U.S. v. Mcmurray

Citation653 F.3d 367
Decision Date04 August 2011
Docket NumberNo. 09–5806.,09–5806.
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Tyrone McMURRAY, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

653 F.3d 367

UNITED STATES of America, Plaintiff–Appellee,
v.
Tyrone McMURRAY, Defendant–Appellant.

No. 09–5806.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 18, 2011.Decided and Filed: Aug. 4, 2011.


[653 F.3d 369]

ARGUED: David L. Cooper, the Law Office of David L. Cooper, P.C., Nashville, Tennessee, for Appellant. Brooklyn D. Sawyers, Assistant United States Attorney, Nashville, Tennessee, for Appellee. ON BRIEF: David L. Cooper, the Law Office of David L. Cooper, P.C., Nashville, Tennessee, for Appellant. Brent A. Hannafan, Assistant United States Attorney, Nashville, Tennessee, for Appellee.Before: MOORE, GIBBONS, and McKEAGUE, Circuit Judges.MOORE, J., delivered the opinion of the court, in which GIBBONS, J., joined. McKEAGUE, J. (pp. 382–88), delivered a separate dissenting opinion.
OPINION
KAREN NELSON MOORE, Circuit Judge.

Defendant Tyrone McMurray was convicted at a bench trial of violating the federal felon-in-possession-of-a-firearm statute. He now appeals his 180–month sentence of imprisonment—the statutorily mandated minimum as a result of the district court's determination that McMurray qualifies to be sentenced under the Armed

[653 F.3d 370]

Career Criminal Act (“ACCA”). McMurray argues that (1) the predicate felony convictions for the ACCA must be included in the indictment and proven beyond a reasonable doubt, and (2) his 1993 felony conviction for aggravated assault is not a “violent felony” under the ACCA. Because Tennessee's aggravated-assault statute is not categorically a “violent felony” and because the available Shepard documents do not establish the nature of McMurray's conviction, we VACATE the judgment of the district court and REMAND for resentencing consistent with this opinion.
I. BACKGROUND & PROCEDURE

On December 20, 2006, McMurray was indicted on one charge of violating the federal felon-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g)(1). After McMurray waived his right to a jury trial, the district court conducted a bench trial and found McMurray guilty. Prior to sentencing, U.S. Probation Services prepared a Presentence Investigation Report (“PSR”), which concluded that McMurray had been convicted of three prior violent felonies and therefore qualified for a sentence enhancement under the ACCA, 18 U.S.C. § 924(e). Specifically, the PSR concluded that McMurray qualified as an armed career criminal based on the following Tennessee convictions: (1) aggravated assault in 1986, (2) armed robbery in 1987, and (3) aggravated assault in 1993.

McMurray challenged the application of the ACCA for the two reasons that he now asserts on appeal. At a sentencing hearing held on June 17, 2009, however, the district court rejected McMurray's arguments that he did not qualify for an enhancement under the ACCA. On June 19, 2009, the district court entered its judgment, sentencing McMurray to 180 months of imprisonment, the statutorily mandated minimum under the ACCA.

II. ANALYSIS
A. Armed Career Criminal Act

McMurray faced a maximum prison term of ten years for violating 18 U.S.C. § 922(g), the felon-in-possession-of-a-firearm statute. 18 U.S.C. § 924(a)(2). Pursuant to the ACCA, however, a defendant convicted under § 922(g) who “has three previous convictions ... for a violent felony or a serious drug offense, or both,” must be sentenced to “not less than 15 years” of imprisonment. Id. § 924(e)(1). A “violent felony” is “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; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B).

B. Constitutional Challenges

McMurray first argues that violating the ACCA is “a separate criminal offense,” and, therefore, pursuant to the Due Process Clause, the predicate felony convictions must be included in the indictment and proven beyond a reasonable doubt. Appellant Br. at 11. He argues that his “conviction for being an armed career criminal felon should be vacated.” Id.

We review de novo challenges to the sufficiency of an indictment. United States v. Gatewood, 173 F.3d 983, 986 (6th Cir.1999). We have rejected the argument that the ACCA sentencing provision is a separate offense and that the government must plead in the indictment and prove beyond a reasonable doubt the predicate felonies. United States v. Wolak, 923 F.2d 1193, 1199 (6th Cir.), cert. denied,

[653 F.3d 371]

501 U.S. 1217, 111 S.Ct. 2824, 115 L.Ed.2d 995 (1991); United States v. Brewer, 853 F.2d 1319, 1322 (6th Cir.1988) (on reh'g) (analyzing antecedent statute to the ACCA), cert. denied, 488 U.S. 946, 109 S.Ct. 375, 102 L.Ed.2d 364 (1988), 489 U.S. 1021, 109 S.Ct. 1142, 103 L.Ed.2d 202 (1989). That the ACCA is a sentence enhancement rather than a separate offense is well established. See, e.g., Custis v. United States, 511 U.S. 485, 490, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994) (“The ACCA provides an enhanced sentence....”); Taylor v. United States, 495 U.S. 575, 577, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (“[The ACCA] provides a sentence enhancement....”). Thus, McMurray's due-process challenge to the ACCA may be more appropriately construed as a constitutional challenge to his sentence—which we also review de novo. United States v. Martin, 526 F.3d 926, 941 (6th Cir.), cert. denied, ––– U.S. ––––, 129 S.Ct. 305, 172 L.Ed.2d 223 (2008). We have observed that due process does not require the government to provide prior notice of its intention to seek a sentence enhancement under the ACCA. United States v. Mauldin, 109 F.3d 1159, 1163 (6th Cir.1997); United States v. Miller, 371 Fed.Appx. 646, 649–50 (6th Cir.2010) (unpublished decision); accord United States v. Mack, 229 F.3d 226, 231 (3d Cir.2000) (collecting cases holding the same), cert. denied, 532 U.S. 1045, 121 S.Ct. 2015, 149 L.Ed.2d 1016 (2001).

The Supreme Court, in Almendarez–Torres v. United States, 523 U.S. 224, 226–27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), held that when a statute constitutes a penalty provision, rather than a separate crime, the government need not include the provision in the indictment. “[T]he Supreme Court has uniformly excepted ‘the fact of a prior conviction’ from its general rule that sentence-enhancing facts must be found by a jury and proved beyond a reasonable doubt.” Martin, 526 F.3d at 941 (citing United States v. Booker, 543 U.S. 220, 244, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). McMurray challenges the continuing validity of Almendarez–Torres, but, in Martin, 526 F.3d at 941–42, we concluded that this court remains bound by Almendarez–Torres despite statements in Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), suggesting that it is no longer good law. Counsel for McMurray acknowledged at oral argument that we remain bound by Martin. See Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir.1985) (“A panel of this Court cannot overrule the decision of another panel.”).

We therefore reject McMurray's constitutional challenges to the enhancement of his sentence under the ACCA.

C. Whether Tennessee Crime of Aggravated Assault Is a “Violent Felony” Under the ACCA

McMurray also challenges the district court's determination that his 1993 Tennessee conviction for aggravated assault, Tenn.Code Ann. § 39–13–102 (1991), qualifies as a “violent felony” under the ACCA because the Tennessee statute encompasses reckless conduct. We review de novo the district court's determination that a prior conviction qualifies as a “violent felony” under the ACCA. United States v. Gross, 624 F.3d 309, 322 (6th Cir.2010). The two-step analysis for determining whether a prior conviction qualifies as a “violent felony” is well established 1:

[653 F.3d 372]

In determining the nature of a prior conviction, we are to apply a “categorical” approach, looking to the statutory definition of the offense and not the particular facts underlying the conviction. Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). If it is possible to violate the statute in a way that would constitute a [“violent felony”] and in a way that would not, the court may consider the indictment, guilty plea, or similar documents to determine whether they necessarily establish the nature of the prior conviction. Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).United States v. Gibbs, 626 F.3d 344, 352 (6th Cir.2010).

1. Taylor Categorical Analysis of Tennessee's Aggravated–Assault Statute

McMurray pleaded guilty to aggravated assault on April 29, 1993. At that time, the Tennessee statute for aggravated assault was as follows:

(a) A person commits aggravated assault who:

(1) Commits an assault as defined in § 39–13–101 and:

(A) Causes serious bodily injury to another; or

(B) Uses or displays a deadly weapon; or

(2) Being the parent or custodian of a child or the custodian of an adult, intentionally or knowingly fails or refuses to protect such child or adult from an aggravated assault described in subsection (a); or

(3) After having been enjoined or restrained by an order, diversion or probation agreement of a court of competent jurisdiction from in any way causing or attempting to cause bodily injury or in any way committing or attempting to commit an assault against an individual or individuals, attempts to cause or causes bodily injury or commits or attempts to commit an assault against such individual or individuals.

(b) Aggravated assault is a Class C felony....

Tenn.Code Ann. § 39–13–102 (1991).2 Tennessee's assault statute at that time, Tenn.Code Ann. § 39–13–101 (1991), provided in relevant part:

(a) A person commits assault who:

(1) Intentionally, knowingly or recklessly causes...

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