860 F.3d 854 (6th Cir. 2017), 14-6158, United States v. Stitt

Docket Nº:14-6158
Citation:860 F.3d 854
Opinion Judge:COOK, Circuit Judge.
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VICTOR J. STITT, II, Defendant-Appellant
Attorney:Timothy C. Ivey, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant. Terra L. Bay, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, Debra A. Breneman, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.
Judge Panel:Before: COLE, Chief Judge; BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, and DONALD, Circuit Judges.[*] COLE, C.J., and BOGGS, BATCHELDER, MOORE, GRIFFIN, WHITE, STRANCH, and DONALD, JJ., joined. BOGGS, J. (pp. 13-24), delivered a sep...
Case Date:June 27, 2017
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 854

860 F.3d 854 (6th Cir. 2017)

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

VICTOR J. STITT, II, Defendant-Appellant

No. 14-6158

United States Court of Appeals, Sixth Circuit

June 27, 2017

Appeal from the United States District Court for the Eastern District of Tennessee at Winchester. No. 4:12-cr-00019-1--Harry S. Mattice Jr., District Judge.

ON SUPPLEMENTAL BRIEF:

Timothy C. Ivey, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant.

Terra L. Bay, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, Debra A. Breneman, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

Before: COLE, Chief Judge; BOGGS, BATCHELDER, MOORE, CLAY, GIBBONS, ROGERS, SUTTON, COOK, McKEAGUE, GRIFFIN, KETHLEDGE, WHITE, STRANCH, and DONALD, Circuit Judges.[*] COLE, C.J., and BOGGS, BATCHELDER, MOORE, GRIFFIN, WHITE, STRANCH, and DONALD, JJ., joined. BOGGS, J. (pp. 13-24), delivered a separate concurring opinion in which BATCHELDER, MOORE, WHITE, and STRANCH, JJ., joined. WHITE, J. (pp. 25-32), delivered a separate concurring opinion in which BATCHELDER, MOORE, and STRANCH, JJ., joined. SUTTON, J. (pp. 33-40), delivered a separate dissenting opinion in which CLAY, GIBBONS, ROGERS, McKEAGUE, and KETHLEDGE, joined. BOGGS, Circuit Judge, concurring. SUTTON, Circuit Judge. HELENE N. WHITE, Circuit Judge.

OPINION

COOK, Circuit Judge.

In 2007, we held that a conviction under Tennessee's aggravated-burglary statute, Tenn. Code Ann. § 39-14-403, categorically qualifies as an enumerated " violent felony" that triggers a sentencing enhancement under the Armed Career Criminal Act (" ACCA" ), 18 U.S.C. § 924(e). United States v. Nance, 481 F.3d 882, 887 (6th Cir. 2007); see also United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015). Several years later, we reached the opposite conclusion about Ohio's similarly worded burglary statute, Ohio Rev. Code § 2911.12(A)(3). United States v. Coleman, 655 F.3d 480, 482 (6th Cir. 2011), abrogated on other grounds by Johnson v. United States, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). We resolve this conflict by overruling Nance and holding that a conviction for Tennessee aggravated burglary is not a violent felony for purposes of the ACCA.

I

.

During a heated argument in 2011, Victor Stitt tried to shove a loaded handgun into his girlfriend's mouth while threatening to kill her. When a neighbor called the police, Stitt fled to his mother's home, where he surrendered to authorities after a brief foot chase. Detectives recovered the gun lying on the ground within his reach.

A jury found Stitt guilty of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g). Due to his nine prior " violent felony" convictions--including six for Tennessee aggravated burglary--the court designated Stitt an armed career criminal under the ACCA and sentenced him to 290 months' imprisonment.

On appeal, Stitt argued that none of his nine convictions qualify as violent felonies. The government conceded that Johnson v. United States invalidated the violent-felony status of three of his prior offenses, leaving only his six aggravated-burglary convictions at issue. See 135 S.Ct. at 2563. Bound by Nance --which held that Tennessee aggravated burglary fits the Supreme Court's definition of " generic burglary" --we affirmed his sentence. United States v. Stitt, 637 Fed.Appx. 927, 931-32 (6th Cir. 2016).

Stitt comes before us now on a petition for rehearing en banc, which we granted to resolve whether a conviction for Tennessee aggravated burglary constitutes a violent felony under the ACCA. United States v. Stitt, 646 Fed.Appx. 454 (6th Cir. 2016). Because we conclude that Tennessee's aggravated-burglary statute is broader than the definition of generic burglary, we hold that a conviction under the statute does not qualify as an ACCA predicate offense.

II

.

The ACCA imposes a fifteen-year minimum sentence on any defendant who, having been convicted of three prior " violent felonies," is found guilty of being in possession of a firearm. See 18 U.S.C. § § 922(g), 924(e). Although the ACCA enumerates burglary as one of several " violent felonies" that can lead to the fifteen-year minimum, see § 924(e)(2)(B)(ii), not every conviction labeled as " burglary" under state law qualifies as a violent felony. Taylor v. United States, 495 U.S. 575, 590-92, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Instead, Congress intended to encompass only those convictions arising from burglary statutes that conform to, or are narrower than, the " generic" definition of burglary. Id. at 598.

To determine whether Stitt's aggravated-burglary convictions qualify, we apply the " categorical approach." Descamps v. United States, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). Under this approach, we compare the statutory elements of Tennessee aggravated burglary to the elements of " generic burglary." See id. If the elements of Tennessee aggravated burglary " are the same as, or narrower than, those of [generic burglary,]" Stitt's convictions count as violent felonies under the ACCA. Id.

A. Applying the Categorical Approach

Tennessee defines aggravated burglary as the " burglary of a habitation," Tenn. Code Ann. § 39-14-403, and defines " habitation" as " any structure . . . which is designed or adapted for the overnight accommodation of persons," id. § 39-14-401(1)(A). The term " habitation" includes " mobile homes, trailers, and tents," as well as any " self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant." Id.

By contrast, the Supreme Court has determined that under the ACCA, " generic burglary" means " 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. Although the Court left " building or other structure" undefined, it has confirmed repeatedly that vehicles and movable enclosures (e.g., railroad cars, tents, and booths) fall outside the definitional sweep of " building or other structure." See id. at 599; Mathis v. United States, 136 S.Ct. 2243, 2250, 195 L.Ed.2d 604 (2016) (explaining that Iowa's burglary statute " covers more conduct than generic burglary" because it " reaches a broader range of places: 'any building, structure, [or] land, water, or air vehicle.'" (alteration in original) (citations omitted)); Nijhawan v. Holder, 557 U.S. 29, 35, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (differentiating between breaking into a " vessel," which would not qualify as generic burglary, and " breaking into a building," which would); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186-87, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (noting that Massachusetts defines burglary to include breaking into a vehicle, " which falls outside the generic definition of 'burglary,' for a car is not a 'building or structure'" (citations omitted)); Shepard v. United States, 544 U.S. 13, 15-16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) (" The [ACCA] makes burglary a violent felony only if committed in a building or enclosed space . . ., not in a boat or motor vehicle." ).

By including " mobile homes, trailers, and tents," as well as any " self-propelled vehicle," Tennessee's aggravated-burglary statute includes exactly the kinds of vehicles and movable enclosures that the Court excludes from generic burglary. But the statute comes with a wrinkle: it criminalizes the unauthorized entry into vehicles and movable enclosures (with criminal intent) only if they are " designed or adapted for the overnight accommodation of persons." Tenn. Code Ann. § 39-14-401(1). In other words, it restricts the ambit of the statute to only those vehicles and movable enclosures that are habitable.

The issue before us, then, is whether a burglary statute that covers vehicles or movable enclosures only if they are habitable fits within the bounds of generic burglary. We hold that it does not. Our reading of Taylor and its progeny supports this conclusion.

To start, Taylor emphasizes a place's form and nature--not its intended use or purpose--when determining whether a burglary statute's locational element is a " building or other structure." Taylor, 495 U.S. at 598; United States v. Rainer, 616 F.3d 1212, 1215 (11th Cir. 2010) (" The definitional focus [of generic burglary] is on the nature of the property or place, not on the nature of its use at the time of the crime." ), abrogated on other grounds as recognized by United States v. Howard, 742 F.3d 1334, 1344-45 (11th Cir. 2014); United States v. White, 836 F.3d 437, 445-46 (4th Cir. 2016) (finding it " immaterial" to the categorical approach that West...

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