United States v. Southers, 15-6395

• Citation: 866 F.3d 364
• Decision Date: 08 May 2017
• Docket Number: No. 15-6395,15-6395
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rodney SOUTHERS, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

866 F.3d 364

UNITED STATES of America, Plaintiff-Appellee,

v.Rodney SOUTHERS, Defendant-Appellant.

No. 15-6395

United States Court of Appeals, Sixth Circuit.

Decided and Filed May 08, 2017^*

ON BRIEF: Dennis C. Belli, Columbus, Ohio, for Appellant. William A. Roach, Jr., UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

BEFORE: SUHRHEINRICH, BATCHELDER, and STRANCH, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court in which BATCHELDER and STRANCH, JJ., joined. STRANCH, J. (pg. 371), delivered a separate concurring opinion.

OPINION

SUHRHEINRICH, Circuit Judge.

Defendant-Appellant Rodney Southers appeals the district court's finding at sentencing that he qualified as an armed career criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and claims, for the first time on direct appeal, that he had ineffective counsel at sentencing. For the following reasons we affirm the district court's finding, and decline to entertain Defendant's Sixth Amendment claim.

I.

On January 21, 2014, Defendant was arrested on an outstanding warrant. Pursuant to a search incident to arrest, police found on Defendant's person seventeen rounds of ammunition. An Alcohol, Tobacco and Firearms task force officer then filed a criminal complaint against Defendant in the United States District Court for the Eastern District of Tennessee alleging Defendant was a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). Evidence was then presented to a grand jury, which charged Defendant on this offense. Defendant pleaded guilty without a plea agreement.

The probation office classified Defendant as an armed career criminal under the ACCA due to Defendant's two prior robbery convictions and one prior attempted-aggravated-robbery conviction. Based on this designation, Defendant's sentencing range was enhanced to a range of fifteen years to life imprisonment.

At sentencing, Defendant's only objection was that his convictions for robbery and attempted-aggravated robbery on May 24, 2000, should be considered a single event for purposes of the ACCA. In response, the government produced the indictments and judgments for each predicate offense. Each indictment listed a distinct business as the victim, and the corresponding judgments which cross-referenced the relevant indictment. As part of an effort to persuade the court that these crimes were a single event or part of the same course of conduct, Defendant testified at sentencing. He stated that he and his partner "planned to hit two stores," first "the Golden Gallon, and then ... the Favorite Market."

The district court found that, despite possibly being connected by one conspiratorial agreement, the two robberies were "legally and factually distinct," and therefore were "properly considered separate offenses for purposes of the [ACCA]." However, the court did grant the government's motion to reduce Defendant's sentence pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), and ultimately sentenced Defendant to 110 months' imprisonment. Defendant timely appealed.

II.

On appeal, Defendant alleges two errors by the district court in applying the ACCA. First, Defendant argues, for the first time on appeal, that his Tennessee robbery convictions were improperly found to be "violent felonies" for purposes of the ACCA. Second, he reiterates his objection that his two May 24, 2000 predicates should be considered one predicate for purposes of the ACCA. Both arguments fail.

A.

Although we generally review a district court's determination that a prior conviction qualifies as a "violent felony" under the ACCA de novo, where, as here, a defendant fails to make this objection to the district court, we review for plain error. United States v. Anderson , 695 F.3d 390, 399 (6th Cir. 2012). To prevail under this standard, Defendant must establish "(1) error, (2) that is plain, and (3) that affects substantial rights." Johnson v. United States , 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quotation marks and citation omitted). We "may then exercise [our] discretion to notice [this] forfeited error, but only if (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. Defendant fails here at the first step.

If a felon convicted of unlawfully possessing ammunition also has three previous convictions for, among other things, "violent felonies," the ACCA provides for a mandatory sentencing enhancement. 18 U.S.C. § 924(e)(1). The ACCA defines violent felony as "any crime punishable by imprisonment for a term exceeding one year ... that ... has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B). The meaning of "physical force" is a matter of federal law, and is defined as "force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 138, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). However, the meaning, scope, and elements of the predicate violent felonies are matters of state law. Id. at 138, 130 S.Ct. 1265.

In determining whether a prior conviction qualifies as violent felony under the ACCA, the courts use the "categorical approach," examining only "the statutory definition of the offense and not the particular facts underlying the conviction." Anderson , 695 F.3d at 399. If it is possible to violate the statute both in a manner that qualifies as violent felony and in a manner that does not—i.e., a divisible statute—the court may "consider the indictment, guilty plea, or similar documents to determine whether they necessarily establish the nature of the prior conviction." Id. (citing Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ). However, if all modes of violating a divisible statute constitute qualifying offenses, the statute is categorical, and it is unnecessary to look beyond its face. Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013).

Under Tennessee law, robbery is defined as "the intentional or knowing theft of property from the person of another by violence or putting the person in fear." Tenn. Code Ann. § 39-13-401. Although robbery in Tennessee can be committed in two manners, our inquiry into whether it is a categorically violent felony is made easy due to the fact that this Court has already answered this question.

In United States v. Mitchell , we held that both variants of violating the statute constitute violent felonies, obviating our need to look beyond the face of the statute. 743 F.3d 1054, 1059-60 (6th Cir. 2014). There we examined Tennessee Supreme Court precedent interpreting both "violence" and "putting the person in fear" under the statute. We noted that in State v. Fritz , the Tennessee Supreme Court held that "violence" under the Tennessee robbery statute means "physical force unlawfully exercised so as to injure, damage or abuse." 19 S.W.3d 213, 214 (Tenn. 2000). In State v. Taylor , the Tennessee Supreme Court similarly held that "fear constituting an element of robbery is a fear of bodily injury and of present personal peril from violence offered or impending." 771 S.W.2d 387, 398 (Tenn. 1989) (interpreting Tennessee's repealed robbery statute, but which uses the same language for the element at issue here in the new robbery statute). Therefore, because both modes of violating Tennessee's robbery statute require use or threat of physical force, as defined by federal law, Tennessee robberies are categorically violent felonies for purposes of the ACCA. Mitchell , 743 F.3d at 1060.

Defendant argues that Mitchell is not controlling because the Supreme Court's decision in Moncrieffe v. Holder , 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), is an inconsistent intervening Supreme Court decision that allows us to revisit the issue.¹ Appellant's Br. at 21 (citing Salmi v. Sec'y of Health & Human Servs. , 774 F.2d 685, 689 (6th Cir. 1985) (holding that while one panel of this Court may not overrule a prior published opinion of a previous panel, it may disregard an earlier published opinion if an inconsistent decision of the United States Supreme Court requires modification of the earlier decision)). In applying the categorical approach to determine whether a state conviction for drug trafficking qualified as an aggravated felony under the Immigration and Nationality Act, the Moncrieffe Court stated that courts must "focus on the minimum conduct criminalized by the state statute." 133 S.Ct. at 1684. Furthermore, this exercise "is not an invitation to apply ‘legal imagination’ to the state offense; there must be a ‘realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.’ " Id. at 1684-85 (quoting Gonzales v. Duenas-Alvarez , 549 U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) ). To make this showing, a defendant "must at least point to his own case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues." Duenas-Alvarez , 549 U.S. at 193, 127 S.Ct. 815. In applying this analysis to the case at hand, the Moncrieffe Court looked to two Georgia intermediate appellate court decisions applying a Georgia drug trafficking statute.

Defendant alleges that, per Moncrieffe , the Mitchell court should have examined intermediate state appellate decisions of the Tennessee robbery statute to "discern the ‘least of the acts criminalized’ under the Tennessee robbery statute." Appellant's Br. at 17 (quoting Moncrieffe , 133 S.Ct. at 1684 ). Defendant directs our attention to three Tennessee intermediate court cases wherein, he argues, the courts upheld the application of the Tennessee robbery statute to actions that do not meet the federal definition of use, attempted use, or threatened use of "physical force." See State v....