920 F.3d 414
6th Cir.2019Background
- In 2005 Carlos Lowe was convicted of being a felon in possession of ammunition under 18 U.S.C. § 922(g)(1) and sentenced as an Armed Career Criminal (ACCA) to 235 months based on prior Tennessee convictions.
- Lowe had four prior Tennessee felony convictions: third-degree burglary, aggravated assault, a 1977 rape, and a 1985 rape.
- After Johnson (invalidating the ACCA residual clause), Lowe filed a successive § 2255; this court authorized the successive filing and the district court denied relief, finding at least three qualifying predicates.
- This court previously held third-degree burglary does not qualify as an ACCA predicate (see Cradler). The remaining dispute centered on whether the 1985 Tennessee rape conviction qualified under the ACCA elements (use-of-force) clause.
- The relevant Tennessee statute (Tenn. Code Ann. § 39-2-604 (1982)) criminalized rape by (a)(1) "force or coercion," (a)(2) victim physically helpless/mentally defective, and (a)(3) fraud; the court found the statute divisible.
- The indictment charged Lowe with sexual penetration "by use of fear and coercion," which the court treated as an (a)(1) charge (force or coercion). The panel examined whether "coercion" is means (non-element) or an alternative element that could permit non-forceful convictions.
Issues
| Issue | Lowe's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Lowe's 1985 rape conviction is a violent felony under the ACCA elements (use-of-force) clause | Lowe: Government failed to prove the conviction necessarily involved use/threat of physical force (coercion can be non-forceful) | Govt: The statute includes rape-by-force variants and the indictment charged (a)(1), so the conviction qualifies | Held: Not a qualifying predicate — rape-by-coercion can be non-forceful; conviction does not necessarily involve use of physical force |
| Whether Tenn. § 39-2-604 is divisible such that the court may use Shepard documents to identify the specific variant of rape | Lowe: If coercion alternatives are elements, statute might be divisible but still permit non-forceful variants | Govt: Statute lists alternatives and (a)(1) includes force so divisible and conviction points to forceful variant | Held: Statute is divisible (lists alternative modes), but Tennessee authority treats "force or coercion" as one indivisible crime (coercion lists means) — thus indictment did not narrow to a force-only variant |
| Whether Tennessee "coercion" definition yields elements (some non-forceful) or only means of committing a single crime | Lowe: Coercion includes parental-authority means that require no force, so it allows non-forceful convictions | Govt: The indictment language and statutory alternatives support a force-based conviction | Held: Tennessee appellate decisions treat coercion as means, not separate elements; because coercion can encompass non-force parental-authority means, (a)(1) is overbroad for ACCA purposes |
Key Cases Cited
- Johnson v. United States, 559 U.S. 133 (statutory residual-clause vagueness decision)
- Descamps v. United States, 570 U.S. 254 (modified categorical approach and divisibility framework)
- Mathis v. United States, 136 S. Ct. 2243 (distinguishing elements from means; use of Shepard materials)
- Shepard v. United States, 544 U.S. 13 (limited documents for modified categorical inquiry)
- Cradler v. United States, 891 F.3d 659 (6th Cir.) (third-degree burglary does not qualify as ACCA predicate)
- In re Sargent, 837 F.3d 675 (6th Cir.) (rape when victim "physically helpless" does not necessarily require use of force)