United States v. Martin

• Decision Date: 03 April 2023
• Docket Number: 22-5278
• Parties: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TODJI KIJUAN MARTIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

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UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TODJI KIJUAN MARTIN, Defendant-Appellant.

No. 22-5278

United States Court of Appeals, Sixth Circuit

April 3, 2023

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

Before: MOORE, CLAY, and STRANCH, Circuit Judges.

OPINION

JANE B. STRANCH, Circuit Judge.

Todji Kijuan Martin was classified as a career offender for sentencing purposes based on two prior felony convictions of a crime of violence or a controlled substance offense including a 2008 conviction for attempted second degree murder in Tennessee. Second degree murder was then defined as (1) a knowing killing of another, or (2) a killing of another resulting from the unlawful distribution of certain drugs. Tenn. Code § 39-13-210(a) (2008). Martin challenged the career offender designation at sentencing, but the district court concluded that attempted second degree murder in Tennessee is a crime of violence under the Sentencing Guidelines, applied the career offender sentencing enhancement, and sentenced Martin to 151 months' imprisonment. Martin appeals that determination and requests resentencing. Because Tennessee's second degree murder statute is divisible, and the subsection of the statute that Martin was convicted under requires some use of force or attempted use of force, we AFFIRM.

I. BACKGROUND

Martin was charged in 2019 with seven counts of possession with intent to distribute a mixture and substance containing a detectable amount of heroin, and one count of conspiracy to possess with the same intent, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. He entered into a written plea agreement on July 8, 2021. He pleaded guilty to five counts of possession with intent to distribute, and the United States agreed to dismiss the remaining counts. Under the agreement's terms, if Martin was determined to be a career offender under USSG § 4B1.1 for purposes of sentencing, he retained the right to appeal that finding.

The Pre-Sentence Investigation Report (PSR) generated for sentencing classified Martin as a career offender based on "at least two prior felony convictions of either a crime of violence or a controlled substance offense," USSG § 4B1.1, placing him in criminal category VI with a guidelines range of 151 to 188 months' imprisonment. Martin's two qualifying convictions were a 2007 conviction for possession with intent to distribute cocaine base (which he does not dispute was a controlled substance offense under the Guidelines) and a 2008 conviction for attempted second degree murder in Tennessee. At the time of his conviction, the Tennessee second degree murder statute defined the offense as: "(1) A knowing killing of another; or (2) A killing of another that results from the unlawful distribution of any Schedule I or Schedule II drug, when the drug is the proximate cause of the death of the user." Tenn. Code § 39-13-210(a) (2008).

Martin objected to the PSR on the grounds that he was not a career offender and should have been sentenced under a lower Guidelines range. According to Martin, attempted second degree murder in Tennessee was not a predicate offense for purposes of career offender designation because it was not categorically a crime of violence. The Government's response to Martin's objections included as exhibits the indictment and judgment in the Tennessee attempted second degree murder case, and the probation office filed an addendum to the PSR explaining that Martin had committed attempted second degree murder by trying to kill someone knowingly, not by distributing a Schedule I or II drug.

At Martin's sentencing hearing, the district court concluded that: attempted second degree murder in Tennessee was a crime of violence under the Guidelines because the statute was divisible (meaning that it was written disjunctively); documents showed that Martin had been convicted under the "knowing killing" subsection of the statute; and an attempted knowing killing required some use of force or attempted use of force. The district court overruled Martin's objection and found that he was properly classified as a career offender under USSG § 4B1.1. After calculating the advisory Guidelines range (151 to 188 months' imprisonment) and considering the 18 U.S.C. § 3553(a) factors, the district court sentenced Martin to 151 months' imprisonment. Martin timely appeals, arguing that the district court erred in applying the career offender sentencing enhancement and that, setting the enhancement aside, the district court imposed an unreasonable sentence.

II. ANALYSIS

A. Career Offender Classification

Because Martin challenged his career offender classification below, we review de novo the district court's determination that his prior conviction is a crime of violence. United States v. Fields, 53 F.4th 1027, 1035 (6th Cir. 2022). He argues that: (1) the district court erred in concluding that the Tennessee second degree murder statute is divisible; (2) even if the district court properly concluded that the statute is divisible, the documents the district court considered do not support its conclusion that attempted second degree murder is a crime of violence; and (3) regardless, United States v. Taylor, 142 S.Ct. 2015 (2022), puts an end to any claim that an attempt crime can serve as a predicate offense for career offender designation.

Generally, a defendant is considered a career offender under the Sentencing Guidelines if, among other requirements, he "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." USSG § 4B1.1(a). A crime of violence is any felony that "(1) has as an element the use, attempted use, or threatened use of physical force against the person of another," or (2) is one of a list of enumerated offenses including murder and voluntary manslaughter. USSG § 4B1.2(a). These two clauses are respectively known as the elements and enumerated clauses. Because the Guidelines elements clause "mirrors the elements clause in the Armed Career Criminal Act [ACCA]," "we typically interpret them the same way" and may rely on ACCA cases in our analysis. United States v. Harris, 853 F.3d 318, 320 (6th Cir. 2017).

In determining whether a state criminal conviction qualifies as a crime of violence, the court must decide "whether the elements of the offense require that the defendant engage in the conduct defined" by the Guidelines. United States v. Cavazos, 950 F.3d 329, 335 (6th Cir. 2020) (emphasis omitted). "This categorical inquiry means we look only to the elements of the offense set forth in the statute itself, rather than the particular facts of the defendant's case." Id. (citing Taylor v. United States, 495 U.S. 575, 602 (1990)). But if a statute is divisible-i.e., it "sets out one or more elements of the offense in the alternative"-the court applies the modified categorical approach and may "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." Descamps v. United States, 570 U.S. 254, 257 (2013). "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." Id. If the elements of the conviction are the same or narrower, it constitutes a crime of violence.

1. Divisibility of Tennessee's Second Degree Murder Statute

Statutes that have "multiple alternative elements" are divisible and therefore subject to the modified categorical approach. Mathis v. United States, 579 U.S. 500, 505 (2016). Statutes are not divisible, however, where they merely "enumerate[] various factual means of committing a single element" of the offense. Id. at 506 (emphasis added) ("[S]uppose a statute requires use of a 'deadly weapon' as an element of a crime and further provides that the use of a 'knife, gun, bat, or similar weapon' would all qualify. . . . [A] jury need not find . . . any particular item [was used]."). Such statutes are indivisible, and the formal categorical approach applies.

Martin argued at sentencing and now on appeal that Tennessee's second degree murder statute is indivisible because it creates a single crime, second degree murder, that can be accomplished by two alternative means: either knowing killing or killing resulting from unlawful distribution of any Schedule I or Schedule II drug, when that drug is the proximate cause of the user's death. The Government maintains that the statute is divisible.

When "authoritative sources of state law," such as state supreme courts, definitively confirm whether a statute is divisible, we "need only follow what [they] say[]." Mathis, 579 U.S. at 518. "And if state law fails to provide clear answers," the court can "peek" at certain record documents (indictments and jury instructions among them) "for help in making [the] determination" whether a statutory list "contains means or elements." Id. (quoting Rendon v. Holder, 782 F.3d 466, 473-74 (9th Cir. 2015)) & n.7. For example, "an indictment and jury instructions could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime." Id. at 519; see United States v. Ritchey, 840 F.3d 310, 320 (6th Cir. 2016) (considering state precedent and pattern jury instructions in means-or-elements analysis).

Turning first to the statute at issue, Tennessee second degree murder is "(1) a knowing killing of another; or (2) a killing of another that results from the unlawful distribution of any Schedule I or Schedule...