United States v. Mitchell, Nos. 17-5904

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: THAPAR, Circuit Judge.
• Citation: 905 F.3d 991
• Parties: UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, v. Stephen Murray MITCHELL, Defendant-Appellee/Cross-Appellant.
• Decision Date: 10 October 2018
• Docket Number: 17-5906,Nos. 17-5904,17-5905

905 F.3d 991

UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee,
v.
Stephen Murray MITCHELL, Defendant-Appellee/Cross-Appellant.

Nos. 17-5904
17-5905
17-5906

United States Court of Appeals, Sixth Circuit.

Argued: October 4, 2018
Decided and Filed: October 10, 2018

ARGUED: Naya Bedini, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellant/Cross-Appellee. Bradley Girard, GEORGETOWN UNIVERSITY, Washington, D.C., for Appellee/Cross-Appellant. ON BRIEF: Tony R. Arvin, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellant/Cross-Appellee. Amit R. Vora, Brian Wolfman, GEORGETOWN UNIVERSITY, Washington, D.C., for Appellee/Cross-Appellant.

Before: SUTTON, McKEAGUE, and THAPAR, Circuit Judges.

THAPAR, Circuit Judge.

The district court granted Stephen Mitchell habeas relief and gave him a sentence of time-served with three years of supervised release. Both Mitchell and the United States appealed. Since their respective appeals were filed, this circuit has decided substantially-similar cases. Bound by these recent precedents, we affirm the district court in part and reverse in part.

I.

Stephen Mitchell has a long history of run-ins with the law. Among other violations, Mitchell’s record features three violent felony offenses: two Tennessee aggravated assault convictions and one Tennessee burglary conviction. And more recently, a jury convicted Mitchell of being a felon in possession of ammunition. 18 U.S.C. § 922(g). At the time of his sentencing, Mitchell’s three prior convictions qualified as "violent" felonies under the Armed Career Criminal Act (ACCA)—meaning Mitchell was subject to the ACCA’s enhanced sentencing. Applying the ACCA, the trial judge sentenced Mitchell to 250 months of imprisonment and three years of supervised release. But after the Supreme Court invalidated the ACCA’s so-called residual clause as unconstitutionally vague, and then applied that holding retroactively, Mitchell filed for habeas relief. See Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016) ;

905 F.3d 993

Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). Mitchell argued that without the ACCA’s residual clause, his prior felonies no longer qualified as "violent" under the ACCA. Therefore, he said his 250-month, ACCA-enhanced sentence was invalid. He argued that instead his sentence should have been ten years (120 months) at most .

The district court agreed and granted Mitchell habeas relief. Specifically, the court found that neither his two aggravated assault convictions nor his burglary conviction could be considered "violent" under the ACCA. Thus, the ACCA no longer applied to his sentence. But the district court faced the question of what form of relief to grant Mitchell. Without the ACCA, the maximum sentence Mitchell could have served for his felon-in-possession conviction was ten years. But Mitchell had already served seventeen years by the end of his habeas proceeding. So the district court decided to release Mitchell from custody and correct his sentence to "time-served." The district court also re-imposed Mitchell’s original three years of supervised release.

The government and Mitchell cross-appealed.

II.

The government argues that Mitchell’s prior convictions qualify as "violent" under the ACCA. But while its appeal was pending, this court held that the "building provision" of Tennessee’s 1973 version of third-degree burglary could not be considered "violent" under the ACCA. Cradler v. United States , 891 F.3d 659, 671 (6th Cir. 2018) (applying the modified-categorical approach and finding the statute overbroad). Since Mitchell was convicted under the nearly-identical "building provision" of the 1982 version of third-degree burglary, Cradler decides this case: Mitchell’s burglary conviction is not a "violent" felony under the ACCA. Compare Tenn. Code Ann. § 39-904 (1973), with ...