguson,

868 F.3d 514, 515 (6th Cir. 2017) (citing

United States v. Priddy, 808 F.3d 676, 68485 (6th Cir. 2015)); see also Quarles v.

United States, 139 S. Ct. 1872, 1880, 204 L.

Ed. 2d 200 (2019).

For these reasons, we REVERSE the

district court's grant of § 2255 relief and

REMAND with instructions to reinstate the

original sentence. Additionally, we DENY

the motion to supplement.

End of Document

Neutral

As of: October 25, 2019 9:01 PM Z

Norris v. United States

United States Court of Appeals for the Sixth Circuit

September 19, 2019, Filed

Nos. 17-5983/5985

Reporter

2019 U.S. App. LEXIS 28491 *

TEDDY NORRIS, Petitioner-Appellee, v.

UNITED STATES OF AMERICA,

Respondent-Appellant. & UNITED

STATES OF AMERICA, PlaintiffAppellant, v. TEDDY NORRIS, DefendantAppellee.

Counsel: For Teddy Norris, Petitioner Appellee (17-5983): Ross A. Sampson,

Memphis, TN.

For United States of America, Respondent Appellant (17-5983): Kevin G. Ritz,

Assistant U.S. Attorney, Office of the U.S.

Notice: NOT RECOMMENDED FOR Attorney, Memphis, TN.

FULL-TEXT PUBLICATION. SIXTH For United States of America, Plaintiff CIRCUIT RULE 28 LIMITS CITATION Appellant (17-5985): Kevin G. Ritz,

TO SPECIFIC SITUATIONS. PLEASE Assistant U.S. Attorney, Office of the U.S.

SEE RULE 28 BEFORE CITING IN A Attorney, Memphis, TN.

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY For Teddy Norris, Defendant - Appellee

MUST BE SERVED ON OTHER (17-5985): Tyrone Jemal Paylor, Federal

PARTIES AND THE COURT. THIS Public Defender, Memphis, TN.

NOTICE IS TO BE PROMINENTLY

Judges: Before: NORRIS, SILER, and

DISPLAYED IF THIS DECISION IS SUTTON, Circuit Judges.

REPRODUCED.

Opinion

Prior History: [*1] ON APPEAL FROM

THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

ORDER

OF TENNESSEE.

United States v. Norris, 2011 U.S. App.

LEXIS 26927 (6th Cir. Tenn., Dec. 16,

2011)

In these consolidated cases, the government

appeals a district court order granting relief

under 28 U.S.C. § 2255 to Teddy Norris

from his enhanced sentence under the

Page 2 of 3

Norris v. United States

while it sought Supreme Court review in

Stitt. The Supreme Court granted certiorari

and reversed our decision in Stitt I, holding

that Tennessee's aggravated burglary statute

is not rendered overly broad by its coverage

of movable structures "designed or adapted

for overnight use." United States v. Stitt,

139 S. Ct. 399, 407, 202 L. Ed. 2d 364

After pleading guilty to being a felon in (2018) ("Stitt II").

possession of a firearm, in violation of 18

U.S.C. § 922(g), Norris was sentenced as an The government now argues that, in light of

armed career criminal to 180 months in the Supreme Court's decision, Norris is no

prison. We affirmed that sentence. United longer entitled to relief from his

States v. Norris, No. 10-6548, 2011 U.S. ACCA [*3] sentence, so the district court's

App. LEXIS 26927 (6th Cir. Dec. 16, 2011) judgment should be reversed and the case

(unpublished) [*2] .

remanded for reinstatement of his original

sentence. Norris does not dispute that he is

Norris later filed his § 2255 motion no longer entitled to relief based on Stitt I

challenging his armed career criminal but offers two alternative arguments for

designation based on Johnson v. United why the district court's judgment should be

States, 135 S. Ct. 2551, 192 L. Ed. 2d 569 affirmed: 1) the entry element of

(2015), on the ground that his Tennessee Tennessee's burglary statutes is defined

aggravated burglary convictions no longer more broadly than the entry element of

qualified as violent felonies for purposes of generic burglary, and 2) Tennessee's

the ACCA, 18 U.S.C. § 924(e). While that § burglary statutes are overly broad because

2255 motion was pending, we overruled their "remaining in" variants do not require

circuit precedent, see United States v. the perpetrator to have the intent to commit

Nance, 481 F.3d 882 (6th Cir. 2007), and a crime at the time of entry.

held that a conviction under Tennessee's

aggravated burglary statute did not qualify We review the district court's factual

as an ACCA predicate because the statute findings for clear error and its conclusions

swept more broadly than generic burglary of law de novo. Davis v. United States, 900

by including habitable vehicles and movable F.3d 733, 735 (6th Cir. 2018), cert. denied,

enclosures. United States v. Stitt, 860 F.3d 139 S. Ct. 1374, 203 L. Ed. 2d 612 (2019).

854, 858 (6th Cir. 2017) (en banc) ("Stitt

Norris first argues that his aggravated

I"). Based on that decision, the district court

granted

Norris's

§

2255

motion, burglary convictions should no longer count

as ACCA predicates because the Tennessee

resentencing him to time served.

courts define the entry element of the state's

The government appealed, and we granted burglary statutes more broadly than generic

its request to hold the case in abeyance burglary by including intrusions by

Armed Career Criminal Act (ACCA) (No.

17-5983) and the amended judgment

entered in the criminal case (No. 17-5985).

The parties have waived oral argument, and

this panel unanimously agrees that oral

argument is not needed. See Fed. R. App. P.

34(a).

Page 3 of 3

Norris v. United States

instrument that are the functional equivalent

of attempted burglary. But as the

government argues—and we recently

held—Nance "is once again the law of this

circuit." Brumbach v. United States, 929

F.3d 791, 794 (6th Cir. 2019). Accordingly,

even if there were merit to Norris's

argument, [*4] a panel of this court cannot

overrule Nance's holding that a Tennessee

conviction for aggravated burglary is a

violent felony for purposes of the ACCA.

See id. at 794-95. Rather, that "can only be

done by an 'inconsistent decision' of the

Supreme Court or, like we did briefly with

Stitt I, a decision of the en banc court." Id.

at 795 (quoting Salmi v. Sec'y of Health &

Human Servs., 774 F.2d 685, 689 (6th Cir.

1985)).

Norris's second argument—that the

"remaining in" variants of Tennessee's

burglary statutes are broader than generic

burglary because they do not contain an

element of criminal intent at the time of

entry—is also foreclosed by binding

precedent. See United States v. Ferguson,

868 F.3d 514, 515 (6th Cir. 2017) (citing

United States v. Priddy, 808 F.3d 676, 68485 (6th Cir. 2015)); see also Quarles v.

United States, 139 S. Ct. 1872, 1880, 204 L.

Ed. 2d 200 (2019).

For these reasons, we REVERSE the

district court's grant of § 2255 relief and

REMAND with instructions to reinstate the

original sentence. We also DENY Norris's

motion to supplement his appellate brief.

End of Document

Neutral

As of: October 25, 2019 9:02 PM Z

Mann v. United States

United States Court of Appeals for the Sixth Circuit

July 18, 2019, Filed

File Name: 19a0371n.06

Case Nos. 17-6486/6487

Reporter

773 Fed. Appx. 308 *; 2019 U.S. App. LEXIS 21252 **; 2019 FED App. 0371N (6th Cir.); 2019

WL 3229130

MARCUS MANN, Petitioner-Appellee, v.

UNITED STATES OF AMERICA,

Respondent-Appellant.UNITED STATES

OF AMERICA, Plaintiff-Appellant, v.

MARCUS MANN, Defendant-Appellee.

Counsel: For MARCUS MANN (#24539076) (17-6486, 17-6487), Petitioner Appellee(17-6486): Tyrone Jemal Paylor,

Federal Public Defender, Federal Defender,

Memphis, TN.

Notice: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS

REPRODUCED.

For UNITED STATES OF AMERICA (176486, 17-6487), Respondent - Appellant,

Plaintiff - Appellant: Naya Bedini, Office of

the U.S. Attorney, Memphis, TN; James W.

Powell, Assistant U.S. Attorney, Office of

the U.S. Attorney, Jackson, TN.

Judges: BEFORE: GUY, THAPAR, and

NALBANDIAN, Circuit Judges.

Opinion

[*309] PER CURIAM. Marcus Mann pled

guilty to possessing a firearm as a convicted

felon. See 18 U.S.C. § 922(g). Because he

already had several prior convictions under

Prior History: [**1] ON APPEAL FROM Tennessee law (two for aggravated

THE UNITED STATES DISTRICT burglary, one for simple burglary, and one

COURT FOR THE MIDDLE DISTRICT for aggravated assault), the district court

enhanced Mann's sentence to the fifteenOF TENNESSEE.

Subsequent History: Rehearing denied by,

En banc Mann v. United States, 2019 U.S.

App. LEXIS 29062 (6th Cir., Sept. 25, 2019)

Page 2 of 2

Mann v. United States

year minimum under the Armed Career

Criminal Act (ACCA). See id. § 924(e)(1).

Several years later, Mann challenged his

sentence through a motion for postconviction relief. See 28 U.S.C. § 2255.

While his § 2255 motion was pending, the

en banc Sixth Circuit determined that

Tennessee aggravated burglary was not an

ACCA predicate. United States v. Stitt, 860

F.3d 854, 856 (6th Cir. 2017) (en banc).

Relying on Stitt, the district court reviewing

Mann's [**2] § 2255 motion determined

that he no longer qualified for an ACCA

enhancement and reduced his sentence to

ten years. But Mann's victory was shortlived because the government filed a

protective appeal, and a few months later

the Supreme Court reversed Stitt. United

States v. Stitt, 139 S. Ct. 399, 406-08, 202 L.

Ed. 2d 364 (2018).

The Supreme Court's reversal means that

our circuit returns to its pre-Stitt precedent.

Brumbach v. United States, Nos. 185703/5705, 2019 U.S. App. LEXIS 20612,

2019 WL 3024727, at *3, 929F.3d791

(6th Cir. July 11, 2019). And under that

precedent, Tennessee aggravated burglary is

an ACCA predicate. Id. (citing United

States v. Nance, 481 F.3d 882, 888 (6th Cir.

2007)). Thus, although the district court was

right to reduce Mann's sentence, the law has

changed during this appeal and made

Mann's original sentence proper again.

Therefore, we VACATE and REMAND

with instructions to reinstate the original

sentence.

End of Document

Neutral

As of: October 25, 2019 9:03 PM Z

Mann v. United States

United States Court of Appeals for the Sixth Circuit

September 25, 2019, Filed

Nos. 17-6486/6487

Reporter

2019 U.S. App. LEXIS 29062 *

MARCUS MANN, Petitioner-Appellee, v.

UNITED STATES OF AMERICA,

Respondent-Appellant.UNITED STATES

OF AMERICA, Plaintiff-Appellant, v.

MARCUS MANN Defendant-Appellee.

Prior History: Mann v. United States, 773

Fed. Appx. 308, 2019 U.S. App. LEXIS

21252 (6th Cir.) (6th Cir. Tenn., July 18,

2019)

Counsel: [*1] For Marcus Mann, Petitioner

- Appellee (17-6486): Tyrone Jemal Paylor,

Federal Public Defender, Federal Defender,

Memphis, TN.

For United States of America, Respondent Appellant (17-6486): Naya Bedini, Kevin

G. Ritz, Assistant U.S. Attorney, Office of

the U.S. Attorney, Memphis, TN; James W.

Powell, Assistant U.S. Attorney, Office of

the U.S. Attorney, Jackson, TN.

For Marcus Mann, Defendant - Appellee

(17-6487): Tyrone Jemal Paylor, Federal

Public Defender, Federal Defender,

Memphis, TN.

For United States of America, Respondent Appellant (17-6487): Naya Bedini, Kevin

G. Ritz, Assistant U.S. Attorney, Office of

the U.S. Attorney, Memphis, TN; James W.

Powell, Assistant U.S. Attorney, Office of

the U.S. Attorney, Jackson, TN.

Judges: BEFORE: GUY, THAPAR, and

NALBANDIAN, Circuit Judges.

Opinion

ORDER

The court received a petition for rehearing

en banc. The original panel has reviewed

the petition for rehearing and concludes that

the issues raised in the petition were fully

considered upon the original submission

and decision of the cases. The petition then

was circulated to the full court.* No judge

has requested a vote on the suggestion for

rehearing en banc.

Therefore, the petition is denied.

End of Document

* Judge Donald recused herself from participation in this ruling.

Neutral

As of: October 25, 2019 9:04 PM Z

Williams v. United States

United States Court of Appeals for the Sixth Circuit

September 26, 2019, Filed

Nos. 17-5921/5923

Reporter

2019 U.S. App. LEXIS 29209 *

JERMEL FRANKLIN WILLIAMS,

Petitioner-Appellee, v. UNITED STATES

OF AMERICA, RespondentAppellant.UNITED STATES OF

AMERICA, Plaintiff-Appellant, v.

JERMEL FRANKLIN WILLIAMS,

Defendant-Appellee.

Notice: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS

REPRODUCED.

Prior History: [*1] ON APPEAL FROM

THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF TENNESSEE.

Case Summary

Overview

HOLDINGS: [1]-The court reversed the

district court's order granting defendant

relief under 28 U.S.C.S. § 2255 from his

enhanced sentence under the Armed Career

Criminal Act (ACCA) because the U.S.

Supreme Court granted certiorari and

reversed the court's decision in United

States v. Stitt (Stitt I), making United States

v. Nance once again the law of the Sixth

Circuit, under which a Tennessee conviction

for aggravated burglary was a violent felony

for purposes of the ACCA; [2]-Defendant's

remaining argument—that his aggravated

burglary convictions might not qualify as

generic burglaries because it might be that

the applicable law did not require

contemporaneous intent at the time of

entry—was also foreclosed by binding

precedent.

Outcome

United States v. Williams, 238 F.3d 426,

2000 U.S. App. LEXIS 36273 (6th Cir.

Tenn., Dec. 15, 2000)

Motion to supplement denied, order

granting 28 U.S.C.S. § 2255 relief reversed

Page 2 of 4

Williams v. United States

and remanded with instructions,

amended judgment vacated.

and 2255 relief, the appellate court reviews its

conclusions of law de novo.

LexisNexis® Headnotes

Criminal Law &

Procedure > ... > Sentencing

Guidelines > Adjustments &

Enhancements > Armed Career

Criminals

Criminal Law &

Procedure > ... > Burglary & Criminal

Trespass > Burglary > Elements

Criminal Law &

Procedure > ... > Sentencing

Guidelines > Adjustments &

Enhancements > Armed Career

Criminals

Governments > Courts > Judicial

Precedent

Criminal Law &

Procedure > ... > Burglary & Criminal

Trespass > Burglary > Elements

HN3[ ] Adjustments & Enhancements,

HN1[ ] Adjustments & Enhancements, Armed Career Criminals

Armed Career Criminals

United States v. Nance is once again the law

Tennessee's aggravated burglary statute is of the U.S. Court of Appeals for the Sixth

not rendered overly broad,, for purposes of Circuit. A panel of the Sixth Circuit cannot

the Armed Career Criminal Act, by its overrule Nance's holding that a Tennessee

coverage of movable structures designed or conviction for aggravated burglary is a

violent felony for purposes of the Armed

adapted for overnight use.

Career Criminal Act. Rather, that can only

be done by an inconsistent decision of the

U.S. Supreme Court or a decision of the en

Criminal Law &

banc court.

Procedure > ... > Standards of

Review > De Novo

Counsel: For Jermel Franklin Williams (17Review > Conclusions of Law

5921, 17-5923), Petitioner - Appellee:

Tyrone Jemal Paylor, Federal Public

Criminal Law &

Defender, Federal Defender, Memphis, TN.

Procedure > Postconviction

Proceedings > Motions to Set Aside

For United States of America (17-5921, 17Sentence

5923), Respondent - Appellant: Naya

Bedini, Office of the U.S. Attorney,

HN2[ ] De Novo Review, Conclusions of

Western District of Tennessee, Memphis,

Law

TN.

When a district court grants 28 U.S.C.S. §

Judges: Before: MOORE, McKEAGUE,

Page 3 of 4

Williams v. United States

and READLER, Circuit Judges.

Opinion

ORDER

In these consolidated cases, the government

appeals a district court order granting relief

under 28 U.S.C. § 2255 to Jermel Franklin

Williams from his enhanced sentence under

the Armed Career Criminal Act (ACCA)

(No. 17-5921) and the amended judgment

entered in his criminal case (No. 17-5923).

The parties have waived oral argument, and

this panel unanimously agrees that oral

argument is not needed. See Fed. R. App. P.

34(a). Williams filed a motion to

supplement his appellate brief, the

government responded in opposition, and

Williams filed a reply supporting his motion

to supplement.

In 1999, with the benefit of a written plea

agreement, Williams pleaded guilty to

possession of a firearm by a felon, in

violation of 18 U.S.C. § 922(g), and

possession of a stolen firearm, in violation

of 18 U.S.C. § 922(j). He was [*2]

sentenced under the ACCA, 18 U.S.C. §

924(e), to serve a total of 326 months of

imprisonment followed by five years of

supervised release. Williams appealed his

sentence, and we affirmed. United States v.

Williams, 238 F.3d 426 (6th Cir. 2000)

(table). The United States Supreme Court

denied certiorari.

States, 135 S. Ct. 2551, 192 L. Ed. 2d 569

(2015). Williams was sentenced as an armed

career criminal based, in part, on eight prior

Tennessee convictions for aggravated

burglary. Williams argued that all eight

predicate offenses for Tennessee aggravated

burglary might no longer qualify as violent

felonies for purposes of the ACCA in light

of the then-pending en banc decision of this

court in United States v. Stitt, 860 F.3d 854

(6th Cir. 2017) (en banc) ("Stitt I").

While his § 2255 motion was pending, we

overruled circuit precedent, see United

States v. Nance, 481 F.3d 882 (6th Cir.

2007), in Stitt I, and held that a conviction

under Tennessee's aggravated burglary

statute did not qualify as an ACCA

predicate because the statute swept more

broadly than generic burglary by including

habitable vehicles and movable enclosures.

Stitt I, 860 F.3d at 858. Based on that

decision, the district court granted

Williams's § 2255 motion, vacated his

original sentence imposed in 1999,

resentenced him to time served followed by

three years of supervised release, and [*3]

denied a certificate of appealability. The

district court entered an amended judgment

in Williams's criminal case, resentencing

him to time served followed by three years

of supervised release.

The government appealed, and briefing was

held in abeyance pending the Supreme

Court's resolution of the government's

petition for a writ of certiorari in Stitt I. The

Supreme Court granted certiorari and

In 2016, Williams filed a § 2255 motion reversed our decision in Stitt I, holding that

challenging his armed career criminal HN1[ ] Tennessee's aggravated burglary

designation based on Johnson v. United statute was not rendered overly broad by its

Page 4 of 4

Williams v. United States

coverage of movable structures "designed or

adapted for overnight use." United States v.

Stitt, 139 S. Ct. 399, 407, 202 L. Ed. 2d 364

(2018) ("Stitt II").

The government now argues that, in light of

the Supreme Court's decision in Stitt II,

Williams is no longer entitled to relief from

his ACCA sentence, so the district court's

order in the § 2255 civil case and the

amended judgment in the criminal case

should be vacated and the cases remanded

for reinstatement of his original sentence.

Williams does not dispute that he is no

longer entitled to relief based on Stitt I but

argues that the district court's order should

be affirmed on the alternative ground that

the Tennessee courts have defined the

"entry" element of the state's burglary

statutes [*4] more broadly than generic

burglary by including intrusions by

instrument that are the functional equivalent

of attempted burglary. In addition, Williams

argues that Tennessee's aggravated burglary

statute is overly broad because it does not

require the perpetrator to have the intent to

commit a crime at the time of entry.

HN2[ ] When a district court grants § 2255

relief, we review "its conclusions of law de

novo." Davis v. United States, 900 F.3d

733, 735 (6th Cir. 2018) (quoting Braden v.

United States, 817 F.3d 926, 929 (6th Cir.

2016)), cert. denied, 139 S. Ct. 1374, 203 L.

Ed. 2d 612 (2019).

As to Williams's argument regarding the

entry element, we recently held, HN3[ ]

Nance "is once again the law of this circuit."

Brumbach v. United States, 929 F.3d 791,

794 (6th Cir. 2019). Accordingly, even if

there were merit to Williams's argument, a

panel of this court cannot overrule Nance's

holding that a Tennessee conviction for

aggravated burglary is a violent felony for

purposes of the ACCA. See id. Rather, that

"can only be done by an 'inconsistent

decision' of the Supreme Court or, like we

did briefly with Stitt I, a decision of the en

banc court." Id. (quoting Salmi v. Sec'y of

Health & Human Servs., 774 F.2d 685, 689

(6th Cir. 1985)).

Williams's remaining argument—that his

aggravated burglary convictions may not

qualify as generic burglaries because "[i]t

may be that . . . the applicable law did not

require contemporaneous intent" at the time

of entry—is also foreclosed by binding

precedent. [*5] See United States v.

Ferguson, 868 F.3d 514, 515 (6th Cir.

2017) (citing United States v. Priddy, 808

F.3d 676, 684-85 (6th Cir. 2015)); see also

Quarles v. United States, 139 S. Ct. 1872,

1880, 204 L. Ed. 2d 200 (2019).

Accordingly, we DENY the motion to

supplement appellate brief; REVERSE the

district court's order granting § 2255 relief

and REMAND with instructions to reinstate

Williams's original sentence (No. 17-5921);

and VACATE the amended judgment in

Williams's criminal case (No. 17-5923).

End of Document

Neutral

As of: October 25, 2019 9:05 PM Z

McKinney v. United States

United States Court of Appeals for the Sixth Circuit

September 26, 2019, Filed

Nos. 17-5956

Reporter

2019 U.S. App. LEXIS 29208 *

KEVOUS RAMON MCKINNEY,

Petitioner-Appellee, v. UNITED STATES

OF AMERICA, Respondent-Appellant.

Notice: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS

REPRODUCED.

Prior History: [*1] ON APPEAL FROM

THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF TENNESSEE.

HOLDINGS: [1]-The court reversed the

district court's order granting defendant's

motion to vacate, set aside, or correct his

sentence under 28 U.S.C.S. § 2255 because

United States v. Nance was once again the

law of the Sixth Circuit, and a panel of the

court could not overrule Nance's holding

that a Tennessee conviction for aggravated

burglary was a violent felony for purposes

of the Armed Career Criminal Act.

Outcome

Judgment reversed and remanded with

instructions to reinstate original sentence.

Motion to supplement brief denied.

LexisNexis® Headnotes

Case Summary

Criminal Law &

Procedure > ... > Sentencing

Guidelines > Adjustments &

Enhancements > Armed Career

Criminals

Overview

Criminal Law &

Procedure > ... > Burglary & Criminal

McKinney v. United States, 2017 U.S. Dist.

LEXIS 107455 (W.D. Tenn., July 12, 2017)

Page 2 of 5

McKinney v. United States

result of a resentencing or corrects the

prisoner's sentence completes the 28

HN1[ ] Adjustments & Enhancements, U.S.C.S. § 2255 proceeding and is therefore

Armed Career Criminals

immediately appealable.

Trespass > Burglary > Elements

Tennessee's aggravated burglary statute is

not rendered overly broad, for purposes of

the Armed Career Criminal Act, by its

coverage of mobile structures "designed or

adapted for overnight use."

Criminal Law &

Procedure > Appeals > Appellate

Jurisdiction > Final Judgment Rule

Criminal Law &

Procedure > Postconviction

Proceedings > Motions to Set Aside

Sentence

HN2[ ] Appellate Jurisdiction, Final

Judgment Rule

A judgment or order in a 28 U.S.C.S. § 2255

proceeding that vacates a sentence but

defers resentencing is not appealable until

the defendant has been resentenced.

Criminal Law &

Procedure > Appeals > Appellate

Jurisdiction > Final Judgment Rule

Criminal Law &

Procedure > Postconviction

Proceedings > Motions to Set Aside

Sentence

Criminal Law &

Procedure > Appeals > Standards of

Review > De Novo Review

Criminal Law &

Procedure > Postconviction

Proceedings > Motions to Set Aside

Sentence

HN4[ ] Standards of Review, De Novo

Review

The court of appeals reviews the district

court's order in a 28 U.S.C.S. § 2255

proceeding de novo.

Criminal Law &

Procedure > ... > Sentencing

Guidelines > Adjustments &

Enhancements > Armed Career

Criminals

Governments > Courts > Judicial

Precedent

Criminal Law &

Procedure > ... > Burglary & Criminal

Trespass > Burglary > Elements

HN5[ ] Adjustments & Enhancements,

Armed Career Criminals

HN3[ ] Appellate Jurisdiction, Final United States v. Nance is once again the law

of the Sixth Circuit. A panel of the court

Judgment Rule

cannot overrule Nance's holding that a

A district court's order that either enters the Tennessee conviction for aggravated

Page 3 of 5

McKinney v. United States

burglary is a violent felony for purposes of

the Armed Career Criminal Act. Rather, that

can only be done by an inconsistent decision

of the U.S. Supreme Court or a decision of

the en banc court.

Counsel: For Kevous Ramon Mckinney,

Petitioner - Appellee: Tyrone Jemal Paylor

Federal Public Defender, Federal Defender,

Memphis, TN.

For United States of America, Respondent Appellant: Annie Tauer Christoff, Office of

the U.S. Attorney, Western District of

Tennessee, Memphis, TN.

Judges: Before: MOORE, McKEAGUE,

and READLER, Circuit Judges.

Opinion

ORDER

The United States appeals the district court's

order granting Kevous Ramon McKinney's

motion to vacate, set aside, or correct his

sentence under 28 U.S.C. § 2255. The

parties have waived oral argument, and this

panel unanimously agrees that oral

argument is not needed. See Fed. R. App. P.

34(a).

In 2004, McKinney pleaded guilty to being

a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g). The district

court found that he was an armed career

criminal under the Armed Career Criminal

Act ("ACCA") based, in part, on three prior

Tennessee convictions for aggravated

burglary. See 18 U.S.C. § 924(e). The

district court ultimately sentenced him to

211 months of imprisonment, followed by

three years of supervised release. We

affirmed. United States v. McKinney, 187 F.

App'x 563, 566 (6th Cir. 2006) (per curiam).

His petition for a writ of certiorari was

denied. McKinney v. United States, 549 U.S.

1026, 127 S. Ct. 570, 166 L. Ed. 2d 421

(2006) (mem.).

In June 2016, McKinney filed [*2] a

motion to vacate arguing that his

aggravated-burglary convictions no longer

qualified as predicate offenses in light of

Johnson v. United States, 135 S. Ct. 2551,

192 L. Ed. 2d 569 (2015), and United States

v. Stitt, a then-pending appeal before the en

banc court. After the en banc court

overruled United States v. Nance, 481 F.3d

882 (6th Cir. 2007), and held that

aggravated burglary in Tennessee, see Tenn.

Code Ann. §§ 39-14-401, 39-14-402, 39-14403, does not qualify as a violent felony

pursuant to § 924(e)(2)(B)(ii) due to the

overbreadth of its definition of a

"habitation," United States v. Stitt, 860 F.3d

854, 862 (2017) (en banc) ("Stitt I"),

McKinney filed a motion requesting an

immediate

ruling.

The

government

conceded that McKinney was entitled to

relief if the decision in Stitt I stood but

preserved its argument that Stitt I was

wrongly decided and might be overturned

by the Supreme Court. The district court

then granted the motion to vacate and

resentenced McKinney to time served,

followed by three years of supervised

release. The government appealed, and this

court ordered the appeal held in abeyance

pending the Supreme Court's evaluation of

Stitt I. The Supreme Court eventually

granted the petition and reversed this court's

Page 4 of 5

McKinney v. United States

decision, holding that HN1[ ] Tennessee's

aggravated burglary statute was not

rendered overly broad by its coverage of

mobile structures "designed or adapted for

overnight use." United States v. Stitt, 139 S.

Ct. 399, 407, 202 L. Ed. 2d 364 (2018) [*3]

("Stitt II").

The appeal has been reopened, and the

government argues that, in light of the

Supreme Court's decision, we should

reverse the district court's grant of

McKinney's § 2255 motion and remand to

the district court to reinstate the original

sentence. In response, McKinney argues

that this court lacks subject matter

jurisdiction because the government

appealed only the order granting § 2255

relief, not the amended judgment in the

criminal case. McKinney also claims for the

first time on appeal that Tennessee

aggravated burglary does not qualify as a

predicate offense because Tennessee's

interpretation of "entry" creates an

overbroad definition when compared to

generic burglary. McKinney moves to file a

supplemental brief raising yet another new

argument.

As a threshold matter, we reject McKinney's

jurisdictional argument. The cases on which

he relies stand for the well-established

proposition that HN2[ ] a judgment or

order in a § 2255 proceeding that vacates a

sentence but defers resentencing is not

appealable until the defendant has been

resentenced. See Andrews v. United States,

373 U.S. 334, 339, 83 S. Ct. 1236, 10 L. Ed.

2d 383 (1963); Haynes v. United States, 873

F.3d 954, 956-57 (7th Cir. 2017) (citing

cases). In contrast, the district court here

expressly declined to order a resentencing

hearing and instead imposed a sentence of

time [*4] served, effective immediately.

This completed the § 2255 proceeding and

was thus a final order conferring jurisdiction

on this court. See Andrews, 373 U.S. at 33940; United States v. Hadden, 475 F.3d 652,

663 (4th Cir. 2007) HN3[ ] ("[A] district

court's order that either enters the result of a

resentencing or corrects the prisoner's

sentence completes the § 2255 proceeding

and is therefore immediately appealable.").

HN4[ ] We review the district court's order

de novo. See Davis v. United States, 900

F.3d 733, 735 (6th Cir. 2018), cert. denied,

139 S. Ct. 1374, 203 L. Ed. 2d 612 (2019).

McKinney argues that his aggravated

burglary conviction should no longer count

as an ACCA predicate because the

Tennessee courts define the entry element

of the state's burglary statutes more broadly

than generic burglary by including

intrusions by instrument that are the

functional equivalent of attempted burglary.

But as the government argues — and we

recently held —HN5[ ] Nance "is once

again the law of this circuit." Brumbach v.

United States, 929 F.3d 791, 794 (6th Cir.

2019). Accordingly, even if there were

merit to McKinney's argument, a panel of

this court cannot overrule Nance's holding

that a Tennessee conviction for aggravated

burglary is a violent felony for purposes of

the ACCA. See id. Rather, that "can only be

done by an 'inconsistent decision' of the

Supreme Court or, like we did briefly with

Stitt I, a decision of the en banc court." Id.

(quoting Salmi v. Sec'y of Health & Human

Page 5 of 5

McKinney v. United States

Servs., 774 F.2d 685, 689 (6th Cir. 1985)).1

For these reasons, we REVERSE the

district court's grant of § 2255 relief and

REMAND with instructions to reinstate the

original sentence. McKinney's motion to

supplement his brief is DENIED.

End of Document

1 McKinney

briefly asserts without development that Tennessee

aggravated burglary sweeps more broadly than generic burglary

because it does not contain an element of criminal intent at the time

of entry, but that argument is also foreclosed by binding precedent.

See United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017)

(citing United States v. Priddy, 808 F.3d 676, 684-85 (6th Cir.

2015)); see also [*5] Quarles v. United States, 139 S. Ct. 1872,

1880, 204 L. Ed. 2d 200 (2019).

No Shepard’s Signal™

As of: October 29, 2019 3:54 PM Z

United States v. Ammons

United States Court of Appeals for the Sixth Circuit

October 25, 2019, Decided

17-5920 ) 17-5922 ) TENNESSEE

Reporter

2019 U.S. App. LEXIS 32243 *

UNITED STATES OF AMERICA,

Plaintiff-Appellant, v. LARRY EUGENE

AMMONS, Defendant-Appellee. LARRY

EUGENE AMMONS, Petitioner-Appellee,

v. UNITED STATES OF AMERICA,

Respondent-Appellant.

Notice: Decision text below is the first

available text from the court; it has not been

editorially reviewed by LexisNexis.

Publisher's editorial review, including

Headnotes, Case Summary, Shepard's

analysis or any amendments will be added

in accordance with LexisNexis editorial

guidelines.

Opinion

[*1]

THE UNITED

COURT FOR

DISTRICT OF

ON APPEAL FROM

STATES DISTRICT

THE WESTERN

ORDER

Before: KETHLEDGE,

MURPHY, Circuit Judges.

BUSH,

and

In these consolidated cases, the government

appeals a district court judgment granting

relief under 28 U.S.C. § 2255 to Larry

Eugene Ammons from his enhanced

sentence under the

Armed Career Criminal Act ("ACCA") (No.

17-5922) and the amended judgment

entered in his

Nos. 17-5920/5922

-2criminal case (No. 17-5920). The parties

have waived oral argument, and this panel

unanimously agrees that oral argument is

not needed. See Fed. R. App. P. 34(a).

The district court sentenced Ammons as an

armed career criminal to 215 months of

imprisonment followed by 3 years of

supervised release after he was convicted by

a jury of five counts of being a felon in

possession of a firearm, in violation of 18

U.S.C. § 922(g). United Statesv. Ammons,

No. 2:06-cr-20062 (W.D. Tenn. Dec. 22,

2008). We affirmed his conviction and

sentence, United States v. Ammons, 419 F.

App'x 550, 551 (6th Cir. 2011), and

declined to issue a certificate of

appealability from the denial of his first §

2255 motion, Ammons v. United States, No.

14-5426 (6th Cir. Aug. 14, 2014) (order).

Page 2 of 3

2019 U.S. App. LEXIS 32243, *1

Subsequently, this court granted Ammons

leave to file a second or successive [*2] §

2255 motion and transferred the application

to the district court for consideration. In re

Ammons, No. 16-5862 (6th Cir. Dec. 28,

2016) (order).

aggravated burglary statute was not

rendered overly broad by its coverage of

mobile structures "designed or adapted for

overnight use." Id. at 407. The government

now argues that, in light of the Supreme

Court's decision in Stitt II, Ammons is no

longer entitled to relief under § 2255 and

Ammons then filed a successive § 2255 that the case should be remanded for

motion, arguing that, in light of the reinstatement of Ammons's original

Supreme

Nos. 17-5920/5922

Court's decision in Johnson v. United States,

135 S. Ct. 2551 (2015), his Tennessee - 3 conviction for aggravated burglary no

sentence. Ammons does not dispute that he

longer qualified as an enumerated offense

is no longer entitled to relief based on Stitt I

under the ACCA. While the § 2255 motion

but argues that (1) the entry element of

was pending, we overruled prior circuit

Tennessee's burglary statutes is defined

precedent, see United States v. Nance, 481

more broadly than the entry element of

F.3d 882 (6th Cir. 2007), and held that a generic burglary; and (2) Tennessee's

conviction under Tennessee's aggravated burglary statutes are overly broad because

burglary statute did not qualify as an ACCA their "remaining in" variants do not require

predicate offense because the statute swept the perpetrator to have the intent to commit

more broadly than generic burglary by a crime at the time of entry.

including habitable vehicles and movable

We review the district court's determination

enclosures. United States v. Stitt, 860 F.3d

of whether a predicate offense qualifies as a

854, 858 (6th Cir. 2017) (en banc) ("Stitt violent felony de novo. See Davis v. United

I"). Based on that decision, the district court States, 900 F.3d 733, 735 (6th Cir. 2018),

granted Ammons's § 2255 motion and cert. denied, 139 S. Ct. 1374 (2019).

resentenced him to time served followed by Ammons first argues that his aggravated

3 years of supervised release.

burglary conviction should no longer count

The government appealed both the grant of

§ 2255 relief and the amended judgment,

and briefing was held in abeyance pending

the Supreme Court's decision in United

States v. Stitt, 139

as an

ACCA predicate offense because Tennessee

courts define the entry element of the state's

burglary statutes more broadly than generic

burglary by including intrusions by

S. Ct. 399 (2018) ("Stitt II"). In Stitt II, the instrument that are [*4] the functional

Supreme Court reversed this court's equivalent of attempted burglary. But as the

decision, holding that [*3] Tennessee's government argues-and we recently heldNance "is once again the law of this circuit."

Page 3 of 3

2019 U.S. App. LEXIS 32243, *4

Brumbach v. United States, 929 F.3d 791,

794 (6th Cir. 2019). Accordingly, even if

there were merit to Ammons's argument, "a

panel of this court cannot overrule" Nance's

holding that a Tennessee conviction for

aggravated burglary is a violent felony for

purposes of the ACCA. Id. at 795. Rather,

that "can only be done by an

'inconsistent decision' of the Supreme Court

or, like we did briefly with Stitt I, a decision

of the en banc court." Id. (quoting Salmi v.

Sec'y of Health & Human Servs., 774 F.2d

685, 689 (6th Cir. 1985)).

Ammons's second argument, that that the

"remaining in" variants of Tennessee's

burglary statutes are broader than generic

burglary because they do not contain an

element of criminal intent at the time of

entry, is also foreclosed by binding

precedent. See United States v. Ferguson,

868 F.3d 514, 515 (6th Cir. 2017) (citing

United States v. Priddy, 808 F.3d 676, 68485 (6th Cir. 2015)); see also Quarles v.

United States, 139 S. Ct. 1872, 1880 (2019).

Nos. 17-5920/5922

-4For these reasons, we REVERSE the

district court's grant of § 2255 relief and

REMAND with instructions to reinstate the

original sentence. Additionally, we DENY

the motion to supplement.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

End of Document

No Shepard’s Signal™

As of: October 29, 2019 3:55 PM Z

Lemons v. United States

United States Court of Appeals for the Sixth Circuit

October 25, 2019, Decided

17-5945 ) 17-5947 )

Reporter

2019 U.S. App. LEXIS 32244 *

MICHAEL R. LEMONS, PetitionerAppellee, v. UNITED STATES OF

AMERICA, Respondent-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellant, v. MICHAEL R.

LEMONS, Defendant-Appellee.

aside,

or correct his sentence under 28 U.S.C. §

2255 filed by Michael R. Lemons, a federal

prisoner

represented by counsel. (No. 17-5945). It

also appeals the amended judgment imposed

Notice: Decision text below is the first following

available text from the court; it has not been

editorially reviewed by LexisNexis. Nos. 17-5945/5947

Publisher's editorial review, including

-2Headnotes, Case Summary, Shepard's

analysis or any amendments will be added the grant of § 2255 relief. (No. 17-5947).

in accordance with LexisNexis editorial The parties have waived oral argument, and

guidelines.

this panel unanimously agrees that oral

argument is not needed. See Fed. R. App. P.

Opinion

34(a).

In 2009, Lemons pleaded guilty to being a

felon in possession of a firearm, in violation

[*1]

ON APPEAL FROM of 18 U.S.C. § 922(g). The district court

THE UNITED

STATES DISTRICT found that he was an armed career criminal

COURT FOR

THE WESTERN under the Armed

DISTRICT OF TENNESSEE

Career Criminal Act ("ACCA") based on

three prior Tennessee convictions for

ORDER

aggravated burglary. The district court

Before: KETHLEDGE, BUSH, and therefore sentenced him, pursuant to 18

MURPHY, Circuit Judges.

U.S.C. § 924(e), to 180 months of

The United States appeals the district court's imprisonment and 3 years of supervised

order granting the motion to vacate, set release. This court affirmed. United States v.

Page 2 of 3

2019 U.S. App. LEXIS 32244, *1

Lemons,

Ct. 399, 407 (2018) ("Stitt II").

480 F. App'x 400, 405 (6th Cir. 2012).

Lemons's appeal has been reopened and the

government argues that, in light of the

Supreme Court's decision, [*3] this court

should reverse the district court's grant of

Lemons's motion and remand to the district

court to reinstate the original sentence. In

response, Lemons claims for the first time

on appeal that Tennessee aggravated

burglary does not qualify as a predicate

offense

In June 2016, Lemons filed a motion to

vacate, arguing that his aggravated-burglary

convictions no longer qualified as

predicate [*2] offenses in light of Johnson

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

and United States v. Stitt, a then-pending

appeal before the en banc court. After the en

banc court overruled United States v.

Nance, 481 F.3d 882 (6th Cir. 2007), and

held that aggravated burglary in Tennessee,

see Tenn. Code Ann. §§ 39-14-401, 39-14402, 39-14-403, does not qualify as a

violent felony pursuant to § 924(e)(2)(B)(ii)

due to the overbreadth of its definition of a

"habitation," United States v. Stitt, 860 F.3d

854, 862 (2017) (en banc) ("Stitt I"),

Lemons filed a motion requesting an

immediate

ruling.

The

government

conceded that Lemons was entitled to relief

if the decision in Stitt I stood but preserved

its argument that Stitt I was wrongly

decided and might be overturned by the

Supreme Court. The district court then

granted the motion to vacate and

resentenced Lemons to time served,

followed by 2 years of supervised release.

The government appealed, and this court

ordered the appeal held in abeyance pending

the Supreme

Court's evaluation of Stitt I. The Supreme

Court eventually granted the petition and

reversed this court's decision, holding that

Tennessee's aggravated burglary statute was

not rendered overly broad by its coverage of

mobile structures "designed or adapted for

overnight use." United Statesv. Stitt, 139 S.

Nos. 17-5945/5947

-3because Tennessee's interpretation of

"entry" creates an overbroad definition

when compared to

generic burglary. Lemons also moves to

supplement his brief to raise yet another

new argument.

We review the district court's decision de

novo. See Davis v. United States, 900 F.3d

733,

735 (6th Cir. 2018), cert. denied, 139 S. Ct.

1374 (2019).

Lemons argues that his aggravated burglary

conviction should no longer count as an

ACCA

predicate because the Tennessee courts

define the entry element of the state's

burglary statutes

more broadly than generic burglary by

including intrusions by instrument that are

the functional

Page 3 of 3

2019 U.S. App. LEXIS 32244, *3

equivalent of attempted burglary. But as the burglary because it does not contain an

government argues-and we recently held- element of criminal intent at the time of

Nance

entry, but that argument is also foreclosed

by binding precedent. See United States

"is once again the law of this circuit." v.Ferguson, 868 F.3d 514, 515 (6th Cir.

Brumbach v. United States, 929 F.3d 791, 2017) (citing United States v. Priddy, 808

794 (6th Cir.

F.3d 676, 684-85 (6th Cir. 2015)); see also

2019). Accordingly, even if there were Quarles v. United States, 139 S. Ct. 1872,

merit to Lemons's argument, a panel of this 1880 (2019).

court cannot

overrule Nance's holding that a Tennessee

conviction for aggravated burglary is a

violent felony

for purposes of the [*4] ACCA. See id. at

795. Rather, that "can only be done by an

'inconsistent

decision' of the Supreme Court or, like we

did briefly with Stitt I, a decision of the en

banc court."

Id. (quotingSalmi v. Sec'y of Health &

Human Servs., 774 F.2d 685, 689 (6th Cir.

1985)).1

For these reasons, we REVERSE the

district court's grant of § 2255 relief and

REMAND

with instructions to reinstate the original

sentence. Lemons's motion to supplement

his brief is

DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

1Lemons

briefly

questions

without

development whether Tennessee aggravated

burglary sweeps more broadly than generic

End of Document

No Shepard’s Signal™

As of: October 25, 2019 8:40 PM Z

United States v. Roberts

United States Court of Appeals for the Sixth Circuit

August 23, 2019, Filed

No. 17-6412

Reporter

2019 U.S. App. LEXIS 25500 *

UNITED STATES OF AMERICA,

Plaintiff-Appellant, v. MICHAEL

ROBERTS, Defendant-Appellee.

Notice: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS

REPRODUCED.

Judges: Before: GUY, COOK, and

GRIFFIN, Circuit Judges.

Opinion

ORDER

The United States appeals the district court's

amended judgment following the district

court's order granting the motion to vacate,

set aside, or correct sentence under 28

U.S.C. § 2255 filed by Michael Roberts, a

federal prisoner represented by counsel. The

parties have waived oral argument, and this

panel unanimously agrees that oral

Prior History: [*1] ON APPEAL FROM argument is not needed. See Fed. R. App. P.

THE UNITED STATES DISTRICT 34(a).

COURT FOR THE WESTERN DISTRICT In 2012, Roberts pleaded guilty to being a

OF TENNESSEE.

felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g). The district court

Counsel: For United States of America,

Plaintiff - Appellant: Annie Tauer Christoff, found that he was an armed career criminal

Office of the U.S. Attorney, Memphis, TN. under the Armed Career Criminal Act

("ACCA") based on prior Tennessee

For Michael Roberts, Defendant - Appellee: convictions for aggravated burglary,

Tyrone Jemal Paylor, Federal Public

burglary, and selling a controlled substance.

Defender, Memphis, TN.

The district court therefore sentenced him,

pursuant to 18 U.S.C. § 924(e), to 140

Page 2 of 3

United States v. Roberts

months of imprisonment and 2 years of Ed. 2d 364 (2018) ("Stitt II").

supervised release. Roberts did not appeal.

In light of the Supreme Court's decision, the

In June 2016, Roberts filed a motion to government argues that this court should

vacate [*2] arguing that his aggravated- reverse the district court's grant of Roberts's

burglary conviction no longer qualified as a motion and remand to the district court to

predicate offense in light of Johnson v. reinstate the original sentence. In response,

United States, 135 S. Ct. 2551, 192 L. Ed. Roberts claims for the first time on appeal

2d 569 (2015), and United States v. Stitt, a that Tennessee aggravated burglary does not

then-pending appeal before the en banc qualify as a predicate offense because

court. After the en banc court overruled Tennessee's interpretations of "entry" and

United States v. Nance, 481 F.3d 882 (6th "contemporaneous intent" create an

Cir. 2007), and held that aggravated overbroad definition when compared to

burglary in Tennessee, see Tenn. Code Ann. generic burglary.

§§ 39-14-401, 39-14-402, 39-14-403, does

We review the district court's decision de

not qualify as a violent felony pursuant to §

novo. See Davis v. United States, 900 F.3d

924(e)(2)(B)(ii) due to the overbreadth of its

definition of a "habitation," United States v. 733, 735 (6th Cir. 2018), cert. denied, 139

S. Ct. 1374, 203 L. Ed. 2d 612 (2019).

Stitt, 860 F.3d 854 (2017) (en banc) ("Stitt

I"), Roberts filed a motion to set a Roberts first argues that his aggravated

resentencing hearing. The government burglary conviction should no longer count

conceded that Roberts was entitled to relief as an ACCA predicate because the

if the decision in Stitt I stood, but preserved Tennessee courts define the entry element

its argument that Stitt I was wrongly of the state's burglary statutes more broadly

decided and might be overturned by the than generic burglary by including

Supreme Court. The district court then intrusions by instrument that are the

granted the motion to vacate and functional equivalent of attempted burglary.

resentenced Roberts to 85 months of But as the government argues—and we

imprisonment and 2 years of supervised recently held—Nance "is once again the law

release. The government appealed the of this circuit." Brumbach v. United States,

resentencing, and this court ordered the 929 F.3d 791, 794 (6th Cir. 2019).

appeal held in abeyance pending the Accordingly, even if there were merit to

Supreme Court's evaluation of Stitt I. On Roberts's argument, a panel of this court

December 10, 2018, the Supreme Court cannot overrule Nance's holding that a

issued its decision, holding that burglary of Tennessee conviction for aggravated

a structure or vehicle that has been adapted burglary is a violent felony for purposes of

or is customarily used for overnight the ACCA. [*4] See id. Rather, that "can

accommodation qualifies as the enumerated only be done by an 'inconsistent decision' of

violent felony of burglary for purposes the Supreme Court or, like we did briefly

of [*3] 18 U.S.C. § 924(e)(2)(B)(ii). United with Stitt I, a decision of the en banc court."

States v. Stitt, 139 S. Ct. 399, 403-04, 202 L.

Page 3 of 3

United States v. Roberts

Id. at 795 (quoting Salmi v. Sec'y of Health

& Human Servs., 774 F.2d 685, 689 (6th

Cir. 1985)).

Roberts's second argument—that the

"remaining in" variants of Tennessee's

burglary statutes are broader than generic

burglary because they do not contain an

element of criminal intent at the time of

entry—is also foreclosed by binding

precedent. See United States v. Ferguson,

868 F.3d 514, 515 (6th Cir. 2017) (citing

United States v. Priddy, 808 F.3d 676, 68485 (6th Cir. 2015)), cert. denied, 139 S. Ct.

2712, 2019 WL 2493932 (U.S. June 17,

2019) (No. 17-7496); see also Quarles v.

United States, 139 S. Ct. 1872, 1880, 204 L.

Ed. 2d 200 (2019).

Accordingly, we REVERSE the district

court's amended judgment and order

granting the motion to vacate and

REMAND to the district court with

instructions to reinstate Roberts's original

sentence.

End of Document

No Shepard’s Signal™

As of: October 29, 2019 3:57 PM Z

United States v. Roberts

United States Court of Appeals for the Sixth Circuit

October 25, 2019, Filed

No. 17-6412

Reporter

2019 U.S. App. LEXIS 32240 *

UNITED STATES OF AMERICA,

Plaintiff-Appellant, v. MICHAEL

ROBERTS, Defendant-Appellee.

Counsel: [*1] For United States of

America, Plaintiff - Appellant: Annie Tauer

Christoff, Office of the U.S. Attorney,

Memphis, TN.

For Michael Roberts, Defendant - Appellee:

Tyrone Jemal Paylor, Federal Public

Defender, Memphis, TN.

Judges: BEFORE: GUY, COOK, and

GRIFFIN, Circuit Judges.

Opinion

ORDER

The court received a petition for rehearing

en banc. The original panel has reviewed

the petition for rehearing and concludes that

the issues raised in the petition were fully

considered upon the original submission

and decision of the case. The petition then

was circulated to the full court. No judge

has requested a vote on the suggestion for

rehearing en banc.

Therefore, the petition is denied.

End of Document

No Shepard’s Signal™

As of: October 31, 2019 2:19 PM Z

United States v. Merriweather

United States Court of Appeals for the Sixth Circuit

October 29, 2019, Decided

No.18-5567

Reporter

2019 U.S. App. LEXIS 32520 *

Armed Career Criminal Act (ACCA). The

parties have waived oral argument, and this

panel unanimously agrees that oral

argument is not needed. See Fed. R. App. P.

Notice: Decision text below is the first 34(a).

available text from the court; it has not been

editorially reviewed by LexisNexis. After pleading guilty to being a felon in

Publisher's editorial review, including possession of ammunition, in violation of

Headnotes, Case Summary, Shepard's 18 U.S.C. § 922(g), Merriweather was

analysis or any amendments will be added sentenced as an armed career criminal to

in accordance with LexisNexis editorial 180 months in prison. He did not appeal.

guidelines.

Merriweather later filed his § 2255 motion

UNITED STATES OF AMERICA,

Plaintiff-Appellant, v. DARRYL

MERRIWEATHER, Defendant-Appellee.

challenging his armed career criminal

designation based on Johnson v. United

States, 135 S. Ct. 2551 (2015), on the

ground that his Tennessee aggravated

burglary and attempted aggravated burglary

[*1]

ON APPEAL FROM THE

convictions no longer qualified as violent

UNITED

STATES DISTRICT COURT

felonies for purposes of the ACCA, 18

FOR

THE WESTERN DISTRICT OF

U.S.C. § 924(e). While that § 2255 motion

TENNESSEE

was

ORDER

No. 18-5567

Before:

ROGERS,

WHITE,

and

-2STRANCH, Circuit Judges.

The government appeals the amended pending, we overruled circuit precedent, see

judgment resentencing Darryl Merriweather United States v. Nance, 481 F.3d 882 (6th

to sixty-two months in prison following an Cir. 2007), and held that a conviction under

order granting relief under 28 U.S.C. § 2255 Tennessee's aggravated burglary statute did

from his enhanced sentence under the not qualify as an

Opinion

Page 2 of 3

2019 U.S. App. LEXIS 32520, *1

ACCA predicate because the statute swept

more broadly than generic [*2] burglary by

including habitable vehicles and movable

enclosures. United States v. Stitt, 860 F.3d

854, 858 (6th Cir. 2017) (en banc) ("Stitt

I"). Based on that decision, the district court

granted Merriweather's § 2255 motion,

resentencing him to sixty-two months in

prison.

novo. See Davis v. United States, 900 F.3d

733, 735 (6th Cir. 2018), cert. denied, 139

S. Ct. 1374 (2019).

Merriweather first argues that his

aggravated

burglary

and

attempted

aggravated burglary convictions should no

longer count as ACCA predicates because

the Tennessee courts define the entry

element of the state's burglary statutes more

broadly than generic burglary by including

intrusions by instrument that are the

functional equivalent of attempted burglary.

But as the government argues-and we

recently held-Nance "is once again the law

of this circuit."

The government appealed, and we granted

its request to hold the case in abeyance

while it sought Supreme Court review in

Stitt. The Supreme Court granted certiorari

and reversed our decision in Stitt I, holding

that Tennessee's aggravated burglary statute

is not rendered overly broad by its coverage

of movable structures "designed or adapted Brumbach v. United States, 929 F.3d 791,

for overnight use." United Statesv. Stitt, 139 794 (6th Cir. 2019). Accordingly, even if

there were merit to Merriweather's

S. Ct. 399, 407 (2018) ("Stitt II").

argument, a panel of this court cannot

The government now argues that, in light of overrule Nance's holding that a

the Supreme Court's decision, Merriweather

is no longer entitled to relief from his No. 18-5567

ACCA sentence, so the district court's - 3 judgment should be vacated and the case

remanded for reinstatement of his original Tennessee conviction for aggravated

sentence. Merriweather does not dispute burglary is a violent felony for purposes of

that he is no longer entitled to relief based the ACCA. Seeid. at 794-95. Rather, that

on Stitt I but offers two alternative "can only be done by an 'inconsistent

arguments for why the district court's decision' of the Supreme Court or, like we

judgment should be affirmed: 1) the entry did briefly with Stitt I, a decision of the en

element of Tennessee's burglary statutes is banc court." Id. at 795 (quoting Salmi v.

defined more broadly than the entry element

Sec'y of Health & Human Servs., 774 F.2d

of generic burglary, and 2) Tennessee's

685, 689 (6th Cir. 1985)).

burglary statutes are overly [*3] broad

because their "remaining in" variants do not Merriweather's second argument-that the

require the perpetrator to have the intent to "remaining in" variants of Tennessee's

commit a crime at the time of entry.

burglary statutes are broader than

We review the district court's decision de generic [*4] burglary because they do not

contain an element of criminal intent at the

Page 3 of 3

2019 U.S. App. LEXIS 32520, *4

time of entry-is also foreclosed by binding

precedent. See United States v.Ferguson,

868 F.3d 514, 515 (6th Cir. 2017) (citing

United States v. Priddy, 808 F.3d 676, 68485 (6th Cir. 2015)); see also Quarles v.

United States, 139 S. Ct. 1872, 1880 (2019).

For these reasons, we VACATE the

amended judgment and REMAND with

instructions to reinstate the original

sentence. We also DENY Merriweather's

motion to supplement his appellate brief.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

End of Document

No Shepard’s Signal™

As of: November 1, 2019 6:29 PM Z

Hughes v. United States

United States Court of Appeals for the Sixth Circuit

October 30, 2019, Decided

No.17-5913

Reporter

2019 U.S. App. LEXIS 32585 *

RICHARD HUGHES, Petitioner-Appellee,

v. UNITED STATES OF AMERICA,

Respondent-Appellant.

entered in the criminal case. The parties

have waived oral argument, and this panel

unanimously agrees that oral argument is

not needed. See Fed. R. App. P. 34(a).

Notice: Decision text below is the first

available text from the court; it has not been

editorially reviewed by LexisNexis.

Publisher's editorial review, including

Headnotes, Case Summary, Shepard's

analysis or any amendments will be added

in accordance with LexisNexis editorial

guidelines.

After pleading guilty to being a felon in

possession of a firearm, in violation of 18

U.S.C. § 922(g), Hughes was sentenced as

an armed career criminal to 180 months in

prison. We affirmed that sentence. United

States v. Hughes, 458 F. App'x 427 (6th Cir.

2012) (unpublished).

Hughes later filed his § 2255 motion

challenging his armed career criminal

designation based on Johnson v. United

States, 135 S. Ct. 2551 (2015), on the

ground that his Tennessee

Opinion

[*1]

ON APPEAL FROM THE

UNITED

STATES DISTRICT COURT No. 17-5913

FOR

THE WESTERN DISTRICT OF

-2TENNESSEE

ORDER

Before:

ROGERS,

WHITE,

STRANCH, Circuit Judges.

and

The government appeals a district court

order granting relief under 28 U.S.C. § 2255

to Richard Hughes from his enhanced

sentence under the Armed Career Criminal

Act (ACCA) and the amended judgment

aggravated burglary conviction no longer

qualified as a violent felony for purposes of

the ACCA, 18 U.S.C. § 924(e). While that §

2255 motion was pending, we overruled

circuit precedent, seeUnited States v. Nance,

481 F.3d 882 (6th Cir. 2007), and held that

a conviction under Tennessee's aggravated

burglary statute did not qualify as an ACCA

predicate because the statute swept more

Page 2 of 3

2019 U.S. App. LEXIS 32585, *1

broadly than generic burglary by including

habitable [*2]

vehicles and movable

enclosures. UnitedStates v. Stitt, 860 F.3d

854, 858 (6th Cir. 2017) (en banc) ("Stitt

I"). Based on that decision, the district court

granted Hughes's § 2255 motion,

resentencing him to time served.

S. Ct. 1374 (2019).

Hughes' jurisdictional argument is without

merit. He claims that the court of appeals

lacks jurisdiction because the government

appealed from the civil judgment granting

his § 2255 motion rather than from the

amended judgment in his criminal case.

Hughes relies on Andrews v. UnitedStates,

which held that a judgment granting a

motion to vacate was not immediately

appealable where resentencing had yet to

take place. 373 U.S. at 339-40 (1963).

However, the jurisdictional issue in

Andrews is not present here, where the

district court entered simultaneous civil and

The government appealed, and we granted

its request to hold the case in abeyance

while it sought Supreme Court review in

Stitt. The Supreme Court granted certiorari

and reversed our decision in Stitt I, holding

that Tennessee's aggravated burglary statute

is not rendered overly broad by its coverage

of movable structures "designed or adapted

for overnight use." United Statesv. Stitt, 139

No. 17-5913

S. Ct. 399, 407 (2018) ("Stitt II").

The government now argues that, in light of - 3 the Supreme Court's decision, Hughes is no

longer entitled to relief from his ACCA

sentence, so the district court's judgment

should be reversed and the case remanded

for reinstatement of his original sentence.

Hughes does not dispute that he is no longer

entitled to relief based on Stitt I but offers

two alternative arguments for why the

district court's judgment should be affirmed:

1) the entry element of Tennessee's burglary

statutes is defined more broadly than the

entry element of generic burglary, and 2)

Tennessee's burglary statutes are overly

broad because their "remaining in" variants

do not require the [*3] perpetrator to have

the intent to commit a crime at the time of

entry.

criminal judgments after Hughes was

resentenced. Thus, by the time the

government appealed the civil judgment, the

habeas proceeding had become final.

Moreover, the civil judgment contained

Hughes' revised sentence and was therefore

substantively identical to its criminal

counterpart.

Even assuming the government appealed

from the wrong judgment, "a mistake in

designating the judgment appealed from is

not always fatal, so long as the intent to

appeal from a specific ruling can fairly be

inferred by probing [*4] the notice and the

other party was not misled or prejudiced."

Ramsey v. Penn Mut. Life Ins. Co., 787 F.3d

We review the district court's decision de

813, 819 (6th Cir. 2015) (brackets omitted)

novo. See Davis v. United States, 900 F.3d

(quoting

733, 735 (6th Cir. 2018), cert. denied, 139

Page 3 of 3

2019 U.S. App. LEXIS 32585, *4

Sanabria v. United States, 437 U.S. 54, 67

n.21 (1978)). The government's intent to

appeal the district court's amended criminal

judgment can "fairly be inferred" from its

appeal of the civil judgment. Accordingly,

the court has jurisdiction over this appeal.

868 F.3d 514, 515 (6th Cir. 2017) (citing

United States v. Priddy, 808 F.3d 676, 68485 (6th Cir. 2015)); see also Quarles v.

United States, 139 S. Ct. 1872, 1880 (2019).

No. 17-5913

Hughes first argues that his aggravated - 4 burglary conviction should no longer count For these reasons, we REVERSE the

as an

district court's grant of § 2255 relief and

REMAND with instructions to reinstate the

ACCA predicate because the Tennessee

original sentence. We also DENY Hughes's

courts define the entry element of the state's

motion to supplement his appellate brief.

burglary statutes more broadly than generic

burglary by including intrusions by ENTERED BY ORDER OF THE COURT

instrument that are the functional equivalent

of attempted burglary. But as the Deborah S. Hunt, Clerk

government argues-and we recently heldEnd of Document

Nance "is once again the law of this circuit."

Brumbach v. United States, 929 F.3d 791,

794 (6th Cir. 2019). Accordingly, even if

there were merit to Hughes's argument, a

panel of this court cannot overrule Nance's

holding that a Tennessee conviction for

aggravated burglary is a violent felony for

purposes of the ACCA. See id. at 794-95.

Rather, that "can only be done by an

'inconsistent decision' of the Supreme Court

or, like we did briefly with Stitt I, a decision

of the en banc court." Id. at 795 (quoting

Salmi v. Sec'y of Health & Human Servs.,

774 F.2d 685, 689 (6th Cir. 1985)).

Hughes's

second

argument-that

the

"remaining in" variants of Tennessee's

burglary [*5] statutes are broader than

generic burglary because they do not

contain an element of criminal intent at the

time of entry-is also foreclosed by binding

precedent. See United States v. Ferguson,

No Shepard’s Signal™

As of: October 31, 2019 2:17 PM Z

United States v. Justice

United States Court of Appeals for the Sixth Circuit

August 15, 2019, Filed

No. 17-6465

Reporter

2019 U.S. App. LEXIS 24497 *

UNITED STATES OF AMERICA,

Plaintiff-Appellant, v. AZAVIUS

SHONDALE JUSTICE, DefendantAppellee.

Notice: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS

REPRODUCED.

Judges: Before: KETHLEDGE, BUSH, and

MURPHY, Circuit Judges.

Opinion

ORDER

The government appeals the 72-month

sentence imposed by the district court after

Azavius Shondale Justice pled guilty to

violating 18 U.S.C. § 922(g) for being a

felon in possession of a firearm. The parties

have waived oral argument, and the panel

unanimously agrees that oral argument is

not needed. See Fed. R. App. P. 34(a).

The grand jury indicted Justice under §

Prior History: [*1] ON APPEAL FROM 922(g) after police officers saw him with a

THE UNITED STATES DISTRICT .38 caliber revolver tucked in his pants.

COURT FOR THE WESTERN DISTRICT Justice pled guilty. The probation officer

OF TENNESSEE.

reported that Justice had one prior felony

conviction in Tennessee for robbery and

Counsel: For United States of America,

three prior felony convictions in Tennessee

Plaintiff - Appellant: Kevin G. Ritz,

for aggravated burglary. Under the Armed

Assistant U.S. Attorney, Office of the U.S.

Career Criminal Act (ACCA), 18 U.S.C. §

Attorney, Memphis, TN.

924(e)(1), a defendant who violates §

For Azavius Shondale Justice, Defendant 922(g) and who has three or more prior

Appellee: Madelyn Dianne Smothers,

"violent felony" convictions must serve at

Federal Public Defender, Federal Public

least fifteen years in prison. When [*2]

Defender, Memphis, TN.

Justice came before the district court for

Page 2 of 3

2019 U.S. App. LEXIS 24497, *2

sentencing in December 2017, the law in

this circuit was that a conviction for

aggravated burglary in Tennessee was not a

"violent felony." See United States v. Stitt,

860 F.3d 854, 857 (6th Cir. 2017) (en banc)

(Stitt I). Thus, at the time of sentencing,

Justice did not qualify for an ACCA

sentence. The district court sentenced

Justice to 72 months of imprisonment

pursuant to the United States Sentencing

Guidelines and 18 U.S.C. § 3553(a). The

government noted that it had petitioned the

United States Supreme Court to review our

decision in Stitt I, but it did not object to

Justice's sentence.

Justice's aggravated-burglary convictions

were not ACCA predicate offenses under

the law of this circuit when he was

sentenced. The district court thus

understandably concluded that Justice was

not eligible for an ACCA sentence. But the

law changed while the government's appeal

was pending, so that Justice's three

aggravated-burglary convictions are now

ACCA predicates. See Stitt II, 139 S. Ct. at

405-08. "[A]n appellate court must apply

the law in effect at the time it renders its

decision." Henderson v. United States, 568

U.S. 266, 271, 133 S. Ct. 1121, 185 L. Ed.

2d 85 (2013) (quoting Thorpe v. Hous.

Auth. of Durham, 393 U.S. 268, 281, 89 S.

Ct. 518, 21 L. Ed. 2d 474 (1969)). The

district court's decision not to impose an

ACCA sentence was therefore a plain error,

even though the error did not become plain

until the case was on appeal. See id. at 27374, 279.

The government appealed, arguing that the

district court erred in not sentencing Justice

under the ACCA. While the government's

appeal was pending, the Supreme Court

reversed Stitt I, holding that Tennessee's

aggravated burglary statute is not broader

than generic burglary, and therefore that it is

a "violent felony" under the ACCA. See This case satisfies the remaining elements

United States v. Stitt, 139 S. Ct. 399, 405- of plain-error review. The district court's

08, 202 L. Ed. 2d 364 (2018) (Stitt II).

error affects the government's substantial

rights because, absent the error, Justice

Because the government did not object to would have been sentenced under the

the district court's decision not to sentence ACCA. See United States v. Barajas-Nunez,

Justice under the ACCA, we review for 91 F.3d 826, 833 (6th Cir. 1996) (holding

plain error. See United States v. Vonner, 516 that an error affects the government's

F.3d 382, 385 (6th Cir. 2008) (en banc). To substantial rights if it affected the outcome

establish plain error, the government must of the district court proceedings). And the

show an error, that is obvious or clear, and error affects the fairness, integrity, and

that affects its substantial rights and [*3] public reputation of the [*4] judicial

the fairness, integrity, or public reputation proceedings because Justice's non-ACCA

of the judicial proceedings. See id. at 386. sentence is illegal. See id. ("Permitting

Correcting a plain error is discretionary. See sentencing courts to disregard governing

United States v. Graham, 275 F.3d 490, 521 law would diminish the integrity and public

(6th Cir. 2001).

reputation of the judicial system.").

Page 3 of 3

2019 U.S. App. LEXIS 24497, *4

Consequently, we exercise our discretion to

correct the district court's plain error.

Justice argues we should affirm his sentence

despite the plain error on that ground that

the Tennessee burglary statute is broader

than generic burglary because it also treats

attempted burglary as a completed burglary.

We are bound, however, by Stitt II and prior

circuit decisions holding that the Tennessee

statute qualifies as an ACCA predicate. See

Brumbach v. United States, 929 F.3d 791,

792 (6th Cir. 2019).

Accordingly, we VACATE Justice's

sentence and REMAND this case to the

district court for resentencing proceedings

consistent with this order.

End of Document

No Shepard’s Signal™

As of: November 4, 2019 2:55 PM Z

United States v. Justice

United States Court of Appeals for the Sixth Circuit

October 31, 2019, Filed

No. 17-6465

Reporter

2019 U.S. App. LEXIS 32752 *

UNITED STATES OF AMERICA,

Plaintiff-Appellant, v. AZAVIUS

SHONDALE JUSTICE, DefendantAppellee.

Counsel: [*1] For United States of

America, Plaintiff - Appellant: Kevin G.

Ritz, Assistant U.S. Attorney, Office of the

U.S. Attorney, Western District of

Tennessee, Memphis, TN.

For Azavius Shondale Justice, Defendant Appellee: Madelyn Dianne Smothers,

Federal Public Defender, Federal Public

Defender, Memphis, TN.

Judges: BEFORE: KETHLEDGE, BUSH,

and MURPHY, Circuit Judges.

Opinion

ORDER

The court received a petition for rehearing

en banc. The original panel has reviewed

the petition for rehearing and concludes that

the issues raised in the petition were fully

considered upon the original submission

and decision of the case. The petition then

was circulated to the full court. No judge

has requested a vote on the suggestion for

rehearing en banc.

Therefore, the petition is denied.

End of Document

Neutral

As of: October 31, 2019 2:16 PM Z

United States v. Keglar

United States Court of Appeals for the Sixth Circuit

August 15, 2019, Filed

Nos. 17-6021/6113

Reporter

2019 U.S. App. LEXIS 24498 *

UNITED STATES OF AMERICA,

Plaintiff-Appellant, v. KEITH KEGLAR

(17-6021), Defendant-Appellee. KEITH

KEGLAR, Petitioner-Appellee, v. UNITED

STATES OF AMERICA (17-6113),

Respondent-Appellant.

Counsel: For Keith Keglar (17-6113, 176021), Petitioner - Appellee: Mary C.

Jermann-Robinson, Assistant Federal Public

Defender, Federal Public Defender, Federal

Defender, Memphis, TN.

Notice: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS

REPRODUCED.

Judges: Before: KETHLEDGE, BUSH, and

MURPHY, Circuit Judges.

Prior History: [*1] ON APPEAL FROM

THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF TENNESSEE.

United States v. Keglar, 535 Fed. Appx.

494, 2013 U.S. App. LEXIS 20598 (6th

Cir.), 2013 FED App. 873N (6th Cir.) (6th

Cir. Tenn., Oct. 7, 2013)

For United States of America (17-6113, 176021), Respondent - Appellant: Naya

Bedini, Office of the U.S. Attorney,

Western District of Tennessee, Memphis,

TN.

Opinion

ORDER

The United States appeals the district court's

judgments in these consolidated cases

granting petitioner Keith Keglar's motion to

vacate, set aside, or correct his sentence

under 28 U.S.C. § 2255 and resentencing

him to 120 months of imprisonment. The

parties have waived oral argument, and the

panel unanimously agrees that oral

argument is not needed. See Fed. R. App. P.

34(a).

Page 2 of 3

2019 U.S. App. LEXIS 24498, *1

In 2012, a jury convicted Keglar of being a

felon in possession of a firearm, in violation

of 18 U.S.C. § 922(g). The district court

determined that Keglar was subject to a

fifteen-year mandatory minimum sentence

under the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e), because he had

three or more prior "violent felony"

convictions in Tennessee, specifically

aggravated burglary (two), aggravated

assault

(two), [*2]

and

attempted

aggravated burglary (one). The district court

sentenced Keglar to 235 months of

imprisonment, which was at the bottom of

the Sentencing Guidelines range. We

affirmed. See United States v. Keglar, 535

F. App'x 494 (6th Cir. 2013) (per curiam).

Keglar unsuccessfully moved to vacate his

sentence in 2014. See Keglar v. United

States, No. 2:14-cv-02180 (W.D. Tenn.

May 19, 2014) (order).

In December 2016, we gave Keglar

permission to file a second motion to vacate

in order to raise a claim that his aggravatedburglary and attempted aggravated-burglary

convictions no longer qualified as ACCA

predicate offenses in view of Johnson v.

United States, 135 S. Ct. 2551, 192 L. Ed.

2d 569 (2015). See In re Keglar, No. 165848 (6th Cir. Dec. 21, 2016) (order).1 The

district court then granted Keglar relief from

his sentence pursuant to our en banc

decision in United States v. Stitt, 860 F.3d

854, 858 (6th Cir. 2017) (Stitt I), which held

that Tennessee aggravated burglary is not an

ACCA predicate offense pursuant to Mathis

1 The

government conceded that Johnson invalidated Keglar's

attempted-aggravated-burglary conviction as an ACCA predicate.

See Keglar, No. 16-5848, slip op. at 2.

v. United States, 136 S. Ct. 2243, 195 L. Ed.

2d 604 (2016), because it is broader than

ACCA generic burglary. The district court

resentenced Keglar to 120 months of

imprisonment, the statutory maximum

sentence without the ACCA enhancement.

The government appeals Keglar's new

sentence in No. 17-6021. In No. 17-6113,

the government appeals the district court's

judgment granting Keglar's motion [*3] to

vacate. The clerk of court consolidated these

two cases for disposition.

We review de novo a district court's

conclusion that a prior conviction is an

ACCA predicate offense. See United States

v. Mitchell, 743 F.3d 1054, 1058 (6th Cir.

2014) (citing United States v. Benton, 639

F.3d 723, 729 (6th Cir. 2011)).

After the government filed the two appeals

at issue, the Supreme Court reversed our

decision in Stitt, holding that Tennessee's

aggravated burglary statute is not broader

than generic burglary, and therefore that it is

a "violent felony" under the ACCA. See

United States v. Stitt, 139 S. Ct. 399, 40508, 202 L. Ed. 2d 364 (2018) (Stitt II).

Consequently, the district court erred in

granting Keglar relief from his ACCA

sentence and resentencing him to 120

months of imprisonment. Keglar argues that

the Tennessee burglary statute is broader

than generic burglary because it also treats

attempted burglary as a completed burglary,

but we are bound by Stitt II and prior circuit

decisions holding that the statute qualifies

as an ACCA predicate. See Brumbach v.

United States, 929 F.3d 791, 792 (6th Cir.

2019).

Page 3 of 3

2019 U.S. App. LEXIS 24498, *3

Accordingly, we VACATE the district

court's judgments granting Keglar relief

from his ACCA sentence and resentencing

him to 120 months of imprisonment and

REMAND this case to the district court

with instructions to reinstate his original

sentence.

End of Document

No Shepard’s Signal™

As of: November 4, 2019 2:57 PM Z

United States v. Keglar

United States Court of Appeals for the Sixth Circuit

October 31, 2019, Filed

No. 17-6021/17-6113

Reporter

2019 U.S. App. LEXIS 32751 *

UNITED STATES OF AMERICA,

Plaintiff-Appellant, v. KEITH KEGLAR,

Defendant-Appellee.

Counsel: [*1] For United States of

America, Plaintiff - Appellant (17-6021):

Naya Bedini Office of the U.S. Attorney,

Western District of Tennessee, Memphis,

TN.

For Keith Keglar, Defendant - Appellee (176021): Mary C. Jermann-Robinson,

Assistant Federal Public Defender, Federal

Public Defender, Memphis, TN.

For Keith Keglar, Petitioner - Appellee (176113): Mary C. Jermann-Robinson,

Assistant Federal Public Defender, Federal

Public Defender, Memphis, TN.

For United States of America, Respondent Appellant (17-6113): Naya Bedini, Office

of the U.S. Attorney, Western District of

Tennessee, Memphis, TN.

Judges: BEFORE: KETHLEDGE, BUSH,

and MURPHY, Circuit Judges.

Opinion

ORDER

The court received a petition for rehearing

en banc. The original panel has reviewed

the petition for rehearing and concludes that

the issues raised in the petition were fully

considered upon the original submission

and decision of the cases. The petition then

was circulated to the full court. No judge

has requested a vote on the suggestion for

rehearing en banc.

Therefore, the petition is denied.

End of Document

No Shepard’s Signal™

As of: November 5, 2019 8:26 PM Z

Bohannon v. United States

United States Court of Appeals for the Sixth Circuit

November 04, 2019, Decided

No.17-5962

Reporter

2019 U.S. App. LEXIS 33019 *

TIMOTHY WAYNE BOHANNON,

Petitioner-Appellee, v. UNITED STATES

OF AMERICA, Respondent-Appellant.

unanimously agrees that oral argument is

not needed. See Fed. R. App. P. 34(a).

In 2008, a jury convicted Bohannon of two

counts of being a felon in possession of a

firearm. Because he had four prior

convictions of aggravated burglary in

Tennessee state courts, he was sentenced

under the Armed Career Criminal Act

(ACCA) to 180 months of imprisonment.

Notice: Decision text below is the first

available text from the court; it has not been

editorially reviewed by LexisNexis.

Publisher's editorial review, including

Headnotes, Case Summary, Shepard's

analysis or any amendments will be added

in accordance with LexisNexis editorial In his motion to vacate, Bohannon argued

guidelines.

that his prior aggravated burglary

convictions in Tennessee did not qualify as

Opinion

violent felonies under the ACCA. Based on

our decision in UnitedStates v. Stitt, 860

F.3d 854, 858 (6th Cir. 2017) (en banc), the

district court granted the motion. The

[*1]

ON APPEAL FROM THE judgment in the criminal case was amended

UNITED

STATES DISTRICT COURT to sentence Bohannon to time served. This

FOR

THE WESTERN DISTRICT OF appeal followed. It was held in abeyance

TENNESSEE

pending the Supreme Court's consideration

of Stitt, which it reversed in United States v.

ORDER

Stitt, 139 S. Ct. 399, 406 (2018). The

Before:

ROGERS,

WHITE,

and government's brief requests that

STRANCH, Circuit Judges.

No. 17-5962

The United States appeals a district court

judgment granting Timothy Wayne - 2 Bohannon's motion to vacate his sentence the district court's order be vacated. [*2]

under 28 U.S.C. § 2255. The parties have Bohannon has raised new claims arguing

waived oral argument, and this panel that his aggravated burglary convictions do

Page 2 of 3

2019 U.S. App. LEXIS 33019, *2

not qualify under the ACCA because the

Tennessee law defines the entry of a

habitation to include an entry by an

instrument not intended to be used to

commit a felony, and because intent may be

formed while remaining in a building rather

than at the time of entry. Bohannon also

argues that we lack jurisdiction over the

appeal because the government did not

appeal the amended judgment in the

criminal case.

"designate the judgment, order, or part

thereof being appealed."

Bohannon's jurisdictional argument is

without merit. He claims that the court of

appeals lacks jurisdiction because the

government appealed from the civil

judgment granting his § 2255 motion rather

than from the amended judgment in his

criminal case. Bohannon relies on

Andrewsv. United States, which held that a

judgment granting a motion to vacate was

not

immediately

appealable

where

resentencing had yet to take place. 373 U.S.

at

339-40

(1963).

However,

the

jurisdictional issue in Andrews is not

present here, where the district court entered

simultaneous civil and criminal judgments

after Bohannon was resentenced. Thus, by

the time the government appealed the

civil [*3] judgment, the habeas proceeding

had become final. Even assuming the

government's notice of appeal identified the

wrong judgment and is technically deficient,

it is nevertheless sufficient to comply with

Federal Rule of Appellate Procedure 3(c).

That rule requires would-be appellants to

In United States v. Nance, 481 F.3d 882,

888 (6th Cir. 2007), we held that

Tennessee's aggravated burglary statute

constituted a violent felony for purposes of

the ACCA. See UnitedStates v. Priddy, 808

F.3d 676, 684 (6th Cir. 2015). Our decision

in Stitt, overruling Nance, has

Fed. R. App. P. 3(c)(1)(B). "An appeal

referencing an order that directs entry of

judgment in a case is a sufficient equivalent

to appealing the judgment itself." Caudill v.

Hollan, 431 F.3d 900,

905 (6th Cir. 2005). By appealing the

district court's civil judgment, which

provided that "an amended judgment shall

We review the district court's decision de be entered in [the] criminal file," the

novo. Davis v. United States, 900 F.3d 733, government effectively appealed the

735 (6th Cir. 2018), cert. denied, 139 S. Ct. criminal judgment. Accordingly, the court

has jurisdiction over this appeal.

1374 (2019).

No. 17-5962

-3now been reversed by the Supreme Court,

and Nance is once again the law of this

circuit.

Brumbach v. United States, 929 F.3d 791,

794 (6th Cir. 2019).

Bohannon's new arguments were not

presented in the district court and are not

properly before the court. See Weinberger v.

United States, 268 F.3d 346, 352 (6th Cir.

2001). In any event, a panel of this court

cannot overrule Nance's holding. See

Brumbach, 929 F.3d at 795;

Page 3 of 3

2019 U.S. App. LEXIS 33019, *3

United States v. Elbe, 774 F.3d 885, 891

(6th Cir. 2014). Also, the Supreme Court

has [*4] now held that criminal intent for

burglary can be formed at any time while

unlawfully remaining in a building. Quarles

v. United States, 139 S. Ct. 1872, 1880

(2019).

Accordingly, we VACATE the district

court's judgment and REMAND this matter

for further proceedings. Bohannon's motion

to file a supplemental brief is DENIED.

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk

End of Document

Temporarily unable to receive Shepard’s

As of: November 14, 2019 4:32 PM Z

Signal™

Bearden v. United States

United States Court of Appeals for the Sixth Circuit

November 6, 2019, Filed

No. 17-5927

Reporter

2019 U.S. App. LEXIS 33528 *

LEO BEARDEN, Petitioner-Appellee, v.

UNITED STATES OF AMERICA,

Respondent-Appellant.

Notice: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS

REPRODUCED.

Prior History: [*1] ON APPEAL FROM

THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF TENNESSEE.

case, a district court was instructed to

reinstate defendant's original sentence

because, while he argued that his aggravated

burglary conviction should no longer count

as an ACCA predicate because the

Tennessee courts defined the entry element

of the state's burglary statutes more broadly

then generic burglary, under the Nance

decision, his aggravated burglary was a

violent felony for purposes of the ACCA,

and his argument was foreclosed by

precedent that the "remaining in" variants of

Tennessee's burglary statutes were broader

than generic burglary because they did not

contain an element of criminal intent at the

time of entry, and his motion to supplement

his appellate briefs as denied since his new

claim was subject to the statutory

limitations placed on second or successive

28 U.S.C.S. § 2255 claims.

Outcome

Reversed and remanded, and motion denied.

Bearden v. United States, 2017 U.S. Dist.

LEXIS 116881 (W.D. Tenn., July 26, 2017)

LexisNexis® Headnotes

Case Summary

Overview

HOLDINGS: [1]-In a 28 U.S.C.S. § 2255

Criminal Law &

Procedure > ... > Appeals > Standards of

Page 2 of 5

2019 U.S. App. LEXIS 33528, *1

Review > De Novo Review

HN1[ ] Standards of Review, De Novo

Review

Criminal Law & Procedure > Habeas

Corpus > Procedural

Defenses > Successive Petitions

HN3[ ] Procedural Defenses, Successive

An appellate court reviews a district court's Petitions

decision to grant 28 U.S.C.S. § 2255 relief

de novo.

When a movant seeks to raise a new claim

after his 28 U.S.C.S. § 2255 motion has

been denied and is no longer pending before

Criminal Law &

the district court, that claim is second or

Procedure > ... > Sentencing

successive and is subject to the statutory

Guidelines > Adjustments &

limitations placed on second or successive

Enhancements > Armed Career

claims.

Criminals

Counsel: For Leo Bearden, Petitioner Governments > Courts > Judicial

Appellee: Tyrone Jemal Paylor, Federal

Precedent

Public Defender, Memphis, TN.

Criminal Law &

Procedure > ... > Adjustments &

Enhancements > Criminal

History > Prior Felonies

For United States of America, Respondent Appellant: Naya Bedini, Office of the U.S.

Attorney, Western District of Tennessee,

Memphis, TN.

Criminal Law & Procedure > ... > Theft

& Related Offenses > Burglary &

Criminal Trespass > Burglary

Judges: Before: MOORE, SUTTON, and

NALBANDIAN, Circuit Judges.

Opinion

HN2[ ] Adjustments & Enhancements,

Armed Career Criminals

A panel of the United States Court of

Appeals for the Sixth Circuit cannot

overrule the holding in the Nance decision

that a Tennessee conviction for aggravated

burglary is a violent felony for purposes of

the Armed Career Criminal Act. Rather, that

can only be done by an inconsistent decision

of the United States Supreme Court or a

decision of the en banc United States Court

of Appeals for the Sixth Circuit.

ORDER

The government appeals a district court

order granting relief under 28 U.S.C. § 2255

to Leo Bearden from his enhanced sentence

under the Armed Career Criminal Act

("ACCA"). The parties have waived oral

argument, and this panel unanimously

agrees that oral argument is not needed. See

Fed. R. App. P. 34(a).

In 2005, Bearden pleaded guilty to being a

Page 3 of 5

2019 U.S. App. LEXIS 33528, *1

felon in possession of a firearm in violation

of 18 U.S.C. § 922(g). At sentencing, the

district court found that Bearden was an

armed career criminal based on prior

Tennessee convictions for (1) aggravated

burglary, (2) aggravated robbery, and (3)

aggravated robbery and second-degree

murder. It sentenced Bearden as an armed

career criminal to 180 months of

imprisonment. We affirmed Bearden's

conviction and sentence. United States v.

Bearden, 213 F. App'x 410 (6th Cir.), cert.

denied, 550 U.S. 950, 127 S. Ct. 2287, 167

L. Ed. 2d 1118 (2007). In 2008, Bearden

filed a § 2255 motion, which the district

court denied. See Bearden v. United States,

No. 2:08-cv-02166, R. 1, 14 (W.D.

Tenn.) [*2] . We dismissed Bearden's

appeal because his notice of appeal was

untimely. Bearden v. United States, No. 115184, slip op. at 1-2, 2011 U.S. App. LEXIS

26929 (6th Cir. Apr. 25, 2011) (order).

the statute swept more broadly than generic

burglary by including habitable vehicles and

movable enclosures. United States v. Stitt,

860 F.3d 854, 858 (6th Cir. 2017) (en banc)

("Stitt I"). Based on that decision, the

district court granted Bearden's § 2255

motion and resentenced him to time served

followed by three years of supervised

release. The district court entered an

amended judgment in Bearden's criminal

case sentencing him to time served.

The government appealed, and briefing was

held in abeyance pending the Supreme

Court's resolution of the government's

petition for a writ of [*3] certiorari in Stitt

I. The Supreme Court eventually granted the

petition and reversed our decision in Stitt I,

holding that Tennessee's aggravated

burglary statute was not rendered overly

broad by its coverage of mobile structures

"designed or adapted for overnight use."

United States v. Stitt, 139 S. Ct. 399, 407,

In 2016, Bearden received permission to file 202 L. Ed. 2d 364 (2018) ("Stitt II").

a second or successive § 2255 motion

The government now argues that, in light of

challenging his armed career criminal

the Supreme Court's decision in Stitt II,

designation based on Johnson v. United

Bearden is no longer entitled to relief from

States, 135 S. Ct. 2551, 192 L. Ed. 2d 569

his ACCA sentence, so the district court's

(2015), on the ground that his Tennessee

judgment should be reversed and the case

aggravated burglary conviction might no

remanded for reinstatement of his original

longer qualify as a violent felony for

sentence. Bearden does not dispute that he

purposes of the ACCA. See In re Bearden,

is no longer entitled to relief based on Stitt I,

No. 16-5933, slip op. at 2-3, 2016 U.S. App.

but he offers two alternative arguments for

LEXIS 24469 (6th Cir. Oct. 31, 2016)

why the district court's judgment should be

(order). While that motion was pending, we

affirmed: (1) the entry element of

overruled circuit precedent, see United

Tennessee's burglary statutes is defined

States v. Nance, 481 F.3d 882 (6th Cir.

more broadly than the entry element of

2007), and held that a conviction under

generic burglary, and (2) Tennessee's

Tennessee's aggravated burglary statute did

burglary statutes are overly broad because

not qualify as an ACCA predicate because

their "remaining in" variants do not require

Page 4 of 5

2019 U.S. App. LEXIS 33528, *3

the perpetrator to have the intent to commit

a crime at the time of entry. He also argues

that this court lacks jurisdiction to hear the

government's challenge to the district court's

grant of relief under § 2255 because the

government did [*4] not separately appeal

the duration of the sentence that Bearden

received after this grant occurred.

We have jurisdiction to hear this appeal.

The government complied with the

prescribed procedure when it appealed the

district court's grant of relief under § 2255.

That's all we require. And none of the cases

Bearden cites are to the contrary. Those

cases either examined whether defendants

had properly obtained certificates of

appealability for their specific appeal, see

United States v. Hadden, 475 F.3d 652, 663

(4th Cir. 2007); Ajan v. United States, 731

F.3d 629, 631 (6th Cir. 2013), or else

concerned appeals from non-final orders.

See Andrews v. United States, 373 U.S. 334,

83 S. Ct. 1236, 10 L. Ed. 2d 383 (1963);

United States v. Futch, 518 F.3d 887 (11th

Cir. 2008). Neither line of authority has

anything to do with this case. With respect

to the merits of the appeal, HN1[ ] we

review the district court's decision de novo.

See Davis v. United States, 900 F.3d 733,

735 (6th Cir. 2018), cert. denied, 139 S. Ct.

1374, 203 L. Ed. 2d 612 (2019) (mem.).

Bearden first argues that his aggravated

burglary conviction should no longer count

as an ACCA predicate because the

Tennessee courts define the entry element

of the state's burglary statutes more broadly

then generic burglary by including

intrusions by instrument that are the

functional equivalent of attempted burglary.

But we recently held that Nance "is once

again the law of this circuit." Brumbach v.

United States, 929 F.3d 791, 794 (6th Cir.

2019). Accordingly, even if there were

merit to Bearden's argument, HN2[ ] a

panel of this court cannot overrule [*5]

Nance's holding that a Tennessee conviction

for aggravated burglary is a violent felony

for purposes of the ACCA. See id. Rather,

that "can only be done by an 'inconsistent

decision' of the Supreme Court or, like we

did briefly with Stitt I, a decision of the en

banc court." Id. (quoting Salmi v. Sec'y of

Health & Human Servs., 774 F.2d 685, 689

(6th Cir. 1985)).

Bearden's second argument—that the

"remaining in" variants of Tennessee's

burglary statutes are broader than generic

burglary because they do not contain an

element of criminal intent at the time of

entry—is also foreclosed by precedent. See

United States v. Ferguson, 868 F.3d 514,

515 (6th Cir. 2017) (citing United States v.

Priddy, 808 F.3d 676, 684-85 (6th Cir.

2015)); see also Quarles v. United States,

139 S. Ct. 1872, 1880, 204 L. Ed. 2d 200

(2019).

Finally, Bearden seeks permission to

supplement his appellate brief to include a

challenge to his conviction based on Rehaif

v. United States, 139 S. Ct. 2191, 204 L. Ed.

2d 594 (2019). But HN3[ ] when a movant

seeks to raise a new claim after his § 2255

motion has been denied and is no longer

pending before the district court, that claim

is second or successive and is subject to the

statutory limitations placed on second or

successive claims. See Moreland v.

Robinson, 813 F.3d 315, 324-25 (6th Cir.

Page 5 of 5

2019 U.S. App. LEXIS 33528, *5

2016).

Accordingly, we REVERSE the district

court's grant of § 2255 relief, REMAND

with instructions to reinstate Bearden's

original sentence, and DENY the motion to

supplement.

End of Document

Temporarily unable to receive Shepard’s

As of: November 18, 2019 8:30 PM Z

Signal™

Cox v. United States

United States Court of Appeals for the Sixth Circuit

November 13, 2019, Filed

No. 17-5953

Reporter

2019 U.S. App. LEXIS 33934 *

MICHAEL DEWAYNE COX, PetitionerAppellee, v. UNITED STATES OF

AMERICA, Respondent-Appellant.

predicate because the Tennessee courts

defined the entry element of the state's

burglary statutes more broadly than generic

burglary by including intrusions by

instrument that were the functional

equivalent of attempted burglary, the Nance

decision was again the law of the United

States Sixth Circuit, and defendant's

Tennessee conviction for aggravated

burglary was a violent felony for purposes

of the ACCA.

Notice: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS Outcome

NOTICE IS TO BE PROMINENTLY Reversed and remanded with instructions.

DISPLAYED IF THIS DECISION IS LexisNexis® Headnotes

REPRODUCED.

Prior History: [*1] ON APPEAL FROM

THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF TENNESSEE.

Criminal Law & Procedure > Habeas

Corpus > Appeals

Case Summary

HN1[ ] Habeas Corpus, Appeals

Overview

A judgment or order in a 28 U.S.C.S. § 2255

proceeding that vacates a sentence but

HOLDINGS:

[1]-A

district

court defers resentencing is not appealable until

improperly granted 28 U.S.C.S. § 2255 the defendant has been resentenced.

relief since defendant unsuccessfully argued

that his aggravated burglary conviction

should no longer count as an ACCA

Page 2 of 4

2019 U.S. App. LEXIS 33934, *1

Criminal Law & Procedure > Habeas

Corpus > Appeals

2255 to Michael DeWayne Cox from his

enhanced sentence under the Armed Career

Criminal Act (ACCA). The parties have

HN2[ ] Habeas Corpus, Appeals

waived oral argument, and this panel

A district court's order that either enters the unanimously agrees that oral argument is

result of a resentencing or corrects the not needed. See Fed. R. App. P. 34(a).

prisoner's sentence completes the 28 In 2008, Cox pleaded guilty to being a felon

U.S.C.S. § 2255 proceeding and is therefore in possession of a firearm, in violation of 18

immediately appealable.

U.S.C. § 922(g). The district court

determined that he qualified as an armed

career criminal and sentenced him to 180

Criminal Law &

months of imprisonment, the minimum

Procedure > ... > Appeals > Standards of

sentence mandated by the ACCA, 18 U.S.C.

Review > De Novo Review

§ 924(e). The predicate offenses for his

HN3[ ] Standards of Review, De Novo armed career criminal designation included

five Tennessee convictions for and one for

Review

burglary.

An appellate court reviews a district court's

decision in a 28 U.S.C.S. § 2255 case de In 2016, Cox filed a § 2255 motion,

challenging his armed career criminal

novo.

designation based on Johnson v. United

States, 135 S. Ct. 2551, 192 L. Ed. 2d 569

Counsel: For Michael Dewayne Cox,

(2015), and arguing that [*2]

his

Petitioner - Appellee: Madelyn Dianne

Smothers, Federal Public Defender, Federal aggravated burglary convictions no longer

qualified as violent felonies for purposes of

Public Defender, Memphis, TN.

the ACCA. While that motion was pending,

For United States of America, Respondent we overruled circuit precedent, see United

Appellant: Annie Tauer Christoff, Office of

States v. Nance, 481 F.3d 882 (6th Cir.

the U.S. Attorney, Western District of

2007), and held that a conviction under

Tennessee, Memphis, TN.

Tennessee's aggravated burglary statute did

not qualify as an ACCA predicate because

Judges: Before: MOORE, McKEAGUE,

the statute swept more broadly than generic

and READLER, Circuit Judges.

burglary by including habitable vehicles and

Opinion

movable enclosures. United States v. Stitt,

860 F.3d 854, 858 (6th Cir. 2017) (en banc)

("Stitt 1"). Based on that decision, the

district court granted Cox's motions and

ORDER

sentenced him to time served.

The government appeals the district court's

judgment granting relief under 28 U.S.C. § The government appealed, and we granted

Page 3 of 4

2019 U.S. App. LEXIS 33934, *2

its request to hold the case in abeyance

while it sought Supreme Court review in

Stitt. The Supreme Court granted certiorari

and reversed our decision in Stitt I, holding

that Tennessee's aggravated burglary statute

is not rendered overly broad by its coverage

of movable structures "designed or adapted

for overnight use." United States v. Stitt,

139 S. Ct. 399, 407, 202 L. Ed. 2d 364

(2018) ("Stitt IT).

The government now argues that, in light of

Stitt II, Cox is no longer entitled to relief

from his ACCA sentence, so the district

court's judgment should be reversed and the

case remanded for reinstatement of Cox's

original sentence. Cox argues that we lack

jurisdiction to decide the issue raised by

the [*3] government on appeal because it

filed its notice of appeal from the district

court's order granting his § 2255 motion

rather than the amended judgment in the

criminal case. And although he does not

dispute that he is no longer entitled to relief

based on Stitt I, he argues that the district

court's judgment should be affirmed on the

alternative basis that the entry element of

Tennessee's burglary statutes has been

defined by the Tennessee courts more

broadly than the entry element of generic

burglary.

As a threshold matter, we reject Cox's

jurisdictional argument. The cases on which

he relies stand for the well-established

proposition that HN1[ ] a judgment or

order in a § 2255 proceeding that vacates a

sentence but defers resentencing is not

appealable until the defendant has been

resentenced. See Andrews v. United States,

373 U.S. 334, 339, 83 S. Ct. 1236, 10 L. Ed.

2d 383 (1963); Haynes v. United States, 873

F.3d 954, 956-57 (7th Cir. 2017) (citing

cases). In contrast, the district court here

expressly declined to order a resentencing

hearing and instead imposed a sentence of

time served, effective immediately. This

completed the § 2255 proceeding and was

thus a final order conferring jurisdiction on

this court. See Andrews, 373 U.S. at 339-40;

United States v. Hadden, 475 F.3d 652, 663

(4th Cir. 2007) (HN2[ ] "[A] district

court's order that either enters the result of a

resentencing or corrects the prisoner's

sentence

completes

the

§

2255

proceeding [*4]

and

is

therefore

immediately appealable.").

HN3[ ] We review the district court's

decision de novo. See Davis v. United

States, 900 F.3d 733, 735 (6th Cir. 2018),

cert. denied, 139 S. Ct. 1374, 203 L. Ed. 2d

612 (2019).

Cox now argues that his aggravated

burglary conviction should no longer count

as an ACCA predicate because the

Tennessee courts define the entry element

of the state's burglary statutes more broadly

than generic burglary by including

intrusions by instrument that are the

functional equivalent of attempted burglary.

But as the government argues—and we

recently held—Nance "is once again the law

of this circuit." Brumbach v. United States,

929 F.3d 791, 794 (6th Cir. 2019).

Accordingly, even if there were merit to

Cox's argument, a panel of this court cannot

overrule Nance's holding that a Tennessee

conviction for aggravated burglary is a

violent felony for purposes of the ACCA.

See id. Rather, that "can only be done by an

Page 4 of 4

2019 U.S. App. LEXIS 33934, *4

'inconsistent decision' of the Supreme Court

or, like we did briefly with Stitt I, a decision

of the en banc court." Id. at 795 (quoting

Salmi v. Sec'y of Health & Human Servs.,

774 F.2d 685, 689 (6th Cir. 1985)).

For these reasons, we REVERSE the

district court's grant of § 2255 relief and

REMAND with instructions to reinstate the

original sentence. Cox's motion to file a

supplemental brief is DENIED.

End of Document

No Shepard’s Signal™

As of: November 18, 2019 8:32 PM Z

Jones v. United States

United States Court of Appeals for the Sixth Circuit

November 14, 2019, Filed

Nos. 18-5844/5845

Reporter

2019 U.S. App. LEXIS 34085 *

WILSON JONES, Petitioner-Appellee, v.

UNITED STATES OF AMERICA,

Respondent-Appellant.

TN.

For United States of America (18-5845, 185844), Respondent - Appellant: Kevin G.

Ritz, Assistant U.S. Attorney, Office of the

Notice: NOT RECOMMENDED FOR U.S. Attorney, Western District of

FULL-TEXT PUBLICATION. SIXTH Tennessee, Memphis, TN.

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE Judges: Before: MOORE, McKEAGUE,

SEE RULE 28 BEFORE CITING IN A and READLER, Circuit Judges.

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY Opinion

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY ORDER

DISPLAYED IF THIS DECISION IS

The United States appeals the district court's

REPRODUCED.

judgments in these consolidated cases

Prior History: [*1] ON APPEAL FROM granting petitioner Wilson Jones's motion to

THE UNITED STATES DISTRICT vacate, set aside, or correct his sentence

COURT FOR THE WESTERN DISTRICT under 28 U.S.C. § 2255 and resentencing

OF TENNESSEE.

him to 84 months of imprisonment. The

parties have waived oral argument, and the

panel unanimously agrees that oral

United States v. Jones, 476 Fed. Appx. 651, argument is not needed. See Fed. R. App. P.

2012 U.S. App. LEXIS 16959 (6th Cir.),

34(a).

2012 FED App. 883N (6th Cir.) (6th Cir.

Tenn., Aug. 10, 2012)

In 2011, Jones pleaded guilty to being a

felon in possession of a firearm, in violation

Counsel: For Wilson Jones (18-5845, 18of 18 U.S.C. § 922(g). The district court

5844), Petitioner - Appellee: Tyrone Jemal

determined that Jones was subject to a

Paylor, Federal Public Defender, Memphis, fifteen-year mandatory minimum sentence

Page 2 of 3

2019 U.S. App. LEXIS 34085, *1

under the Armed Career Criminal Act

(ACCA), 18 U.S.C. § 924(e), because he had

three or more prior "violent felony"

convictions in Tennessee for robbery,

second-degree

burglary,

third-degree

burglary, aggravated burglary, and escape.

The district [*2] court sentenced Jones to

180 months of imprisonment, the mandatory

minimum sentence under the ACCA, and

we affirmed. See United States v. Jones, 476

F. App'x 651 (6th Cir. 2012) (per curiam).

burglary, third-degree burglary, and escape

convictions were no longer ACCA

predicates. As a result, the government

acknowledged that Jones was entitled to

relief from his sentence because only his

robbery and second-degree burglary

convictions [*3] remained as qualifying

offenses. The government, however,

preserved its objection that we wrongly

decided Stitt. The district court granted

Jones's motion to vacate in light of the

government's concession that Jones did not

In September 2014, Jones moved to vacate have three qualifying predicate convictions

his sentence under 28 U.S.C. § 2255, and resentenced him to 84 months of

claiming that his convictions for second- imprisonment.

degree burglary, third-degree burglary,

aggravated burglary, and escape were not In No. 18-5844, the government appeals the

ACCA predicate offenses in view of district court's judgment granting Jones's

Descamps v. United States, 570 U.S. 254, motion to vacate. The government appeals

133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). Jones's new sentence in No. 18-5845. The

In October 2015, Jones filed an amended clerk of court consolidated these two cases

motion to vacate, claiming in relevant part for disposition.

that he was entitled to relief from his

sentence because his convictions for We review de novo a district court's

robbery, second-degree burglary, and conclusion that a prior conviction is an

aggravated burglary were not ACCA ACCA predicate offense. See United States

predicate offenses in view of Johnson v. v. Mitchell, 743 F.3d 1054, 1058 (6th Cir.

United States, 135 S. Ct. 2551, 192 L. Ed. 2014).

2d 569 (2015).

After the government's appeals were filed,

While Jones's motion to vacate was pending

in the district court, we decided that

Tennessee's aggravated-burglary statute did

not qualify as an ACCA predicate, see

United States v. Stitt, 860 F.3d 854, 856

(6th Cir. 2017) (en banc), and neither did

Tennessee's third-degree-burglary statute,

see Cradler v. United States, 891 F.3d 659,

671 (6th Cir. 2018). In response, the

government conceded that under the thencurrent state of the law, Jones's aggravated-

the Supreme Court reversed our decision in

Stitt, holding that Tennessee's aggravated

burglary statute is not broader than generic

burglary, and therefore that it is a "violent

felony" under the ACCA. See United States

v. Stitt, 139 S. Ct. 399, 405-08, 202 L. Ed.

2d 364 (2018) (Stitt II). Consequently, the

district court erred in granting Jones relief

from his ACCA sentence and resentencing

him to 84 months of imprisonment. Jones

argues that the Tennessee burglary statute is

Page 3 of 3

2019 U.S. App. LEXIS 34085, *3

broader than generic burglary because it

also treats attempted burglary as a

completed burglary, [*4] but we are bound

by Stitt II and prior circuit decisions holding

that the statute qualifies as an ACCA

predicate. See Brumbach v. United States,

929 F.3d 791, 794-95 (6th Cir. 2019).

Accordingly, we VACATE the district

court's judgments granting Jones relief from

his ACCA sentence and resentencing him to

84 months of imprisonment and REMAND

this case to the district court with

instructions to reinstate his original

sentence. Jones's motion to file a

supplemental brief is DENIED.

End of Document

No Shepard’s Signal™

As of: November 25, 2019 6:14 PM Z

Dawson v. United States

United States Court of Appeals for the Sixth Circuit

November 20, 2019, Filed

Nos. 17-5930/5931

Reporter

2019 U.S. App. LEXIS 34627 *

DERECK DAWSON, Petitioner-Appellee,

v. UNITED STATES OF AMERICA,

Respondent-Appellant.UNITED STATES

OF AMERICA, Plaintiff-Appellant, v.

DERECK DAWSON, Defendant-Appellee.

Notice: NOT RECOMMENDED FOR

FULL-TEXT PUBLICATION. SIXTH

CIRCUIT RULE 28 LIMITS CITATION

TO SPECIFIC SITUATIONS. PLEASE

SEE RULE 28 BEFORE CITING IN A

PROCEEDING IN A COURT IN THE

SIXTH CIRCUIT. IF CITED, A COPY

MUST BE SERVED ON OTHER

PARTIES AND THE COURT. THIS

NOTICE IS TO BE PROMINENTLY

DISPLAYED IF THIS DECISION IS

REPRODUCED.

Prior History: [*1] ON APPEAL FROM

THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT

OF TENNESSEE.

enhancement under the Armed Career

Criminal Act (ACCA), 18 U.S.C.S. §

924(e), because the U.S. Supreme Court's

reversal of the court's Stitt I decision left

United States v. Nance as the law of the

Sixth Circuit; under Nance, a Tennessee

conviction for aggravated burglary was a

violent felony for purposes of the ACCA,

and a panel of the court could not overrule

that holding absent an inconsistent decision

of the Supreme Court or a decision of the en

banc court.

Outcome

Judgment reversed and remanded

reinstatement of original sentence.

for

LexisNexis® Headnotes

Overview

Criminal Law &

Procedure > ... > Sentencing

Guidelines > Adjustments &

Enhancements > Armed Career

Criminals

HOLDINGS: [1]-The court reversed the

district court's order granting 28 U.S.C.S. §

2255 to petitioner from his sentence

Criminal Law &

Procedure > ... > Appeals > Standards of

Review > De Novo Review

Case Summary

Page 2 of 4

2019 U.S. App. LEXIS 34627, *1

HN1[ ] Adjustments & Enhancements,

Armed Career Criminals

Whether an Armed Career Criminal Act

predicate crime qualifies as a violent felony

is a legal question that the court reviews de

novo.

Criminal Law &

Procedure > ... > Sentencing

Guidelines > Adjustments &

Enhancements > Armed Career

Criminals

Criminal Law & Procedure > ... > Theft

& Related Offenses > Burglary &

Criminal Trespass > Burglary

HN2[ ] Adjustments & Enhancements,

Armed Career Criminals

A defendant qualifies as an armed career

criminal if he has three or more prior

convictions for a violent felony. 18 U.S.C.S.

§ 924(e)(1). A violent felony is defined as

one that has as an element the use,

attempted use, or threatened use of physical

force against the person of another (the useof-force clause) or that is burglary of a

dwelling, arson, or extortion, or involves

use of explosives (the enumerated-offenses

clause). 18 U.S.C.S. § 924(e)(2)(B). For a

state burglary offense to qualify as a violent

felony under the Armed Career Criminal

Act's enumerated-offenses clause, the state

offense's elements must be the same as, or

narrower than, those of generic burglary,

that is, an unlawful or unprivileged entry

into, or remaining in, a building or other

structure, with intent to commit a crime.

Criminal Law &

Procedure > ... > Sentencing

Guidelines > Adjustments &

Enhancements > Armed Career

Criminals

Governments > Courts > Judicial

Precedent

Criminal Law & Procedure > ... > Theft

& Related Offenses > Burglary &

Criminal Trespass > Burglary

HN3[ ] Adjustments & Enhancements,

Armed Career Criminals

Unite States v. Nance is once again the law

of the U.S. Court of Appeals for the Sixth

Circuit. A panel of the court cannot overrule

Nance's holding that a Tennessee conviction

for aggravated burglary is a violent felony

for purposes of the Armed Career Criminal

Act. Rather, that can only be done by an

inconsistent decision of the U.S. Supreme

Court or a decision of the en banc court.

Counsel: For Dereck Dawson, Petitioner Appellee (17-5930): Mary C. JermannRobinson, Assistant Federal Public

Defender, Federal Public Defender,

Memphis, TN.

For United States of America, Respondent Appellant (17-5930): Kevin G. Ritz,

Assistant U.S. Attorney, Office of the U.S.

Attorney, Western District of Tennessee,

Memphis, TN.

For United States of America, Plaintiff Appellant (17-5931): Kevin G. Ritz,

Assistant U.S. Attorney, Office of the U.S.

Page 3 of 4

2019 U.S. App. LEXIS 34627, *1

Attorney, Western District of Tennessee,

Memphis, TN.

2255. See Dawson v. United States, 702

F.3d 347 (6th Cir. 2012).

For Dereck Dawson, Defendant - Appellee

(17-5931): Mary C. Jermann-Robinson,

Assistant Federal Public Defender, Federal

Public Defender, Memphis, TN.

In these consolidated cases, the government

appeals the district court's order (No. 175930) granting relief under 28 U.S.C. §

2255 to Dereck Dawson from his sentence

enhancement under the Armed Career

Criminal Act ("ACCA"), see 18 U.S.C. §

924(e), and the third amended judgment

(No. 17-5931) entered in Dawson's criminal

case. The parties have waived oral

argument, and this panel unanimously

agrees that oral argument is not needed.

See [*2] Fed. R. App. P. 34(a).

In 2016, we granted Dawson permission to

file a second or successive § 2255 motion

challenging his ACCA designation based on

Johnson v. United States, 135 S. Ct. 2551,

192 L. Ed. 2d 569 (2015). In re Dawson,

No. 15-5955 (6th Cir. Mar. 24, 2016)

(order). While Dawson's second § 2255

motion was pending, we overruled prior

circuit precedent, see United States v.

Nance, 481 F.3d 882 (6th Cir. 2007), and

held that a conviction for Tennessee

aggravated burglary did not qualify as an

ACCA predicate because the Tennessee

statute swept more broadly than "generic"

burglary by including habitable vehicles and

movable enclosures. United States v. Stitt,

860 F.3d 854, 858 (6th Cir. 2017) (en banc)

("Stitt I"), rev'd, United States v. Stitt, 139 S.

Ct. 399, 202 L. Ed. 2d 364 (2018) ("Stitt

II"). Based on our decision in Stitt I, the

district court granted Dawson's § 2255

motion, sentenced him to time served, and

later entered a third amended judgment [*3]

reducing his term of supervised release.

A jury convicted Dawson of possession of a

firearm by a felon, in violation of 18 U.S.C.

§ 922(g), and possession of a stolen firearm,

in violation of 18 U.S.C. § 922(j). At

sentencing, Dawson was designated an

armed career criminal under the ACCA

based in part on a prior conviction for

Tennessee aggravated burglary. The district

court sentenced Dawson to 262 months of

imprisonment. On remand, the district court

sentenced Dawson, again under the ACCA,

to 180 months of imprisonment. Dawson

later filed an unsuccessful motion under §

After the district court entered its third

amended judgment, the Supreme Court

reversed our Stitt I decision in Stitt II. On

appeal, the government argues that Dawson

is no longer entitled to relief from his

ACCA designation in light of Stitt II.

Dawson does not dispute that he is no

longer entitled to relief under Stitt I, but

argues that his prior conviction for

Tennessee aggravated burglary does not

qualify as an ACCA predicate on alternative

grounds. Dawson has also filed a motion for

leave to file a supplemental brief

Judges: Before: MOORE, SUTTON, and

NALBANDIAN, Circuit Judges.

Opinion

ORDER

Page 4 of 4

2019 U.S. App. LEXIS 34627, *3

challenging his § 922(g) conviction under Code Ann. §§ 39-14-402, 39-14-403, more

Rehaif v. United States, 139 S. Ct. 2191, broadly than generic burglary. But, as we

204 L. Ed. 2d 594 (2019).

recently held, HN3[ ] Nance "is once again

the law of this circuit." Brumbach v. United

HN1[ ] "Whether an ACCA predicate States, 929 F.3d 791, 794 (6th Cir. 2019).

crime qualifies as a violent felony . . . is a Accordingly, even if there were merit to

legal question that we review de novo." Dawson's argument, a panel of this court

Davis v. United States, 900 F.3d 733, 735 cannot overrule Nance's holding that a

(6th Cir. 2018), cert. denied, 139 S. Ct. Tennessee conviction for aggravated

1374, 203 L. Ed. 2d 612 (2019).

burglary is a violent felony for purposes of

HN2[ ] A defendant qualifies as an armed the ACCA. See id. Rather, that "can only be

career criminal if he has three or more prior done by an 'inconsistent decision' of the

convictions for, as relevant here, a "violent Supreme Court or, like we did briefly with

felony." 18 U.S.C. § 924(e)(1). A "violent Stitt I, a decision of the en banc court." Id.

felony" is defined as one that "has as an at 795 (quoting Salmi v. Sec'y of Health &

element the use, attempted use, or Human Servs., 774 F.2d 685, 689 (6th Cir.

threatened use of physical force against the 1985)).

person of another" (the "use-of-force"

clause) or that "is burglary of a dwelling,

arson, or extortion, [or] involves use of

explosives" (the "enumerated-offenses"

clause). 18 U.S.C. § 924(e)(2)(B). For a

state burglary [*4] offense to qualify as a

violent felony under the ACCA's

enumerated-offenses clause, the state

offense's elements must be the same as, or

narrower than, those of "generic" burglary,

that is, "an unlawful or unprivileged entry

into, or remaining in, a building or other

structure, with intent to commit a crime."

Taylor v. United States, 495 U.S. 575, 598,

110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990);

see Mathis v. United States, 136 S. Ct. 2243,

2248, 195 L. Ed. 2d 604 (2016).

Dawson argues that a Tennessee aggravated

This text is long and has been trimmed here. Open the source document for the complete record.