United States v. Mitchell

• Decision Date: 28 February 2014
• Docket Number: No. 13–5288.,13–5288.
• Citation: 743 F.3d 1054
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Darnell MITCHELL, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

743 F.3d 1054

UNITED STATES of America, Plaintiff–Appellee,

v.Darnell MITCHELL, Defendant–Appellant.

No. 13–5288.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 22, 2014.

Decided and Filed: Feb. 28, 2014.

ARGUED:David M. Bell, Federal Public Defender, Memphis, Tennessee, for Appellant. Daniel T. French, United States Attorney's Office, Memphis, Tennessee, for Appellee. ON BRIEF:David M. Bell, Federal Public Defender, Memphis, Tennessee, for Appellant. Daniel T. French, United States Attorney's Office, Memphis, Tennessee, for Appellee.

Before: SUHRHEINRICH, SILER, and KETHLEDGE, Circuit Judges.

OPINION

SILER, Circuit Judge.

Defendant Darnell Mitchell appeals the district court's determination that his prior Tennessee state robbery convictions are violent felonies under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). For the following reasons, we AFFIRM.

I. FACTUAL AND PROCEDURAL BACKGROUND

Mitchell was convicted in 2012 on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). A Presentence Investigation Report (“PSR”) was completed that classified Mitchell as an “armed career criminal” on account of having committed three violent felonies: (1) a 1988 conviction for robbery under now-repealed Tenn.Code Ann. § 39–2–501(a); (2) a 2003 conviction for robbery under Tenn.Code Ann. § 39–13–401; and (3) a 2003 conviction for intentionally evading arrest in an automobile. The PSR assigned Mitchell a total offense level of 34 and a criminal history category of VI, which resulted in an applicable Guidelines range of 262 to 327 months' imprisonment. Mitchell objected to his armed career criminal classification, arguing that his two robbery convictions did not qualify as “violent felonies.” The district court disagreed and sentenced Mitchell to 300 months' imprisonment.

II. STANDARD OF REVIEW

We review de novo a district court's determination that an offense constitutes a “violent felony” under the ACCA. United States v. Benton, 639 F.3d 723, 729 (6th Cir.2011).

III. DISCUSSION

Under the ACCA, a defendant who violates 18 U.S.C. § 922(g) and has three prior convictions for serious drug offenses or violent felonies must receive a fifteen-year mandatory minimum sentence. United States v. Johnson, 707 F.3d 655, 658 (6th Cir.2013) (citing 18 U.S.C. § 924(e)(1)). The ACCA defines “violent felony” as:

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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). We refer to § 924(e)(2)(B)(i) as the “use of physical force” clause and the portion of § 924(e)(2)(B)(ii) following the enumerated offenses as the “residual clause.”

1. Application of the Categorical Approach

In determining whether a particular offense qualifies as a violent felony, courts must use the “categorical approach.” Taylor v. United States, 495 U.S. 575, 600, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). They must look only to the fact of conviction and the statutory definition of the prior offense and not the particular facts underlying that conviction. James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); see also United States v. Bartee, 529 F.3d 357, 359 (6th Cir.2008). This approach “avoid[s] the practical difficulties and potential unfairness of permitting a sentencing court to relitigate facts and delve into the details of a prior conviction.” Bartee, 529 F.3d at 359 (citing United States v. Armstead, 467 F.3d 943, 947 (6th Cir.2006)).

At issue are Mitchell's 1988 and 2003 robbery convictions under Tennessee law. In 1988, Tennessee law defined robbery as “the felonious and forcible taking from the person of another, goods or money of any value, by violence or putting the person in fear.” Tenn.Code Ann. § 39–2–501(a) (1982) (repealed). The version in effect in 2003 differed only slightly, defining robbery as the “intentional or knowing theft of property from the person of another by violence or putting the person in fear.” Tenn.Code Ann. § 39–13–401.

A. Violent Felony under the “Use of Physical Force” Clause

As a threshold matter, “[t]he meaning of ‘physical force’ in § 924(e)(2)(B)(i) is a question of federal law, not state law.” Johnson v. United States, 559 U.S. 133, 138, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). “Physical force” in turn is “force capable of causing physical pain or injury to another person.” Id. at 140, 130 S.Ct. 1265 (citing Flores v. Ashcroft, 350 F.3d 666, 672 (7th Cir.2003)). However, in determining the meaning or scope of robbery, we are bound by the Tennessee Supreme Court's interpretation, including its guidance on the elements of the crime. See id. at 138, 130 S.Ct. 1265.

Robbery in Tennessee involves the “felonious” (under the former language) or “intentional” (under the present language) taking of property from the person of another “by violence or putting the person in fear.” The Tennessee Supreme Court has applied the plain meaning of “violence,” as expressed in both versions of the statute, as “physical force unlawfully exercised so as to injure, damage or abuse.” State v. Fitz, 19 S.W.3d 213, 214 (Tenn.2000). The element of violence contained in the robbery statute thus satisfies § 924(e)(2)(B)(i)'s requirement of the “use, attempted use, or threatened use of physical force.”

Mitchell relies on United States v. Fraker for the proposition that robbery “includes criminal activity outside the scope of the ACCA because a defendant can violate the statute by employing only fear, rather than physical violence or force.” 458 Fed.Appx. 461, 463 (6th Cir.2012) (unpublished). The panel in Fraker turned to the colloquial understanding of fear, as opposed to the meaning of fear as interpreted by the Tennessee Supreme Court. When evaluated in the latter context, there is no doubt that a taking of property carried out through fear, for purposes of Tenn.Code Ann. §§ 39–2–501(a) and 39–13–401, qualifies as a “violent felony” under the ACCA. This is because, as the Tennessee Supreme Court has held, the “fear constituting an element of robbery is a fear of bodily injury and of present personal peril from violence offered or impending.” State v. Taylor, 771 S.W.2d 387, 398 (Tenn.1989). Applying the term “violence” derived in Fitz, the Tennessee robbery statutes refer to a “fear of bodily injury and of present personal peril from physical force offered or impending.” The word “impending” itself means “imminent; threatening.” Webster's Revised Unabridged Dictionary 734 (1913). Therefore, the commission of a robbery through fear, which in Tennessee reduces to the fear of bodily injury from physical force offered or impending, directly corresponds to § 924(e)(2)(B)(i)'s “use ... or threatened use of physical force.” Moreover, it is clear that the harm characterized in the Tennessee statutes is of a physical nature, rather than emotional harm or distress.

Our finding is consistent with the manner in which the Seventh Circuit has interpreted an analogous Indiana statute in United States v. Lewis, 405 F.3d 511 (7th Cir.2005). There, the court was confronted with whether a conviction for robbery, in violation of Ind.Code 35–42–5–1, is a “crime of violence” (as defined in USSG § 4B1.2) for purposes of a sentencing enhancement received under § 2K2.1(a)(4)(A) of the Guidelines. Id. at 514. “Whether a conviction is a ‘violent felony’ under § 924(e) is analyzed the same way as whether a conviction is a ‘crime of violence’ under USSG § 4B1.2.” United States v. Perry, 703 F.3d 906, 910 (6th Cir.2013). In Indiana, robbery entails taking property from the person of another by “using or threatening the use of force on any person” or “putting any person in fear.” Lewis, 405 F.3d at 514. The court went on to explain that the fear in Indiana's formulation “is fear of physical injury rather than of defamation” and had no difficulty in reaching the conclusion that robbery “is readily classified as a crime of violence.” Id.

The Fraker panel neglected to assign the meaning of each element of robbery as construed by the Tennessee Supreme Court. In his reply brief, Mitchell cites to United States v. Johnson, 530 Fed.Appx. 528 (6th Cir.2013) (unpublished), a case in which the panel adopted the reasoning of Fraker and declined to hold that a conviction under Tenn.Code Ann. § 39–2–501 categorically is a violent felony. Like our criticism of Fraker, the Johnson panel failed to apply the definition of “fear” enunciated by the Tennessee Supreme Court. See id. at 532. Neither this court “nor any other federal tribunal has any authority to place a construction on a state statute different from the one rendered by the highest court of the State.” Johnson v. Fankell, 520 U.S. 911, 916, 117 S.Ct. 1800, 138 L.Ed.2d 108 (1997). Contrary to Fraker and Johnson, robbery in violation of either Tenn.Code Ann. § 39–2–501 or § 39–13–401 is categorically a “violent felony” under § 924(e)(2)(B)(i) of the ACCA.

B. Violent Felony under the Residual Clause

We also evaluate whether Mitchell's convictions for robbery under Tennessee law categorically qualify as “violent felonies” under the residual clause of the ACCA. Prior to Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), “the only relevant question was whether the offense posed a serious risk of physical injury to others.” United States v. Vanhook, 640 F.3d 706, 710 (6th Cir.2011) (citing James, 550 U.S. at 207–08, 127 S.Ct. 1586). In Begay, the Supreme Court recognized this question as only the initial...