BRIAN DAVID BRUMBACH, Petitioner-Appellee, v. UNITED STATES OF AMERICA, Respondent-Appellant. UNITED STATES OF AMERICA, Plaintiff-Appellant, v. BRIAN DAVID BRUMBACH, Respondent-Appellee.
Nos. 18-5703/5705
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
July 11, 2019
RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 19a0154p.06. Argued: June 27, 2019. Appeal from the United States District Court for the Middle District of Tennessee at Nashville. Nos. 3:09-cr-00227-1; 3:16-cv-00776—David M. Lawson, District Judge.
Before: SILER, BATCHELDER, and DONALD, Circuit Judges.
COUNSEL
ARGUED: Luke A. McLaurin, UNITED STATES ATTORNEY‘S OFFICE, Knoxville, Tennessee, for Appellant. Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellee. ON BRIEF: Cecil W. VanDevender, UNITED STATES ATTORNEY‘S OFFICE, Nashville, Tennessee, for Appellant. Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellee.
BERNICE BOUIE DONALD, Circuit Judge. Brian David Brumbach (“Brumbach“) filed for relief under
I. Background
On May 23, 2009, Brumbach was arrested for pointing a gun at a man who had been talking to Brumbach‘s girlfriend. Brumbach was charged with one count of being a felon in possession of a firearm, in violation of
The United States Probation Office prepared a Presentence Investigation Report (“PSR“), within which the Probation Office explained that Brumbach had twelve prior convictions for aggravated burglary under Tennessee law, and classified him as an armed career criminal. At sentencing, Brumbach raised no objections to the PSR, and the district court accepted the plea agreement and imposed a sentence of 180 months in prison.
After the Supreme Court struck down the ACCA‘s residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015), Brumbach filed a timely
The district court granted Brumbach‘s motion to stay those proceedings until our en banc court ruled in Stitt I. In that case, we considered whether a conviction under Tennessee‘s aggravated burglary statute constitutes a violent felony under the ACCA. We ruled that it did not. Stitt I, 860 F. 3d at 856, 860-61.
The government conceded that, in light of Stitt I, Brumbach no longer qualified as an armed career offender, but maintained that Stitt I was wrongly decided. Applying our holding in Stitt I, the district court granted Brumbach‘s habeas petition, and on June 25, 2018, imposed a new sentence of time served, which equated to 105 months in prison. The government notified the district court of its intent to appeal its order should the Supreme Court reverse Stitt I.
In December 2018, the Supreme Court reversed Stitt I. Stitt II, 139 S. Ct. at 408. As promised, the government appealed the district court‘s order granting Brumbach‘s
II. Analysis
“The ACCA imposes a fifteen-year mandatory-minimum prison sentence on persons who violate
“Tennessee defines aggravated burglary as the ‘burglary of a habitation,’
We concluded in Stitt I that a conviction under the Tennessee statute is not a violent felony for ACCA purposes because we found that “Tennessee‘s aggravated-burglary statute sweeps more broadly than generic burglary[.]” Stitt I, 860 F.3d at 860-61. We also overruled our previous decision in United States v. Nance, “which held that the statute matches the ACCA‘s definition of generic burglary.” Id. at 861 (citing United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007)).
The Supreme Court granted a writ of certiorari in Stitt I to consider whether “burglary of a nonpermanent or mobile structure that is adapted or used for overnight
We review ”de novo a district court‘s determination regarding whether a prior conviction constitutes a ‘violent felony’ under the ACCA.” Braden v. United States, 817 F.3d 926, 930 (6th Cir. 2016) (quotation marks and citation omitted).
The government argues that because Stitt I—the basis for originally vacating Brumbach‘s sentence—was reversed by the Supreme Court, his original 180-month sentence should be reinstated. This reversal, according to the government, necessarily undid this court‘s overruling of Nance. Brumbach contends that the Supreme Court, however, did not determine that Tennessee aggravated burglary is necessarily a generic burglary because it did not examine all aspects of the Tennessee statute. Nevertheless, the Supreme Court did reverse the rationale by which we overruled Nance. Although this court has never ruled as such, it necessarily follows that Nance‘s holding, which is directly on point, is once again the law of this circuit. Nance, 481 F.3d at 888 (ruling that “Tennessee aggravated burglary represents a generic burglary capable of constituting a violent felony for ACCA purposes.“). Indeed, courts within this circuit have followed such reasoning. See, e.g., Patterson v. United States, No. 1:15-CV-01300, 2019 WL 472257 at *3 (W.D. Tenn. Feb. 6, 2019) (recognizing that because Stitt II reversed Stitt I, the petitioner‘s “two aggravated burglary convictions qualify as violent felonies under the ACCA.“); Shelton v. United States, No. 1:18-CV-287-CLC, 2019 WL 1556670 at *3 (E.D. Tenn. Apr. 10, 2019) (concluding that petitioner‘s conviction for aggravated burglary is a violent felony because “[t]he Supreme Court has held that aggravated burglary under Tennessee law is generic burglary within the meaning of the ACCA.“); Melton v. United States, No. 3:18-CV-347-TWP, 2019 WL 2114180 at *7 (E.D. Tenn. May 14, 2019) (observing that after Stitt II “the Sixth Circuit‘s decision in Stitt [I], although binding law at the time when Petitioner filed his § 2255 motion, is no longer valid.“).
Notably, Tennessee‘s aggravated burglary statute directly references Tennessee‘s simple burglary statute. See
At the time the Sixth Circuit issued its decision in Ferguson[], there may have been some uncertainty as to the continued import of Priddy, due to the Sixth Circuit‘s decision in Stitt [I], which overruled Nance[], a case on which Priddy had placed significant reliance. Those concerns likely have been resolved, as the Supreme Court has unanimously reversed . . . Stitt [I].
Jenkins v. United States, No. 3:10-CR-435, 2019 WL 460493, at *1 n.1 (N.D. Ohio Feb. 6, 2019). No one contends that Ferguson is not binding precedent, and as the district court in Jenkins observed, any concerns about the relationship between Ferguson, Priddy, and Nance have been resolved with Stitt II.
Brumbach also argues that reversal is not warranted on a separate ground. Although the district court did not explicitly recognize it, Brumbach contends that Tennessee‘s definition of “entry” is so broad that it treats an attempted burglary as a completed burglary. According to Brumbach, because the Supreme Court has held that an attempted burglary is not a generic burglary, a conviction under Tennessee‘s burglary statute does not qualify as a violent felony under the ACCA. (Response Brief at 11, citing James v. United States, 550 U.S. 192, 198 (2007) (holding that a conviction under Florida‘s attempted burglary statute could only qualify as a violent felony under the residual clause, which was struck down in Johnson v. United States, 135 S. Ct. 2551, 2563 (2015))). Even if there is merit to Brumbach‘s arguments concerning Tennessee‘s definition of entry, a panel of this court cannot overrule Nance. This can only be done by an “inconsistent decision” of the Supreme Court or, like we did briefly with Stitt I, a decision of the en banc court. Salmi v. Sec‘y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).
III. Conclusion
For the aforementioned reasons, we reverse the district court‘s grant of habeas relief, and remand with instructions to reinstate the original sentence.