Dillard v. United States

• Decision Date: 12 April 2019
• Docket Number: No. 17-5716,17-5716
• Parties: DENNIS DILLARD, Petitioner-Appellee, v. UNITED STATES OF AMERICA, Respondent-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

DENNIS DILLARD, Petitioner-Appellee, v. UNITED STATES OF AMERICA, Respondent-Appellant.

No. 17-5716

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

April 12, 2019

NOT RECOMMENDED FOR PUBLICATION

File Name: 19a0187n.06

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

BEFORE: BATCHELDER, KETHLEDGE, and WHITE, Circuit Judges.

WHITE, Circuit Judge.

Petitioner Dennis Dillard was convicted of being a felon in possession of a firearm and was sentenced under the Armed Career Criminal Act (ACCA) based, in part, on two prior Tennessee convictions for aggravated assault. Relying on a prior decision of this court that has since been overruled, the district court granted Dillard's second or successive motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The district court found that Dillard had been improperly sentenced as a career offender because his Tennessee convictions could have been supported by merely reckless conduct, and therefore could have qualified as ACCA predicates only under the residual clause, which the Supreme Court has found to be unconstitutional. The government now appeals. Because we have held that recklessness is sufficient under the ACCA's use-of-physical-force—or "elements"—clause, we vacate the district court's order and remand for further proceedings.

I. Background

On June 17, 2005, Dillard pleaded guilty to possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g). The Probation Office prepared a Presentence Investigation Report (PSR) recommending that the court sentence Dillard as an armed career criminal. That recommendation was predicated on four prior Tennessee convictions: a 1984 conviction for aggravated assault, a 1987 conviction for aggravated assault, a 1989 conviction for burglary of a business house, and a 1992 conviction for voluntary manslaughter.

Dillard argued that one of his aggravated-assault convictions should not count as a predicate offense because "he was not the initial aggressor" in the incident. (R. 51, PID 859.) The district court rejected that argument, stating that "[s]elf-defense would be a defense to the charge" and, "if that defense had been accepted, then the defendant could not have been convicted of the offense." (Id. at PID 862.) The court then found that both of Dillard's aggravated-assault convictions qualified as crimes of violence, but did not specify the clause of the ACCA under which they qualified. Based on Dillard's ACCA designation, the district court sentenced him to 215 months of imprisonment. Dillard appealed, but the Sixth Circuit affirmed his sentence and conviction on December 5, 2006.

A. Dillard's Prior Convictions

1. 1984 Conviction

Dillard was indicted for "Felonious Assault" in 1983. Without any reference to a particular statute, the indictment alleges as follows:

That Dennis James Dillard . . . did unlawfully, feloniously, willfully, deliberately, premeditatedly, maliciously and with malice aforethought assault Marty Jones, with a certain dangerous and deadly weapon, to-wit: a knife, with intent at the time to unlawfully, feloniously, willfully, deliberately, premeditatedly, maliciously and with malice aforethought kill and murder the said Marty Jones.

(R. 104, PID 215.)

Seven separate felony assault offenses existed under Tennessee law in 1983, none of which was titled "Felonious Assault." See Tenn. Code Ann. §§ 39-2-101 (Aggravated Assault), 39-2-102 (Assault with Intent to Commit Felony), 39-2-103 (Assault with Intent to Murder), 39-2-104 (Assault with Intent to Rob), 39-2-107 (Assault from Ambush), 39-2-109 (Assault with Deadly Weapon While in Disguise), 39-2-110 (Assault by Juvenile Confined in Institution) (Michie 1982). The allegations in Dillard's indictment use language similar to the statutory definitions of Aggravated Assault (§ 39-2-101), Assault with Intent to Commit Felony (§ 39-2-102), and Assault with Intent to Murder (§ 39-2-103).

Dillard was convicted on February 6, 1984. The judgment of conviction noted that Dillard had been indicted for "Fel. Assault" but was convicted of "Aggravated Assault" based on a plea. At the relevant time, the aggravated-assault statute provided that any person who

(1) Attempts to cause or causes serious bodily injury to another willfully, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;

(2) Attempts to cause or willfully or knowingly causes bodily injury to another with a deadly weapon;

(3) Assaults another while displaying a deadly weapon or while the victim knows such person has a deadly weapon in his possession; or

(4) Being the parent or custodian of a child or the custodian of an adult, willfully or knowingly fails or refuses to protect such child or adult from an aggravated assault described in (1), (2), or (3) above;

is guilty of the crime of aggravated assault. Tenn. Code Ann. § 39-2-101(b) (Michie 1982).

Dillard's judgment of conviction did not specify the sub-part of the aggravated-assault statute under which he was convicted. At the time, aggravated assault was explicitly defined as a lesser included offense of both assault with intent to kill and assault with intent to commit any other felony. Tenn. Code. Ann. § 39-2-106 (Michie 1982).

Dillard was sentenced to a two-year term of imprisonment.

2. 1987 Conviction

Dillard was indicted for "Felonious Assault Causing Personal Injury" in 1986; again, the indictment did not refer to any statutory code section. (R. 104, PID 217.) The indictment contained language that is largely identical to Dillard's first indictment, with additional allegations that the victim had been injured:

That Dennis James Dillard . . . did unlawfully, feloniously, willfully, deliberately, premeditatedly, maliciously and with malice aforethought assault Naomi Dillard, with a certain dangerous and deadly weapon, to-wit: a knife, with intent at the time to unlawfully, willfully, deliberately, premeditatedly, maliciously and with malice aforethought kill and murder the said Naomi Dillard, and personal injury to Naomi Dillard occurred as a result of such assault as aforesaid, against the peace and dignity of the State.

(Id. at PID 218.) As with the earlier conviction, these allegations share language with a number of distinct offenses under Tennessee statutory law. Dillard was convicted on February 10, 1987. The judgment of conviction noted that Dillard had been charged with "Fel. Assault Causing Personal Injury" but was convicted of "Aggravated Assault" based on a plea. (Id. at PID 219.) The judgment did not specify a sub-part of the aggravated-assault statute.

At the time of Dillard's 1987 conviction, aggravated assault was still defined as a lesser included offense of assault with intent to commit a felony and assault with intent to murder. See § Tenn. Code Ann. 39-2-106; see also State v. Cash, 1992 WL 13905, *11 (Tenn. App. 1992) (unpublished). The aggravated-assault statute itself, however, had been expanded to add a fifth subdivision under which a person could be convicted of aggravated assault if that person:

(5) After having been enjoined, restrained, or otherwise prohibited by a diversion order, condition of probation or other court order from initiating contact with a person, is twice convicted of committing battery on such person; provided, however, the battery described in this subdivision shall not constitute aggravated battery unless the defendant had actual knowledge that he or she was prohibited by an injunction, court order or condition of probation from initiating contact with the victim of the battery.

Tenn. Code Ann. § 39-2-101 (Michie 1986).

Dillard was sentenced to a two-year term of imprisonment.

B. Dillard's § 2255 Petitions

On March 30, 2007, Dillard filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Dillard argued that his counsel had been ineffective both by requesting to withdraw as his appellate counsel and by failing to challenge certain aspects of his sentence. The district court denied Dillard's § 2255 petition on April 30, 2008.

On June 26, 2015, the Supreme Court held in Johnson v. United States that the ACCA's residual clause is unconstitutionally vague. 135 S. Ct. 2551 (2015). Dillard requested leave to file a successive § 2255 petition based on Johnson, and we granted leave, noting that Johnson had "announced a new 'substantive rule that has retroactive effect in cases on collateral review.'" (R. 107, PID 420 (quoting Welch v. United States, 136 S. Ct. 1257, 1268 (2016)).)

The district court granted Dillard's petition, stating that "the sole dispute between the parties is whether or not [Dillard's] 1984 and 1987 aggravated-assault convictions remain 'violent felonies' under one of the unaffected provisions of" the ACCA. (R. 114, PID 673.) The district court noted that aggravated assault is not an enumerated offense under the ACCA and, as a result, "its status as a predicate depends on the use-of-physical-force clause." (Id.) The district court concluded that the aggravated assault statute was "divisible between subdivisions (1), (2), (3), (4), and (5) because each of those variants is listed in the disjunctive and juries must agree on which aggravating circumstance applies." (Id. at PID 675.) The court also concluded that the "statute is not further divisible with regard to the levels of mens rea—intentional, knowing, or reckless—contained within the subdivisions." (Id.) Relying on the allegations in Dillard's indictments, the district court found that Dillard "must have been convicted of violating subdivision (b)(1), (b)(2),or (b)(3)," but could not determine the precise subdivision under which Dillard had been convicted. (Id. at PID 676.)

Because subdivision (1) of the aggravated assault statute can be violated by reckless conduct, the district court turned to the question whether recklessness satisfies the ACCA's use-of-physical-force clause. The district...