Lowe v. U.S., 17-5490

• Decision Date: 04 April 2019
• Docket Number: No. 17-5490,17-5490
• Parties: Carlos Clifford LOWE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

920 F.3d 414

Carlos Clifford LOWE, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 17-5490

United States Court of Appeals, Sixth Circuit.

Argued: October 3, 2018
Decided and Filed: April 4, 2019

BERNICE BOUIE DONALD, Circuit Judge.

Petitioner-appellant Carlos Lowe appeals the district court’s denial of his successive pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons more fully explained below, we REVERSE and REMAND the case back to the district court.

I.

In 2005, a jury found Lowe guilty of possessing ammunition as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). Lowe had previously been convicted of four felonies under Tennessee law. They include: third-degree burglary, aggravated assault, a rape occurring in 1977, and a rape occurring in 1985.

At his sentencing, the district court determined that at least three of those prior felonies qualified Lowe as an armed career criminal under the Armed Career Criminal Act ("ACCA") and sentenced him to 235 months imprisonment. See 18 U.S.C. § 924(e)(1). Lowe subsequently appealed his conviction and his sentence, but this court affirmed. United States v. Lowe , No. 06-5352 (6th Cir. Apr. 27, 2007) (order). Lowe then filed a motion to vacate his sentence under 28 U.S.C. § 2255, which the district court denied.

After the Supreme Court held that the residual clause of the ACCA is unconstitutionally vague in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Lowe filed a motion for an order authorizing the district court to consider a second or successive motion to vacate, set aside, or correct his sentence under § 2255. In re Carlos Clifford Lowe , 16-6002 (6th Cir. Nov. 14, 2016) (order). We granted the motion and transferred the case to the district court. Id.

Lowe filed his second or successive § 2255 motion in the district court, challenging his status as an armed career

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criminal. The district court denied the motion and certified that an appeal would not be taken in good faith, holding that Lowe’s convictions for third-degree burglary, aggravated assault, and the 1977 rape still qualify as ACCA predicates. Based on those determinations, the district court did not address Lowe’s 1985 rape, for which he was convicted under a different statute than for the 1977 rape.

Lowe timely appealed the district court’s denial of his second § 2255 motion. This court granted him a certificate of appealability to determine whether his third-degree burglary conviction qualifies as an ACCA predicate. That question, however, was recently answered in Cradler v. United States , 891 F.3d 659 (6th Cir. 2018). It does not. See id. at 671.

Undeterred, the Government now argues that Lowe’s status as an armed career criminal remains valid because his convictions for aggravated assault and the two rapes qualify as violent felonies under the ACCA. In response, Lowe asserts that the Government has not met its burden of establishing that the 1985 rape qualifies.¹ We now turn to that conviction.

II.

The validity of Lowe’s designation as an Armed Career Criminal hinges entirely on whether his 1985 rape qualifies as an ACCA predicate offense. The district court declined to reach this question once it determined that Lowe’s convictions for third-degree burglary, aggravated assault, and the 1977 rape qualified as violent felonies. Nevertheless, we exercise our discretion to consider this issue in the first instance. See Singleton v. Wulff , 428 U.S. 106, 121, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) ("The matter of what questions may be taken up and resolved for the first time on appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts of individual cases.").

The ACCA imposes a fifteen year mandatory minimum sentence on a defendant who violates § 922(g) after having been convicted of three prior "violent felonies." See 18 U.S.C. § 924(e). A violent felony, as pertinent here, 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[.]" § 924(e)(2)(B), (i). This clause has come to be known as the "use-of-force" or the "elements" clause, requiring a finding that an offense involved a level of "force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010).

"To determine whether a conviction offense is a [violent felony], we apply a categorical approach ‘focus[ing] on the statutory definition of the offense, rather than the manner in which the offender may have violated the statute in a particular circumstance.’ " United States v. Gooch , 850 F.3d 285, 290 (6th Cir. 2017) (quoting United States v. Rafidi , 829 F.3d 437, 444 (6th Cir. 2016) ). Pursuant to the

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categorical approach, if an offense’s elements do not necessarily involve the use, attempted use, or threatened use of physical force against another, the crime does not qualify as a predicate offense under the ACCA (in the elements-clause context). See United States v. Harris , 853 F.3d 318, 320 (6th Cir. 2017).

Where, however, a statute sets out "one or more elements of the offense in the alternative," the statute defines multiple crimes and is considered divisible. See Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). In that scenario, we employ a modified categorical approach, which requires a multi-step inquiry. See id. We first look to the statute as a whole to determine whether it includes crimes that do not necessarily involve the use of force. If it does, we determine whether the statute is divisible and whether any crime defined by the statute may qualify as an ACCA predicate offense. If the answer is yes, we "look[ ] to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2249, 195 L.Ed.2d 604 (2016) (citing Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ). Finally, we determine whether that crime necessarily involved the use, attempted use, or threatened use of force.

Under either the categorical or the modified categorical approach, the first step is to look to the statute under which the defendant was convicted. At the time Lowe committed the 1985 rape, the relevant statute read:

(a) Rape is unlawful sexual penetration of another accompanied by any of the following circumstances:

(1) Force or coercion is used to accomplish the act;

(2) The actor knows or has reason to know that the victim is mentally defective, mentally incapacitated, or physically helpless; and

(3) The actor accomplishes sexual penetration by fraud.

(b) Rape is a felony punishable by imprisonment in the penitentiary for a determinate sentence not less than five (5) years nor more than twenty (20) years.

Tenn. Code Ann. § 39-2-604 (1982).

As we have previously held, a conviction for rape where the victim is "physically helpless" does not necessarily require the use of force. In re Sargent , 837 F.3d 675, 677-78 (6th Cir. 2016). Thus, for purposes of the ACCA, this statute is overbroad because it is comprised of at least one crime that does not require the use, attempted use, or threatened use of force. The next step is to determine whether the statute is divisible.

We find that it is because it lists elements in the alternative, thereby defining multiple crimes. See Mathis , 136 S.Ct. at 2248 (" ‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things...