UNITED STATES OF AMERICA, Plaintiff-Appellee, v. AL DORSEY, Defendant-Appellant.
No. 23-5082
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
January 23, 2024
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 24a0014p.06
Decided and Filed: January 23, 2024
Before: McKEAGUE, LARSEN, and MURPHY, Circuit Judges.
COUNSEL
ON BRIEF: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY‘S OFFICE, Knoxville, Tennessee, for Appellee.
OPINION
MURPHY, Circuit Judge. The U.S. Sentencing Guidelines reрeatedly instruct district courts to increase a defendant‘s sentence if the defendant has one or more prior convictions for a “crime of violence.” See, e.g.,
Viewing itself bound by Gloss, the district court in this case treated Al Dorsey’s prior convictions for facilitating aggravated robbery as “crimes of violence.” Dorsey now offers two reasons why we need not follow Gloss. He first asserts that Gloss conflicts with an earlier decision holding
I
After midnight on January 1, 2021, Dorsey brought in the new year with a group of friends in Chattanooga, Tennessee. The group decided to shoot guns into the air as part of their celebration. Nearby livestream cameras recorded this dangerous activity. Chattanooga pоlice who were monitoring the cameras from an intelligence center dispatched officers to the scene. The officers found shell casings on the ground near the group. They detained Dorsey and discovered a pistol on him. Their later review of the video confirmed that Dorsey had fired some of the shots.
Dorsey’s prior felony convictiоns meant that he could not possess the pistol. The federal government thus charged him with possessing a firearm as a felon in violation of
When determining Dorsey’s guidelines range, a probation officer calculated his base offense level as 24 because he had at least two prior convictions for a “crime of violence.”
At sentencing, Dorsey objected to the probation officer’s decision to treat his two facilitation offenses as “crimes of violence.” If these offenses did not qualify, he argued, his guidelines range would fall to 46 to 57 months’ imprisonment. The district court disagreed. Our prior decision in Gloss, the court rеasoned, required it to treat Dorsey’s Tennessee convictions for facilitating aggravated robbery as crimes of violence. That said, the court noted that it would “welcome” additional guidance from us on this topic. Sent. Tr., R.56, PageID 418. Ultimately, it varied below Dorsey’s guidelines range by imposing a 72-month sentence.
Dorsey appeals the decision to trеat his two facilitation offenses as “crimes of violence.” We review the decision de novo. See United States v. Hawkins, 554 F.3d 615, 616 (6th Cir. 2009).
II
The applicable guideline defines “crime of violence” in part as follows: “The term ‘crime of violence’ means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—(1) has as аn element the use, attempted use, or threatened use of physical force against the person of another[.]”
To decide whether an offense falls within the “elements clause” under this caselaw, courts apply the ubiquitous “categorical approach.” United States v. Taylor, 596 U.S. 845, 850 (2022). This approach turns on an offense’s general elements, not a defendаnt’s specific conduct. See id. Put another way, a criminal law “has as an element the use, attempted use, or threatened use of physical force against the person of another” only if every set of facts that could violate the law would include the use, attempted use, or threatened use of that force. See Nicholson v. United States, 78 F.4th 870, 877 (6th Cir. 2023). So we need not consider how Dorsey committed his two facilitation offenses in this case. See Taylor, 596 U.S. at 850. Rather, we must ask whether the least violent way that a defendant could commit this offense would include the required force. See id. If not, the offense does not qualify as a “crime of violence” under this clause. See id.
We thus start with the elements of Dorsey’s two facilitation offenses. Tennessee law defines the generic crime of “facilitation” as follows: “A person is criminally responsible for the facilitation of a felony, if, knowing that another intends to commit a specific felony, but without the intent required for criminal responsibility under [a separate aiding-and-abetting statute], the person knowingly furnishes substantiаl assistance in the commission of the felony.”
The crime of aggravated robbery undergirded Dorsey’s two facilitation offenses. Tennеssee defines an ordinary robbery as “the intentional or knowing theft of property from the person of another by violence or putting the person in fear.”
In Gloss, we held that the mix of statutory elements across the facilitation and aggravated-robbery statutes satisfied the elements clause’s requirements. 661 F.3d at 318–20. Breaking this facilitation offense down into its component parts, Gloss began by examining the underlying crime of aggravated robbery (a robbery that uses a “real or disguised deadly weapon” or that results in a “serious bodily injury”). Id. at 319. We reasoned that this crime falls within the elements clause because it will always entail “the use, attempted use, or threatened use of physical force against the person of another.” Id. (citation omitted). Indeed, we have also held that an ordinary robbery in Tennessee falls within the clause. See United States v. Hubbard, 2023 WL 319604, at *2–3 (6th Cir. Jan. 19, 2023); United States v. Belcher, 40 F.4th 430, 431–32 (6th Cir. 2022). A robber who knowingly uses “violence” or knowingly puts a victim in “fear” of violence necessarily “use[s]” “physical force against” the victim or at least “threaten[s]” the use of that force within the meaning of the crime-of-violence
The question then becomes whether a conviction for fаcilitation of aggravated robbery always will involve the “use” or “threatened use” of force within the meaning of the elements clause. Gloss answered yes. To begin with, a facilitation offense always requires the prosecution to prove that an aggravated robbery (that is, a crime of violence) has occurred. See Gloss, 661 F.3d at 319. This fact distinguishes facilitatiоn from “inchoate” offenses like attempt or solicitation because one can commit those offenses without completing the underlying crime. See, e.g., Taylor, 596 U.S. at 850–51; United States v. Benton, 639 F.3d 723, 731 (6th Cir. 2011). In contrast, a defendant does not “facilitate” a crime unless the primary culprit successfully completes it. See, e.g., State v. Kiser, 2019 WL 2402962, at *11 (Tenn. Crim. App. June 6, 2019); State v. Dych, 227 S.W.3d 21, 40 (Tenn. Crim. App. 2006). Gloss held that this proof—that “someonе” used or threatened to use force and that the defendant “knowingly provided substantial assistance to that person”—satisfied the elements clause. 661 F.3d at 318–19.
One can read Gloss broadly or narrowly. Broadly, one might read Gloss as holding that the robber (the main culprit) needs to be the only person who knowingly engages in the “use” or “threatened use” of force. So even if a facilitating defendant were convicted under a hypothetical statute penalizing those who recklessly (not knowingly) assist in a robbery, the facilitation offense might still satisfy the elements clause. That clause requires only that a crime have “as an element the use, attempted use, or threatened use” of the required force.
We need not choose between these readings. Either way, the district court correctly held that Gloss required it to treat Dorsey‘s facilitation convictions as crimes of violence. True, Gloss was interpreting the ACCA‘s identical elements clause when it held that facilitating aggravated robbery satisfied the clause. See id. at 318 (citing
Theory One: Dorsey argues that Gloss conflicts with our months-earlier decision in Vanhook. When finding that a facilitation offensе fell outside the definition of “violent felony” in the ACCA, Vanhook rested on the fact that facilitation does not require an intent to commit the crime that the defendant facilitated (here, aggravated robbery). See Vanhook, 640 F.3d at 713–15; see also Woodruff, 735 F.3d at 449–50. And because a later panel
The conflict that he perceives is an illusion. Vanhook held that facilitating the burglary of a building did not qualify as a “violent felony” under the ACCA. See 640 F.3d at 708. But the cаse did not even interpret the elements clause because the parties agreed that burglary of a building did not require the use (or attempted or threatened use) of force. Id. at 710. Rather, Vanhook concerned the ACCA’s “residual clause,” a separate provision that the Supreme Court has since found void for vagueness. Id.; see Johnson v. United States, 576 U.S. 591, 593–606 (2015). That clause treated as a “violent fеlony” any offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another[.]”
Vanhook‘s logic does not reach the elements clause. Unlike the text of the (now-invalid) residual clause, the text of the elements clause cannot be read to cover only offenses undertaken purposefully. See United States v. Farrow, 574 F. App’x 723, 733 (6th Cir. 2014); United States v. Elliott, 757 F.3d 492, 496 (6th Cir. 2014). That is, even if a criminal offense does not require a defendant to intend a harmful result, the offense can still have “as an element the use, attempted use, or threatened use of physical force against the person of another[.]”
Dorsey‘s reliance on Woodruff fares no better. Woodruff asked whether a Tennessee conviction for facilitating a cocaine sale qualified as a “controlled substance offense” under
Yet much has happened since Woodruff. Sitting en banc, we held that
All of this said, this case does not require us to consider how these changes affect Woodruff (if at all). That case does Dorsey no good even if it has continued vitality. If we assume that Woodruff remains good law, we can assume that facilitating the distribution оf drugs does not count as distributing drugs under
Theory Two: Even if Gloss does not conflict with our own precedent, Dorsey next argues, it at least conflicts with the Supreme Court’s later decision in Borden. He is again mistaken. Borden held that the ACCA’s elements clause does not cover offenses that require only a “reckless” state of mind. 593 U.S. at 423 (plurality opinion); id. at 445–46 (Thomas, J., concurring in the judgment). The plurality in Borden reasoned that defendants have not used force “against” a victim unless the victim was the “conscious object” of that force. Id. at 430–31 (plurality opinion). But when a defendant’s reckless act harms a victim, the defendant has not consciously directed the force against the victim. Id. at 427. Rather, the defendant has only “consciously disregard[ed]” the risk that the force might reach the victim. Id. (quoting Model Penal Code § 2.02(2)(c) (Am. L. Inst. 1985)); see id. at 432; id. at 445–46 (Thomas, J., concurring in the judgment).
This holding does not affect Gloss’s conclusion that facilitating aggravated robbery satisfies the elements clause. To begin with, Borden’s plurality opinion expressly disclaimed that it was addressing “accessory liability” crimes like Tennessee’s
That leaves Dorsey’s reliance on a recent remand order. See United States v. Page, 2022 U.S. App. LEXIS 2476, at *3 (6th Cir. Jan. 26, 2022) (order). There, the government successfully obtained a remand for the district court to consider whether facilitation of felоny murder in Tennessee satisfied the elements clause after Borden. See id. at *2–3. Yet felony murder only requires a “killing” to have occurred during the course of one of several crimes, including “burglary,” “theft,” or “aggravated child neglect[.]”
We affirm.