United States v. Joseph Kemmerling
612 F. App'x 373
6th Cir.2015Background
- Defendant Joseph Kemmerling pleaded guilty to being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).
- A PSR classified him as an Armed Career Criminal (ACCA) based on three prior violent-felony convictions: one 1999 Tennessee robbery (Tenn. Code Ann. § 39-13-401) and two 2005 Tennessee aggravated-burglary convictions.
- Two aggravated-burglary convictions were not contested because this circuit previously held that statute qualifies under the ACCA enumerated-offenses clause.
- Kemmerling contested that his 1999 Tennessee robbery conviction qualifies as a "violent felony" under the ACCA, which would trigger a mandatory minimum 15-year sentence under 18 U.S.C. § 924(e).
- The district court found the robbery conviction qualified; Kemmerling was sentenced to the 180-month mandatory minimum and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tenn. Code Ann. § 39-13-401 (robbery) is a "violent felony" under ACCA § 924(e)(2)(B)(i) (use of physical force) | Kemmerling: prior robbery does not categorically involve the use/threatened use of physical force required by ACCA | Government: Tennessee robbery requires violence or fear of bodily injury, satisfying ACCA force clause | The court held the Tennessee robbery statute qualifies under the ACCA "use of physical force" clause; conviction is a predicate violent felony |
| Whether Johnson decision (invalidating ACCA residual clause) undermines prior circuit precedent that Tennessee robbery is an ACCA predicate | Kemmerling: Johnson may call Mitchell into question and render ACCA application invalid | Government: Johnson invalidated only the residual clause; Mitchell’s force-clause holding remains binding precedent | The court held Johnson does not affect the force-clause holding; Mitchell remains binding and Kemmerling’s robbery conviction still counts |
Key Cases Cited
- United States v. Mitchell, 743 F.3d 1054 (6th Cir. 2014) (held Tennessee robbery categorically satisfies ACCA "use of physical force" clause)
- United States v. Nance, 481 F.3d 882 (6th Cir. 2007) (held Tennessee aggravated burglary qualifies under ACCA enumerated-offenses clause)
- Johnson v. United States, 135 S. Ct. 2551 (U.S. 2015) (held ACCA residual clause unconstitutionally vague)
- United States v. Hockenberry, 730 F.3d 645 (6th Cir. 2013) (discussed standard of review for ACCA predicate determinations)
- Salmi v. Sec'y of Health & Human Servs., 774 F.2d 685 (6th Cir. 1985) (panel must follow binding circuit precedent absent intervening Supreme Court decision)