957 F.3d 679
6th Cir.2020Background
- In 2007 David Brown was convicted in federal court for being a felon in possession of a firearm and sentenced as an Armed Career Criminal (180 months) based on three prior Tennessee aggravated-burglary convictions.
- Earlier Sixth Circuit precedent (Nance) treated Tennessee aggravated burglary as a categorical "burglary" under the Armed Career Criminal Act (ACCA).
- The Sixth Circuit en banc later overruled Nance in Stitt, leading the district court on collateral review under 28 U.S.C. § 2255 to accept that Brown no longer qualified as an armed career criminal; Brown was resentenced to 63 months and released.
- The Supreme Court reversed the Sixth Circuit en banc Stitt decision, restoring Nance; the government appealed the district court’s § 2255 grant to preserve the argument to reinstate the original sentence.
- On remand this panel held that (1) the government did not forfeit its preserved argument, (2) Tennessee aggravated burglary fits the ACCA generic burglary definition (rejecting Brown’s entry-by-instrument overbreadth theory), (3) Brown’s convictions were of the (a)(1) variety requiring intent (so they match generic burglary), and (4) the indictments show the prior burglaries were committed on different occasions.
- The panel vacated the district court’s § 2255 relief and remanded with instructions to reinstate Brown’s original 180-month sentence.
Issues
| Issue | Brown's Argument | Government's Argument | Held |
|---|---|---|---|
| Forfeiture of gov't claim | Gov’t forfeited by conceding Stitt in district court | Gov’t preserved the issue for appeal and the district court recognized preservation | No forfeiture; gov’t may seek reinstatement of original sentence |
| Whether Tennessee "enter" (instrument entry) makes statute overbroad under ACCA | Tennessee "enter" that covers instrument-only intrusions sweeps beyond ACCA generic burglary (entry-by-instrument distinction) | Generic burglary is capacious; courts should not adopt arcane common-law limitations that would exclude numerous state statutes | Rejects Brown’s narrow common-law entry rule; Tennessee statute falls within ACCA generic burglary |
| Whether subsection (a)(3) (recklessness) means Tennessee burglary lacks required intent | Argues some Tennessee burglary theories permit only reckless conduct, not the requisite intent | Brown’s convictions were for (a)(1), which requires intent; precedent treats (a)(1)-(a)(3) convictions as fitting generic burglary | Brown was convicted under (a)(1) (intent) so ACCA violent-felony treatment applies |
| Whether the three prior burglaries occurred on "different occasions" | Contends state records don’t prove separate occasions; limits on using charging documents under Shepard | Charging documents may be examined; indictments here show different victims, items, and one involved a co-defendant | The indictments demonstrate different occasions; Brown fails to meet burden to show they were the same occasion |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (adopts categorical approach and defines generic burglary)
- Descamps v. United States, 570 U.S. 254 (2013) (limits use of sentencing-court factfinding under categorical approach)
- Mathis v. United States, 136 S. Ct. 2243 (2016) (further refines categorical approach/elements comparison)
- Stitt v. United States, 139 S. Ct. 399 (2018) (Supreme Court reversal of Sixth Circuit en banc holding on Tennessee burglary)
- Quarles v. United States, 139 S. Ct. 1872 (2019) (discusses difficulties applying categorical approach)
- United States v. Nance, 481 F.3d 882 (6th Cir. 2007) (original Sixth Circuit holding that Tennessee aggravated burglary is ACCA burglary)
- United States v. Stitt, 860 F.3d 854 (6th Cir. en banc 2017) (en banc decision that had overruled Nance before Supreme Court reversal)
- United States v. Brumbach, 929 F.3d 791 (6th Cir. 2019) (explains that Nance is again the law of the circuit after Stitt reversal)
- Shepard v. United States, 544 U.S. 13 (2005) (limits the documents courts may consult to identify facts of prior convictions)
- United States v. Castleman, 572 U.S. 157 (2014) (interpretive principle against reading federal statutes so as to make them inapplicable in many states)