Lead Opinion
CLAY, J., delivered the opinion of the court in which KEITH, J., joined, and WHITE, J., joined in part. WHITE J. (pp. 13-14), delivered a separate opinion concurring in all but section II.A.1. of the majority opinion.
OPINION
Defendant Donald Priddy (“Defendant”) appeals his sentence of 180 months of imprisonment imposed by the district court following his plea of guilty to two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The district court imposed this sentence after it determined that Defendant had four predicate-violent felonies for purposes of the Armed Career Criminal Act (“ACCA”), which requires a mandatory-minimum sentence of 180 months for a defendant convicted of violating § 922(g) who has three or more prior convictions for violent felonies. 18 U.S.C. § 924(e)(1). On appeal, Defendant argues his convictions cannot qualify as violent felonies and that the district court erred in sentencing him under the ACCA. For the reasons that follow, we AFFIRM the district court’s judgment.
I.
BACKGROUND
On June 24, 2013, a federal grand jury in the Western District of Tennessee returned a two-count indictment against Defendant. The indictment charged Defendant with two counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Count I charged Defendant with possession of a Rohm Model RG-12 .22 caliber revolver. Count II charged Defendant with possession of a Smith and Wesson .357 caliber revolver. On September 15, 2014, Defendant pled guilty to both charges.
United States Pretrial Services prepared a Presentence Investigation Report
Before sentencing, defense counsel explained to Defendant that he qualified for sentencing enhancement under the ACCA, but Defendant'did not understand why his prior convictions qualified him as an armed career criminal. Defense counsel then conceded that Defendant was subject to the ACCA’s sentencing enhancement and also asked if Defendant could address the court:
I believe [Defendant] may wish to address Your Honor. And I know you always give a defendant that opportunity. But despite my truly best efforts in trying to explain to him the situation with Armed Career Criminal Act, and how that applies as is different from career offender or different from a guideline situation — it’s confusing on a good day for anybody. But I’ve explained to him — and you can see from our filing, I have not raised objections to the guideline calculations. But in — specifically to the unfortunate situation that I think he falls into the Armed Career Criminal category. The nature of his prior convictions are set out in the report.
Even with current cases that may be pending and things that we’re watching certainly very closely — unfortunately, [Defendant] has several burglary priors. He has an escape. Just a mix, if you will. But the ones, unfortunately, that give rise to the application of [the ACCA enhancement] are three aggravated burglaries and then two burglaries of a business or of some other thing that was not a residence, and a robbery.
(R. 55, Sentencing Hearing, PagelD# 68 (emphasis added)). The court permitted Defendant to speak. Defendant then questioned why his two convictions for aggravated burglary in 1991, for which he was sentenced concurrently, counted as two separate convictions. Defendant denied committing two separate burglaries and stated that he only pled guilty to two charges because he was promised a concurrent sentence if he did so. The court told Defendant that even though he was sentenced concurrently, that did not change the fact that he was convicted of two separate offenses. The court also told Defendant that he could not use the federal sentencing forum to gain review of his state convictions.
The court then explained to Defendant that regardless of those two convictions for aggravated burglary in 1991, he still had three or more felonies that would qualify as violent felonies under the ACCA.
The district court ruled that the ACCA enhancement applied to Defendant’s sentence. The court specifically found that Defendant’s three aggravated burglary convictions and his robbery conviction were violent felonies for purposes of the ACCA. The court did not address Defendant’s 2005 burglary convictions because Defendant already had enough violent felonies to qualify for the ACCA enhancement. The court sentenced Defendant to a statutory minimum term of 180 months in prison.
II.
DISCUSSION
Standard of Review
As an initial matter, the parties dispute this Court’s standard of review on appeal.
“Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” United States v. Olano,
In regards to forfeiture, a party must object “with that reasonable degree of specificity which would have adequately apprised the trial court of the true basis for his objection.” United States v. Bostic,
However, where the defendant has “explicitly agreed” that a particular guideline calcúlation or enhancement applies to his sentence, any challenge to that enhancement on appeal is waived. See United States v. Aparco-Centeno,
We have previously found a defendant to have waived a claim under similar facts. In Aparco-Centeno, the defendant chai-' lenged the district court’s determination that his prior convictions constituted “aggravated felonies.” Aparco-Centeno,
We noted that not only did defense counsel fail to object to the district court’s consideration of the two prior convictions as aggravated felonies, he “explicitly agreed that they qualified as such. Only on appeal does [the defendant] argue that his conviction for receiving stolen property does not qualify as an aggravated felony under 8 U.S.C. § 1326.” Id. Thus, the defendant’s argument was waived when his counsel stated in the sentencing memorandum that those prior convictions were aggravated felonies. As we wrote, “[a]n attorney cannot agree in open court with a judge’s proposed course of conduct and then charge the court with error in following that course.” Id. (citing United States v. Sloman,
Similarly, here, defense counsel not only failed to raise any objections to Defendant being sentenced pursuant to the ACCA at sentencing, but also stated in her sentencing memorandum that “Defendant faces sentencing under the ‘armed career criminal’ act due to his prior convictions.” And, defense counsel reiterated to the court two more times that Defendant qualified for sentencing enhancement under the ACCA. Based on the case law, that explicit agreement seems to be more than enough to constitute waiver.
Nevertheless, we will give Defendant the benefit of the doubt and conduct a plain error analysis. As we will discuss later in the opinion, defense counsel was unaware at the time of Defendant’s sentencing that the Supreme Court would issue an opinion that would call into question whether the ACCA enhancement applied to Defendant’s sentence. Therefore, we will review Defendant’s claim for plain error.' To obtain relief under that standard, Defendant must establish “(1) error, (2) that is plain, and (3) that affects substantial rights.” Johnson v. United States,
Analysis
The government bears the burden to prove that Defendant has three prior convictions that constitute predicate violent felonies for purposes of the ACCA. United States v. Goodman,
any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another!;.]
18 U.S.C. § 924(e)(2)(B). We have interpreted this section to create three different grounds for liability: the “use-of-force” clause in § 924(e)(2)(B)(i); the “enumerated-offenses” clause in § 924(e)(2)(B)(ii); and the “residual clause” immediately following the enumerated-offenses in § 924(e)(2)(B)(ii). See United States v. Mitchell,
On June 26, 2015, in Johnson v. United States, — U.S. —,
A. The Enumerated-Offense Clause
A prior conviction qualifies as an ACCA predicate offense if it “is burglary, arson, or extortion, involves use of explosives.” § 924(e)(2)(B)®. To determine if a past conviction is for one of those crimes, this Court utilizes a categorical approach in which we “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood.” Descamps v. United States, — U.S. —,
If the prior conviction involves the violation of a “divisible” statute—i.e., one which consists of multiple, alternative versions of the crime—then this Court utilizes a “modified categorical approach” and “consult[s] a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.” Id. at 2281. In this second step, we may consult “the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information” to determine the precise subsection to which Defendant pleaded guilty.
1. Defendant’s Three Aggravated Burglary Convictions
Tennessee law explains the elements of aggravated burglary in Tenn. Code Ann. § 39-14-403: “Aggravated burglary is burglary of a habitation as defined in §§ 39-14-401 and 39-14-402.” The Supreme Court of Tennessee elaborated on this definition in State v. Langford,
Relying on this state-law definition of the crime, this Court has held that Tennessee’s aggravated burglary statute “represents a generic burglary capable of constituting a violent felony for ACCA purposes.” United States v. Nance,
The holdings from Taylor and Nance are controlling and establish that a Tennessee conviction for aggravated burglary is categorically a violent felony under the ACCA’s enumerated-offense clause.
2. Defendant’s Two Burglary Convictions
The Tennessee burglary statute under which Defendant was convicted provides that a person commits burglary when, “without, the effective consent of the property owner,” he
(1) Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony or theft;
(2) Remains concealed, with the intent to commit a felony or theft, in a building;
(3) Enters a building and commits or attempts to commit a felony or theft; or
(4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony or theft.
Tenn.Code Ann. § 39-14-402(a) (1990). Because the statute “list[s] potential offense elements in the alternative,” it is divisible under Descamps. See also United States v. Moore, 578 F. App’x. 550, 553 (6th Cir.2014) (finding that Tenn.Code Ann. § 39-14-402 is divisible under Des-camps ); Mitchell,
We find that the first three variants of Tennessee burglary, i.e., Tenn.Code Ann. § 39-14-402(a)(1), (a)(2), and (a)(3), qualify as generic burglary since they each involve “unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor,
On the other hand, the fourth variant of Tennessee burglary, i.e., Tenn.Code Ann. § 39-14-402(a)(4), does not qualify as generic burglary since the locations listed in that subsection of the statute are not buildings or structures. See, e.g., Shepard,
The Tennessee burglary statute, however, provides an easier way to distinguish the variants of the offenses which are generic burglary — § 39-14-402(a)(l), (a)(2), and (a)(3) — from the variant which is not— § 39-14-402(a)(4). The statute labels violations of its first three subsections as “Class D felonies,” Tenn.Code Ann. § 39-14-402(c), but labels a violation of the fourth subsection as only a “Class E felony,” Tenn.Code Ann. § 39-14-402(d). See also Moore, 578 Fed.Appx. at 554 (noting the class of felony distinctions in the Tennessee burglary statute). Therefore, if the conviction records for a Tennessee burglary offense indicate that the defendant was convicted of a Class D felony, then that offense was necessarily a violation of Tenn. Code Ann. § 39-14-402(a)(l), (a)(2), or (a)(3) and, as a result, was a generic burglary under Taylor. See id. (“Because [the Shepard documents] indicate that Moore pleaded guilty to a Class D version of burglary ... we can safely conclude that Moore must have been charged with violating subsection (a)(1), (a)(2), or (a)(3).”). Id.
Here, both Defendant and the government agree that Defendant pleaded guilty to a Class D felony. Given this fact, we can safely conclude that Defendant must have been charged with violating subsection (a)(1), (a)(2), or (a)(3). However, Defendant argues that it is impossible to determine which precise subsection he violated. Ultimately, though, we conclude that it makes little difference. The important takeaway is that Defendant could not have pleaded guilty to violating subsection (a)(4) because a violation of that subsection is a Class E felony. Therefore, because each of those subsections qualifies as generic burglary under Taylor, Defendant’s offenses were necessarily generic burglaries and, thus, violent felonies under the ACCA.
B. The Use-of-Force Clause
When determining whether a particular offense qualifies as a “violent felony” under the use-of-force clause, we are limited to determining whether that offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The force involved must be “violent force — ’that is, force capable of
1. Defendant’s Robbery Conviction
Under Tennessee law, robbery is defined as “the intentional or knowing theft of property from the person of another by violence or putting the person in fear.” Tenn.Code Ann. § 39-13-401(a). In Mitchell, this Court held that a Tennessee conviction for robbery qualifies as a violent felony under the ACCA’s use-of-force clause.
More recently, this Court held in United States v. Kemmerling,
Defendant argues that Mitchell’s decision turned upon the ACCA’s residual clause definition of violent felony and therefore its precedential value is now less clear. However, it is clear that the Supreme Court’s holding in Johnson does not disrupt the holding in Mitchell. The Mitchell court-found that under the categorical approach, a Tennessee robbery conviction is a violent felony under both the use-of-force clause and the residual clause. The conviction need only qualify as a violent felony under one of the clauses. Therefore, even in light of the Supreme Court’s invalidation of the residual clause, this Court’s determination remains unchanged that under the categorical approach, robbery in Tennessee is a predicate offense under the use-of-force clause.
The district court correctly found that four of Defendant’s prior convictions constitute violent felonies under the ACCA’s enumerated-offense and use-of-force clauses. Because that is all that the ACCA requires before triggering a mandatory-minimum sentence of 180 months, we AFFIRM the judgment of the district court.
CONCURRING IN PART
Concurrence Opinion
concurring in part.
I concur in the majority opinion except with respect to section II.A.1. concerning aggravated burglary. Because Priddy’s robbery and burglary convictions are categorically violent felonies for the reasons discussed by the majority, we need not address- Priddy’s aggravated burglary convictions. More specifically, we need not rely on United States v. Nance,
Although Nance held that a conviction of aggravated burglary under Tennessee’s statute is categorically a violent felony for purposes of the Armed Career Criminal Act (ACCA), it treated the statute as indivisible and did not discuss the alternative definitions of “habitation” found in § 39-14-401, which include structures other than buildings, such as tents and some vehicles. Later cases in this Circuit have held that Tennessee’s aggravated burglary statute is divisible, in part because the definition of “habitation” provides alternative sub-elements within the “habitation” element. See United States v. Ozier,
Because Nance’s unqualified holding that aggravated burglary under the Tennessee statute is a violent felony under the ACCA is likely too broad under Taylor and Descamps v. United States, — U.S. -,