Vowell v. United States

• Decision Date: 12 July 2019
• Docket Number: No. 17-5405,17-5405
• Citation: 938 F.3d 260
• Parties: Richard L. VOWELL, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

938 F.3d 260

Richard L. VOWELL, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 17-5405

United States Court of Appeals, Sixth Circuit.

Decided and Filed: July 12, 2019^*

ON BRIEF: Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

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

KAREN NELSON MOORE, Circuit Judge.

Richard Vowell appeals the district court's denial of his petition for collateral relief under 28 U.S.C. § 2255, asserting that he is not an armed career criminal under 18 U.S.C. § 924(e). Although we conclude that Vowell's appellate waiver does not preclude Vowell from bringing his § 2255 petition, we AFFIRM the district court's judgment because Vowell was properly designated as an armed career criminal under the Armed Career Criminal Act ("ACCA").

I. BACKGROUND

In 1999, Vowell pleaded guilty to a single-count indictment for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). R. 55-1 (Plea Agreement at 1) (Page ID #113). Pursuant to his plea agreement, Vowell agreed that his prior criminal history qualified for a sentence enhancement under 18 U.S.C. § 924(e) of the ACCA. Id. at 2 (Page ID #114). Additionally, Vowell waived his right to file a motion under § 2255 with the following exceptions: (1) claims asserting ineffective assistance of counsel; (2) claims asserting prosecutorial misconduct; and (3) claims asserting "that an applicable change in the case law renders the defendant's conduct, as agreed to in the factual basis, not a violation of federal law." Id. at 4 (Page ID #116).

Vowell's presentence investigation report ("PSR") identified various criminal convictions: a 1979 conviction for Tennessee second-degree burglary (PSR at ¶ 24) (Page #5); a 1980 conviction for Tennessee armed robbery (id. at ¶ 25) (Page #5); a 1998 conviction for Tennessee aggravated burglary (id. at ¶ 33) (Page #7); and a 1983 conviction for Georgia burglary (id. at ¶ 29) (Page #6). The district court determined that Vowell qualified as a career offender under the ACCA and sentenced him to 180 months of imprisonment and five years of supervised release. R. 42 (Minute Entry).¹ Vowell did not file a direct appeal of his conviction or sentence.²

On September 7, 2016, Vowell filed a § 2255 motion to set aside his sentence, asserting that his 1983 conviction for Georgia burglary did not constitute a predicate offense because it was broader than generic burglary and "portions of Georgia's burglary statute could only have qualified as a violent felony under the ACCA's now-void residual clause," per Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), and Mathis v. United States , ––– U.S. ––––, 136 S. Ct. 2243, 195 L.Ed.2d 604 (2016). R. 46 (Mot. to Vacate at 5–6) (Page ID #7–8).³ In response, the government asserted that Vowell's petition was untimely, as it had been filed nearly seventeen years after his conviction became final and more than a year after Johnson was filed. R. 49 (Gov't Response at 3–7) (Page ID #35–39). Additionally, the government argued Vowell's petition was barred by the § 2255 waiver in his plea agreement. Id. at 7–9 (Page ID #39–41). Finally, the government asserted that Johnson was inapplicable, as Vowell's predicate offenses were not based on the unconstitutional residual clause and, moreover, his conviction for Georgia burglary was a conviction for generic burglary under the ACCA. Id. at 9–17 (Page ID #41–49).

On January 30, 2017, the district court dismissed Vowell's petition with prejudice. R. 51 (Page ID #95). Without reaching the Government's timeliness or waiver arguments, the court determined that Georgia's burglary statute was divisible and that because Vowell was convicted of burglarizing a "dwelling house," Vowell had been correctly designated as a career offender. Id. at 9 (Page ID #103). This timely appeal followed. R. 53 (Notice of Appeal) (Page ID #107); Fed. R. App. P. 4(a)(1)(B). On October 26, 2017, we granted Vowell a certificate of appealability on the issue of whether he was properly sentenced under the ACCA. Vowell v. United States , No. 17-5405 (6th Cir. Oct. 26, 2017) (order); see also 28 U.S.C. § 2253(c).

II. DISCUSSION

We review de novo the issue of whether a prior conviction qualifies as a predicate offense under the ACCA. Richardson v. United States , 890 F.3d 616, 619 (6th Cir.), cert. denied , ––– U.S. ––––, 139 S. Ct. 349, 202 L.Ed.2d 246 (2018). We may affirm the district court's judgment on any grounds supported by the record. Holloway v. Brush , 220 F.3d 767, 772 (6th Cir. 2000) (en banc).

A. Predicate Offenses Following United States v. Stitt

As an initial matter, since Vowell filed his appeal, the Supreme Court has held that the "habitation" definition included in Tennessee's aggravated burglary statute (one of Vowell's four predicate offenses identified by the parties and the PSR) is consistent with generic burglary under the ACCA.

United States v. Stitt , ––– U.S. ––––, 139 S. Ct. 399, 407–08, 202 L.Ed.2d 364 (2018), reversing United States v. Stitt , 860 F.3d 854 (6th Cir. 2017) (en banc). Additionally, in Vowell's motion to vacate, Vowell conceded that both his 1979 conviction for Tennessee second-degree burglary and his 1980 conviction for Tennessee armed robbery constituted violent felonies under the ACCA. R. 46 (Mot. to Vacate at 3) (Page ID #5). According to the government, the Supreme Court's decision in Stitt therefore forecloses Vowell's appeal, since he now has three applicable predicate offenses: the 1979 Tennessee second-degree burglary conviction; the 1980 Tennessee conviction for armed robbery; and the 1998 Tennessee conviction for aggravated burglary. See Appellee Brief at 7–8 n.4 ("Were Stitt overruled by the Supreme Court, Vowell's Tennessee aggravated burglary conviction would be another qualifying ACCA predicate.").

Although the government's interpretation of Stitt appears to be overbroad,⁴ a review of the record shows that the government has either ignored or forgotten its own briefing before the district court. In Vowell's § 2255 motion, Vowell asserted that his 1998 Tennessee conviction for aggravated burglary could not be used as a predicate offense because Vowell "had not been convicted of the aggravated burglary at the time he committed his federal offense." R. 46 at 4 (citing 18 U.S.C. § 924(e)(1) ). Specifically, Vowell committed his underlying federal offense of being a felon in possession of a firearm on July 28, 1997. See id. ; PSR at ¶ 4 (Page #3). Vowell did not commit the aggravated burglary in Tennessee until October 29, 1997, however, and he was not convicted of the crime until November 24, 1998. PSR at ¶ 33 (Page #7). In response to Vowell's § 2255 motion, the Government expressly agreed that for purposes of the ACCA, Vowell's 1998 conviction was not a predicate offense. See R. 49 (Gov't Response at 11 n.5) (Page ID #43) ("The United States agrees with petitioner that his 1998 Tennessee aggravated burglary conviction does not count as an ACCA predicate because that offense is not a prior conviction; petitioner committed that offense and was sentenced for it after he unlawfully possessed the firearm in this case."). Consequently, to resolve Vowell's appeal, we must still determine whether: (1) Vowell has waived his right to file a § 2255 motion pursuant to his plea agreement, and (2) Vowell's 1983 conviction for Georgia burglary constitutes a predicate offense under the ACCA.

B. Vowell's § 2255 Waiver

On appeal, the government asserts that, pursuant to the knowing and voluntary § 2255 waiver Vowell signed in his plea agreement, Vowell has waived his right to challenge collaterally his sentence and conviction under § 2255. See Appellee Brief at 13–16; R. 55-1 (Plea Agreement at 4) (Page ID #116).⁵ In support of this argument, the government points to this court's recent decision in Slusser v. United States , 895 F.3d 437 (6th Cir. 2018), cert. denied , ––– U.S. ––––, 139 S. Ct. 1291, 203 L.Ed.2d 417 (2019), in which we concluded that a defendant's § 2255 waiver precluded the petitioner's Johnson challenge to his ACCA designation. Appellee Brief at 14–16.

This holding was in conflict with this court's previous opinion in United States v. Caruthers , 458 F.3d 459, 472 (6th Cir.), cert. denied , 549 U.S. 1088, 127 S.Ct. 752, 166 L.Ed.2d 582 (2006), which concluded that "an appellate waiver does not preclude an appeal asserting that the statutory-maximum sentence has been exceeded." In order to resolve this conflict, the panel in Slusser determined that Caruthers 's waiver statement was dicta, because the Caruthers court ultimately affirmed the defendant's conviction and sentence on the merits. Slusser , 895 F.3d at 439–40. Upon careful review, we do not believe that the conclusion in Caruthers may be swept aside so easily.

In Caruthers , we considered the defendant's argument on direct appeal that his designation as a career offender under the ACCA was erroneous and, therefore, his sentence exceeded the otherwise applicable statutory maximum of ten years for his conviction under 18 U.S.C. § 924(e). Caruthers , 458 F.3d at 464. As part of Caruthers's plea agreement, Caruthers waived "the right to appeal any sentence within the maximum provided in the offense level as determined by the Court or the manner in which that sentence was determined on the grounds set forth in 18 U.S.C. § 3742 or on any ground whatever." Id. at 470. Although we concluded that Caruthers's argument on appeal clearly fell within his appellate waiver, id. at 470–71, and Caruthers conceded that he had entered into his agreement knowingly and voluntarily, id. at 470 n.3, we nonetheless explained that, consistent with the decisions of other Circuit courts, Caruthers's appellate waiver could be unenforceable to the extent his sentence exceeded the...