United States v. Carlos Fallins, 777 F.3d 296

Background

Defendant Carlos Fallins pleaded guilty in 2013 to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).
Presentence report treated three prior Tennessee convictions (robbery, attempted aggravated arson, and possession of crack for resale) as ACCA predicates, yielding a Guidelines range of 180–210 months.
Fallins objected: argued attempted aggravated arson is not a “violent felony” under the ACCA residual clause and that the residual clause is unconstitutionally vague; he also objected to relying on the Government’s factual proffer from the plea colloquy because he did not admit those facts.
The district court agreed it could not rely on Government-proffered facts not admitted by Fallins, but nonetheless concluded (under a categorical analysis) that Tennessee attempted aggravated arson qualifies as a violent felony and that his other priors also qualified; the court sentenced Fallins to 195 months.
On appeal the Sixth Circuit reviewed de novo whether the Tennessee attempted aggravated arson conviction qualified as a violent felony under 18 U.S.C. § 924(e)(2)(B).

Issues

Issue	Plaintiff's Argument (Fallins)	Defendant's Argument (Gov't)	Held
Whether Tennessee attempted aggravated arson is a "violent felony" under ACCA residual clause	Attempted aggravated arson does not "present a serious potential risk of physical injury" required by residual clause	Attempted aggravated arson (by its statutory elements under Tenn. law) inherently presents serious potential risk and is similar in kind to arson	Yes — attempted aggravated arson is a violent felony under the residual clause
Whether the district court could rely on the Government’s factual proffer from the plea colloquy	Court cannot rely on proffered facts not admitted by Fallins to establish the nature of the prior conviction	N/A (court may use statutory elements / Shepard materials instead)	Court correctly refused to rely on unadmitted proffer; but conviction still qualifies under the categorical approach
Whether the categorical or modified categorical approach applies to Tennessee attempt statute	Fallins impliedly argued factual basis matters	Court: Tennessee attempt and aggravated arson statutes make the offense categorically violent; categorical approach suffices	Categorical approach applies; conviction is categorically a violent felony
Whether the ACCA residual clause is unconstitutionally vague	Residual clause is void for vagueness (argued for first time on appeal)	Binding Supreme Court and Sixth Circuit precedent reject vagueness challenge	Rejected under plain-error review; residual clause not void for vagueness pre-Johnson decision

Key Cases Cited

James v. United States, 550 U.S. 192 (2007) (attempt to commit an enumerated offense can fall within ACCA residual clause)
Sykes v. United States, 131 S. Ct. 2267 (2011) (compare risk posed to closest enumerated offense when mens rea is specific)
Shepard v. United States, 544 U.S. 13 (2005) (Shepard materials permitted for modified categorical approach)
Begay v. United States, 553 U.S. 137 (2008) (crime must be similar in kind to enumerated offenses)
United States v. Ball, 771 F.3d 964 (6th Cir. 2014) (ACCA residual-clause analysis and application of Sykes framework)
United States v. Davis, 751 F.3d 769 (6th Cir. 2014) (categorical approach limits inquiry to statutory elements)
United States v. Anderson, 695 F.3d 390 (6th Cir. 2012) (standard of review for ACCA predicate determinations)
United States v. Rainey, 362 F.3d 733 (11th Cir. 2004) (attempted arson under Florida law held a violent felony under ACCA residual clause)
United States v. Lane, 909 F.2d 895 (6th Cir. 1990) (attempted burglary held a violent felony under ACCA residual clause)
United States v. Phillips, 752 F.3d 1047 (6th Cir. 2014) (rejecting vagueness challenge to ACCA residual clause)