United States v. Buie

• Decision Date: 30 October 2018
• Docket Number: Crim. No. 1:17-cr-00011
• Parties: UNITED STATES OF AMERICA v. DAVID LYNN BUIE
• Court: U.S. District Court — Middle District of Tennessee

UNITED STATES OF AMERICA v. DAVID LYNN BUIE

Crim. No. 1:17-cr-00011

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE COLUMBIA DIVISION

October 30, 2018

Judge Aleta A. Trauger

MEMORANDUM and ORDER

Defendant David Lynn Buie pleaded guilty to two charges of being a previously convicted felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924. (Doc. No. 22.) He objects to the Presentence Investigation Report's recommendation that he be sentenced under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). (Doc. No. 24.) The government's position is that the defendant is properly classified as an armed career criminal under the ACCA, based on having at least five qualifying prior convictions. (Doc. No. 28.)

Having considered all of the parties' arguments on this issue, the court finds, for the reasons set forth herein, that the defendant has at least three qualifying convictions and is subject to sentencing under the ACCA.

I. Background

Buie was indicted in August 2017 on two separate charges of being a previously convicted felon in possession of a total of four firearms. (Doc. No. 1.) The court granted Buie's Petition to Enter a Plea of Guilty to the Indictment on May 21, 2018. (Doc. No. 22.) The plea petition reflected Buie's and his attorney's understanding that Buie would be subject to a maximum sentence of ten years' imprisonment. (Id. at 1.)

Prior to the original date set for the sentencing hearing, the Probation Office issued the Presentence Report ("PSR") (prepared on July 20, 2018 and revised on August 16, 2018), finding that Buie had five prior predicate convictions, any three of which would be sufficient to require sentencing under the ACCA. Buie concedes that a prior conviction for voluntary manslaughter qualifies as a predicate conviction, but he argues that the other four convictions identified in the PSR do not qualify. These include two convictions for "Burglary - 1st Degree" in March 2001, a 1986 arson conviction, and a second-degree burglary conviction in 1986. He also argues that, even if the 2001 burglary convictions do qualify, they must be counted as one conviction, because the government cannot carry its burden of establishing by a preponderance of the evidence that they were "committed on occasions different from one another" as that phrase is used in the ACCA. 18 U.S.C. § 924(e)(1).

More specifically, in his Objection to Presentence Report (Doc. No. 24), the defendant argues as follows:

(1) That the 1986 conviction for second-degree burglary is not a predicate offense, because the definition of "entry" under Tennessee law does not meet the element of "entry" required by the "generic" form of burglary.

(2) Although Buie was charged with aggravated arson in 1986 under Tenn. Code Ann. § 39-3-201, he was convicted of the lesser included offense of "regular arson" under Tenn. Code Ann. § 39-3-202, pursuant to a plea agreement. According to Buie, this provision applies equally to a person "who willfully and maliciously sets fire to or burns" a structure and to a person "who aids, counsels or procures the burning" of any structure without malice or willfulness. The defendant argues that, because he pleaded guilty to a lesser included offense,

the federal sentencing court must disregard all language in the indictment that is unnecessary to support the lesser offense to which the defendant pled. That is, the court must assume the least offensive conduct that would support a conviction for the lesser included offense. Here, the least offensive conduct that would support a conviction for the offense of regular arson is the act of aiding, counseling or procuring the burning of a structure.

(Doc. No. 24, at 5 (citing United States v. Wells, 473 F.3d 640, 649 (6th Cir. 2007); United States v. Armstead, 467 F.3d 943, 949-50 (6th Cir. 2006), abrogated on other grounds by Descamps v. United States, 570 U.S. 254 (2013)).) He relies for this argument on United States v. Webb, 217 F. Supp. 3d 381, 399 (D. Mass. 2016), a case granting a § 2255 motion for resentencing based on the court's finding that the very similar Massachusetts statute defining arson did not qualify as a predicate offense.

(3) Although Buie was initially indicted under Tenn. Code Ann. § 39-14-402 on two counts of "regular burglary" in March 2001, the judgments reflect that he was actually convicted under Tenn. Code Ann. § 39-14-403 for aggravated burglary. The defendant asserts that his two convictions under § 39-14-403 do not qualify as "generic burglaries" under the ACCA and are not ACCA predicates. (Doc. No. 24, at 2 (citing United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc)).)

(4) And finally, that the two 2001 burglary convictions should be counted as one offense, because the government cannot carry its burden of showing they were committed on different occasions.

In response, the Government argues that all five of the offenses enumerated in the PSR are qualifying convictions. It argues, in the alternative, that, if the defendant is not sentenced under the ACCA, the court should impose an upward departure under § 4A1.3 of the United States Sentencing Guidelines ("USSG") and an upward variance under § 3553(a) based on the defendant's thirteen prior felony convictions and other criminal conduct. (Doc. No. 28, at 8-10.)

II. The ACCA

The ACCA states, in relevant part, that any person convicted of violating § 922(g)(1) and who has three previous convictions for a "violent felony," "serious drug offense," or both, shall be imprisoned not less than fifteen years. 18 U.S.C. § 924(e)(1). The term "violent felony" is defined in pertinent part 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; 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. . . .

18 U.S.C. § 924(e)(2)(B).

This short provision, which appears plain on its face, has proved exceptionally difficult to apply in a manner consistent with due process. To determine whether a past conviction is properly characterized as one for burglary, arson, or extortion,

courts use what has become known as the "categorical approach": They compare the elements of the statute forming the basis of the defendant's conviction with the elements of the "generic" crime—i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute's elements are the same as, or narrower than, those of the generic offense.

Descamps v. United States, 570 U.S. 254, 257 (2013).

The Supreme Court has also approved the "modified categorical approach," which applies only to a prior conviction for violating a "divisible statute." As the Descamps Court explained,

[t]hat kind of statute sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.

Descamps, 570 U.S. at 257; see also Shepard v. United States, 544 U.S. 13, 25-26 (2005) (applying modified categorical approach to conviction obtained by a guilty plea).

The Supreme Court has described the modified categorical approach as a "tool" for applying the categorical approach, rather than an "exception" to the latter. The "modified" version of the standard "retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach's basic method: comparing those elements with the generic offense's." Descamps, 570 U.S. at 263.

In Descamps, the Court reaffirmed the distinction between the two approaches. There, it was confronted with the question of whether courts may consult additional documents when a defendant was convicted under a so-called "'indivisible' statute—i.e., one not containing alternative elements—that criminalizes a broader swath of conduct than the relevant generic offense." Id. at 258. In other words, the question was whether courts could look at the underlying facts to decide whether a previous conviction was a qualifying conviction under the ACCA, when the elements of the crime as defined in the indivisible statute "fail to satisfy our categorical test." Id. The Court's answer to that question was "no." See id. ("[W]e hold that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.").

The defendant in Descamps had previously been convicted of burglary under California law. California's burglary statute was broader than the "generic" form of burglary insofar as it did not require unlawful entry into a building, that is, "breaking and entering." Rather, it required only entry into certain locations "within intent to commit grand or petit larceny or any felony." Because it did not require unlawful entry, the statute was broad enough, for example, to cover shoplifting during normal business hours. The Court held that, "in sweeping so widely, the state law goes beyond the normal, 'generic' definition of burglary." Because the statute was merely overly broad, rather than divisible, the Court held that the district court had erred in considering the underlying plea colloquy, in which the defendant...