United States v. Brown

• Decision Date: 24 April 2020
• Docket Number: No. 18-5356,18-5356
• Citation: 957 F.3d 679
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. David Earl BROWN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

957 F.3d 679

UNITED STATES of America, Plaintiff-Appellant,

v.David Earl BROWN, Defendant-Appellee.

No. 18-5356

United States Court of Appeals, Sixth Circuit.

Decided and Filed: April 24, 2020

ON BRIEF: Debra A. Breneman, Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellant. Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellee.

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

MURPHY, Circuit Judge.

The Armed Career Criminal Act increases the sentence for felons who possess firearms from a 10-year maximum to a 15-year minimum if the defendant has three prior convictions that qualify as "violent felonies." 18 U.S.C. § 924(a)(2), (e). The Act defines "violent felony" to include "burglary." Id. § 924(e)(2)(B)(ii). The Supreme Court has long used a "categorical approach" to determine whether a state burglary conviction counts as a conviction for "burglary" under the Act—an approach some Justices have come to recognize is "difficult to apply." Quarles v. United States , ––– U.S. ––––, 139 S. Ct. 1872, 1881, 204 L.Ed.2d 200 (2019) (Thomas, J., concurring); cf. United States v. Burris , 912 F.3d 386, 390 (6th Cir. 2019) (en banc) (principal op.). This case shows how the difficulties answering this esoteric legal question can affect real people's lives. In 2007 a jury convicted David Brown of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). United States v. Brown , 443 F. App'x 956, 958 (6th Cir. 2011). At that time our caselaw treated Brown's three Tennessee aggravated-burglary convictions as violent felonies, so we upheld his 180-month sentence under the Act. Id. at 959–60. Years later the parties agreed that changes to our caselaw showed that Brown's burglary convictions did not, in fact, qualify as violent felonies. The district court thus granted Brown relief under 28 U.S.C. § 2255. He was resentenced and released from prison. Since his release, however, the Supreme Court has intervened and changed our caselaw yet again. While Brown says that his convictions still do not qualify as violent felonies, we disagree. So we must reverse the district court's decision granting Brown relief under § 2255 and remand for the court to reinstate his original sentence.

I

The Armed Career Criminal Act defines the phrase "violent felony" to mean, among other things, "burglary." 18 U.S.C. § 924(e)(2)(B)(ii). To decide if a defendant's prior conviction under a state's burglary statute qualifies as a conviction for "burglary" under this federal Act, the Supreme Court adopted the so-called "categorical approach" in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). See United States v. Stitt , ––– U.S. ––––, 139 S. Ct. 399, 405, 202 L.Ed.2d 364 (2018). That approach directs courts to compare a state statute's elements of burglary to the elements of a "generic" definition of burglary that the Supreme Court adopted. Id. The Court in Taylor "defined the elements of generic ‘burglary’ as ‘an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.’ " Id. at 405–06 (quoting Taylor , 495 U.S. at 598, 110 S.Ct. 2143 ). If a state burglary statute sweeps in more conduct than this generic definition of the crime, convictions under the state statute will not qualify as convictions for "burglary" under the federal Act. See Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 2247–48, 195 L.Ed.2d 604 (2016).

These ground rules have been easier to articulate than apply. Our own experience with Tennessee's aggravated-burglary statute proves the point. Tennessee law defines "aggravated burglary" as "burglary of a habitation." Tenn. Code Ann. § 39-14-403(a). It goes on to define both "burglary" and "habitation." A person commits the crime of burglary under Tennessee law if that person, "without the effective consent of the property owner," takes one of four actions. Id. § 39-14-402(a)(1)–(4). Those actions include: (1) "[e]nter[ing] a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault"; (2) "[r]emain[ing] concealed, with the intent to commit a felony, theft or assault, in a building"; or (3) "[e]nter[ing] a building and commit[ting] or attempt[ing] to commit a felony, theft or assault." Id. § 39-14-402(a)(1)–(3). Tennessee law next defines "habitation" to cover, among other things, "any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons[.]" Id. § 39-14-401(1)(A).

In 2007 we held that an aggravated-burglary conviction under Tennessee law categorically counts as a burglary under the Supreme Court's generic definition and so falls within the Armed Career Criminal Act. United States v. Nance , 481 F.3d 882, 888 (6th Cir. 2007). In 2017, after further guidance from the Supreme Court on its categorical approach, see Mathis , 136 S. Ct. at 2247–48 ; Descamps v. United States , 570 U.S. 254, 260–65, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), we reversed course. Our en banc court held that Nance had "misapplied the categorical approach" and that "a violation of Tennessee's aggravated-burglary statute is not categorically a violent felony." United States v. Stitt , 860 F.3d 854, 861 (6th Cir. 2017) (en banc). That state of things did not last long. In December 2018 the Supreme Court unanimously reversed our en banc decision. Stitt , 139 S. Ct. at 403–04. We have since decided that " Nance 's holding" that a Tennessee aggravated-burglary conviction categorically qualifies as a violent felony under the Armed Career Criminal Act "is once again the law of this circuit." Brumbach v. United States , 929 F.3d 791, 794 (6th Cir. 2019).

The uncertainty in our caselaw has translated into uncertainty in people's lives. David Brown's is unfortunately one of them. When a jury first convicted him in 2008 of being a felon in possession of a firearm, Nance was good law. The district court sentenced Brown to a 180-month term as an armed career criminal because of his three Tennessee aggravated-burglary convictions. Brown , 443 F. App'x at 959–60. After our Stitt decision overruled Nance , however, the parties agreed in collateral proceedings under 28 U.S.C. § 2255 that Brown no longer qualified as an armed career criminal. In February 2018, the district court resentenced Brown to a 63-month term. He was immediately released from prison because he had already served longer than that term, and he has since completed a two-year term of supervised release. But the United States appealed the district court's grant of § 2255 relief to preserve its ability to argue for the original sentence if the Supreme Court overruled our Stitt decision. Now that the Supreme Court has done so, the United States asserts that we must reimpose Brown's original 180-month sentence.

II

Because Nance is "once again the law of this circuit," we normally would vacate the district court's order granting relief under § 2255 and remand for the court to reimpose Brown's original sentence under the Armed Career Criminal Act. See Brumbach , 929 F.3d at 794–95. We have done just that for many other defendants in Brown's situation. See, e.g. , Sesson v. United States , 2020 WL 773049, at *2 (6th Cir. Jan. 30, 2020) (order); White v. United States , 2020 WL 773056, at *3 (6th Cir. Jan. 21, 2020) (order); Barnett v. United States , 2019 WL 7946346, at *2 (6th Cir. Dec. 12, 2019) (order); Bearden v. United States , 2019 WL 7882516, at *2 (Nov. 6, 2019) (order); Greer v. United States , 780 F. App'x 352, 353 (6th Cir. 2019) ; United States v. Bateman , 780 F. App'x 355, 357 (6th Cir. 2019) ; Hill v. United States , 2019 WL 7602328, at *1 (Oct. 10, 2019) (order); United States v. Crutchfield , 785 F. App'x 321, 324 (6th Cir. 2019) ; United States v. Bawgus , 782 F. App'x 408, 410 (6th Cir. 2019) ; United States v. Hamilton , 774 F. App'x 283, 283 (6th Cir. 2019) (per curiam); Mann v. United States , 773 F. App'x 308, 309 (6th Cir. 2019) (per curiam); Bell v. United States , 773 F. App'x 832, 833 (6th Cir. 2019).

Brown, however, offers four reasons why we should nevertheless affirm the district court's order granting him § 2255 relief. None distinguishes him from these other defendants.

A

Brown starts by suggesting that the United States forfeited its argument because it presented the argument in a perfunctory manner in the district court. We disagree. The government properly conceded that our en banc decision in Stitt foreclosed any argument that Brown's aggravated-burglary convictions were violent felonies, but preserved that issue for future review should the Supreme Court see things differently. At sentencing the district court itself recognized that the United States had "preserved [its] rights on Stitt ." Cf. United States v. Vonner , 516 F.3d 382, 385, 391 (6th Cir. 2008) (en banc).

B

Turning to the merits, Brown argues that Tennessee aggravated burglary cannot qualify as a "burglary" under the Armed Career Criminal Act because, even after Stitt , Tennessee's version of burglary is still broader than the Supreme Court's generic version. That is so, Brown contends, because Tennessee's definition of "enter" for its burglary statute covers conduct that would qualify only as attempted burglary at common law. But, as Brown candidly concedes, we rejected this argument in Brumbach . 929 F.3d at 795. We did so because "a panel of this court cannot overrule Nance ." Id. (citing Salmi v. Sec'y of Health and Human Servs. , 774 F.2d 685, 689 (6th Cir. 1985) ). We have also repeatedly rejected the argument since Brumbach . See, e.g. , United States v. Burrus , 808 Fed.Appx. 370, 372–73 (6th Cir. Apr. 14, 2020) ; White , 2020 WL 773056, at *2. As in these other cases, Brown should direct his argument to our en banc court or the Supreme Court....