614 F. App'x 288
6th Cir.2015Background
- Brumback pleaded guilty to being a felon in possession of a firearm; the government sought ACCA enhancement based on five prior convictions (three Kentucky third-degree burglaries, one Kentucky second-degree arson, one Nebraska robbery), later conceding one prior (second-degree escape) did not qualify.
- The written plea agreement and PSR both treated Brumback as an Armed Career Criminal (ACCA), exposing him to the ACCA mandatory minimum of 15 years; the plea contained inconsistent language reserving an appeal right on the ACCA designation.
- At sentencing the district court adopted the PSR, applied the ACCA, and imposed the 180-month mandatory minimum; Brumback objected and argued the third-degree burglary convictions did not qualify as ACCA predicates.
- The Sixth Circuit reviews de novo whether the prior Kentucky third-degree burglary convictions qualify as ACCA violent felonies and whether the modified categorical approach (Shepard-limited documents) is required and supported by the record.
- Kentucky third-degree burglary criminalizes unlawful entry or remaining in a “building,” and Kentucky defines “building” to include structures, vehicles, watercraft, or aircraft used as residences or places where people assemble — a broader definition than generic burglary.
- The record lacked Shepard-authorized documents (charging papers, plea transcripts, etc.) necessary to determine which statutory alternative formed the basis of Brumback’s prior convictions; the PSR statements were insufficient as Shepard documents, so the court remanded for resentencing.
Issues
| Issue | Brumback's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Kentucky third-degree burglary categorically matches generic burglary under the ACCA | KY statute broader; thus does not categorically match generic burglary | Some convictions involved buildings and could qualify; earlier cases (Coleman) support treating similar statutes as qualifying | KY third-degree burglary is broader and does not categorically match generic burglary; divisibility applies |
| Whether the statute is divisible and the modified categorical approach is required | Must use modified categorical approach to identify which statutory alternative formed conviction | Agreed statute is divisible; relied on prior case law to support ACCA application | Statute is divisible; modified categorical approach is required |
| Whether the record contains Shepard-authorized documents to perform the modified categorical inquiry | Record lacks Shepard documents; PSR is not a Shepard document and plea colloquy/plea agreement are ambiguous | Pointed to plea admission and PSR factual entries as support | Record insufficient under Shepard; PSR and plea materials here were inadequate to sustain ACCA enhancement |
| Whether other prior convictions (arson, robbery) make remand unnecessary | Even assuming arson and robbery qualify, Brumback needs at least three qualifying predicates; at least one burglary must still qualify | Argued robbery and arson might suffice, or defendant waived challenge | Court concluded remand necessary because the government must prove three qualifying predicates and the record was insufficient |
Key Cases Cited
- Descamps v. United States, 133 S. Ct. 2276 (2013) (limits use of Shepard documents and distinguishes categorical vs modified categorical approach)
- Shepard v. United States, 544 U.S. 13 (2005) (defines documents permissible when applying the modified categorical approach)
- Taylor v. United States, 495 U.S. 575 (1990) (defines generic burglary for ACCA purposes)
- Prater v. United States, 766 F.3d 501 (6th Cir. 2014) (de novo review of ACCA predicate analysis and discussion of Shepard limitations)
- Coleman v. United States, 655 F.3d 480 (6th Cir. 2011) (interpreting a state third-degree burglary statute under ACCA; not controlling here because Ohio law differs)
- Barbour v. United States, 750 F.3d 535 (6th Cir. 2014) (places burden on government to prove applicability of ACCA)
- United States v. McGovney, [citation="270 F. App'x 386"] (6th Cir. 2008) (used defendant’s plea colloquy admissions under unique facts to avoid remand)