Petition for Writ of Certiorari — Tony Edwin McClurg, Petitioner v. United States
Supreme Court briefOct 30, 2020
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NO. ____________
IN THE UNITED STATES SUPREME COURT
_______________ TERM
__________________________________________________________
TONY EDWIN McCLURG,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
__________________________________________________________
APPENDIX1
__________________________________________________________
Erin P. Rust
Assistant Federal Defender
FEDERAL DEFENDER SERVICES
OF EASTERN TENNESSEE, INC.
835 Georgia Avenue, Suite 600
Chattanooga, Tennessee 37402
(423) 756-4349
Pursuant to Supreme Court Rule 12.4, Petitioners Joshua Booker, Jason Morgan,
Travis O’Dell, Dennis Plemons, Lawrence Schumaker, and Michael Tigue join Mr.
McClurg’s petition for a writ of certiorari.
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File Name: 20a0227n.06
Case No. 18-5692
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
JOSHUA BOOKER,
)
)
)
)
)
)
)
)
)
)
Petitioner-Appellee,
v.
UNITED STATES OF AMERICA,
Respondent-Appellant.
Apr 27, 2020
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TENNESSEE
BEFORE: BATCHELDER, GIBBONS, and SUTTON, Circuit Judges.
SUTTON, Circuit Judge. In November 2013, Joshua Booker sold a stolen gun to an
undercover police officer. He pleaded guilty to possessing a firearm as a felon. 18 U.S.C.
§ 922(g)(1). Based on his lengthy criminal record, including six convictions for aggravated
burglary in Tennessee, the district court found that Booker was an armed career criminal.
18 U.S.C. § 924(e). The court sentenced him to 188 months in prison. Booker did not object to
his classification as an armed career criminal. Nor did he appeal.
The next year, the Supreme Court held that the Armed Career Criminal Act’s residual
clause violates due process. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). Booker filed
a § 2255 motion to reopen his sentence, arguing that his aggravated burglary convictions no longer
qualified as violent felonies. While that motion was pending, this court decided the same question
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in another case. It held that Tennessee aggravated burglary was not a violent felony under the Act.
United States v. Stitt, 860 F.3d 854, 861–62 (6th Cir. 2017) (en banc). The district court reduced
Booker’s sentence under Stitt.
The victory was temporary. A few months after the district court granted his § 2255
motion, the Supreme Court reversed Stitt and held that Tennessee aggravated burglary fit within
the Act’s generic burglary definition. United States v. Stitt, 139 S. Ct. 399, 406–08 (2018). In
reversing our decision in Stitt, the Court returned our circuit to its earlier precedents. See
Brumbach v. United States, 929 F.3d 791, 794–95 (6th Cir. 2019). Under those decisions,
Tennessee aggravated burglary counts as a violent felony under the Act. Id.; see United States v.
Nance, 481 F.3d 882, 888 (6th Cir. 2007). Consistent with this line of cases, we have remanded
several cases to reinstate the original sentence after the inmate obtained § 2255 relief based on the
Stitt en banc decision. See, e.g., Brumbach, 929 F.3d at 794–95; see also, e.g., Sesson v. United
States, Nos. 17-5955/5957/6323, 2020 WL 773049, at *2 (6th Cir. Jan. 30, 2020) (order); White v.
United States, No. 17-5967/5969, 2020 WL 773056, at *2 (6th Cir. Jan. 21, 2020) (order); Barnett
v. United States, No. 17-5977/5978, 2019 WL 7946346, at *2 (6th Cir. Dec. 12, 2019) (order);
Bearden v. United States, No. 17-5927, 2019 WL 7882516, at *2 (6th Cir. Nov. 6, 2019) (order);
Hill v. United States, No. 18-5089/5090, 2019 WL 7602328, at *2 (6th Cir. Oct. 10, 2019) (order);
United States v. Crutchfield, 785 F. App’x 321, 323–24 (6th Cir. 2019); United States v. Bawgus,
782 F. App’x 408, 409–10 (6th Cir. 2019); United States v. Bateman, 780 F. App’x 355, 356–57
(6th Cir. 2019); Greer v. United States, 780 F. App’x 352, 353 (6th Cir. 2019); United States v.
Hamilton, 774 F. App’x 283, 283 (6th Cir. 2019) (per curiam); Bell v. United States, 773 F. App’x
832, 833 (6th Cir. 2019); Mann v. United States, 773 F. App’x 308, 309 (6th Cir. 2019) (per
curiam).
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Booker urges us not to take this well-worn path for three reasons. First, he maintains that
his six aggravated burglary convictions do not qualify as violent felonies because the breaking-in
instrument by itself satisfies the “entry” element of the crime. But Brumbach rejected the same
argument, concluding that “[e]ven if there is merit to Brumbach’s arguments concerning
Tennessee’s definition of entry, a panel of this court cannot overrule Nance.” 929 F.3d at 795. A
more recent decision rejected the argument more fully. United States v. Brown, __F.3d__, 2020
WL 1966845 (6th Cir. Apr. 24, 2020). After a thorough and thoughtful analysis, Brown concluded
that “the Act’s generic definition should encompass [a] broader entry-by-instrument rule.” Id. at
*7. The court considered and rejected each of the points Booker raises today.
Second, Booker argues that Tennessee burglary is missing the intent element of generic
burglary. The Supreme Court has defined generic burglary as “unlawful or unprivileged entry
into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United
States, 495 U.S. 575, 599 (1990). One variant of Tennessee burglary, says Booker, lacks “intent
to commit a crime,” because § 402(a)(3) makes it a burglary to, “without the effective consent of
the property owner . . . [e]nter[] a building and commit[] or attempt[] to commit a felony, theft, or
assault.” Tenn. Code Ann. § 39-14-402(a)(3). The underlying “felony, theft, or assault” necessary
for an (a)(3) conviction, he adds, could require mere recklessness, which to his mind suggests the
convicted burglar never formed “intent to commit a crime.”
But Brumbach, again, makes clear that Nance is good law and leaves no room for raising
still more arguments about Tennessee aggravated burglary. 929 F.3d at 794. As we recently
explained in Brown, moreover, “Tennessee’s burglary statute is divisible . . . criminaliz[ing] four
different offenses.” 2020 WL 1966845, at *7. Booker’s intent argument concerns one of them,
§ 402(a)(3). But a different variant, § 402(a)(1), maps precisely on to Taylor’s definition, covering
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persons who unlawfully “enter[] a building . . . with intent to commit a felony, theft or assault.”
See Taylor, 495 U.S. at 599; Brown, 2020 WL 1966845, at *7. Here, as in Brown, the indictments
for each of Booker’s convictions charge him with unlawfully entering buildings “with intent to
commit theft.” ROA 43 at 2, 5, 8, 10, 12, 14. That language tracks the (a)(1) variant of burglary,
and he never argues there is an intent problem with that variant. See Brown, 2020 WL 1966845,
at *7.
Third, Booker maintains that insufficient proof shows that the six convictions covered
distinct crimes on “occasions different from one another.” 18 U.S.C. § 924(e)(1). He argues that
courts may review underlying state court documents only to determine the elements of the crimes
of conviction, not to determine their dates and locations. See Shepard v. United States, 544 U.S.
13, 16 (2005). Precedent forecloses the argument. United States v. Hennessee held that courts
“may consider both elemental and non-elemental facts contained in Shepard-approved documents
to determine whether prior felonies were committed on occasions different from one another.” 932
F.3d 437, 444 (6th Cir. 2019). Those documents show that Booker burglarized at least six separate
structures on five separate dates. That suffices. See, e.g., Brown, 2020 WL 1966845, at *8; Greer,
780 F. App’x at 352–53.
For these reasons, we vacate and remand with instructions to reinstate Booker’s original
sentence.
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JOSHUA BOOKER,
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)
)
)
)
)
)
)
)
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
Nos. 3:14-CR-40-RLJ-CCS-1
3:16-CV-296-RLJ
MEMORANDUM OPINION
Presently before the Court is a motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255 filed by Joshua Booker (“Petitioner”) which challenges his enhanced sentence
as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e), pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015). 1 In light of both Johnson
and the recent en banc decision of the Sixth Circuit Court of Appeals in United States v. Stitt,
860 F.3d 854 (6th Cir. 2017), it now is undisputed that Petitioner no longer qualifies as an armed
career criminal under the ACCA. Accordingly, Petitioner’s § 2255 motion [Doc. 32] will be
GRANTED.
I.
BACKGROUND
On April 15, 2014, a grand jury sitting in the Eastern District of Tennessee returned a
one-count indictment charging Petitioner with possession of a firearm by a convicted felon, in
The Supreme Court has determined that Johnson, which invalidated the residual clause
of the ACCA as unconstitutionally vague, announced a new “substantive rule that has retroactive
effect in cases on collateral review.” Welch v. United States, 136 S. Ct. 1257, 1268 (2016); see
also In Re Watkins, 810 F.3d 375, 381-85 (6th Cir. 2015).
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violation of 18 U.S.C. § 922(g)(1) and § 924(e) [Doc. 1]. On May 19, 2014, Petitioner entered a
plea of guilty as to count one of the indictment [Doc. 17].
The presentence investigation report (“PSIR”) identified seven previous convictions for a
violent felony, committed on occasions different from one another, that qualified Petitioner as an
armed career criminal under the ACCA. Six of those convictions were for aggravated burglary
[Doc. 21 ¶¶ 36, 37, 38, 39, 41 42]. As an armed career criminal, Petitioner was subject to a
statutory mandatory minimum incarceration sentence of 15 years to a maximum of life and his
advisory guideline sentencing range under the United States Sentencing Guidelines (“USSG”)
was 188 to 235 months [Doc. 21 ¶¶ 67, 68].
On September 9, 2014, Petitioner was sentenced to a term of imprisonment of 188
months at count one of the indictment and a term of supervised release of 5 years [Doc. 28].
Petitioner did not file a direct appeal.
On June 6, 2016, Petitioner, through court-appointed counsel, filed a § 2255 motion
challenging his armed career criminal status based on the Supreme Court’s invalidation of the
ACCA residual clause in Johnson [Doc. 32]. The government’s motion to defer ruling on
Petitioner’s motion pending an en banc decision from the Sixth Circuit in United States v. Stitt,
646 F. App’x 454 (6th Cir. 2016), was granted by the Court on October 19, 2016 [Doc. 37]. On
June 27, 2017, the Sixth Circuit issued its en banc decision holding that a conviction of
aggravated burglary under Tennessee law does not qualify as a violent felony predicate offense
under the ACCA. Stitt, 860 F.3d at 856.
On July 26, 2017, the parties filed a joint status report agreeing that Petitioner no longer
qualifies as an armed career criminal in light of Johnson and Stitt [Doc. 40].
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II.
ANALYSIS
A.
TIMELINESS
Section 2255(f) places a one-year period of limitation on all petitions for collateral relief
under § 2255 which runs from the latest of: (1) the date on which the judgment of conviction
becomes final; (2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such governmental action; (3) the date on
which the right asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to cases on collateral
review; or (4) the date on which the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f).
Claims based on the Supreme Court’s opinion in Johnson satisfy the third sub-category––
the assertion of a newly recognized right made retroactively applicable to cases on collateral
review. Welch, 136 S. Ct. at 1268 (Johnson constitutes a new substantive rule of constitutional
law made retroactively applicable on collateral review); In Re Watkins, 810 F.3d at 381–85. The
one-year limitation period for filing a motion to vacate based on a right newly recognized by the
Supreme Court runs from the date on which the Supreme Court initially recognized the right
asserted, not from the date on which the right asserted was made retroactively applicable. Dodd
v. United States, 545 U.S. 353, 357 (2005). Accordingly, Johnson triggered a renewed one-year
period of limitation beginning on the date of that decision, June 26, 2015, and running until June
26, 2016.
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In this case, Petitioner filed the supplement to his § 2255 motion raising a Johnson claim
on June 6, 2016, which falls safely within the one-year window for requesting collateral relief
under Johnson.
B.
STANDARD OF REVIEW
To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law . . . so fundamental as to render the entire proceeding invalid.” McPhearson v.
United States, 675 F.3d 553, 558–59 (6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d
491, 496–97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on
direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in
a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United
States, 157 F.3d 427, 430 (6th Cir. 1998).
C.
PETITIONER’S JOHNSON CLAIM
A felon who possesses a firearm normally faces a maximum penalty of 10 years’
imprisonment, 18 U.S.C. § 924(a)(2), and 3 years’ supervised release, 18 U.S.C. §§ 3559(a)(3)
and 3583(b)(2). However, if that felon possesses the firearm after having sustained three prior
convictions “for a violent felony or serious drug offense, or both,” the ACCA requires a 15-year
minimum sentence, 18 U.S.C. § 924(e)(1), and increases the maximum supervised release term
to 5 years, 18 U.S.C. §§ 3559(a)(1) and 3583(b)(1). The ACCA defines a “violent felony” as
“any crime punishable by imprisonment for a term exceeding one year” that: (1) “has as an
element the use, attempted use, or threatened use of physical force against the person of another”
(the “use-of-physical-force clause”); (2) “is burglary, arson, or extortion, involves use of
explosives” (the “enumerated-offense clause”); or (3) “otherwise involves conduct that presents
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a serious potential risk of physical injury to another” (the “residual clause”). 18 U.S.C. §
924(e)(2)(B).
In Johnson, the Supreme Court determined that the residual clause of the ACCA is
unconstitutionally vague and concluded “that imposing an increased sentence under the residual
clause . . . violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563. Johnson did
not automatically invalidate all ACCA sentences, however, emphasizing that its holding “d[id]
not call into question application of the Act to the four enumerated offenses, or the remainder of
the Act’s definition of a violent felony.” Id.; see also United States v. Kemmerling, 612 F. App’x
373, 376 (6th Cir. 2015) (explicitly finding that Johnson did not affect the ACCA’s use-ofphysical-force clause).
Thus, under Johnson, an ACCA sentence only raises due process
concerns, and thus is invalid, if it necessarily was based on predicate violent felonies that
qualified as such only under the ACCA’s residual clause.
In this case, six of Petitioner’s seven predicate offenses were convictions for aggravated
burglary in violation of Tenn. Code. Ann. § 39-14-403 [Doc. 21 ¶¶ 36, 37, 38, 39, 41, 42].
Petitioner contends, inter alia, that aggravated burglary could qualify as a predicate offense only
under the stricken residual clause of the ACCA. In response, the government initially cited thenbinding Sixth Circuit precedent holding that a conviction for aggravated burglary under the
Tennessee statute qualifies as an ACCA predicate under the enumerated-offense clause. United
States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007).
However, in the en banc Stitt decision, the Sixth Circuit overruled Nance and expressly
held that aggravated burglary is not a violent felony for purposes of the ACCA. 860 F.3d at
860–61. Applying a categorical approach, the Court determined that the Tennessee aggravated
burglary statute “sweeps more broadly than generic burglary” and thus cannot qualify as a
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violent felony under the enumerated-offense clause. Id. at 861. Because the statute categorically
is not a violent felony, and also is indivisible, the Sixth Circuit concluded that a conviction under
the Tennessee aggravated burglary statute does not count as a violent felony under the ACCA.
Id. at 862.
Because a conviction for aggravated burglary does not qualify as a violent felony under
the first two clauses of § 924(e)(2)(B), 2 and Johnson invalidated the residual clause, Petitioner’s
aggravated burglary convictions under the Tennessee statute no longer can be used as predicate
offenses under the ACCA. Furthermore, absent those convictions, Petitioner no longer has the
requisite three prior convictions of a violent felony or a serious drug offense necessary to subject
him to the ACCA’s enhanced penalties.
Accordingly, the Johnson and Stitt decisions dictate that Petitioner no longer can be
designated an armed career criminal under § 924(e).
As a result, the 188-month term of
imprisonment and 5-year term of supervised release imposed by the Court exceed the maximum
authorized sentence of not more than 10 years’ imprisonment and not more than 3 years’
supervised release for a non-ACCA offender convicted of a violation of § 922(g)(1). See 18
U.S.C. §§ 924(a)(2), 3559(a)(3), 3583(b)(2). Under these circumstances, the Court finds a clear
entitlement to § 2255 relief, as Petitioner has been subjected to “a sentence imposed outside the
statutory limits.” McPhearson, 675 F.3d at 559.
Where a § 2255 claim has merit, a district court “shall vacate and set the judgment aside”
and, “as may appear appropriate,” shall either “discharge the prisoner or resentence him or grant
The parties acknowledge that aggravated burglary does not have as an element the use,
attempted use or threatened use of force and therefore cannot qualify as a violent felony under
the “use-of-physical-force” clause of the ACCA [Doc. 40 p. 2].
6
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a new trial or correct the sentence.” 28 U.S.C. § 2255(b); see also Ajan v. United States, 731
F.3d 629, 633 (6th Cir. 2013).
Here, although the parties are in agreement that Petitioner is entitled to § 2255 relief, they
disagree as to the most appropriate form of that relief.
The government submits that the
appropriate relief would be to correct and reduce Petitioner’s sentence to 120 months’
imprisonment and 3 years’ supervised release, the applicable statutory maximums for a violation
of § 922(g)(1) for a non-armed career criminal [Doc. 40 pp. 2–3]. Petitioner, however, asserts
that his advisory guideline sentencing range under the current USSG would be 51 to 63 months
and submits that his sentence should be corrected and reduced to a sentence within that currently
applicable sentencing range [Id. p. 3]. 3
Due to the significant disparity in the parties’ proposed resolutions, the Court believes
that the most appropriate form of relief in this case is to resentence Petitioner following a full
resentencing hearing. The Court will direct the Probation Office to prepare an Addendum
containing a re-calculation of Petitioner’s advisory guideline sentencing range under the current
Guidelines Manual and detailing Petitioner’s post-sentencing conduct. A resentencing hearing
will be set and the parties will be given an opportunity to submit sentencing memoranda prior to
the hearing. The Court will enter an order accordingly.
III.
CONCLUSION
For the reasons set forth herein, the Court finds that Petitioner is entitled to relief under §
2255 and will grant his § 2255 motion [Doc. 32]. The Judgment imposed by the Court on
September 9, 2014 [Doc. 28], will be vacated and a resentencing hearing will be set. The United
The parties indicate that Petitioner has served approximately 39 months in custody to
date [Doc. 40 p. 2].
7
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States Probation Office will be directed to provide the Court with information necessary for
sentencing. The Clerk of Court will be directed to close the civil case at No. 3:16-CV-296.
AN APPROPRIATE ORDER WILL ENTER.
ENTER:
s/ Leon Jordan
United States District Judge
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File Name: 20a0234n.06
No. 17-6495
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
TONY EDWIN MCCLURG,
Defendant-Appellee.
)
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Apr 29, 2020
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TENNESSEE
BEFORE: DAUGHTREY, GIBBONS, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge. Tony McClurg pleaded guilty to being a felon in possession of
a firearm. Counting his prior Tennessee aggravated-burglary convictions as “violent felonies”
under the Armed Career Criminal Act, the district court sentenced McClurg to the statutory minimum 15-year term of imprisonment. A few years later, our caselaw on the Armed Career Criminal
Act changed, so the district court concluded that McClurg’s prior convictions no longer qualified
as “violent felonies.” The court granted McClurg’s motion to vacate his sentence under 28 U.S.C.
§ 2255 and ordered his immediate release. Since then, however, our caselaw has changed yet
again. As in many other recent cases, therefore, we must reverse the decision granting McClurg
§ 2255 relief and remand for the court to reinstate his original 180-month sentence. See United
States v. Brown, __ F.3d __, 2020 WL 1966845, at *1 (6th Cir. Apr. 24, 2020).
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No. 17-6495, United States v. McClurg
I
In 2012, McClurg pleaded guilty to being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). The Armed Career Criminal Act imposes a 15-year mandatory minimum
sentence for this offense if the defendant “has three previous convictions . . . for a violent felony
or a serious drug offense or both, committed on occasions different from one another[.]” 18 U.S.C.
§ 924(e)(1). At the time of his plea, McClurg had three Tennessee convictions for aggravated
burglary that qualified as violent felonies under our caselaw. See United States v. Nance, 481 F.3d
882, 888 (6th Cir. 2007). (McClurg also had two Tennessee burglary convictions that now count
as violent felonies under our cases. See United States v. Ferguson, 868 F.3d 514, 515 (6th Cir.
2017); United States v. Priddy, 800 F.3d 676, 684–85 (6th Cir. 2015).) Cognizant that he would
be deemed an armed career criminal, McClurg accepted a plea agreement with the government
under Federal Rule of Criminal Procedure 11(c)(1)(C) that included the minimum 180-month sentence. The district court imposed that recommended sentence in February 2013.
In June 2014, McClurg moved to vacate his sentence under 28 U.S.C. § 2255. While his
motion was pending, our en banc court overruled Nance and held that “a conviction for Tennessee
aggravated burglary is not a violent felony for purposes of the” Armed Career Criminal Act.
United States v. Stitt, 860 F.3d 854, 856 (6th Cir. 2017) (en banc). Based on Stitt, the parties
agreed that the Act no longer applied to McClurg, but they disagreed over what his revised sentence should be. The district court vacated McClurg’s original sentence and resentenced him to
time served. McClurg was released from prison the next day. In the more than two-year pendency
of this appeal, he has been on supervised release.
The United States appealed the district court’s grant of § 2255 relief to preserve its ability
to argue for the original sentence if the Supreme Court overruled our Stitt decision. The Court did
2
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so. See United States v. Stitt, 139 S. Ct. 399 (2018). We have since ruled that “Nance’s holding”
that a Tennessee aggravated-burglary conviction categorically qualifies as a violent felony under
the Armed Career Criminal Act “is once again the law of this circuit.” Brumbach v. United States,
929 F.3d 791, 794 (6th Cir. 2019).
II
The United States asks us to vacate McClurg’s amended sentence and remand for the district court to impose his original 180-month sentence. Following Brumbach, we have entered
similar judgments in many similar cases. See Brown, 2020 WL 1966845, at *2 (collecting cases).
McClurg, however, offers four reasons why we should affirm the district court’s order granting
him § 2255 relief. His arguments track those recently rejected by our Brown decision. See id. at
*2–8. They fail for the same reasons.
First, McClurg suggests that the United States forfeited its argument because it presented
the argument in a cursory manner in the district court. Yet the government properly conceded that
our Stitt decision compelled the district court to grant relief under § 2255, and preserved the issue
for future review. The district court “note[d] the government’s objection” at the resentencing
hearing, and the government did not need to do more under the circumstances.
Second, McClurg argues that Tennessee aggravated burglary cannot qualify as a “burglary”
under the Armed Career Criminal Act because it covers more conduct than the conduct covered
by the Supreme Court’s generic definition of the term. But, as McClurg concedes, Brumbach
rejected this same “entry” argument as precluded by our decision in Nance. 929 F.3d at 795. And
we recently explained that this argument would fail on its merits even if it were not foreclosed by
precedent. See Brown, 2020 WL 1966845, at *3–7.
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No. 17-6495, United States v. McClurg
Third, McClurg argues that both Tennessee burglary and aggravated burglary should not
qualify as a “burglary” within the meaning of the Armed Career Criminal Act because an individual could commit those Tennessee offenses with only reckless conduct, see Tenn. Code Ann. § 3914-402(a)(3), whereas generic burglary under the Act requires an “intent to commit a crime.” See
Taylor v. United States, 495 U.S. 575, 599 (1990). Even assuming we may consider this argument,
but see Brown, 2020 WL 1966845, at *7, the argument provides McClurg no grounds for relief.
Tennessee’s burglary statute is “divisible,” meaning that it criminalizes four different offenses set
out in subsections (a)(1), (a)(2), (a)(3), and (a)(4). Tenn. Code Ann. §§ 39-14-402(a), 39-14-403;
see United States v. Frazier, 742 F. App’x 81, 84 (6th Cir. 2018). McClurg was indicted for and
convicted of violating the (a)(1) offense, not the (a)(3) offense that his argument targets. See
Brown, 2020 WL 1966845, at *7.
Shepard documents for McClurg’s five prior convictions prove this point. They show that
he pleaded guilty to violating the (a)(1) offense. Although his four indictments and one information do not explicitly cite a subsection, they track the text of § 39-14-402(a)(1). The aggravatedburglary indictments charged that McClurg “did unlawfully and knowingly enter the habitation of
[his victims] without [their] effective consent, not open to the public, with intent to commit theft,
in violation of Tennessee Code Annotated, Section 39-14-403[.]” And the burglary charging documents alleged that McClurg did “unlawfully and knowingly enter . . . a building other than a
habitation, which was not open to the public, without the owner’s effective consent, with intent to
commit theft, in violation of Tennessee Code Annotated, Section 39-14-402[.]” Each judgment,
moreover, lists “SAME” for the conviction offense, indicating that he pleaded guilty as charged.
McClurg resists this interpretation, but he has not met his burden to show “by a preponderance of the evidence” that his prior convictions were not violent felonies. Packett v. United States,
4
Appx. 24
(5 of 7)
Case: 17-6495
Document: 53-2
Filed: 04/29/2020
Page: 5
No. 17-6495, United States v. McClurg
738 F. App’x 348, 352 (6th Cir. 2018). He contends that “it is possible” that he pleaded guilty
only to reckless offenses. But his arguments—that the plea agreements are not available, that his
attorney’s signature is missing from the optional signature line on several of the judgments, and
that the judgments were entered a week after the sentences were imposed—rest on speculation. In
particular, a plea agreement is unnecessary for us to conclude that McClurg pleaded guilty as
charged. Each judgment refers to the corresponding indictment offense, leaves the space for
“Amended Charge” blank, and lists the “Conviction offense” as “SAME.” McClurg was thus
convicted of violating the (a)(1) version of the Tennessee aggravated burglary and burglary offenses. See United States v. Hibbit, 514 F. App’x 594, 597–98 (6th Cir. 2013).
As we recently explained, the (a)(1) version of the Tennessee burglary offense closely
tracks the Supreme Court’s definition of generic burglary: the “unlawful . . . entry into . . . a building or other structure, with intent to commit a crime.” Stitt, 139 S. Ct. at 405–06 (citation omitted);
see Brown, 2020 WL 1966845, at *7. So McClurg’s burglary and aggravated-burglary convictions
qualify as violent felonies under the Armed Career Criminal Act.
Fourth, McClurg argues that his predicate convictions were not “committed on occasions
different from one another,” as the Armed Career Criminal Act requires. 18 U.S.C. § 924(e)(1).
He forthrightly concedes that our precedent forecloses his broad argument: that we may never look
to the dates and locations listed in his state-court records to decide whether a defendant committed
the burglaries on different occasions. See United States v. Hennessee, 932 F.3d 437, 444 (6th Cir.
2019); see also Brown, 2020 WL 1966845, at *8. McClurg more narrowly argues that his statecourt records do not show that his three aggravated burglaries and two burglaries happened on
different occasions. The United States says that he procedurally defaulted this argument, but we
can reject it on the merits. Cf. Storey v. Vasbinder, 657 F.3d 372, 380 (6th Cir. 2011). McClurg
5
Appx. 25
(6 of 7)
Case: 17-6495
Document: 53-2
Filed: 04/29/2020
Page: 6
No. 17-6495, United States v. McClurg
cannot show by a preponderance of the evidence that three of his prior convictions occurred on the
same occasion.
McClurg’s qualifying convictions were committed on different occasions. As he concedes,
we may look to his state-court charging documents to decide the question. See United States v.
King, 853 F.3d 267, 275–76 (6th Cir. 2017). In one indictment, McClurg was charged with burglarizing Cary J. Loud’s residence on February 1, 1997. A second indictment charged McClurg
with burglarizing Kenneth C. Hicks’s residence on February 5, 1997. An information charged
McClurg with burglarizing a building on February 15, 1997 (although the judgment indicates that
McClurg in fact committed this burglary on February 2, 1997). A third indictment charged
McClurg with burglarizing the Lone Oak Baptist Church on February 16, 1997. And a fourth
indictment charged McClurg with burglarizing Marion F. Everett’s residence on March 17, 1997.
The corresponding judgments all confirm that the offenses were committed on different dates. See
United States v. Southers, 866 F.3d 364, 369–70 (6th Cir. 2017). The “terms of the charging
document[s],” King, 853 F.3d at 276 (citation omitted), thus show that the three aggravated burglaries and two burglaries happened on different occasions, see Southers, 866 F.3d at 369–70.
We acknowledge the hardship that uncertainty in our caselaw has created for McClurg.
The law ties our hands, however. We vacate the district court’s judgment resentencing McClurg
and remand with instructions to reinstate his original sentence.
6
Appx. 26
(7 of 7)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
TONY EDWIN McCLURG,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
)
)
)
)
)
)
)
)
)
Nos.: 3:12-CR-112-TAV-HBG-1
3:14-CV-276-TAV
MEMORANDUM OPINION
Presently before the Court are a motion to vacate, set aside, or correct sentence pursuant
to 28 U.S.C. § 2255 and a supplement thereto filed by Tony Edwin McClurg (“Petitioner”)
which challenge his enhanced sentence as an armed career criminal under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), pursuant to Johnson v. United States, 135 S. Ct.
2551 (2015).1 In light of both Johnson and the recent en banc decision of the Sixth Circuit Court
of Appeals in United States v. Stitt, 860 F.3d 854 (6th Cir. 2017), it now is undisputed that
Petitioner no longer qualifies as an armed career criminal under the ACCA. Accordingly,
Petitioner’s § 2255 motion [Doc. 25], as supplemented [Doc. 28], will be GRANTED.
I.
BACKGROUND
On August 21, 2012, a grand jury sitting in the Eastern District of Tennessee returned a
one-count indictment charging Petitioner with possession of firearms and ammunition by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) [Doc. 10]. On October 31,
2012, Petitioner entered a plea of guilty as to count one of the indictment [Doc. 19].
The Supreme Court has determined that Johnson, which invalidated the residual clause
of the ACCA as unconstitutionally vague, announced a new “substantive rule that has retroactive
effect in cases on collateral review.” Welch v. United States, 136 S. Ct. 1257, 1268 (2016); see
also In Re Watkins, 810 F.3d 375, 381-85 (6th Cir. 2015).
1
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Appx. 27
The presentence investigation report (“PSIR”) identified three previous convictions for a
violent felony, committed on occasions different from one another, that qualified Petitioner as an
armed career criminal under the ACCA. All three of those convictions were for aggravated
burglary [PSIR ¶¶ 25, 26, 27]. As an armed career criminal, Petitioner was subject to a statutory
mandatory minimum incarceration sentence of 15 years to a maximum of life and his advisory
guideline sentencing range under the United States Sentencing Guidelines (“USSG”) was 180 to
210 months [PSIR ¶¶ 58, 59].
On February 27, 2013, Petitioner was sentenced to a term of imprisonment of 180 months
at count one of the indictment and a term of supervised release of 3 years [Doc. 24]. Petitioner
did not file a direct appeal.
On June 18, 2014, Petitioner, through court-appointed counsel, filed a § 2255 motion
challenging his armed career criminal status based on the Supreme Court’s decision in Descamps
v. United States, 133 S. Ct. 2276 (2013) [Doc. 25]. On June 14, 2016, Petitioner, again through
court-appointed counsel, filed a supplement to his pending § 2255 motion raising an additional
challenge to his armed career criminal status based on the Supreme Court’s invalidation of the
ACCA residual clause in Johnson [Doc. 28].
The government’s motion to defer ruling on Petitioner’s motion pending an en banc
decision from the Sixth Circuit in United States v. Stitt, 646 F. App’x 454 (6th Cir. 2016), was
granted by the Court on November 4, 2016 [Doc. 31]. On June 27, 2017, the Sixth Circuit issued
its en banc decision holding that a conviction of aggravated burglary under Tennessee law does
not qualify as a violent felony predicate offense under the ACCA. Stitt, 860 F.3d at 856.
2
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Appx. 28
On July 27, 2017, the parties filed a joint status report agreeing that Petitioner no longer
qualifies as an armed career criminal in light of Johnson and Stitt [Doc. 33].
II.
ANALYSIS
A.
TIMELINESS
Section 2255(f) places a one-year period of limitation on all petitions for collateral relief
under § 2255 which runs from the latest of: (1) the date on which the judgment of conviction
becomes final; (2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such governmental action; (3) the date on
which the right asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to cases on collateral
review; or (4) the date on which the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f).
Claims based on the Supreme Court’s opinion in Johnson satisfy the third sub-category––
the assertion of a newly recognized right made retroactively applicable to cases on collateral
review. Welch, 136 S. Ct. at 1268 (Johnson constitutes a new substantive rule of constitutional
law made retroactively applicable on collateral review); In Re Watkins, 810 F.3d at 381–85. The
one-year limitation period for filing a motion to vacate based on a right newly recognized by the
Supreme Court runs from the date on which the Supreme Court initially recognized the right
asserted, not from the date on which the right asserted was made retroactively applicable. Dodd
v. United States, 545 U.S. 353, 357 (2005). Accordingly, Johnson triggered a renewed one-year
period of limitation beginning on the date of that decision, June 26, 2015, and running until June
26, 2016.
3
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Appx. 29
In this case, Petitioner filed the supplement to his § 2255 motion raising a Johnson claim
on June 14, 2016, which falls safely within the one-year window for requesting collateral relief
under Johnson.
B.
STANDARD OF REVIEW
To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law . . . so fundamental as to render the entire proceeding invalid.” McPhearson v.
United States, 675 F.3d 553, 558–59 (6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d
491, 496–97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on
direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in
a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United
States, 157 F.3d 427, 430 (6th Cir. 1998).
C.
PETITIONER’S JOHNSON CLAIM
A felon who possesses a firearm normally faces a maximum penalty of 10 years’
imprisonment, 18 U.S.C. § 924(a)(2), and 3 years’ supervised release, 18 U.S.C. §§ 3559(a)(3)
and 3583(b)(2). However, if that felon possesses the firearm after having sustained three prior
convictions “for a violent felony or serious drug offense, or both,” the ACCA requires a 15-year
minimum sentence, 18 U.S.C. § 924(e)(1), and increases the maximum supervised release term
to 5 years, 18 U.S.C. §§ 3559(a)(1) and 3583(b)(1). The ACCA defines a “violent felony” as
“any crime punishable by imprisonment for a term exceeding one year” that: (1) “has as an
element the use, attempted use, or threatened use of physical force against the person of another”
(the “use-of-physical-force clause”); (2) “is burglary, arson, or extortion, involves use of
4
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Appx. 30
explosives” (the “enumerated-offense clause”); or (3) “otherwise involves conduct that presents
a serious potential risk of physical injury to another” (the “residual clause”). 18 U.S.C. §
924(e)(2)(B).
In Johnson, the Supreme Court determined that the residual clause of the ACCA is
unconstitutionally vague and concluded “that imposing an increased sentence under the residual
clause . . . violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563. Johnson did
not automatically invalidate all ACCA sentences, however, emphasizing that its holding “d[id]
not call into question application of the Act to the four enumerated offenses, or the remainder of
the Act’s definition of a violent felony.” Id.; see also United States v. Kemmerling, 612 F. App’x
373, 376 (6th Cir. 2015) (explicitly finding that Johnson did not affect the ACCA’s use-ofphysical-force clause).
Thus, under Johnson, an ACCA sentence only raises due process
concerns, and thus is invalid, if it necessarily was based on predicate violent felonies that
qualified as such only under the ACCA’s residual clause.
In this case, all three of Petitioner’s predicate offenses were convictions for aggravated
burglary in violation of Tenn. Code. Ann. § 39-14-403 [PSIR ¶¶ 25, 26, 27]. Petitioner contends,
inter alia, that aggravated burglary could qualify as a predicate offense only under the stricken
residual clause of the ACCA. In response, the government initially cited then-binding Sixth
Circuit precedent holding that a conviction for aggravated burglary under the Tennessee statute
qualifies as an ACCA predicate under the enumerated-offense clause. United States v. Nance,
481 F.3d 882, 888 (6th Cir. 2007).
However, in the en banc Stitt decision, the Sixth Circuit overruled Nance and expressly
held that aggravated burglary is not a violent felony for purposes of the ACCA. 860 F.3d at
860–61. Applying a categorical approach, the Court determined that the Tennessee aggravated
5
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Appx. 31
burglary statute “sweeps more broadly than generic burglary” and thus cannot qualify as a
violent felony under the enumerated-offense clause. Id. at 861. Because the statute categorically
is not a violent felony, and also is indivisible, the Sixth Circuit concluded that a conviction under
the Tennessee aggravated burglary statute does not count as a violent felony under the ACCA.
Id. at 862.
Because a conviction for aggravated burglary does not qualify as a violent felony under
the first two clauses of § 924(e)(2)(B),2 and Johnson invalidated the residual clause, Petitioner’s
aggravated burglary convictions under the Tennessee statute no longer can be used as predicate
offenses under the ACCA. Furthermore, absent those convictions, Petitioner no longer has the
requisite three prior convictions of a violent felony or a serious drug offense necessary to subject
him to the ACCA’s enhanced penalties.
Accordingly, the Johnson and Stitt decisions dictate that Petitioner no longer can be
designated an armed career criminal under § 924(e).
As a result, the 180-month term of
imprisonment imposed by the Court exceeds the maximum authorized sentence of not more than
10 years’ imprisonment for a non-ACCA offender convicted of a violation of § 922(g)(1). See
18 U.S.C. § 924(a)(2). Under these circumstances, the Court finds a clear entitlement to § 2255
relief, as Petitioner has been subjected to “a sentence imposed outside the statutory limits.”
McPhearson, 675 F.3d at 559.
Where a § 2255 claim has merit, a district court “shall vacate and set the judgment aside”
and, “as may appear appropriate,” shall either “discharge the prisoner or resentence him or grant
The parties acknowledge that aggravated burglary does not have as an element the use,
attempted use or threatened use of force and therefore cannot qualify as a violent felony under
the “use-of-physical-force” clause of the ACCA [Doc. 33 p. 2].
6
2
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Appx. 32
a new trial or correct the sentence.” 28 U.S.C. § 2255(b); see also Ajan v. United States, 731
F.3d 629, 633 (6th Cir. 2013).
Here, although the parties are in agreement that Petitioner is entitled to § 2255 relief, they
disagree as to the most appropriate form of that relief. The government submits that had
Petitioner not been designated an armed career criminal, his advisory guideline sentencing range
at the time of his original sentencing would have been 92 to 115 months, and it recommends a
sentence within that guideline range [Doc. 33 p. 3]. Petitioner, however, asserts that his advisory
guideline sentencing range as a non-ACCA offender under the current USSG would be 33 to 41
months and, because he already has served approximately 59 months in custody, submits that his
sentence should be corrected and reduced to a sentence of time served [Id.].
Due to the significant disparity in the parties’ proposed resolutions, the Court believes
that the most appropriate form of relief in this case is to resentence Petitioner following a full
resentencing hearing. The Court will direct the Probation Office to prepare an Addendum
containing a re-calculation of Petitioner’s advisory guideline sentencing range under the current
Guidelines Manual and detailing Petitioner’s post-sentencing conduct. A resentencing hearing
will be set and the parties will be given an opportunity to submit sentencing memoranda prior to
the hearing. The Court will enter an order accordingly.
III.
CONCLUSION
For the reasons set forth herein, the Court finds that Petitioner is entitled to relief under §
2255 and will grant his § 2255 motion [Doc. 25], as supplemented [Doc. 28]. The Judgment
imposed by the Court on February 27, 2013 [Doc. 24], will be vacated and a resentencing
hearing will be set. The United States Probation Office will be directed to provide the Court
7
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Appx. 33
with information necessary for sentencing. The Clerk of Court will be directed to close the civil
case at No. 3:14-CV-276.
AN APPROPRIATE ORDER WILL ENTER.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
8
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Appx. 34
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE KNOXVILLE DIVISION
UNITED STATES OF AMERICA
JUDGMENT IN A CRIMINAL CASE
(For Offenses committed on or after November 1, 1987)
v.
Case Number: 3:12-CR-00112-TAV-HBG(1)
TONY EDWIN MCCLURG
USM#45173-074
Paula R Voss
Defendant’s Attorney
THE DEFENDANT:
☒
pleaded guilty to count(s): 1 of the Indictment
☐
pleaded nolo contendere to count(s) which was accepted by the court.
☐
was found guilty on count(s) after a plea of not guilty.
ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offense(s):
Title & Section and Nature of Offense
18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2) - Felon in Possession of Firearms and
Ammunition
The defendant is sentenced as provided in pages 2 through 7
Reform Act of 1984 and 18 U.S.C. 3553.
Date Violation Concluded Count
08/08/2012
1
of this judgment. The sentence is imposed pursuant to the Sentencing
☐ The defendant has been found not guilty on count(s).
☐ All remaining count(s) as to this defendant are dismissed upon motion of the United States.
IT IS ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of
name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid.
If ordered to pay restitution, the defendant shall notify the court and the United States attorney of any material change in the
defendant's economic circumstances.
November 15, 2017
Date of Imposition of Judgment
s/ Thomas A. Varlan
Signature of Judicial Officer
Thomas A Varlan , United States District Judge
Name & Title of Judicial Officer
November 16, 2017
Date
Case 3:12-cr-00112-TAV-HBG Document 42 Filed 11/16/17 Page 1 of 7 PageID #: 228
Appx. 35
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
TONY EDWIN MCCLURG
3:12-CR-00112-TAV-HBG(1)
Judgment - Page 2 of 7
IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of:
time served as to count one.
☐ The court makes the following recommendations to the Bureau of Prisons:
☒ The defendant is remanded to the custody of the United States Marshal. This Order shall take effect WITHIN FIVE DAYS
from its entry to give the Bureau of Prisons adequate time to process defendant’s release.
☐ The defendant shall surrender to the United States Marshal for this district:
☐ at
☐ a.m. ☐ p.m. on
☐ as notified by the United States Marshal.
☐ The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
☐ before 2 p.m. on .
☐ as notified by the United States Marshal.
☐ as notified by the Probation or Pretrial Services Office.
I have executed this judgment as follows:
RETURN
Defendant delivered on
to
,
at
,
with a certified copy of this judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL
Case 3:12-cr-00112-TAV-HBG Document 42 Filed 11/16/17 Page 2 of 7 PageID #: 229
Appx. 36
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
TONY EDWIN MCCLURG
3:12-CR-00112-TAV-HBG(1)
Judgment - Page 3 of 7
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of three (3) years.
MANDATORY CONDITIONS
1.
You must not commit another federal, state or local crime.
2.
You must not unlawfully possess a controlled substance.
3.
5.
You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release
from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
☐ The above drug testing condition is suspended, based on the court's determination that you pose a low risk of future
substance abuse. (check if applicable)
You
must
make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentencing
☐
of restitution. (check if applicable)
☒ You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)
6.
☐
7.
☐
4.
You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et
seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which
you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
You must participate in an approved program for domestic violence. (check if applicable)
You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the
attached page.
Case 3:12-cr-00112-TAV-HBG Document 42 Filed 11/16/17 Page 3 of 7 PageID #: 230
Appx. 37
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
TONY EDWIN MCCLURG
3:12-CR-00112-TAV-HBG(1)
Judgment - Page 4 of 7
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are
imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed
by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.
1.
You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of
your release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a
different time frame.
2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how
and when you must report to the probation officer, and you must report to the probation officer as instructed.
3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission
from the court or the probation officer.
4. You must answer truthfully the questions asked by your probation officer.
5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your
living arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the
change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify the
probation officer within 72 hours of becoming aware of a change or expected change.
6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation
officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view.
7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses
you from doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation
officer excuses you from doing so. If you plan to change where you work or anything about your work (such as your position
or your job responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the
probation officer at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation
officer within 72 hours of becoming aware of a change or expected change.
8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has
been convicted of a felony, you must not knowingly communicate or interact with that person without first getting the
permission of the probation officer.
9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything
that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as
nunchakus or tasers).
11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant
without first getting the permission of the court.
12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer
may require you to notify the person about the risk and you must comply with that instruction. The probation officer may
contact the person and confirm that you have notified the person about the risk.
13. You must follow the instructions of the probation officer related to the conditions of supervision.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the mandatory, standard, and any special conditions specified by the court and has
provided me with a written copy of this judgment containing these conditions. For further information regarding these conditions, see
Overview of Probation and Supervised Release Conditions, available at: www.uscourts.gov.
Defendant’s Signature
Date
Case 3:12-cr-00112-TAV-HBG Document 42 Filed 11/16/17 Page 4 of 7 PageID #: 231
Appx. 38
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
TONY EDWIN MCCLURG
3:12-CR-00112-TAV-HBG(1)
Judgment - Page 5 of 7
SPECIAL CONDITIONS OF SUPERVISION
1.
You must participate in a program of testing and treatment for drug and/or alcohol abuse, as directed by the probation officer,
until such time as you are released from the program by the probation officer.
Case 3:12-cr-00112-TAV-HBG Document 42 Filed 11/16/17 Page 5 of 7 PageID #: 232
Appx. 39
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
TONY EDWIN MCCLURG
3:12-CR-00112-TAV-HBG(1)
Judgment - Page 6 of 7
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the Schedule of Payments sheet of this judgment.
TOTALS
☐
☐
Assessment
Paid $100.00
JVTA Assessment*
$.00
Fine
$.00
Restitution
$.00
The determination of restitution is deferred until
An Amended Judgment in a Criminal Case (AO245C) will be entered
after such determination.
The defendant must make restitution (including community restitution) to the following payees in the amount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified
otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal
victims must be paid before the United States is paid.
☐
☐
☐
Restitution amount ordered pursuant to plea agreement $
The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before
the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options under the Schedule
of Payments sheet of this judgment may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
The court determined that the defendant does not have the ability to pay interest and it is ordered that:
☐ the interest requirement is waived for the
☐ fine
☐ restitution
the
interest
requirement
for
the
fine
☐
☐
☐ restitution is modified as follows:
* Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22
** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994,
but before April 23, 1996.
Case 3:12-cr-00112-TAV-HBG Document 42 Filed 11/16/17 Page 6 of 7 PageID #: 233
Appx. 40
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
TONY EDWIN MCCLURG
3:12-CR-00112-TAV-HBG(1)
Judgment - Page 7 of 7
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:
☒
☐
☐
Lump sum payments of $100.00 (paid)
not later than
in accordance with
C,
☐
B
☐
Payment to begin immediately (may be combined with
C
☐
Payment in equal
(e.g., weekly, monthly, quarterly) installments of $
over a period
of
(e.g., months or years), to commence
(e.g., 30 or 60 days) after the date of this judgment; or
D
☐
Payment in equal
(e.g., weekly, monthly, quarterly) installments of $
over a period
of
(e.g., months or years), to commence
(e.g., 30 or 60 days) after release from imprisonment to a term of
supervision; or
E
☐
Payment during the term of supervised release will commence within
(e.g., 30 or 60 days) after release from
imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or
F
☐
Special instructions regarding the payment of criminal monetary penalties:
A
due immediately, balance due
, or
D,
E, or
☐
☐
☐
C,
☐
F below; or
☐
D, or
☐
F below); or
Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is
due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’
Inmate Financial Responsibility Program, are made to U.S. District Court, 800 Market Street, Suite 130, Howard H. Baker, Jr.
United States Courthouse, Knoxville, TN, 37902. Payments shall be in the form of a check or a money order, made payable to U.S.
District Court, with a notation of the case number including defendant number.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
☐
☐
☐
☐
Joint and Several
See above for Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint
and Several Amount, and corresponding payee, if appropriate.
☐ Defendant shall receive credit on his restitution obligation for recovery from other defendants who contributed to the same
loss that gave rise to defendant's restitution obligation.
The defendant shall pay the cost of prosecution.
The defendant shall pay the following court cost(s):
The defendant shall forfeit the defendant’s interest in the following property to the United States:
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,
(5) fine interest, (6) community restitution, (7) JVTA Assessment, (8) penalties, and (9) costs, including cost of prosecution and court
costs.
Case 3:12-cr-00112-TAV-HBG Document 42 Filed 11/16/17 Page 7 of 7 PageID #: 234
Appx. 41
Case: 17-6507
Document: 59-2
Filed: 05/28/2020
Page: 1
(2 of 4)
NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0297n.06
No. 17-6507
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA,
)
)
)
)
)
)
)
)
)
)
Plaintiff-Appellant,
v.
JASON S. MORGAN,
Defendant-Appellee.
May 28, 2020
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE EASTERN
DISTRICT OF TENNESSEE
BEFORE: GRIFFIN, THAPAR, and READLER, Circuit Judges.
PER CURIAM:
In 2010, Jason Morgan pleaded guilty to being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). At the time, he had eight prior convictions in Tennessee state
court for aggravated burglary. Based on those convictions, the district court found that Morgan
qualified as an armed career criminal under 18 U.S.C. § 924(e)(1), which imposes a mandatory
minimum sentence of fifteen years if the defendant has at least three prior convictions “for a violent
felony or a serious drug offense, or both.” This court had previously held that “Tennessee
aggravated burglary represents a generic burglary capable of constituting a violent felony for
ACCA purposes.” United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007). The district court
imposed a sentence of 188 months of incarceration followed by five years of supervised release.
Morgan did not appeal.
Appx. 42
Case: 17-6507
Document: 59-2
Filed: 05/28/2020
Page: 2
No. 17-6507, United States v. Morgan
Morgan eventually moved to vacate his sentence under 28 U.S.C. § 2255. (R. 25.) After
the Supreme Court invalidated the residual clause of the Armed Career Criminal Act (“ACCA”)
as unconstitutionally vague, Morgan amended his petition to argue that his Tennessee aggravated
burglary convictions no longer qualified as ACCA predicates. See Johnson v. United States,
135 S. Ct. 2551 (2015). The government argued that those convictions qualified as violent felonies
under the ACCA’s enumerated-offense clause, which was “not call[ed] into question” in Johnson.
Id. at 2563. Then this court, sitting en banc, considered the statute of Morgan’s convictions and
held that it did not qualify as an ACCA predicate under the enumerated-offense clause because its
definition of the word “structure” was overbroad. United States v. Stitt, 860 F.3d 854, 862 (6th
Cir. 2017) (en banc). This had the effect of overruling Nance. In light of Johnson and Stitt, the
district court granted Morgan’s § 2255 motion, vacated his sentence, and resentenced him to time
served followed by three years of supervised release.
Morgan’s victory, however, was “short-lived.” United States v. Hamilton, 774 F. App’x
283, 283 (6th Cir. 2019). The Supreme Court granted certiorari in Stitt and reversed. United States
v. Stitt, 139 S. Ct. 399, 404, 408 (2018). Perhaps anticipating this outcome, the government had
filed a timely notice of appeal after Morgan’s resentencing. After the Supreme Court’s opinion in
Stitt issued, the government requested that Morgan’s original sentence be reinstated because
“Nance’s holding . . . is once again the law of this circuit.” Brumbach v. United States, 929 F.3d
791, 794 (6th Cir. 2019), cert. denied, 140 S. Ct. 974 (2020).
Morgan now argues that Tennessee’s aggravated burglary statute does not qualify as an
ACCA predicate, but for a different reason not considered by either court in Stitt. According to
Morgan, generic burglary under the ACCA “requires a generic ‘entry,’” and the Tennessee statute
defines “entry” to encompass attempted entries in addition to completed entries. As a result,
-2-
Appx. 43
(3 of 4)
Case: 17-6507
Document: 59-2
Filed: 05/28/2020
Page: 3
No. 17-6507, United States v. Morgan
Morgan argues, Tennessee aggravated burglary does not fit within the generic offense of burglary
under the ACCA’s enumerated-offense clause. See United States v. Brown, 957 F.3d 679, 684
(6th Cir. 2020) (explaining the “subtle common-law distinction” on which this argument hinges).
We need not dive too deep into Morgan’s argument, however, for two reasons. First,
“[e]ven if there is merit to [Morgan’s] arguments concerning Tennessee’s definition of entry, a
panel of this court cannot overrule Nance.” Brumbach, 929 F.3d at 795. Second, “[w]e have also
repeatedly rejected the argument since Brumbach.” Brown, 957 F.3d at 683. Most notably, in
Brown, we analyzed its merits, characterized the “entry-by-instrument distinction [as] perhaps the
prototypical ‘arcane distinction’ that Taylor would disavow,” and concluded that the Supreme
Court would not “adopt Brown’s view of generic ‘entry.’” Id. at 684–85 (quoting Taylor v. United
States, 495 U.S. 575, 593 (1990)). Because Morgan’s arguments are clearly foreclosed by
precedent, we need not remand this case for further consideration.
We vacate Morgan’s modified sentence and remand with instructions to reinstate his
original sentence.
-3-
Appx. 44
(4 of 4)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
JASON S. MORGAN,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
Nos. 2:10-CR-78-JRG-1
2:14-CV-189-JRG
MEMORANDUM OPINION
Presently before the Court are an amended motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 and a supplement thereto filed by Jason S. Morgan (“Petitioner”)
which challenge his enhanced sentence as an armed career criminal under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), pursuant to Johnson v. United States, 135 S. Ct.
2551 (2015).1
In light of both Johnson and the recent en banc decision of the Sixth Circuit
Court of Appeals in United States v. Stitt, 860 F.3d 854 (6th Cir. 2017), it now is undisputed that
Petitioner no longer qualifies as an armed career criminal under the ACCA. Accordingly,
Petitioner’s amended § 2255 motion [Doc. 27], as supplemented [Doc. 40], will be GRANTED.
I.
BACKGROUND
On August 10, 2010, a grand jury sitting in the Eastern District of Tennessee returned a
one-count indictment charging Petitioner with possession of firearms by a convicted felon, in
The Supreme Court has determined that Johnson, which invalidated the residual clause
of the ACCA as unconstitutionally vague, announced a new “substantive rule that has retroactive
effect in cases on collateral review.” Welch v. United States, 136 S. Ct. 1257, 1268 (2016); see
also In re Watkins, 810 F.3d 375, 381-85 (6th Cir. 2015).
1
Case 2:10-cr-00078-JRG Document 48 Filed 08/18/17 Page 1 of 8 PageID #: 264
Appx. 45
violation of 18 U.S.C. § 922(g)(1) and § 924(e) [Doc. 1]. On November 8, 2010, Petitioner
entered a plea of guilty as to Count One [Doc. 12].
The presentence investigation report (“PSIR”) identified eight previous convictions for a
violent felony, committed on occasions different from one another, that qualified Petitioner as an
armed career criminal under the ACCA: (1) five convictions on September 24, 2007, for five
separate counts2 of aggravated burglary in the Jefferson County, Tennessee, Criminal Court
[PSIR ¶ 31]; (2) a December 10, 2007, conviction for aggravated burglary in the Cocke County,
Tennessee, Criminal Court [PSIR ¶ 33]; and (3) two convictions on February 27, 2008, for
aggravated burglary in the Hamblen County, Tennessee, Criminal Court [PSIR ¶¶ 36, 37]. As an
armed career criminal, Petitioner was subject to a statutory mandatory minimum sentence of 15
years to a maximum of life and his advisory guideline sentencing range under the United States
Sentencing Guidelines (“USSG”) was 188 to 235 months [PSIR ¶¶ 61, 62]. On March 28, 2011,
Petitioner was sentenced to a term of imprisonment of 188 months and a term of supervised
release of 5 years [Doc. 20]. Petitioner did not file a direct appeal.
On July 17, 2014, Petitioner, through court-appointed counsel, filed an amended § 2255
motion challenging his armed career criminal status based on the Supreme Court’s decision in
Descamps v. United States, 133 S. Ct. 2276 (2013) [Doc. 27]. On June 23, 2016, Petitioner,
The ACCA requires three previous convictions committed “on occasions different from
one another.” 18 U.S.C. § 924(e)(1). The Sixth Circuit has held that “under the ACCA, a career
criminal is one who has been convicted of three criminal ‘episodes.’” United States v.
Hockenberry, 730 F.3d 645, 667 (6th Cir. 2013) (quoting United States v. McCauley, 548 F.3d
440, 448 (6th Cir. 2008)). “Although related to the entire course of events, an episode is a
punctuated occurrence with a limited duration.” McCauley, 548 F.3d at 448. Accordingly,
crimes that a defendant commits against different victims, in different places, and at different
times, will generally be separate offenses. Hockenberry, 730 F.3d at 667. Thus, “even when
convictions ‘were sentenced on the same day, they count separately for purposes of calculating
an ACCA enhancement.’” Id. (quoting United States v. Kearney, 675 F.3d 571, 575 n. 5 (6th
Cir. 2012)).
2
2
Case 2:10-cr-00078-JRG Document 48 Filed 08/18/17 Page 2 of 8 PageID #: 265
Appx. 46
again through court-appointed counsel, filed a supplement to his pending § 2255 motion raising
an additional challenge to his armed career criminal status based on the Supreme Court’s
invalidation of the ACCA residual clause in Johnson [Doc. 40].
The government’s motion to defer ruling on Petitioner’s motion pending an en banc
decision from the Sixth Circuit in United States v. Stitt, 646 F. App’x 454 (6th Cir. 2016), was
granted by the Court on November 4, 2016 [Doc. 43]. On June 27, 2017, the Sixth Circuit issued
its en banc decision holding that a conviction of aggravated burglary under Tennessee law does
not qualify as a violent felony predicate offense under the ACCA. Stitt, 860 F.3d at 856.
On July 27, 2017, the parties filed a joint status report agreeing that Petitioner no longer
qualifies as an armed career criminal in light of Johnson and Stitt [Doc. 47].
II.
ANALYSIS
A.
TIMELINESS
Section 2255(f) places a one-year period of limitation on all petitions for collateral relief
under § 2255 which runs from the latest of: (1) the date on which the judgment of conviction
becomes final; (2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United States is removed, if
the movant was prevented from making a motion by such governmental action; (3) the date on
which the right asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to cases on collateral
review; or (4) the date on which the facts supporting the claim or claims presented could have
been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f).
Claims based on the Supreme Court’s opinion in Johnson satisfy the third sub-category––
the assertion of a newly recognized right made retroactively applicable to cases on collateral
3
Case 2:10-cr-00078-JRG Document 48 Filed 08/18/17 Page 3 of 8 PageID #: 266
Appx. 47
review. Welch, 136 S. Ct. at 1268 (Johnson constitutes a new substantive rule of constitutional
law made retroactively applicable on collateral review); In Re Watkins, 810 F.3d at 381–85. The
one-year limitation period for filing a motion to vacate based on a right newly recognized by the
Supreme Court runs from the date on which the Supreme Court initially recognized the right
asserted, not from the date on which the right asserted was made retroactively applicable. Dodd
v. United States, 545 U.S. 353, 357 (2005). Accordingly, Johnson triggered a renewed one-year
period of limitation beginning on the date of that decision, June 26, 2015, and running until June
26, 2016.
In this case, Petitioner filed the supplement to his amended § 2255 motion raising a
Johnson claim on June 23, 2016, which falls safely within the one-year window for requesting
collateral relief under Johnson.
B.
STANDARD OF REVIEW
To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of
fact or law . . . so fundamental as to render the entire proceeding invalid.” McPhearson v.
United States, 675 F.3d 553, 558–59 (6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d
491, 496–97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on
direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in
a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United
States, 157 F.3d 427, 430 (6th Cir. 1998).
C.
PETITIONER’S JOHNSON CLAIM
A felon who possesses a firearm normally faces a maximum penalty of 10 years’
imprisonment, 18 U.S.C. § 924(a)(2), and 3 years’ supervised release, 18 U.S.C. §§ 3559(a)(3)
4
Case 2:10-cr-00078-JRG Document 48 Filed 08/18/17 Page 4 of 8 PageID #: 267
Appx. 48
and 3583(b)(2). However, if that felon possesses the firearm after having sustained three prior
convictions “for a violent felony or serious drug offense, or both,” the ACCA requires a 15-year
minimum sentence, 18 U.S.C. § 924(e)(1), and increases the maximum supervised release term
to 5 years, 18 U.S.C. §§ 3559(a)(1) and 3583(b)(1). The ACCA defines a “violent felony” as
“any crime punishable by imprisonment for a term exceeding one year” that: (1) “has as an
element the use, attempted use, or threatened use of physical force against the person of another”
(the “use-of-physical-force clause”); (2) “is burglary, arson, or extortion, involves use of
explosives” (the “enumerated-offense clause”); or (3) “otherwise involves conduct that presents
a serious potential risk of physical injury to another” (the “residual clause”). 18 U.S.C. §
924(e)(2)(B).
In Johnson, the Supreme Court determined that the residual clause of the ACCA is
unconstitutionally vague and concluded “that imposing an increased sentence under the residual
clause . . . violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563. Johnson did
not automatically invalidate all ACCA sentences, however, emphasizing that its holding “d[id]
not call into question application of the Act to the four enumerated offenses, or the remainder of
the Act’s definition of a violent felony.” Id.; see also United States v. Kemmerling, 612 F. App’x
373, 376 (6th Cir. 2015) (explicitly finding that Johnson did not affect the ACCA’s use-ofphysical-force clause).
Thus, under Johnson, an ACCA sentence only raises due process
concerns, and thus is invalid, if it necessarily was based on predicate violent felonies that
qualified as such only under the ACCA’s residual clause.
In this case, all of Petitioner’s predicate offenses were convictions for aggravated
burglary in violation of Tennessee Code. Annotated § 39-14-403 [PSIR ¶¶ 31, 33, 36 and 37].
Petitioner contends, inter alia, that aggravated burglary could qualify as a predicate offense only
5
Case 2:10-cr-00078-JRG Document 48 Filed 08/18/17 Page 5 of 8 PageID #: 268
Appx. 49
under the stricken residual clause of the ACCA. In response, the government initially cited thenbinding Sixth Circuit precedent holding that a conviction for aggravated burglary under the
Tennessee statute qualifies as an ACCA predicate under the enumerated-offense clause. United
States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007).
However, in the en banc Stitt decision, the Sixth Circuit overruled Nance and expressly
held that aggravated burglary is not a violent felony for purposes of the ACCA. 860 F.3d at
860–61. Applying a categorical approach, the Court determined that the Tennessee aggravated
burglary statute “sweeps more broadly than generic burglary” and thus cannot qualify as a
violent felony under the enumerated-offense clause. Id. at 861. Because the statute categorically
is not a violent felony, and also is indivisible, the Sixth Circuit concluded that a conviction under
the Tennessee aggravated burglary statute does not count as a violent felony under the ACCA.
Id. at 862.
Because a conviction for aggravated burglary does not qualify as a violent felony under
the first two clauses of § 924(e)(2)(B),3 and Johnson invalidated the residual clause, Petitioner’s
aggravated burglary convictions under the Tennessee statute can no longer be used as predicate
offenses under the ACCA. Furthermore, absent those convictions, Petitioner no longer has the
requisite three prior convictions of a violent felony or a serious drug offense necessary to subject
him to the ACCA’s enhanced penalties.
Accordingly, the Johnson and Stitt decisions dictate that Petitioner no longer can be
designated an armed career criminal under § 924(e).
As a result, the 188-month term of
imprisonment and 5-year term of supervised release imposed by the Court exceed the maximum
The parties acknowledge that aggravated burglary does not have as an element the use,
attempted use or threatened use of force and therefore cannot qualify as a violent felony under
the “use-of-physical-force” clause of the ACCA [Doc. 47 p. 2].
6
3
Case 2:10-cr-00078-JRG Document 48 Filed 08/18/17 Page 6 of 8 PageID #: 269
Appx. 50
authorized sentence of not more than 10 years’ imprisonment and not more than 3 years’
supervised release for a non-ACCA offender convicted of a violation of § 922(g)(1). See 18
U.S.C. § 924(a)(2) and 18 U.S.C. §§ 3559(a)(3) and 3583(b)(2). Under these circumstances, the
Court finds a clear entitlement to § 2255 relief, as Petitioner has been subjected to “a sentence
imposed outside the statutory limits.” McPhearson, 675 F.3d at 559.
Where a § 2255 claim has merit, a district court “shall vacate and set the judgment aside”
and, “as may appear appropriate,” shall either “discharge the prisoner or resentence him or grant
a new trial or correct the sentence.” 28 U.S.C. § 2255(b); see also Ajan v. United States, 731
F.3d 629, 633 (6th Cir. 2013).
Here, although the parties are in agreement that Petitioner is entitled to § 2255 relief, they
disagree as to the most appropriate form of that relief.
The government submits that the
appropriate relief would be to correct and reduce Petitioner’s sentence to 120 months’
imprisonment and 3 years’ supervised release, the applicable statutory maximums for a violation
of § 922(g)(1) for a non-armed career criminal [Doc. 47 at 3]. Petitioner, however, asserts that
his advisory guideline sentencing range as a non-armed career criminal under the current USSG
would be 63 to 78 months and, since he already has served approximately 80 months to date, he
submits that his sentence should be corrected and reduced to a sentence of time served [Id.].
Due to the significant disparity in the parties’ proposed resolutions, the Court believes
that the most appropriate form of relief in this case is to resentence Petitioner following a full
resentencing hearing. The Court will direct the Probation Office to prepare an Addendum
containing a re-calculation of Petitioner’s advisory guideline sentencing range under the current
Guidelines Manual and detailing Petitioner’s post-sentencing conduct. A resentencing hearing
7
Case 2:10-cr-00078-JRG Document 48 Filed 08/18/17 Page 7 of 8 PageID #: 270
Appx. 51
will be set and the parties will be given an opportunity to submit sentencing memoranda prior to
the hearing. The Court will enter an order accordingly.
III.
CONCLUSION
For the reasons set forth herein, the Court finds that Petitioner is entitled to relief under §
2255 and will grant his amended § 2255 motion [Doc. 27], as supplemented [Doc. 40]. The
Judgment imposed by the Court on March 28, 2011 [Doc. 20], will be vacated and a resentencing
hearing will be set. The United States Probation Office will be directed to provide the Court
with information necessary for sentencing. The Clerk of Court will be directed to close the civil
case at No. 2:14cv189.
AN APPROPRIATE ORDER WILL ENTER.
s/J. RONNIE GREER
UNITED STATES DISTRICT JUDGE
8
Case 2:10-cr-00078-JRG Document 48 Filed 08/18/17 Page 8 of 8 PageID #: 271
Appx. 52
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE GREENEVILLE DIVISION
UNITED STATES OF AMERICA
JUDGMENT IN A CRIMINAL CASE
(For Offenses committed on or after November 1, 1987)
v.
Case Number: 2:10-CR-00078-JRG(1)
JASON S MORGAN
USM#43075-074
Nikki C Pierce
Defendant’s Attorney
THE DEFENDANT:
܈
pleaded guilty to count(s): 1 of the Indictment
տ
pleaded nolo contendere to count(s) which was accepted by the court.
տ
was found guilty on count(s) after a plea of not guilty.
ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offense(s):
Title & Section and Nature of Offense
18:922G.F Unlawful Transport Of Firearms, Etc.
Date Violation Concluded Count
06/01/2009
1
The defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed pursuant to the Sentencing
Reform Act of 1984 and 18 U.S.C. 3553.
տ The defendant has been found not guilty on count(s).
տ All remaining count(s) as to this defendant are dismissed upon motion of the United States.
IT IS ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of
name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid.
If ordered to pay restitution, the defendant shall notify the court and the United States attorney of any material change in the
defendant's economic circumstances.
November 13, 2017
Date of Imposition of Judgment
Signature
ree of
of Judicial Officer
J Ronnie Greer , United States District Judge
Name & Title of Judicial Officer
Date
11/17/2017
Case 2:10-cr-00078-JRG Document 54 Filed 11/17/17 Page 1 of 7 PageID #: 291
Appx. 53
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
JASON S MORGAN
2:10-CR-00078-JRG(1)
Judgment - Page 2 of 7
IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of:
Time Served. (approximately 83 months)
տ The court makes the following recommendations to the Bureau of Prisons:
܈The defendant is remanded to the custody of the United States Marshal for processing.
տ The defendant shall surrender to the United States Marshal for this district:
տ at
տ a.m. տ p.m. on
տ as notified by the United States Marshal.
տ The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
տ before 2 p.m. on .
տ as notified by the United States Marshal.
տ as notified by the Probation or Pretrial Services Office.
I have executed this judgment as follows:
RETURN
Defendant delivered on
to
,
at
,
with a certified copy of this judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL
Case 2:10-cr-00078-JRG Document 54 Filed 11/17/17 Page 2 of 7 PageID #: 292
Appx. 54
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
JASON S MORGAN
2:10-CR-00078-JRG(1)
Judgment - Page 3 of 7
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of three (3) years.
MANDATORY CONDITIONS
1.
You must not commit another federal, state or local crime.
2.
You must not unlawfully possess a controlled substance.
3.
5.
You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release
from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
տ The above drug testing condition is suspended, based on the court's determination that you pose a low risk of future
substance abuse. (check if applicable)
܈You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentencing
of restitution. (check if applicable)
܈You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)
6.
տ
7.
տ
4.
You must comply with the requirements of the Sex Offender Registration and Notification Act (42 U.S.C. § 16901, et
seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which
you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
You must participate in an approved program for domestic violence. (check if applicable)
You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the
attached page.
Case 2:10-cr-00078-JRG Document 54 Filed 11/17/17 Page 3 of 7 PageID #: 293
Appx. 55
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
JASON S MORGAN
2:10-CR-00078-JRG(1)
Judgment - Page 4 of 7
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are
imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed
by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.
1.
You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of
your release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a
different time frame.
2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how
and when you must report to the probation officer, and you must report to the probation officer as instructed.
3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission
from the court or the probation officer.
4. You must answer truthfully the questions asked by your probation officer.
5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your
living arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the
change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify the
probation officer within 72 hours of becoming aware of a change or expected change.
6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation
officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view.
7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses
you from doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation
officer excuses you from doing so. If you plan to change where you work or anything about your work (such as your position
or your job responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the
probation officer at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation
officer within 72 hours of becoming aware of a change or expected change.
8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has
been convicted of a felony, you must not knowingly communicate or interact with that person without first getting the
permission of the probation officer.
9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything
that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as
nunchakus or tasers).
11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant
without first getting the permission of the court.
12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer
may require you to notify the person about the risk and you must comply with that instruction. The probation officer may
contact the person and confirm that you have notified the person about the risk.
13. You must follow the instructions of the probation officer related to the conditions of supervision.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the mandatory, standard, and any special conditions specified by the court and has
provided me with a written copy of this judgment containing these conditions. For further information regarding these conditions, see
Overview of Probation and Supervised Release Conditions, available at: www.uscourts.gov.
Defendant’s Signature
Date
Case 2:10-cr-00078-JRG Document 54 Filed 11/17/17 Page 4 of 7 PageID #: 294
Appx. 56
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
JASON S MORGAN
2:10-CR-00078-JRG(1)
Judgment - Page 5 of 7
SPECIAL CONDITIONS OF SUPERVISION
1. The defendant shall provide the probation officer with access to any requested financial information.
2. The defendant shall not incur new credit charges on existing accounts or apply for additional lines of
credit without permission of the probation officer until the $2.550 has been paid in full. In addition, the
defendant shall not enter into any contractual agreements which obligate funds without the permission of
the probation officer.
3. The defendant shall pay any financial penalty that is imposed by this judgment. Any amount that
remains unpaid at the commencement of supervision shall be paid on a monthly basis at the minimum
rate of _10%_ percent of the defendant’s net monthly income.
4. The defendant shall reside with his mother, Sherry Hughes for a period of at least six (6) months.
5. The defendant shall participate in a program of testing and treatment for drug and/or alcohol abuse, as
directed by the probation officer, until such time as the defendant is released from the program by the
probation officer.
6. The defendant shall not take any prescribed narcotic or other controlled substance, without notifying the
physician that he/she has a substance abuse problem and without obtaining prior permission from his/her
probation officer.
7. The defendant shall submit his or her person, property, house, residence, vehicle, papers, [computers (as
defined in Title 18 U.S.C. § 1030(e)(1), other electronic communications or data storage devices or
media,] or office, to a search conducted by a United States probation officer or designee. Failure to
submit to a search may be grounds for revocation of release. The defendant shall warn any other
occupants that the premises may be subject to searches pursuant to this condition. An officer may
conduct a search pursuant to this condition only when reasonable suspicion exists that the defendant has
violated a condition of his/her supervision and that the areas to be searched contain evidence of this
violation. Any search must be conducted at a reasonable time and in a reasonable manner.
8. The defendant shall participate in a program of mental health treatment, as directed by the probation
officer, until such time as the defendant is released from the program by the probation officer. The
defendant shall waive all rights to confidentiality regarding mental health treatment in order to allow
release of information to the supervising United States Probation Officer and to authorize open
communication between the probation officer and the mental health treatment provider.
Case 2:10-cr-00078-JRG Document 54 Filed 11/17/17 Page 5 of 7 PageID #: 295
Appx. 57
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
JASON S MORGAN
2:10-CR-00078-JRG(1)
Judgment - Page 6 of 7
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the Schedule of Payments sheet of this judgment.
TOTALS
տ
܈
Assessment
$100.00
JVTA Assessment*
$.00
Fine
$.00
Restitution
$2,550.00
The determination of restitution is deferred until
An Amended Judgment in a Criminal Case (AO245C) will be entered
after such determination.
The defendant must make restitution (including community restitution) to the following payees in the amount listed below.
John Bewley
$2,550.00
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified
otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal
victims must be paid before the United States is paid.
տ
տ
܈
Restitution amount ordered pursuant to plea agreement $
The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before
the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options under the Schedule
of Payments sheet of this judgment may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
The court determined that the defendant does not have the ability to pay interest and it is ordered that:
܈the interest requirement is waived for the
܈restitution
տ fine
the
interest
requirement
for
the
fine
տ
տ
տ restitution is modified as follows:
* Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22
** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994,
but before April 23, 1996.
Case 2:10-cr-00078-JRG Document 54 Filed 11/17/17 Page 6 of 7 PageID #: 296
Appx. 58
AO 245B (Rev. TNED 10/2017) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
JASON S MORGAN
2:10-CR-00078-JRG(1)
Judgment - Page 7 of 7
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:
܈
տ
܈
Lump sum payments of $2,650.00 due immediately
not later than
, or
in accordance with
C,
D,
տ
տ
տ
E, or
܈
F below; or
B
տ
Payment to begin immediately (may be combined with
տ
C,
տ
D, or
C
տ
Payment in equal
(e.g., weekly, monthly, quarterly) installments of $
over a period
of
(e.g., months or years), to commence
(e.g., 30 or 60 days) after the date of this judgment; or
D
տ
Payment in equal
(e.g., weekly, monthly, quarterly) installments of $
over a period
of
(e.g., months or years), to commence
(e.g., 30 or 60 days) after release from imprisonment to a term of
supervision; or
E
܆
Payment during the term of supervised release will commence within
(e.g., 30 or 60 days) after release from
imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or
F
܈
Special instructions regarding the payment of criminal monetary penalties:
A
տ
F below); or
The government may enforce the full amount of restitution ordered at any time, pursuant to Title 18 U.S.C. §§ 3612, 3613,
and 3554(m).
Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is
due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’
Inmate Financial Responsibility Program, are made to U.S. District Court, 220 West Depot Street, Suite 200, James H. Quillen
United States Courthouse, Greeneville, TN, 37743. Payments shall be in the form of a check or a money order, made payable to
U.S. District Court, with a notation of the case number including defendant number.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
տ
տ
տ
տ
Joint and Several
See above for Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint
and Several Amount, and corresponding payee, if appropriate.
տ Defendant shall receive credit on his restitution obligation for recovery from other defendants who contributed to the same
loss that gave rise to defendant's restitution obligation.
The defendant shall pay the cost of prosecution.
The defendant shall pay the following court cost(s):
The defendant shall forfeit the defendant’s interest in the following property to the United States:
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,
(5) fine interest, (6) community restitution, (7) JVTA Assessment, (8) penalties, and (9) costs, including cost of prosecution and court
costs.
Case 2:10-cr-00078-JRG Document 54 Filed 11/17/17 Page 7 of 7 PageID #: 297
Appx. 59
Case: 18-5004
Document: 51-2
Filed: 05/06/2020
Page: 1
(2 of 8)
NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0255n.06
Case No. 18-5004
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
TRAVIS O’DELL,
Defendant-Appellee.
____________________________________/
)
)
)
)
)
)
)
)
May 06, 2020
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TENNESSEE
Before: MERRITT, SUHRHEINRICH, and SUTTON, Circuit Judges.
MERRITT, Circuit Judge. This case is controlled by the case of United States v. Brown,
decided by the Sixth Circuit on April 24, 2020. The Brown case decides the same questions raised
here. The government appeals the district court’s 2017 judgment granting Petitioner Travis O’Dell
habeas relief under 28 U.S.C. § 2255. The district court granted O’Dell relief under our en banc
decision in United States v. Stitt, 860 F.3d 854 (6th Cir. 2017), which held that an aggravated
burglary in Tennessee did not qualify as a “violent felony” under the Armed Career Criminal Act
(the Act), 18 U.S.C. § 924(e)(1). The Supreme Court overruled that decision in United States v.
Stitt, 139 S. Ct. 399 (2018). Because the legal basis on which the district court granted O’Dell
relief is no longer good law, and because Brown forecloses O’Dell’s arguments, we REVERSE
the district court’s judgment granting him relief and REMAND for the court to reinstate his
original sentence.
Appx. 60
Case: 18-5004
Document: 51-2
Filed: 05/06/2020
Page: 2
Case No. 18-5004, United States v. O’Dell
I.
On December 10, 2014, O’Dell pled guilty to violating 18 U.S.C. § 922(g)(1),1 felon in
possession of a firearm and ammunition. The Presentence Investigation Report identified twelve
previous convictions of aggravated burglary in Tennessee. At the time, a Tennessee aggravated
burglary qualified as a “violent crime” for purposes of the Act under United States v. Nance, 481
F.3d 882 (6th Cir. 2007). As such, O’Dell was classified as an armed career criminal and thus
subject to the Act’s mandatory minimum sentence of fifteen years.2
The district court, on April 16, 2015, sentenced O’Dell to a term of imprisonment of 180
months to run concurrently with any sentence imposed by the Tennessee State Court, and a 3-year
term of supervised release. O’Dell did not file a direct appeal.
On June 6, 2016, O’Dell filed a 28 U.S.C. § 2255 motion challenging his armed career
criminal status following the Supreme Court’s decision in Johnson v. United States, 135 S. Ct.
2551 (2015), which invalidated the Act’s residual clause as unconstitutionally vague. At the
government’s request, the district court stayed the proceedings until our en banc court decided
United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (Stitt I), which held that a conviction of
Tennessee aggravated burglary did not qualify as a violent felony under the Act. The district court
then granted O’Dell’s petition under Stitt I.
The Supreme Court, however, soon reversed our en banc decision and held that a
conviction under Tennessee’s aggravated burglary statute indeed qualifies as a violent felony
18 U.S.C. § 922(g)(1) makes it “unlawful for any person . . . who has been convicted in any court of[] a crime
punishable by imprisonment for a term exceeding one year[] . . . to . . . possess in or affecting [interstate] commerce,
any firearm or ammunition[.]”
1
The Act imposes a mandatory minimum sentence of imprisonment of fifteen years for felons in possession of a
firearm with three or more previous convictions of “violent felonies.” 18 U.S.C. § 924(e)(1).
2
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under the Act. United States v. Stitt, 139 S. Ct. 399 (2018) (Stitt II). Stitt II is the basis of the
government’s appeal.
II.
We review de novo a district court’s determination of whether a prior conviction qualifies
as a violent felony under the Act. See Brumbach v. United States, 929 F.3d 791, 794 (6th Cir.
2019) (citing Braden v. United States, 817 F.3d 926, 930 (6th Cir. 2016)).
The Act mandates a minimum fifteen-year prison sentence for those who violate 18 U.S.C.
§ 922(g) and have three previous convictions for “violent felonies.” 18 U.S.C. § 924(e)(1).
Relevant here, the Act defines “violent felony” as, among other things, “burglary.” 18 U.S.C.
§ 924(e)(2)(B)(ii). “To decide if a defendant’s prior conviction under a state’s burglary statute
qualifies as a conviction for ‘burglary’ under [the Act], the Supreme Court adopted the so-called
‘categorical approach’ in Taylor v. United States, 495 U.S. 575 (1990).” United States v. Brown,
-- F.3d --, No. 18-5356, 2020 WL 1966845, at *1 (6th Cir. Apr. 24, 2020) (citing Stitt II, 139 S.
Ct. at 405). The categorical approach compares a state statute’s elements of burglary to the
elements of the “generic” definition of burglary that the Supreme Court adopted in Taylor. See id.
(citing Stitt II, 139 S. Ct. at 405). The Taylor Court defined “generic burglary” as an “unlawful or
unprivileged entry into, or remaining in, a building or other structure, with intent to commit a
crime.” Taylor, 495 U.S. at 598. “If a state burglary statute sweeps in more conduct than this
generic definition of the crime, convictions under the state statute will not qualify as convictions
for ‘burglary’ under the [Act].” Brown, 2020 WL 1966845, at *1 (citing Mathis v. United States,
136 S. Ct. 2243, 2247‒48 (2016)).
In Tennessee, “aggravated burglary” is a “burglary of a habitation as defined in §§ 39-14401 and 39-14-402.” Tenn. Code Ann. § 39-14-403(a). A person commits burglary in Tennessee
-3-
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if that person, “without the effective consent of the property owner”, (1) “[e]nters a building other
than a habitation (or any portion thereof) not open to the public, with intent to commit a felony,
theft or assault;” (2) “[r]emains concealed, with the intent to commit a felony, theft or assault, in
a building;” (3) “[e]nters a building and commits or attempts to commit a felony, theft or assault;”
or (4) “[e]nters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor
vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony,
theft or assault.” Id. at § 39-14-402(a)(1)-(4). “Habitation” means “any structure, including
buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the
overnight accommodation of persons[.]” Id. at § 39-14-401(1)(A).3
In United States v. Nance, 481 F.3d 882 (6th Cir. 2007), “we held that an aggravatedburglary conviction under Tennessee law categorically counts as a burglary under the Supreme
Court’s generic definition and so falls within [the Act].” Brown, 2020 WL 1966845, at *2 (citing
Nance, 481 F.3d at 888). Ten years later, in Stitt I, our en banc court overruled Nance and held
that “a violation of Tennessee’s aggravated burglary statute is not categorically a violent felony.”
Stitt I, 860 F.3d at 861. And in 2018, the Supreme Court unanimously reversed our en banc
decision. Stitt II, 139 S. Ct. at 403‒04. Nance is thus “once again the law of this circuit.” See
Brown, 2020 WL 1966845, at *3 (quoting Burbach, 929 F.3d at 794).
O’Dell offers three arguments for why Tennessee’s aggravated burglary statute does not
comport with Taylor’s definition of “generic burglary.” First, he maintains that the “entry”
element of the statute is such that it criminalizes a “mere attempted burglary”, which does not
qualify as generic burglary under the Act. Second, O’Dell contends that a person can violate
Habitation also “[i]ncludes a self-propelled vehicle that is designed or adapted for the overnight accommodation of
persons and is actually occupied at the time of initial entry by the defendant” and a “separately secured or occupied
portion of the structure or vehicle and each structure appurtenant to or connected with the structure or vehicle.” Id.
at § 39-14-401(1)(B)‒(C).
3
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Tennessee’s aggravated burglary statute with “merely reckless conduct” as opposed to the “intent
to commit a crime” as required by Taylor. Third, and finally, O’Dell says that we are unable to
determine if his previous convictions of violent felonies occurred on different occasions as
required by the Act. We address each argument in turn.
A.
O’Dell argues that Tennessee aggravated burglary cannot qualify as a “burglary” under the
Act because the definition of “enter” in Tennessee’s burglary statute4 encompasses more conduct
than “generic burglary” as defined in Taylor, and criminalizes conduct that would be only an
attempted burglary at common law. O’Dell concedes that we rejected the “entry” argument in
Brumbach. Brumbach, 929 F.3d at 795. We did so because “a panel of this court cannot overrule
Nance.” Brumbach, 929 F.3d at 795. And, since Brumbach, we have rejected the argument most
recently in our opinion in Brown. See Brown, 2020 WL 1966845, at *7.5
B.
The same goes for O’Dell’s intent argument. O’Dell posits that generic burglary, under
Taylor, requires that a defendant have intent to commit a crime while within the building. Taylor,
495 U.S. at 599. O’Dell states that, specifically, under Tenn. Code Ann. § 39-14-402(a)(3), a
defendant can be convicted for merely reckless conduct.
The petitioner in Brown lodged the same argument, and as we pointed out there, “it is not
clear under our precedent that we may rely on this new argument to conclude that all Tennessee
aggravated-burglary convictions fall outside the Act.” Brown, 2020 WL 1966845, at *7. This is
“Enter” is defined as “(1) [i]ntrusion of any part of the body; or (2) [i]ntrusion of any object in physical contact
with the body or any object controlled by remote control, electronic or otherwise.” Tenn. Code Ann. § 39-14402(b)(1)‒(2).
4
While we do not discuss the merits of O’Dell’s argument regarding the entry element of the statute, we note that
Brown questioned the merits of this argument. See id. at *5‒13.
5
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because we have “held, broadly, that convictions under subsections (a)(1), (a)(2), and (a)(3) of the
Tennessee burglary statute fit within the generic definition of burglary and are therefore violent
felonies for purposes of the [Act].” Id. (citing Brumbach, 929 F.3d at 794 (quoting United States
v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017) (internal quotation marks omitted)). If “we have
previously rejected other attempts to bring new arguments challenging those prior holdings[,]” it
follows that those cases foreclose O’Dell from raising this “intent” argument. See id. (citing
Brumbach, 929 F.3d at 795).
Moreover, like the petitioner in Brown, O’Dell was indicted for and convicted of violating
subsection (a)(1), not subsection (a)(3). See id. Although O’Dell’s indictments for aggravated
burglary do not specify under which subsection he was charged, each charged that O’Dell “did . .
. unlawfully and without the effective consent . . . of the owner of a habitation, knowingly enter
such habitation, which was not open to the public, with intent to commit theft, in violation of
T.C.A. Section 39-14-403[.]” Just like in Brown, “[t]hat language mirrors the language of § 3914-402(a)(1).” Brown, 2020 WL 1966845, at *13. The “(a)(1) version contains the ‘intent’
requirement that [O’Dell] claims the (a)(3) version lacks: It forbids a person, without the ‘effective
consent of the property owner,’ to ‘enter a habitation (or any portion thereof) not open to the public,
with intent to commit a felony, theft or assault.’” Id. at *14 (quoting Tenn. Code Ann. §§ 39-14402(a)(1), 39-14-403) (alterations omitted). It also aligns with “the Supreme Court’s definition of
generic burglary: the ‘unlawful or unprivileged entry into’ ‘a building or other structure, with intent
to commit a crime.’” Id. (quoting Stitt II, 139 S. Ct. at 405‒06). Thus, O’Dell’s aggravatedburglary convictions qualify as violent felonies under the Act. See id.
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C.
Finally, O’Dell maintains that we cannot determine if his burglary and aggravated burglary
convictions were committed on different occasions. The Act requires conviction of three violent
felonies that were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).
Specifically, O’Dell contends that under Shepard v. United States, 544 U.S. 13 (2005), courts may
consider only the crimes of conviction and the elements thereof in making this determination, and
dates of the convictions or offenses fall into neither category. As O’Dell concedes, we rejected
this argument in United States v. Hennessee, 932 F.3d 437, 444 (6th Cir. 2019), and we have since
rejected it in Brown, 2020 WL 1966845, at *8. We reject it here, too. O’Dell’s argument also
fails on the merits.
O’Dell must show by a preponderance of the evidence that his prior violent felonies did
not occur on different occasions. See id. at *8 (citing Packett v. United States, 738 F. App’x 348,
352 (6th Cir. 2018) and Potter v. United States, 887 F.3d 785, 787‒88 (6th Cir. 2018)). We may
look to “charging documents” in deciding if O’Dell committed his prior felonies on different
occasions. See United States v. King, 853 F.3d 267, 276 (6th Cir. 2017). State-court indictments
qualify as such. See Brown, 2020 WL 1966845, at *8 (citing King, 853 F.3d at 275‒76)). There
are three indictments that each charge O’Dell with one count of aggravated burglary on a separate
occasion in 1995, each involving a different victim. Additionally, another indictment charges
O’Dell with five counts of aggravated burglary on four separate occasions in 2003. Thus, the
“charging documents” show that O’Dell committed aggravated burglary on at least seven different
occasions. O’Dell therefore cannot meet his burden.
For the reasons stated above, we VACATE the district court’s 2017 order granting O’Dell
relief, and REMAND with instructions to reinstate his original sentence.
-7-
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
TRAVIS O’DELL,
)
)
)
)
)
)
)
)
)
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
Nos. 3:14-CR-91-PLR-HBG-1
3:16-CV-303-PLR
MEMORANDUM OPINION
Presently before the Court is a motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255 filed by Travis O’Dell (“Petitioner”) which challenges his enhanced sentence as
an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015).1 In light of both Johnson and the
recent en banc decision of the Sixth Circuit Court of Appeals in United States v. Stitt, 860 F.3d
854 (6th Cir. 2017), it now is undisputed that Petitioner no longer qualifies as an armed career
criminal under the ACCA.
Accordingly, Petitioner’s § 2255 motion [Doc. 34] will be
GRANTED.
I.
BACKGROUND
On July 22, 2014, a grand jury sitting in the Eastern District of Tennessee returned a one-
count indictment charging Petitioner with possession of a firearm and ammunition by a convicted
The Supreme Court has determined that Johnson, which invalidated the residual clause
of the ACCA as unconstitutionally vague, announced a new “substantive rule that has retroactive
effect in cases on collateral review.” Welch v. United States, 136 S. Ct. 1257, 1268 (2016); see
also In Re Watkins, 810 F.3d 375, 381-85 (6th Cir. 2015).
1
Case 3:14-cr-00091-PLR-HBG Document 41 Filed 08/24/17 Page 1 of 7 PageID #: 160
Appx. 67
felon, in violation of 18 U.S.C. § 922(g)(1) [Doc. 3]. On December 10, 2014, Petitioner entered a
plea of guilty as to count one of the indictment [Doc. 21].
The presentence investigation report (“PSIR”) identified twelve previous convictions for a
violent felony, committed on occasions different from one another, that qualified Petitioner as an
armed career criminal under the ACCA. All of these were convictions for aggravated burglary
[Doc. 23 ¶¶ 28, 30, 31, 32, 34 (5 counts), 35, 36, 37]. As an armed career criminal, Petitioner was
subject to a statutory mandatory minimum incarceration sentence of 15 years to a maximum of life
and his advisory guideline sentencing range under the United States Sentencing Guidelines
(“USSG”) was 188 to 235 months [Doc. 23 ¶¶ 60, 61].
On April 16, 2015, Petitioner was sentenced to a term of imprisonment of 180 months at
count one of the indictment, to run concurrently with any sentence imposed in the McMinn County,
Tennessee, Circuit/Criminal Court, and a term of supervised release of 3 years [Doc. 30].
Petitioner did not file a direct appeal.
On June 6, 2016, Petitioner, through court-appointed counsel, filed the pending § 2255
motion challenging his armed career criminal status based on the Supreme Court’s invalidation of
the ACCA residual clause in Johnson [Doc. 34]. The government’s motion to defer ruling on
Petitioner’s motion pending an en banc decision from the Sixth Circuit in United States v. Stitt,
646 F. App’x 454 (6th Cir. 2016), was granted by the Court on October 20, 2016 [Doc. 37]. On
June 27, 2017, the Sixth Circuit issued its en banc decision holding that a conviction of aggravated
burglary under Tennessee law does not qualify as a violent felony predicate offense under the
ACCA. Stitt, 860 F.3d at 856.
On August 1, 2017, the parties filed a joint status report agreeing that Petitioner no longer
qualifies as an armed career criminal in light of Johnson and Stitt [Doc. 40].
2
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II.
ANALYSIS
A.
TIMELINESS
Section 2255(f) places a one-year period of limitation on all petitions for collateral relief
under § 2255 which runs from the latest of: (1) the date on which the judgment of conviction
becomes final; (2) the date on which the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United States is removed, if the movant was
prevented from making a motion by such governmental action; (3) the date on which the right
asserted was initially recognized by the Supreme Court, if that right has been newly recognized by
the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date
on which the facts supporting the claim or claims presented could have been discovered through
the exercise of due diligence. 28 U.S.C. § 2255(f).
Claims based on the Supreme Court’s opinion in Johnson satisfy the third sub-category––
the assertion of a newly recognized right made retroactively applicable to cases on collateral
review. Welch, 136 S. Ct. at 1268 (Johnson constitutes a new substantive rule of constitutional
law made retroactively applicable on collateral review); In Re Watkins, 810 F.3d at 381–85. The
one-year limitation period for filing a motion to vacate based on a right newly recognized by the
Supreme Court runs from the date on which the Supreme Court initially recognized the right
asserted, not from the date on which the right asserted was made retroactively applicable. Dodd v.
United States, 545 U.S. 353, 357 (2005). Accordingly, Johnson triggered a renewed one-year
period of limitation beginning on the date of that decision, June 26, 2015, and running until June
26, 2016.
In this case, Petitioner filed his § 2255 motion raising a Johnson claim on June 6, 2016,
which falls safely within the one-year window for requesting collateral relief under Johnson.
3
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Appx. 69
B.
STANDARD OF REVIEW
To obtain relief under 28 U.S.C. § 2255, a petitioner must demonstrate “(1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact
or law . . . so fundamental as to render the entire proceeding invalid.” McPhearson v. United
States, 675 F.3d 553, 558–59 (6th Cir. 2012) (quoting Mallett v. United States, 334 F.3d 491, 496–
97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal”
and establish a “fundamental defect in the proceedings which necessarily results in a complete
miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157
F.3d 427, 430 (6th Cir. 1998).
C.
PETITIONER’S JOHNSON CLAIM
A felon who possesses a firearm normally faces a maximum penalty of 10 years’
imprisonment, 18 U.S.C. § 924(a)(2), and 3 years’ supervised release, 18 U.S.C. §§ 3559(a)(3)
and 3583(b)(2). However, if that felon possesses the firearm after having sustained three prior
convictions “for a violent felony or serious drug offense, or both,” the ACCA requires a 15-year
minimum sentence, 18 U.S.C. § 924(e)(1), and increases the maximum supervised release term to
5 years, 18 U.S.C. §§ 3559(a)(1) and 3583(b)(1). The ACCA defines a “violent felony” as “any
crime punishable by imprisonment for a term exceeding one year” that: (1) “has as an element the
use, attempted use, or threatened use of physical force against the person of another” (the “use-ofphysical-force clause”); (2) “is burglary, arson, or extortion, involves use of explosives” (the
“enumerated-offense clause”); or (3) “otherwise involves conduct that presents a serious potential
risk of physical injury to another” (the “residual clause”). 18 U.S.C. § 924(e)(2)(B).
In Johnson, the Supreme Court determined that the residual clause of the ACCA is
unconstitutionally vague and concluded “that imposing an increased sentence under the residual
4
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clause . . . violates the Constitution’s guarantee of due process.” 135 S. Ct. at 2563. Johnson did
not automatically invalidate all ACCA sentences, however, emphasizing that its holding “d[id] not
call into question application of the Act to the four enumerated offenses, or the remainder of the
Act’s definition of a violent felony.” Id.; see also United States v. Kemmerling, 612 F. App’x 373,
376 (6th Cir. 2015) (explicitly finding that Johnson did not affect the ACCA’s use-of-physicalforce clause). Thus, under Johnson, an ACCA sentence only raises due process concerns, and thus
is invalid, if it necessarily was based on predicate violent felonies that qualified as such only under
the ACCA’s residual clause.
In this case, all twelve of Petitioner’s predicate offenses were convictions for aggravated
burglary in violation of Tenn. Code. Ann. § 39-14-403 [Doc. 23 ¶¶ 28, 30, 31, 32, 34 (5 counts),
35, 36, 37]. Petitioner contends, inter alia, that aggravated burglary could qualify as a predicate
offense only under the stricken residual clause of the ACCA. In response, the government initially
cited then-binding Sixth Circuit precedent holding that a conviction for aggravated burglary under
the Tennessee statute qualifies as an ACCA predicate under the enumerated-offense clause.
United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007).
However, in the en banc Stitt decision, the Sixth Circuit overruled Nance and expressly
held that aggravated burglary is not a violent felony for purposes of the ACCA. 860 F.3d at 860–
61. Applying a categorical approach, the Court determined that the Tennessee aggravated burglary
statute “sweeps more broadly than generic burglary” and thus cannot qualify as a violent felony
under the enumerated-offense clause. Id. at 861. Because the statute categorically is not a violent
felony, and also is indivisible, the Sixth Circuit concluded that a conviction under the Tennessee
aggravated burglary statute does not count as a violent felony under the ACCA. Id. at 862.
5
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Because a conviction for aggravated burglary does not qualify as a violent felony under the
first two clauses of § 924(e)(2)(B),2 and Johnson invalidated the residual clause, Petitioner’s
aggravated burglary convictions under the Tennessee statute can no longer be used as predicate
offenses under the ACCA. Furthermore, absent those convictions, Petitioner no longer has the
requisite three prior convictions of a violent felony or a serious drug offense necessary to subject
him to the ACCA’s enhanced penalties.
Accordingly, the Johnson and Stitt decisions dictate that Petitioner no longer can be
designated an armed career criminal under § 924(e).
As a result, the 180-month term of
imprisonment imposed by the Court exceeds the maximum authorized sentence of not more than
10 years’ imprisonment for a non-ACCA offender convicted of a violation of § 922(g)(1). See 18
U.S.C. § 924(a)(2). Under these circumstances, the Court finds a clear entitlement to § 2255 relief,
as Petitioner has been subjected to “a sentence imposed outside the statutory limits.” McPhearson,
675 F.3d at 559.
Where a § 2255 claim has merit, a district court “shall vacate and set the judgment aside”
and, “as may appear appropriate,” shall either “discharge the prisoner or resentence him or grant a
new trial or correct the sentence.” 28 U.S.C. § 2255(b); see also Ajan v. United States, 731 F.3d
629, 633 (6th Cir. 2013).
Here, although the parties are in agreement that Petitioner is entitled to § 2255 relief, they
disagree as to the most appropriate form of that relief.
The government submits that the
appropriate relief would be to correct and reduce Petitioner’s sentence to 120 months’
The parties acknowledge that aggravated burglary does not have as an element the use,
attempted use or threatened use of force and therefore cannot qualify as a violent felony under
the “use-of-physical-force” clause of the ACCA [Doc. 40 p. 2].
6
2
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Appx. 72
imprisonment, the applicable statutory maximum for a violation of § 922(g)(1) for a non-armed
career criminal [Doc. 40 p. 3]. Petitioner, however, asserts that his advisory guideline sentencing
range under the current USSG would be 51 to 63 months and submits that his sentence should be
corrected and reduced to a sentence within that applicable range [Id.].3
Due to the significant disparity in the parties’ proposed resolutions, the Court believes that
the most appropriate form of relief in this case is to resentence Petitioner following a full
resentencing hearing. The Court will direct the Probation Office to prepare an Addendum
containing a re-calculation of Petitioner’s advisory guideline sentencing range under the current
Guidelines Manual and detailing Petitioner’s post-sentencing conduct. A resentencing hearing
will be set and the parties will be given an opportunity to submit sentencing memoranda prior to
the hearing. The Court will enter an order accordingly.
III.
CONCLUSION
For the reasons set forth herein, the Court finds that Petitioner is entitled to relief under §
2255 and will grant his § 2255 motion [Doc. 34]. The Judgment imposed by the Court on April
16, 2015 [Doc. 30], will be vacated and a resentencing hearing will be set. The United States
Probation Office will be directed to provide the Court with information necessary for sentencing.
The Clerk of Court will be directed to close the civil case at No. 3:16-CV-303.
AN APPROPRIATE ORDER WILL ENTER.
______________________________________
_____
_______________________
______
__
____
_ ____
_ _____
UNITED
UN
NIITED STATES
ST
TATES
ES DISTRICT
DISTR
T IC
CT JUDGE
The parties indicate that Petitioner has served approximately 35 months in custody to
date [Doc. 40 p. 3].
7
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Case: 18-5531
Document: 46-2
Filed: 06/18/2020
Page: 1
(2 of 9)
NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0358n.06
Case No. 18-5531
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
DENNIS PLEMONS,
Defendant-Appellee.
)
)
)
)
)
)
)
)
)
FILED
Jun 18, 2020
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TENNESSEE
BEFORE: SILER, MOORE, and NALBANDIAN, Circuit Judges.
SILER, Circuit Judge. Dennis Plemons was convicted of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). He was originally sentenced under the Armed
Career Criminal Act (“ACCA”) based on his prior Tennessee convictions, including two
aggravated assaults and one aggravated burglary. However, the sentence was vacated after this
court ruled en banc in United States v. Stitt that Tennessee aggravated burglary does not qualify as
a violent felony for purposes of the ACCA. Plemons was then resentenced without an ACCA
enhancement. The government appealed and while the appeal was pending the U.S. Supreme Court
overturned Stitt. The Sixth Circuit has interpreted the Supreme Court’s decision as reinstating preStitt Sixth Circuit case law, which recognizes Tennessee aggravated burglary as a violent felony
under the ACCA. Therefore, we REVERSE and REMAND for resentencing under the ACCA.
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I.
In 2014, Plemons pled guilty to possessing a firearm as a felon in violation of 18 U.S.C.
§ 922(g)(1). He had several prior Tennessee convictions, including two aggravated assault
convictions and one aggravated burglary conviction and was sentenced to 188 months’
imprisonment as an armed career criminal under 18 U.S.C. § 924(e)(1), which mandates a
minimum of 180 months’ imprisonment.
Plemons appealed his sentence. While the appeal was pending we decided that Tennessee’s
aggravated burglary statute is broader than generic burglary, such that “Tennessee aggravated
burglary is not a violent felony for purposes of the ACCA.” United States v. Stitt, 860 F.3d 854,
856 (6th Cir. 2017) (en banc), rev’d, United States v. Stitt, 139 S. Ct. 399 (2018). This court vacated
Plemons’s sentence and remanded the case because his armed-career-criminal classification
depended in part upon his prior Tennessee aggravated burglary conviction.
On remand the district court recalculated Plemons’s guideline range without the ACCA
enhancement and sentenced him to 90 months’ imprisonment. At the sentencing hearing the
government noted that it had petitioned the Supreme Court for certiorari to review Stitt and sought
to preserve review of Plemons’s sentence if the Supreme Court did in fact overturn Stitt. In 2018
the Supreme Court unanimously reversed Stitt. See United States v. Stitt, 139 S. Ct. 399, 403–08
(2018).
II.
We review de novo the district court’s interpretation and application of the ACCA. See
United States v. Stafford, 721 F.3d 380, 395–96 (6th Cir. 2013). Plemons argues that plain error
review should apply because “the government presented no argument in support of its brief
statement that Stitt could one day be overturned.” However, the government raised the issue to the
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district court several times, adequately preserving the issue for review. See, e.g., United States v.
Brown, No. 18-5356, 2020 U.S. App. LEXIS 13269, at *6 (6th Cir. Apr. 24, 2020). Accordingly,
we review de novo.
III.
The ACCA provides enhanced penalties, including a fifteen-year mandatory-minimum
prison sentence, for a felon who possesses a firearm if the defendant has three or more prior
convictions “for a violent felony or a serious drug offense, or both, committed on occasions
different from one another.” 18 U.S.C. § 924(e)(1). “Violent felony” is defined as:
any crime punishable by imprisonment for a term exceeding one year . . . that—
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another.1
Id. § 924(e)(2)(B). Courts interpret “this section to create three different grounds for liability: the
‘use-of-force’ clause in § 924(e)(2)(B)(i); the ‘enumerated-offenses’ clause in § 924(e)(2)(B)(ii);
and the ‘residual clause’ immediately following the enumerated-offenses in § 924(e)(2)(B)(ii).”
See United States v. Priddy, 808 F.3d 676, 683 (6th Cir. 2015).
The statute explicitly lists burglary as a violent felony in the enumerated-offense clause.
However, a burglary conviction does not qualify as a violent felony under this clause if “the
elements of [the relevant state burglary statute] are broader than those of generic burglary.” Mathis
v. United States, 136 S. Ct. 2243, 2257 (2016). Courts use “a categorical approach” to determine
if a state burglary statute is broader than generic burglary by “compar[ing] the elements of the
1
The residual clause, “or otherwise involves conduct that presents a serious potential risk
of physical injury to another,” has been invalidated and deemed unconstitutionally vague. See
Johnson v. United States, 135 S. Ct. 2551, 2557, 2563 (2015).
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statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—
i.e., the offense as commonly understood.” See Priddy, 808 F.3d at 683 (quoting Descamps v.
United States, 570 U.S. 254, 257 (2013)). Therefore, a prior conviction qualifies as a violent felony
under the ACCA “only if the statute’s elements are the same as, or narrower than, those of the
generic offense.” Descamps, 570 U.S. at 257. “[M]odest . . . deviations from the generic definition”
are acceptable “so long as the state law in question ‘substantially corresponds’ to (or is narrower
than) generic burglary.” Quarles v. United States, 139 S. Ct. 1872, 1880 (2019) (quoting Taylor v.
United States, 495 U.S. 575, 602 (1990)).
Generic burglary is “any crime, regardless of its exact definition or label, having the basic
elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent
to commit a crime.” Taylor, 495 U.S. at 599. In Tennessee “[a]ggravated burglary is burglary of a
habitation.” Tenn. Code Ann. § 39-14-403(a). “Habitation” means “any structure, including
buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the
overnight accommodation of persons.” Tenn. Code Ann. § 39-14-401(1)(A). This also includes “a
self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and
is actually occupied at the time of initial entry by the defendant.” Tenn. Code Ann. § 39-14401(1)(B).
In Stitt, we held that Tennessee’s aggravated burglary statute criminalized more conduct
than generic burglary and therefore cannot qualify as a violent felony under the ACCA. See Stitt,
860 F.3d at 857, 862. However, the Supreme Court held that burglary of a structure adapted for
overnight accommodation qualifies as a violent felony under the ACCA. See Stitt, 139 S. Ct. at
405–07.
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Here, Plemons was originally sentenced as an armed career criminal based on his prior
Tennessee convictions for two aggravated assaults and one aggravated burglary. This sentence was
vacated because of the Sixth Circuit’s decision in Stitt, which has now been overturned. With this
line of argument now foreclosed by Supreme Court precedent, Plemons makes two additional
arguments for why his case should not be remanded for resentencing under the ACCA:
(1) Tennessee burglary’s entry element is broader than generic burglary’s entry element; and
(2) his prior offenses did not occur on separate occasions. Both arguments are foreclosed by
precedent.
A.
First, Plemons argues that Tennessee aggravated burglary’s entry element is broader than
generic burglary’s entry element. Plemons focuses on the entry-by-instrument form of burglary.
This occurs when an instrument, such as a screwdriver or coat hanger, crosses a structure’s
threshold but no part of the person crosses it. Plemons argues that under generic burglary this is
an entry only if the person also used or intended to use the instrument to commit a further felony
inside. Under this definition if the instrument is only used to make entry, then no “entry” was made
and the individual committed attempted burglary instead of burglary.
Plemons contends that Tennessee’s aggravated burglary statute is broader because the use
of an instrument to cross the threshold of a structure is enough to commit burglary in Tennessee.
A defendant made the same argument in Brumbach v. United States, 929 F.3d 791, 795 (6th Cir.
2019), cert. denied, 2020 U.S. LEXIS 747 (Jan. 27, 2020). The court held that even if there was
merit to the argument, such an argument is foreclosed by Sixth Circuit precedent, specifically the
court’s decision in United States v. Nance, 481 F.3d 882 (6th Cir. 2007). See Brumbach, 929 F.3d
at 794 (“Nance’s holding, which is directly on point, is once again the law of this circuit.”). In
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Nance, the court considered the “statutory elements of Tennessee’s aggravated burglary statute”
and held “Tennessee aggravated burglary represents a generic burglary capable of constituting a
violent felony for ACCA purposes.” 481 F.3d at 888.
Accordingly, this court has consistently rejected this entry argument. See, e.g., United
States v. Bailey, Nos. 18-6131/6147, 2020 U.S. App. LEXIS 5883, at *6–7 (6th Cir. Feb. 26, 2020)
(“‘Brumbach is now precedential’ . . . and it dictates the result here: [the defendant’s] Tennessee
aggravated-burglary conviction qualifies as an ACCA predicate offense under the enumeratedoffense clause, and his original ACCA sentence was proper.” (quoting Greer v. United States, 780
F. App’x 352, 353 (6th Cir. 2019))); United States v. Crutchfield, 785 F. App’x 321, 323 (6th Cir.
2019) (“Brumbach then held that [Nance and Priddy] foreclosed new arguments that Tennessee
aggravated burglary is not generic burglary.”). Most recently, in Brown this circuit considered the
merits of this entry argument and again rejected the argument. See 2020 U.S. App. LEXIS 13269,
at *6–20. Therefore, this argument is foreclosed by precedent.
B.
Second, Plemons argues that the records of his convictions cannot establish that he
committed the offenses on separate occasions. In order for the ACCA enhancement to apply, the
defendant must have committed three violent felonies “on occasions different from one another.”
§ 924(e)(1).
We rejected this argument in Brown, 2020 U.S. App. LEXIS 13269, at *23–24, and in
United States v. Hennessee, 932 F.3d 437, 439 (6th Cir. 2019), cert. denied, 2020 U.S. LEXIS 347
(Jan. 13, 2020). In Hennessee, the court held that “a sentencing court may consider non-elemental
facts such as times, locations, and victims in Shepard documents when conducting the differentoccasions analysis.” 932 F.3d at 439.
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Here, the Shepard documents show that Plemons committed violent felonies on three
different occasions. Based on the facts contained within the Shepard documents, Plemons
committed his offenses on “occasions different from one another.” § 924(e)(1). Accordingly, we
also reject this argument.
IV.
We GRANT Plemons’s motion to take judicial notice and we REVERSE and REMAND
for resentencing under the ACCA.
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KAREN NELSON MOORE, concurring in the judgment. I recognize that we are
bound by Brumbach v. United States, 929 F.3d 791 (6th Cir. 2019), cert. denied, 140 S. Ct. 974
(2020), to reject Defendant-Appellee Dennis Plemons’s arguments that his conviction for
aggravated burglary in Tennessee is not a predicate offense under the Armed Career Criminal Act
(“ACCA”). However, I maintain that Brumbach was wrongly decided and warrants en banc
review. But so long as Brumbach remains the law of this circuit, it requires us simply to reject
Plemons’s arguments. See Brumbach, 929 F.3d at 795. Accordingly, we should not rely on dicta
from United States v. Brown, which evaluates the merits of such arguments. See 957 F.3d 679,
683–89 (6th Cir. 2020). Because it is sufficient to rely on Brumbach alone to reject Plemons’s
arguments that his Tennessee conviction is not an ACCA predicate, I concur in the judgment.
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AO 245B (Rev. TNED 02/2018) Judgment in a Criminal Case
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE KNOXVILLE DIVISION
UNITED STATES OF AMERICA
JUDGMENT IN A CRIMINAL CASE
(For Offenses committed on or after November 1, 1987)
v.
Case Number: 3:13-CR-00154-TAV-HBG(1)
DENNIS DEWAYNE PLEMONS
USM#47110-074
Jonathan A Moffatt
Defendant’s Attorney
THE DEFENDANT:
☒
pleaded guilty to count(s): 1 of the Indictment
☐
pleaded nolo contendere to count(s) which was accepted by the court.
☐
was found guilty on count(s) after a plea of not guilty.
ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offense(s):
Title & Section and Nature of Offense
18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2) –Felon in Possession of a Firearm and
Ammunition
The defendant is sentenced as provided in pages 2 through 7
Reform Act of 1984 and 18 U.S.C. 3553.
Date Violation Concluded Count
05/31/2013
1
of this judgment. The sentence is imposed pursuant to the Sentencing
☐ The defendant has been found not guilty on count(s).
☐ All remaining count(s) as to this defendant are dismissed upon motion of the United States.
IT IS ORDERED that the defendant shall notify the United States Attorney for this district within 30 days of any change of
name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid.
If ordered to pay restitution, the defendant shall notify the court and the United States attorney of any material change in the
defendant's economic circumstances.
April 11, 2018
Date of Imposition of Judgment
s/ Thomas A. Varlan
Signature of Judicial Officer
Thomas A Varlan , United States District Judge
Name & Title of Judicial Officer
April 11, 2018
Date
Case 3:13-cr-00154-TAV-HBG Document 69 Filed 04/12/18 Page 1 of 7 PageID #: 1529
Appx. 89
AO 245B (Rev. TNED 02/2018) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
DENNIS DEWAYNE PLEMONS
3:13-CR-00154-TAV-HBG(1)
Judgment - Page 2 of 7
IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be imprisoned for a total term of 90 Months
☒ The court makes the following recommendations to the Bureau of Prisons: that the defendant receive 500 hours of substance
abuse treatment from the Bureau of Prisons’ Institution Residential Drug Abuse Treatment Program and a mental health
evaluation and any treatment deemed appropriate. It is further recommended that the defendant be designated to Manchester.
☒ The defendant is remanded to the custody of the United States Marshal.
☐ The defendant shall surrender to the United States Marshal for this district:
☐ at
☐ a.m. ☐ p.m. on
☐ as notified by the United States Marshal.
☐ The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
☐ before 2 p.m. on .
☐ as notified by the United States Marshal.
☐ as notified by the Probation or Pretrial Services Office.
I have executed this judgment as follows:
RETURN
Defendant delivered on
to
,
at
,
with a certified copy of this judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL
Case 3:13-cr-00154-TAV-HBG Document 69 Filed 04/12/18 Page 2 of 7 PageID #: 1530
Appx. 90
AO 245B (Rev. TNED 02/2018) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
DENNIS DEWAYNE PLEMONS
3:13-CR-00154-TAV-HBG(1)
Judgment - Page 3 of 7
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be on supervised release for a term of three (3) years.
MANDATORY CONDITIONS
1.
You must not commit another federal, state or local crime.
2.
You must not unlawfully possess a controlled substance.
3.
5.
You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release
from imprisonment and at least two periodic drug tests thereafter, as determined by the court.
☐ The above drug testing condition is suspended, based on the court's determination that you pose a low risk of future
substance abuse. (check if applicable)
You
must
make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentencing
☐
of restitution. (check if applicable)
☒ You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)
6.
☐
7.
☐
4.
You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et
seq.) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which
you reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
You must participate in an approved program for domestic violence. (check if applicable)
You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the
attached page.
Case 3:13-cr-00154-TAV-HBG Document 69 Filed 04/12/18 Page 3 of 7 PageID #: 1531
Appx. 91
AO 245B (Rev. TNED 02/2018) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
DENNIS DEWAYNE PLEMONS
3:13-CR-00154-TAV-HBG(1)
Judgment - Page 4 of 7
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are
imposed because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed
by probation officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.
1.
You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of
your release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a
different time frame.
2. After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how
and when you must report to the probation officer, and you must report to the probation officer as instructed.
3. You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission
from the court or the probation officer.
4. You must answer truthfully the questions asked by your probation officer.
5. You must live at a place approved by the probation officer. If you plan to change where you live or anything about your
living arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the
change. If notifying the probation officer in advance is not possible due to unanticipated circumstances, you must notify the
probation officer within 72 hours of becoming aware of a change or expected change.
6. You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation
officer to take any items prohibited by the conditions of your supervision that he or she observes in plain view.
7. You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses
you from doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation
officer excuses you from doing so. If you plan to change where you work or anything about your work (such as your position
or your job responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the
probation officer at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation
officer within 72 hours of becoming aware of a change or expected change.
8. You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has
been convicted of a felony, you must not knowingly communicate or interact with that person without first getting the
permission of the probation officer.
9. If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
10. You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything
that was designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as
nunchakus or tasers).
11. You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant
without first getting the permission of the court.
12. If the probation officer determines that you pose a risk to another person (including an organization), the probation officer
may require you to notify the person about the risk and you must comply with that instruction. The probation officer may
contact the person and confirm that you have notified the person about the risk.
13. You must follow the instructions of the probation officer related to the conditions of supervision.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the mandatory, standard, and any special conditions specified by the court and has
provided me with a written copy of this judgment containing these conditions. For further information regarding these conditions, see
Overview of Probation and Supervised Release Conditions, available at: www.uscourts.gov.
Defendant’s Signature
Date
Case 3:13-cr-00154-TAV-HBG Document 69 Filed 04/12/18 Page 4 of 7 PageID #: 1532
Appx. 92
AO 245B (Rev. TNED 02/2018) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
DENNIS DEWAYNE PLEMONS
3:13-CR-00154-TAV-HBG(1)
Judgment - Page 5 of 7
SPECIAL CONDITIONS OF SUPERVISION
1.
You must participate in a program of testing and treatment for drug and/or alcohol abuse, as directed by the probation officer,
until such time as you are released from the program by the probation officer.
2.
You must participate in a program of mental health treatment, as directed by the probation officer, until such time as you are
released from the program by the probation officer. You must waive all rights to confidentiality regarding mental health
treatment in order to allow release of information to the supervising United States Probation Officer and to authorize open
communication between the probation officer and the mental health treatment provider.
3.
You must take all medication prescribed by the treatment program as directed. If deemed appropriate by the treatment
provider or the probation officer, you must submit to quarterly blood tests to determine whether you are taking the
medication as prescribed.
Case 3:13-cr-00154-TAV-HBG Document 69 Filed 04/12/18 Page 5 of 7 PageID #: 1533
Appx. 93
AO 245B (Rev. TNED 02/2018) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
DENNIS DEWAYNE PLEMONS
3:13-CR-00154-TAV-HBG(1)
Judgment - Page 6 of 7
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the Schedule of Payments sheet of this judgment.
TOTALS
☐
☐
Assessment
$100.00 (paid)
JVTA Assessment*
$.00
Fine
$.00
Restitution
$.00
The determination of restitution is deferred until
An Amended Judgment in a Criminal Case (AO245C) will be entered
after such determination.
The defendant must make restitution (including community restitution) to the following payees in the amount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified
otherwise in the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal
victims must be paid before the United States is paid.
☐
☐
☐
Restitution amount ordered pursuant to plea agreement $
The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before
the fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options under the Schedule
of Payments sheet of this judgment may be subject to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
The court determined that the defendant does not have the ability to pay interest and it is ordered that:
☐ the interest requirement is waived for the
☐ fine
☐ restitution
the
interest
requirement
for
the
fine
☐
☐
☐ restitution is modified as follows:
* Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22
** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on or after September 13, 1994,
but before April 23, 1996.
Case 3:13-cr-00154-TAV-HBG Document 69 Filed 04/12/18 Page 6 of 7 PageID #: 1534
Appx. 94
AO 245B (Rev. TNED 02/2018) Judgment in a Criminal Case
DEFENDANT:
CASE NUMBER:
DENNIS DEWAYNE PLEMONS
3:13-CR-00154-TAV-HBG(1)
Judgment - Page 7 of 7
SCHEDULE OF PAYMENTS
Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties is due as follows:
☒
☐
☐
Lump sum payments of $ 100.00 (paid)
not later than
in accordance with
C,
☐
B
☐
Payment to begin immediately (may be combined with
C
☐
Payment in equal
(e.g., weekly, monthly, quarterly) installments of $
over a period
of
(e.g., months or years), to commence
(e.g., 30 or 60 days) after the date of this judgment; or
D
☐
Payment in equal
(e.g., weekly, monthly, quarterly) installments of $
over a period
of
(e.g., months or years), to commence
(e.g., 30 or 60 days) after release from imprisonment to a term of
supervision; or
E
☐
Payment during the term of supervised release will commence within
(e.g., 30 or 60 days) after release from
imprisonment. The court will set the payment plan based on an assessment of the defendant’s ability to pay at that time; or
F
☐
Special instructions regarding the payment of criminal monetary penalties:
A
due immediately, balance due
, or
D,
E, or
☐
☐
☐
C,
☐
F below; or
☐
D, or
☐
F below); or
Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is
due during imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons’
Inmate Financial Responsibility Program, are made to U.S. District Court, 800 Market Street, Suite 130, Howard H. Baker, Jr.
United States Courthouse, Knoxville, TN, 37902. Payments shall be in the form of a check or a money order, made payable to U.S.
District Court, with a notation of the case number including defendant number.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
☐
☐
☐
☐
Joint and Several
See above for Defendant and Co-Defendant Names and Case Numbers (including defendant number), Total Amount, Joint
and Several Amount, and corresponding payee, if appropriate.
☐ Defendant shall receive credit on his restitution obligation for recovery from other defendants who contributed to the same
loss that gave rise to defendant's restitution obligation.
The defendant shall pay the cost of prosecution.
The defendant shall pay the following court cost(s):
The defendant shall forfeit the defendant’s interest in the following property to the United States:
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) fine principal,
(5) fine interest, (6) community restitution, (7) JVTA Assessment, (8) penalties, and (9) costs, including cost of prosecution and court
costs.
Case 3:13-cr-00154-TAV-HBG Document 69 Filed 04/12/18 Page 7 of 7 PageID #: 1535
Appx. 95
Case: 17-6535
Document: 54-2
Filed: 07/16/2020
Page: 1
(2 of 9)
NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0409n.06
Case No. 17-6535
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
LAWRENCE SCHUMAKER,
Defendant-Appellee.
)
)
)
)
)
)
)
)
)
Jul 16, 2020
DEBORAH S. HUNT, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
TENNESSEE
BEFORE: SILER, WHITE, and DONALD Circuit Judges.
SILER, Circuit Judge. Lawrence Schumaker was convicted of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act
(“ACCA”), a defendant who violates § 922(g) and has three prior violent felony convictions is
subject to an enhanced mandatory minimum of fifteen years’ imprisonment. See 18 U.S.C.
§ 924(e)(1). When Schumaker was sentenced for violating § 922(g) he had fourteen prior
Tennessee aggravated burglary convictions.
Before Schumaker was sentenced this court ruled en banc in United States v. Stitt that
Tennessee’s aggravated burglary statute does not qualify as a violent felony for purposes of the
ACCA. Schumaker was then sentenced without an ACCA enhancement to 54 months’
imprisonment. The government appealed and while the appeal was pending the U.S. Supreme
Appx. 96
Case: 17-6535
Document: 54-2
Filed: 07/16/2020
Page: 2
Case No. 17-6535, United States v. Schumaker
Court overturned Stitt. This court has interpreted the Supreme Court’s decision as reinstating preStitt Sixth Circuit case law, which recognizes Tennessee aggravated burglary as a violent felony
under the ACCA. Therefore, we REVERSE and REMAND for resentencing under the ACCA.
I.
In 2016, Lawrence Schumaker pled guilty to possessing a firearm by a felon in violation
of 18 U.S.C. § 922(g)(1). The district court postponed the sentencing hearing until after we issued
an opinion in the Stitt case.
In United States v. Stitt, we decided that Tennessee’s aggravated burglary statute is broader
than generic burglary, such that “Tennessee aggravated burglary is not a violent felony for
purposes of the ACCA.” 860 F.3d 854, 856 (6th Cir. 2017) (en banc). Because his armed-careercriminal classification depended on his prior Tennessee aggravated burglary convictions, the
probation office revised Schumaker’s presentence report and calculated the guideline range
without the ACCA enhancement. Accordingly, the district court sentenced Schu
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