Snider v. United States

Citation908 F.3d 183
Decision Date09 November 2018
Docket NumberNo. 16-6607,16-6607
Parties Jeremy SNIDER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

ON BRIEF: Dennis G. Terez, Beachwood, Ohio, for Appellant. Jerry Kitchen, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.

Before: SUHRHEINRICH, MOORE, and BUSH, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court in which BUSH, J., joined. MOORE, J. (pp. 193–200), delivered a separate dissenting opinion.

SUHRHEINRICH, Circuit Judge.

Petitioner Jeremy Snider ("Snider") appeals the district court’s denial of his petition for collateral relief under 28 U.S.C. § 2255. Snider contends that this court’s en banc ruling in United States v. Stitt , 860 F.3d 854 (6th Cir. 2017) (en banc), cert. granted , ––– U.S. ––––, 138 S.Ct. 1592, 200 L.Ed.2d 776 (2018) —holding that a conviction for Tennessee aggravated burglary under TENN. CODE ANN § 39-14-403, is not a "violent felony" for purposes of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e) —requires us to vacate his sentence as a career offender under advisory sentencing guidelines range, U.S.S.G. § 4B1.1(a), because it is also not a "crime of violence." For the following reasons, we affirm the denial of Snider’s motion to vacate his sentence.

I.
A.

Between 1992 and 2006, Snider committed assorted crimes, including four convictions under Tennessee’s aggravated burglary statute, TENN. CODE ANN.§ 39-14-403. As the district court put it at sentencing, "[y]ou basically, Mr. Snider, have been a one-man crime wave." On November 2, 2006, he was charged with conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. § 846 ; manufacturing and attempting to manufacture over 50 grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846 ; possessing equipment, chemicals, products, and materials that may be used to manufacture methamphetamine, in violation of 21 U.S.C. § 843(a)(6) ; possessing a firearm after being convicted of a felony, in violation of 18 U.S.C.§ 922(g) ; possessing a stolen firearm, in violation of 18 U.S.C. § 922(j) ; and possessing a firearm during and in relation to a drug-trafficking crime, in violation of 18 U.S.C. § 924(c). On July 6, 2007, a jury convicted him on all counts.

Snider’s presentence report recommended an adjusted offense level of 34 under the U.S. Sentencing Guidelines Manual § 4B1.1(b)(B), because Snider qualified as a career criminal offender based on three Tennessee aggravated burglary convictions deemed crimes of violence. The guidelines define a career offender as having at least two prior felony convictions for crimes of violence or controlled substance offenses. U.S.S.G. § 4B1.1(a). At the time of Snider’s sentencing, "crime of violence" was defined to include "burglary of a dwelling." U.S.S.G. § 4B1.2(a) (Nov. 1, 2007).1

The presentence report relied (erroneously it turns out) on three burglaries committed in 1995. In March 1995, Snider broke into three different residences on three different dates, March 19, 20, and 21. He was arrested for all three burglaries on the same day, April 19, 1995, and pleaded guilty to all three crimes on the same day, May 22, 1995. Id. Although the presentence report did not rely upon it in its calculation of the career offender designation, it also listed an additional qualifying Tennessee aggravated burglary conviction.

With the career offender designation, Snider’s guidelines range was 360 months to life. (citing U.S.S.G. § 4B1.1(c)(3) ). The presentence report noted that Snider’s adjusted offense level after application of the various sentencing enhancements would have been the same in any event. However, without the career offender designation, based on Snider’s criminal history score of 17, which established a criminal history category of VI, Snider’s resulting advisory guidelines range was 262 to 327 months, plus 60 months consecutive.

Snider did not object to the classification of his prior convictions as crimes of violence in his sentencing memorandum or at the sentencing hearing. Snider asked for a sentence above the statutorily-mandated ten-year minimum, but "substantially less" than the 360 months suggested by the guidelines.

In considering the 18 U.S.C. § 3553 sentencing factors, the district court described the instant crime as "very serious" and "involving the manufacture of a poison, along with firearms, fleeing from police, putting police officers at risk during the flight." The court noted that Snider’s life of crime began at age 15 (he was 30 at the time of sentencing), that he had twenty-four convictions listed in his presentence report, and that these included "serious burglary and theft convictions" as well as "drug convictions." The district court rejected Snider’s request for a below-guidelines sentence, but sentenced him to the low end of the advisory guidelines range, with a total sentence of 300 months on the first five counts and the required 60-month consecutive sentence on count six.

On direct appeal, Snider raised one issue—he successfully argued that count six of the indictment mixed elements of two distinct offenses created by 18 U.S.C. § 924(c)(1)(A), and the jury instructions did not cure this flaw. See United States v. Snider , 379 F. App'x 430 (6th Cir. 2010). On remand, the district court dismissed the § 924(c) charge, and reimposed the original sentence on counts one through five, for a total sentence of 300 months.

B.

On June 16, 2011, Snider filed a timely pro se motion under 28 U.S.C. § 2255, raising four issues. On February 2, 2012, the district court directed the government to reply to Snider’s first claim—that he received ineffective assistance of counsel at sentencing because counsel failed to object to his designation as a career criminal "on the ground that his three convictions for aggravated robbery were not committed ‘on occasions different from one another’ "—and denied relief on the three remaining claims.2 In response, the government argued that even if Snider’s three prior aggravated burglary convictions should only collectively count as one crime of violence, Snider still qualified as a career offender because he had an additional qualifying conviction listed in the presentence report; that the ineffective assistance of counsel issue was not fairly raised in Snider’s motion; and that there was no evidence of ineffective assistance of counsel because Snider did not suffer any prejudice as a result of his attorney’s failure to object to sentencing based on U.S.S.G. § 4A1.1(a)(2).

On September 23, 2013, Snider filed a pro se motion to supplement his § 2255 motion based on Alleyne v. United States , 570 U.S. 99, 108, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) (holding that any fact that increases the mandatory minimum sentence for a crime is an "element" rather than a sentencing factor and must be submitted to a jury) and Descamps v. United States , 570 U.S. 254, 260, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) (holding that the modified categorical approach cannot be used to determine the nature of a prior conviction under the ACCA when the crime of conviction has indivisible elements). On November 14, 2013, the district court granted the motion to supplement and denied relief on the first and supplemental claims. The court agreed with the government that although the three aggravated burglaries should have been counted as only a single predicate, Snider was properly classified as a career offender based on the additional aggravated burglary conviction listed in the presentence report but not specifically designated as a predicate offense. The court failed to see the relevance of Alleyne and Descamps and concluded that Snider was not entitled to relief on the supplemental issue presented. Moreover, it stated that "this Court is bound by the Sixth Circuit’s holding in Nance that ‘Tennessee aggravated burglary represents a generic burglary[.]" Thus, the district court determined that none of the issues raised in Snider’s § 2255 motion had merit and further declined to issue a certificate of appealability.

On December 16, 2013, Snider filed a pro se motion for reconsideration under Fed. R. Civ. P. 59(e), arguing in part that the district court erred in denying relief under Descamps .3 On September 9, 2016, the district court denied the motion:

Snider ... reiterates his argument, based on the decision in Descamps , that he was not properly sentenced as a career offender. He contends that the offense of aggravated burglary under Tennessee law is not categorically a crime of violence under the Career Offender guideline, U.S.S.G. § 4B1.1(a) because it is not a "generic" burglary. That argument is without merit. As the Court noted in the order denying the § 2255 motion, the Sixth Circuit held, in United States v. Nance , 481 F.3d 882, 887-88 (6th Cir. 2007), that "Tennessee aggravated burglary represents a generic burglary capable of constituting a violent felony for ACCA purposes." ... Even after the decision in Johnson v. United States [––– U.S. ––––], 135 S.Ct. 2551 (2015) [holding that an increased sentence under the residual clause of the ACCA violated the constitutional due process], the Sixth Circuit reaffirmed the holding in Nance . See United States v. Priddy , 808 F.3d 676, 684 (6th Cir. 2015).

On May 16, 2017, this court granted a certificate of appealability, stating that "reasonable jurists would find it debatable whether the district court erred in denying Snider’s claims that he was incorrectly classified as a career offender and that he received ineffective assistance of counsel." We also appointed counsel.

II.

Legal conclusions in a habeas corpus petition are reviewed de novo. Cradler v. United States , 891 F.3d 659, 664 (6th Cir. 2018).

Snider argues that we should vacate the district court’s order denying his § 2255 motion because the district court relied on law...

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