United States v. McMurray

plural- a religiously prayers diverse of America, UNITED STATES with spoken in accordance society, istic Plaintiff-Appellee, religion. each logic Finally, majority’s note that the I an invocation of Jesus only prohibiting McMURRAY, Tyrone Defendant- County, but Forsyth during prayers Appellant. content, allowing prayer other otherwise includes the invoca- escapes Prayer me. No. 09-5806. Being according to the Divine tion of the understanding religion, of the Appeals, United States Court of thus majority preclude court. Would Sixth Circuit. Holy Spirit invoking prayer

Christian 18, 2011. Argued: Jan. King kings? or the or Pax Christi prayer invok- majority deny a Would Aug. Decided and Filed: Abraham, Isaac, and Jacob? ing the God it is spoken, spoken name is Whatever religious accord with the leader call the Divine Be- religion to

leader’s legislate, on the Yet we now based

ing. nonsectarianism, bow- notion of

imprecise political correctness universal

ing to censuring only what

inoffensiveness Decem- Joyner and Blackmon on

offended 17, 2007, to the dan- regard without

ber reli-

gers censorship governmental

gious expression. that we must main- respectfully

I submit respect religion, of each

tain sacred together, group of citizens comes

when Forsyth County Board of Com- does the

missioners, and manifests that sacred re- to be prayers each

spect allowing the — religion’s own voice—we in the

spoken ruling today it be. The be let glad

must subjectively without a

intermeddles most constitutionally

religiously sensitive or surely cannot

compelled standard. This accommodation, and it a law for mutual

be by the Establish-

surely required is not

ment Clause. Law Cooper, David L.

ARGUED: P.C., Nashville, Cooper, L. Officé of David Tennessee, Appellant. Brooklyn for D. Sawyers, Attor- Assistant United States Tennessee, Nashville, ney, Appellee. for Cooper, L. Law ON BRIEF: David Nashville, P.C., Cooper, of David L. Office Tennessee, Han- Appellant. for Brent A. nafan, Attorney, Assistant United States Tennessee, Nashville, Appellee. for MOORE, GIBBONS, and Before: McKEAGUE, Judges. Circuit MOORE, J., opinion of the delivered court, GIBBONS, J., joined. in which McKEAGUE, 382-88), delivered (pp. J. dissenting opinion. separate OPINION MOORE, Circuit KAREN NELSON Judge. McMurray con- Tyrone was

Defendant violating victed at bench trial felon-in-possession-of-arfirearm federal 180-month appeals He statute. now statutorily imprisonment sentence —-the of the dis- minimum as result mandated McMurray court’s determination trict the-Armed qualifies to be sentenced (“ACCA”). Career Criminal Act McMur- II. ANALYSIS (1) felony ray argues Armed Career Criminal A. Act for must convictions the ACCA be included proven beyond a in the indictment and prison faced a maximum (2) doubt, felony reasonable his 1993 years violating term of ten 18 U.S.C. conviction for assault is not 922(g), felon-in-possession-of-a-fire- felony” under the Because ACCA. 924(a)(2). arm statute. U.S.C. Pur- Tennessee’s statute is ACCA, however, suant to the a defendant categorically a “violent § convicted under who “has 922(g) three Shepard because available documents previous convictions ... for a violent felo- McMurray’s do not establish the nature of offense, both,” ny drug or a serious or conviction, judgment we VACATE the of must be sentenced to “not than 15 less court and REMAND for district resen- 924(e)(1). years” imprisonment. § Id. tencing opinion. consistent with this “any A “violent is punishable by imprisonment for a exceeding term one

I. BACKGROUND & PROCEDURE “(i) year” use, has as an element use, attempted or of physi- threatened use 20, 2006, McMurray On December was against person another; cal force or indicted on of violating one (ii) arson, extortion, burglary, in- felon-in-possession-of-a-firearm federal , volves use of explosives, otherwise in- statute, 922(g)(1). 18 U.S.C. After presents volves conduct that a po- serious McMurray trial, right jury waived his to a of physical injury tential risk to another.” the district court conducted bench trial 924(e)(2)(B). §Id. McMurray and found guilty. Prior to sen- tencing, U.S. Probation prepared Services Investigation Report Presentence Challenges B. Constitutional (“PSR”), which McMurray concluded that argues McMurray first that violat had been convicted of three violent “a ing separate the ACCA is criminal of felonies and therefore for qualified a sen- fense,” and, therefore, pursuant to the Due ACCA, tence enhancement under the 18 Clause, predicate felony Process con 924(e). U.S.C. Specifically, the PSR victions must be in included the indictment McMurray qualified concluded that proven beyond and a reasonable doubt. armed career criminal based on the follow- Br. Appellant argues at 11. He (1)

ing Tennessee convictions: being “conviction for an armed career (2) 1986, 1987, robbery assault in in armed criminal felon should be vacated.” Id. (3) aggravated

McMurray challenged the application of challenges We review de novo for ACCA the two now sufficiency reasons he of an indictment. United Gatewood, appeal. (6th asserts on At sentencing hear- 983, 986 ing 17, 2009, however, Cir.1999). held June rejected argument We have rejected McMurray’s district court argu- sentencing provision the ACCA ais qualify ments that he did not for an separate government en- offense and that the 19, hancement plead under the ACCA. On June must prove the indictment 2009, judg- the district court entered its beyond a reasonable the predicate doubt ment, McMurray sentencing Wolak, to 180 months felonies. United v. 923 States F.2d 1193, imprisonment, statutorily Cir.), denied, mandated 1199 cert. 501 U.S. 1217, 2824, minimum under the ACCA. 111 S.Ct. 115 L.Ed.2d 995

371 Brewer, jury proved be- v. F.2d must be found (1991); 858 United Martin, (on (ana Cir.1988) doubt.” 526 1319, reh’g) yond reasonable 1322 ACCA), States v. Book- United (citing statute to lyzing antecedent 941 denied, 946, 375, er, 244, 109 S.Ct. cert. U.S. 125 160 543 U.S. S.Ct. (1988), (2005); U.S. v. Jer- 102 L.Ed.2d Apprendi New L.Ed.2d (1989). That 1142, 103 L.Ed.2d S.Ct. sey, 530 U.S. is a sentence enhancement

the ACCA (2000)). McMurray chal- L.Ed.2d 435 es is well separate offense rather than of Almenda- continuing validity lenges the See, v. United e.g., Custis tablished. Martin, rez-Torres, but, States, 485, 490, 114 S.Ct. 941-42, re- we concluded that this court (“The (1994) pro ACCA 128 L.Ed.2d by Almendarez-Torres de- mains bound Taylor sentence----”); an enhanced vides United spite statements States, 575, 577, 495 U.S. States, 1254, 161 (1990) (“[The 109 L.Ed.2d (2005), no suggesting that it is L.Ed.2d 205 enhance sentence provides ACCA] longer good law. Counsel ment....”). Thus, due-pro McMurray’s argument acknowledged at oral may be more challenge to ACCA cess v. remain bound Martin. See Salmi as a constitutional construed appropriately Servs., Sec’y Health & Human 774 F.2d we also challenge to his sentence —which (6th (“A Cir.1985) 685, panel 689 of this Martin, novo. United review de an- Court cannot overrule the decision of de (6th Cir.), cert. 926, 941 panel.”). other - nied, -, 305, 172 U.S. (2008). have observed reject McMurray’s L.Ed.2d 223 We therefore consti- We gov require not process due does to the enhancement of challenges tutional prior of its in provide notice ernment sentence under ACCA. a sentence enhancement to seek

tention v. Maul United States under ACCA. Aggra- Crime of C. Whether Tennessee din, Cir.1997); F.3d Felony” Is vated Assault a “Violent Miller, United States v. the ACCA Under de (unpublished 649-50 Mack, v. dis cision); challenges also accord (3d Cir.2000) (collecting court’s determination that his 1993 trict denied, same), cert. holding as cases Tennessee conviction for (1991), 149 L.Ed.2d sault, 121 S.Ct. 39-13-102 Ann. Tenn.Code (2001). felony” a qualifies as statute en because the Tennessee ACCA in Almendarez- Court, Supreme The We review compasses reckless conduct. States, 224, 226- v. United 523 U.S. Torres de novo the district court’s determination (1998), L.Ed.2d 350 118 S.Ct. as a “vio prior qualifies conviction pen that when a statute constitutes held United felony” under lent ACCA. separate provision, rather than alty Gross, 309, 322 States crime, government include need Cir.2010). de two-step analysis “[T]he in the indictment. provision prior quali whether a conviction termining uniformly excepted has Supreme Court felony” is well estab fies as a “violent from its conviction’ prior ‘the fact of a 1: sentence-enhancing facts lished general rale that way analyzed is in the same under the ACCA "violent

1. Whether conviction prior the nature of a determining intentionally or knowingly fails or conviction, apply “categori we are to refuses to such protect child or approach, looking statutory cal” to the adult from an aggravated assault definition the offense and not the (a); described in subsection or underlying particular facts the convic (3) having enjoined After been or re- States, Taylor tion. v. United 495 U.S. order, strained diversion or 575, 600, 110 2143, 109 L.Ed.2d 607 probation agreement of a court of (1990). If it is possible violate the competent jurisdiction in any from way statute in a that would constitute a way causing or attempting to cause way felony”] and in a [“violent bodily injury any way commit- not, would the court consider ting or attempting to commit an indictment, guilty plea, or similar docu assault against an individual or indi- they ments to determine whether neces viduals, attempts to cause or causes sarily establish nature of the bodily injury or commits at- States, conviction. v. United tempts to against commit an assault 13, 26, such individual or individuals. (2005). L.Ed.2d 205 (b) Aggravated Gibbs, assault is C felo- Class (6th Cir.2010). ny.... Taylor Categorical Analysis (1991).2 39-13-102 Tenn.Code Ann. Aggravated-Assault

Tennessee’s time, Tennessee’s assault statute at that Statute (1991), § 39-13-101 pro- Tenn.Code Ann. part: vided relevant McMurray pleaded guilty aggravated assault on April time, 1993. At that (a) A person commits assault who: aggravated Tennessee statute for as- (1) Intentionally, knowingly or reck- sault was as follows: lessly bodily causes injury to anoth- (a) A person commits aggravated as- er; sault who: (2) (1) Intentionally Commits an as knowingly defined in causes § to reasonably 39-13-101 and: another fear immi- bodily nent injury; or (A) bodily injury Causes serious another; or (3) Intentionally or knowingly causes (B) displays Uses or deadly weap- physical contact with another and a on; or person reasonable regard would (2) Being parent or custodian of a contact as extremely offensive or adult,

child or the provocative. custodian of an assault, as whether a aggravated conviction is a "crime vio- reckless § 39-13- lence” under the Sentencing United States 102(a)(2) (2010), from intentional and know- ("U.S.S.G.”) 4331.2(a). § Guidelines assault, ing aggravated 39-13-102(a)(l) § Gibbs, v. States 6n. (2010), and reclassified reckless Cir.2010). felony, assault as D § Class 39—13— 102(e)(1). however, Substantively, the new 12, 1993, May 2. Effective Tennessee deleted encompasses essentially section the same con- § entirety replaced 39-13-102 its and it duct as the section effective the time of with a new Legis. section. 1993 Tenn. Serv. McMurray's conviction. (West). significantly, Most sec- new tion reordered the subsections to break out statute, bodily injury to another meets either the Tennessee’s clause, physical at the time force” 18 U.S.C. effective “use of' the version both clause, the current 924(e)(2)(B)®, McMurray’s conviction or the § “otherwise” and range con version, encompasses wide 924(e)(2)(B)(ii), defini- § of the ACCA’s id. the vic duct, choking hitting as such felony.” See United tion of “violent gun, her with a State threatening while tim Sanders, v. n. States (Tenn. Hammonds, 30 S.W.3d v. (emphasizing that resulting in a driving 2000), and reckless under either can be “violent bodily injury serious that causes collision clause). Gillon, another, v. 15 S.W.3d State (Tenn.Crim.App.1997). 496-97 Physical a. Force” Clause “Use ag argues that because first consider whether reckless We encompasses statute gravated-assault another, bodily causing injury to conduct, ly serious conviction does reckless 39-13-102(a)(l)(A) First, (1991), §we “has as an ele felony.”. qualify concluded, use, use, attempted anal this court ment the or threat note that un “crime of violence” of a ogous physical against per context force ened use 16,3 aggra that reckless der 18 U.S.C. another.” U.S.C. son use-or-display-of- assault under vated 924(e)(2)(B)(i). We decisions find re nevertheless a-deadly-weapon prong Ashcroft, v. Leocal intentional conduct. quires (2004), 160 L.Ed.2d and United Mendoza-Mendoza, Portela, 469 F.3d 496 Cir. decision), (6th Cir.2007) (unpublished 219-21 2006), instructive. denied, 1121, 128 S.Ct. rt. ce Leocal, Court consid- Supreme (2008). assume, We 169 L.Ed.2d whether a Florida conviction for driv- ered analysis of Men deciding, that the without (“DUI”) influence ing under the caus- ACCA, to the extends doza-Mendoza bodily injury a ing qualifies serious as consider, of purposes for this therefore § under 18 16. “crime of violence” U.S.C. un aggravated assault analysis, reckless 3, analysis 125 In at S.Ct. 377. its 543 U.S. § serious-bodily-injury prong, 39- der clause, “use of force” of the statute’s (1991). 13-102(a)(l)(A) aggravat Because 16(a), part § is in relevant identical which crime,4 an is not enumerated ed assault ACCA, of “use of force” clause recklessly causing serious to the analyze whether doza-Mendoza, (adopt Fed.Appx. at 222 § 239 U.S.C. 16 A "crime of violence” under 18 3. ing reasoning Mungia- of United States v. is defined as 813, Portillo, (5th Cir.2007), (a) F.3d 817 484 that has as an element an offense use, use, denied, 320, attempted of or threatened use U.S. 128 S.Ct. 169 cert. 552 person against or physical prop- (2007), force which concluded that L.Ed.2d 226 another, erty of aggravated-assault statute falls Tennessee’s (b) any felony is that other offense generic within nature, that, by a substantial its involves § 2L1.2’s enumerated in U.S.S.G. definition against person physical force risk violence”), of "crime with United States of property be used in the of another Esparza-Herrera, F.3d committing the offense. course of Cir.2009) (concluding aggra that Arizona’s fall within the vated-assault statute does not aggravated is not an enu- assault 4. Because generic aggravated-assault crime enumerated ACCA, analysis crime under merated § of 2L1.2’s definition of "crime in U.S.S.G. generic definition of of the violence”). enumerated in which it an in other contexts Compare directly Men- relevant. crime is not 924(e)(2)(B)(i), Cir.2005), § Court on relied its F.3d 444 applied which Leo- States, Bailey decision v. United reasoning cal’s involving to convictions conduct, U.S. 116 S.Ct. 133 “ reckless and we concluded that L.Ed.2d (1995), requires ‘use’ conclude the defendant’s conviction for vehicular as employment” naturally and “most active sault was “crime of violence” under degree suggests a of intent than higher 2L1.2(b)(l)(A)(ii). Portela, § 469 F.3d at merely accidental negligent or conduct.” § 499. In the context of the extension Leocal, 377. of reasoning Leocal’s to conclude that may, one “[w]hile Court reasoned reckless conduct does not constitute theory, actively employ something “crime of violence” has found overwhelm manner, it is much less natural accidental ing support in our sister circuits. See actively employs phys say a person United-States v. Zuniga-Soto, person by another acci against ical force cases). 1110, 1124 (listing Id. Because dent.” Florida’s DUI statute We find reasoning of Portela and the require proof particular did not of mental cases which it equally persuasive relies state, the Court concluded that the defen- in the context of the ACCA. dant’s DUI conviction was not a “crime of Supreme We further note that the of prong violence” under “use force” applied Court has reasoning § 16. Id. at Leocal 377. The Court, however, interpreting the context expressly the ACCA’s indicated that it “use of deciding was not force” clause. statute that See Johnson — States, encompasses qualifies —, reckless conduct as 130 S.Ct. (2010). 1265, 1271, “crime violence.” Id. at L.Ed.2d In Johnson, quoted Court applied “ analysis Leocal’s ordinary ‘[t]he Pórtela, question we answered the meaning violence”], term [the “crime of open by left considering Leocal when § combined with 16’s emphasis on the use whether Tennessee conviction vehicu- of physical against force person another assault, lar 39-13-106, Tenn.Code Ann. (or the having risk of to use such force in qualified as a “crime violence” under crime), committing a suggests a category 2L1.2(b)(1)(A)(ii).5 U.S.S.G. violent, Johnson, active crimes.’” statute, 498-99. Under Tennessee “[a] Leocal, S. (quoting Ct. 543 U.S. at who, person commits vehicular assault 377). 11, 125 S.Ct. Whereas the Court in proximate person’s result of the intoxi- Johnson focused on the recklessly question cation ... of the bodily causes serious degree physical of injury person required force operation quali to another fy felony” of as motor vehicle.” Tenn.Code Ann. “violent” as —the 39-13-106(a) added). § (emphasis pect “violent, re- of Leocal We Court’s active analysis lied on the Oyebanji v. Gon- crimes” characterization —we focus on the zales, (3d Cir.2005) (Alito, J.), 418 F.3d 260 aspect “active” of the Leocal Court’s chara Bejarano-Urrutia Gonzales, Thus, v. 413 cterization.6 pursuant to Leocal commentary 5. §to physical against person 2L1.2 defines "crime force of another.” l(B)(iii). § of by enumerating violence” U.S.S.G. 2L1.2 n. cmt. number of including crimes and a catch-all "use of Although our decision rests on the Tennes- "any force” clause: other offense under fed- inclusion, conduct, see statute’s of reckless we state, eral, or law local that as an has element question also whether the use, use, attempted or threatened use of person requirement statute’s that a "cause[] l.b, Pórtela, of As discussed below in Part II.C. we that the “use we conclude ACCA, clause of force” physical rest holding of Matthews to read 924(e)(2)(B)(i), than reck requires more § of the “violent felo the “otherwise” clause conduct. less Nevertheless, ny” even if definition. con Benton, v. Finally, in United States of physical sidered under the “use force” (6th Cir.2011), recently this court F.3d 723 clause, equally our decision in Matthews is analyzed question whether the Tennes Supreme Court’s inconsistent with sub aggra to commit crime of solicitation see as it is sequent decision Leocal under assault a “violent vated respect with to Be the “otherwise” clause that “[i]t The court also stated ACCA. 137, States, v. 553 U.S. gay United already has been established (2008). 1581, 170 L.Ed.2d 490 Be S.Ct. has as an ele aggravated crime cause the statement Benton with re force, and there or threat of ment use spect to within aggravated assault —made felony’ for as a ‘violent qualifies fore analysis its solicita the distinct (citing n. 3 Id. at 730 & purposes.” ACCA aggravated tion to commit assault —“was Matthews, v. States United necessary to the outcome” in that denied, Cir.), cert. (2002)). case,7 it binding. is dicta that is not See L.Ed.2d 1038 39-13-102(a)(l)(A) require any bodily injury” to bodily injury," § define "serious serious (1991), degree v. requires physi particular of contact. See Par- necessarily the "use State M2009-02448-CCA-R3-CD, ker, force,” 924(e)(2)(B)(i). Except No. § cal in cross- (Tenn.Crim.App. WL at *17 Jan. "intentionally knowingly reference 2011) decision) (unpublished (defining "seri- caus[ing] physical [that] contact with another Compare bodily injury”). ous person regard ... as ex would a reasonable Flores-Gallo, 822-24 Cir. provocative,” § tremely 39—13— offensive or 2010) (concluding aggravated- that Kansas’s 101(a)(3) (1991), aggravated assault under statute, battery requires (1991) which defen- 39-13-102(a)(l)(A) require § does not harm, intentionally bodily as dant cause has any degree of contact or use of force. Com physical Mansur, the threatened use of an element

pare United States part (6th Cir.2010) force in because the Kansas common law opin (unpublished 463-64 physi- "bodily "with ion) defines harm” contact robbery, (concluding that Ohio statute “ force, aggra- cal in an intentional hostile and attempting person '[n]o which states (internal quotation marks vated manner” committing a ... shall use or theft offense Thus, omitted)). question whether the against immediate use of force threaten the ” person requirement another,’ statute’s Tennessee felony” under the was a "violent bodily § injury,” 39—13— serious "cause[] (quoting Ohio Rev.Code "use of force” clause 102(a)(1)(A)(1991), necessarily denied, —, as an ele- 2911.02)), has § cert. —U.S. Ann. force,” physical “use (2010). ment 176 L.Ed.2d 1262 924(e)(2)(B)(i). But see United States v. Rather, commits assault un one Vinton, 39-13-102(a)(l)(A) 485-86 causing der serious (concluding second-degree-as- that Missouri’s slight” injury, the de bodily "no matter how statute, "requires showing Johnson, sault which 130 S.Ct. at fendant’s use force. cause, attempted to or know- (internal omitted). the defendant quotation Al marks 1270 caused, injury per- ingly physical to another might expect who though that someone we son,” attempted as an element the use or has bodily injury to did so another causes serious force). force, physical use strong physical does a the statute with Baggett, require 836 it. not State Cf. 593, recognized panel explicitly 7. that (Tenn.Crim.App.1992) The Benton S.W.2d 595-96 "aggravated as- aggra the crime of (affirming whether distinct defendant’s conviction for felonyf ... does placed ]' a 'violent the sault constitutes when the defendant vated assault automatically con- mean that solicitation road not victim in the middle unconscious Rather, over, the same.” 639 F.3d 731. causing seri stitutes passing ran him and a car holding crime that solicitation injury). also does not Benton's bodily Tennessee ous Turner, law, United States v. 602 F.3d we concluded that con prevailing a (internal (6th Cir.2010) marks quotation aggravated viction for reckless assault Prods., BDT Inc. v. Lex omitted); accord a felony” Tennessee is under Int’l, Inc., Matthews, mark 602 F.3d “otherwise clause.”8 Cir.2010) (“One panel (“Reckless of the Sixth Circuit aggravated at 563 assault cer by previously dicta pub bound tainly ‘presents’ injury a serious risk of (alterations omitted) panel opinion.” victim.”). lished Begay, to its In 553 U.S. (internal omitted)); PDV quotation marks 1581, however, the Supreme Refining, L.L.C. v. Armada Midwest Oil held that the “otherwise” clause of Court (6th Cir.2002) Co., & Gas definition, felony” the “violent 18 U.S.C. (“ ‘Strictly speaking an obiter dictum is 924(e)(2)(B)(ii), only § includes those expressed opinion remark made or crimes similar enumerated cause, upon judge, his decision arson, extortion, burglary, and crimes — is, incidentally collaterally, way involving explosives —that crimes than —“rather directly upon question and not before evei"y ‘presents po crime serious Black’s Law the court ....”’ (quoting of physical injury tential risk to anoth ” (7th ed.1999) (alteration Dictionary Begay, er.’ 553 U.S. at 128 S.Ct. denied, in original))), cert. Thus, to qualify 1581. as a “violent felo (2003). 901, 154 L.Ed.2d 784 ny” clause, under the “otherwise” violent, crime must “involve purposeful, We conclude the Tennessee 144-45, Id. aggressive conduct.”9 aggravated is not a “violent felo- (internal ny” quotation under the “use of S.Ct. 1581 marks physical force” Baker, omitted); accord United clause of the ACCA. (6th Cir.2009) (vacating b. “Otherwise” Clause remanding sentence and to the district court for on resentencing the issue of next consider whether We reck lessly prior causing bodily defendant’s Tennessee injury serious to an other, 13—102(a)(1)(A)(1991), conviction endangerment reckless “other 39— presents qualifies light wise involves as a “crime of conduct violence” Benton, Begay); potential injury serious of physical risk 639 F.3d at 732 cf. 924(e)(2)(B)(ii). (concluding another.” 18 U.S.C. Tennessee crime of years ago, A number of applying then- solicitation to commit aggravated assault (2011), does not constitute a Supreme "violent under L.Ed.2d physical the "use of force” clause rested degree Begay’s Court retreated to some from plain reading statutory "a violent, definition of "purposeful, aggressive" stan- solicitation to commit assault.” Nevertheless, dard. the Court indicated that Id. Begay applicable standard remains when felony liability, negligence, ais strict Stanback, 2276; Id. recklessness crime. see id. also (unpublished deci- J., (Thomas, concurring judg- at 2277 in the sion), we also concluded that convic- ment) ("[T]he majority by implying errs tion under Tennessee's violent, ‘purposeful, aggressive’ test "clearly statute constitutes a 'crime of vio- ” apply to still offenses 'akin to strict liabil- Sentencing lence' under the Guidelines but ity, ”); negligence, and recklessness crimes.' explain did not which clause based (Scalia, J., ("[T]he dissenting) id. at 2285 that conclusion. suggests ap- Begay [that Court now the test] plies Sykes only 9. liability, negligence, In its recent 'to strict decision v. United States, —, ”). —U.S. 2275- recklessness crimes.' a range jury where was be- narrow of cases the ACCA felony” a is “violent actually to find all the elements of required purposeful “involves solicitation cause at conduct, crime].” that the U.S. qualifying [a as an element requiring Therefore, Court held that act ‘with the intent S.Ct. 2143. perpetrator (quoting predi committed’” a can constitute a prior be conviction criminal offense 39-12-102)). Accord- charging paper if cate conviction “the Ann. Tenn.Code Begay, actually required jury after reckless ingly, jury instructions as a “violent longer qualifies no qualifying [a to find all the elements of “otherwise” clause under the in order to convict the defendant.” crime] 924(e)(2)(B)®. Shepard, Id. In addressed the Court question apply to this modified- of how causing recklessly serious bodi Because approach when the categorical defendant’s not as a injury qualify to another does ly a prior guilty conviction was the result of the “use of felony” under either “violent case, plea. In a the documents pleaded clause, clause or the “otherwise” force” ... ‘nec must demonstrate “the statute, aggravated-assault Tennessee’s essarily’ identifying rested on the fact (1991), categorically is not a § 39-13-102 qualifying Shepard, a [crime offense].” as felony.” United “violent Cf. (quoting 125 S.Ct. 1254 U.S. McFalls, 2143). Taylor, 495 U.S. S.Ct. (concluding that a South Carolina statute question have held that “the is Thus we a of violence” categorically is “not the court documents establish only not intentional “applies it to because ‘necessarily admitted’ defendant conduct”). conduct, but also to reckless predicate of a elements offense Documents Under through plea.” v. Medi Modified-Categorical Approach na-Almaguer, 559 F.3d Cir. 2009) 16, 125 (quoting Shepard, 544 U.S. at determining After statute 1254). a “violent categorically constitute does not indictment, felony,” “may we consider the emphasize inquiry that our We to deter or similar documents guilty plea, to “facts defendant ‘neces limited [the] they necessarily establish mine whether guilty plea.” sarily entering admitted’ Gibbs, the prior the nature of conviction.” words, may rely we Id. at 424. In other reviewing the rec 626 F.3d at 352. After in the fact only on facts “inherent ord, however, we conclude that the docu prior the defen conviction admitted McMurray’s state con supporting ments Alston, dant.” do not establish that viction Cir.2010). hei’e, When, as necessarily guilty a section of pleaded categorical the statute of conviction is that consti statute ly felony,” may examine a “violent felony.” tutes “violent underlying documents whether the estab pleaded guilty to Taylor, setting forth the lish that the defendant when qualify charge that would evaluating wheth narrowed categorical approach felony.” Shepard, See qualifies conviction er defendant’s (“The (plurality) en state for sentence as a conviction hancement, requires finding qualifying [a no recog statute Supreme Court also crime], charging without a document ... categorical approach nized that “[t]his [qualifying] sentencing go that narrows the court permit limits, certainty only [qualifying] in a beyond fact of conviction the mere 39-13-102(e)(l) (2010) jury instructions, finding § lies in or bench- Ann. Tenn.Code (in findings rulings, trial and or a pleaded (providing aggravated reckless as- case) 39-13-102(a)(2) in the sault, (2010), § defendant’s own admissions is a Class findings confirming of fact accepted however, D felony). McMurray, entered for a plea.”); factual basis valid judg- and the state court entered (2d Savage, (Plea 29,1993, ment on April R. 181-1 Pet. Cir.2008) (“The Shepard Court identified 2); at R. 185-1 (Judgment), and under here, proof, two relevant types of aggravated-assault Tennessee’s statute might a plea suffice to establish that ‘nec- time, effect at that all aggravated-assault essarily’ predi- on rested the elements convictions under 39-13-102 were Class (i) proof cate offense: that the defendant C felonies. 39-13- Tenn.Code Ann. to conduct con- admitted when 102(b) (1991) (“Aggravated firming plea; factual basis for valid felony.”). Therefore, Class C fact (ii) proof charge that the was narrowed to McMurray pleaded guilty to a C Class only predicate (quoting include conduct.” felony does not establish whether he 21-22, Shepard, 544 U.S. at 125 S.Ct. pleaded guilty, intentional, knowing, or 1254)). aggravated reckless assault. We conclude that the available docu- government The also asks us to consider ments do not that McMurray demonstrate proffer state’s the factual basis for pleaded guilty charge, to a narrowed the plea during colloquy to con McMurray admitted to facts that es- intentionally clude that acted tablish that necessarily pleaded guilty he or knowingly ag when he committed the to a aggravated- section of Tennessee’s (Plea gravated assault. See R.181-3 Collo assault statute that constitutes a “violent 5-6) quy (government’s proffer). factual felony.” The record does not include the plea colloquy The is a document that we documents, charging and the documents can Shepard. consider under 544 U.S. at provided plea petition, plea colloquy, —the 16, 125 (stating S.Ct. 1254 that the district judgment and expressly not indicate —do generally court “is examining limited to to which section of statutory definition, charging docu McMurray pleaded. statute particular, ment, plea agreement, transcript written during colloquy, parties of plea colloquy, any explicit factual judge the trial charge referred to the finding by the trial judge to which the simply “aggravated assault.” R.181-3 . assented”) However, defendant McMur (Plea 1-2, 6-7). Colloquy The trial ray entered best-interest plea under judge McMurray, you asked entering “Are Alford, North Carolina v. a best interest guilty that one (1970), 27 L.Ed.2d 162 which assault,” aggravated to which Tennessee allows when “a defendant ... McMurray responded, “Yes, sir.” Id. wishes to enter a plea but does not wish government argues plea peti- that the State, acknowledge guilt.” Yant No. tion judgment, which state that M2007-01936-CCA-R3-PC, 2008 WL McMurray pleaded guilty category to the at *7 (Tenn.Crim.App. Dec. assault that ais Class C 2008) decision) (unpublished (citing Alford, (Plea felony, 1-2); R. 181-1 Pet. at R. 185— 160; State, Hicks v. 1 (Judgment), he pleaded establish that 983 S.W.2d 240 (Tenn.Crim.App.1998)). guilty knowing or intentional aggravat- ed assault. Under the current version of We have not considered whether statute, Tennessee prosecutor’s proffer this be true. of the factual basis for rejecting Id. at the hearing.” Al- 633. enters an when the defendant plea, a that the de- the Ikharo court relied plea, argument, “establishes] alien’s ford-type ele- ‘necessarily admitted’ the in which court fendant on a Ninth Circuit case of the statute that section [a ments of a a analyzing whether crime was was his felony”] through a “violent constitutes Sentencing “crime of violence” under the Medina-Almaguer, 559 F.3d at plea.” key question and “held that the Guidelines (quoting Shepard, a Guidelines was ‘whether de under the 1254); Sawyers, 223 see United a a has conviction for fendant (un- 477 n. violence, has not whether defendant ” decision) (noting the issue but published guilty of a being admitted to such crime.’ it was aban- opinion no because expressing v. Guerrero- (quoting Id. on other appeal), abrogated doned Velasquez, Cir. by Begay, 553 U.S. grounds 2006)). however, Circuit, has Ninth Cir- Shepard, Fourth Applying 1581. plea a transcript since held prosecutor’s proffer “the has held that cuit hearing plea for West California —“the plea the factual basis for an Alford equivalent plea,” of an Doe v. Alford to sentencing court later be used not F.3d n. 2 Woodford, 508 an resulting conviction as identify the Cir.2007) not establish the factual —does Alston, predicate.” ACCA enhancement un predicate for sentence Columbia Circuit and 227. The District of to admitted the facts. less defendant contexts, Circuit, in similar have Second 1072, 1089 Vidal, 504 F.3d United States v. proffer of prosecutor’s that the concluded (9th Cir.2007) (en banc) (“By entering a Alford-type underlying an the factual basis plea a does not admit the West defendant that the defen- does not demonstrate plea specific about his conduct on the details necessarily rested on those plea dant’s guilty. pled which he As re counts to assented if the defendant has not facts sult, proceed the record of unless proffer. prosecutor’s factual that the defendant admitted ing reflects Ventura, F.3d 878-79 more, facts, plea, not without does West (D.C.Cir.2009); Savage, F.3d at 966- predicate to requisite factual establish 67. (altera a sentence enhancement.” support recently We “declined differentiate omitted) omitted) (citations (internal tions straightfor- an and a between Alford omitted)). Although quotation marks reviewing an immi- guilty plea” ward when agree Alford-type plea that an with Ikharo (“IJ”) that an alien gration judge’s decision of a not undermine the fact defen does particularly of “a seri- had been convicted conviction, persuaded we are dant’s Immigration and Na- ous crime” under Fourth, Second, reasoning (b)(3)(B)(ii), Act, § tionality 8 U.S.C. Ninth, Columbia Circuits and District of 1231(b)(3)(B)(ii). Holder, Ikharo may impact an our Alford-type plea (6th Cir.2010). The alien 633-34 analysis of whether a defendant necessari “the argued impermissibly IJ relied ly the elements of admitted on facts contained the indictment his thus de- during through plea.10 offense We agreement as well as 'necessarily pred- Although categories Shepard the elements of all admitted’ through plea.” Medina-Al- icate offense can be considered when evaluat- documents any maguer, at 423. This is true in ing Alford-type guilty plea, every not case, involving Alford-type just those Shepard, that can be con- available document particularities of the pleas, the defendant "establish sidered will structions, dine to extend Ikharo to the context of the bench-trial’s formal rul- ACCA. Id.; ings findings of law and of fact. Shepard, 544 U.S. at 125 S.Ct. 1254.

Declining to consider the unadmitted contrast, case, In pleaded in a the defen- by proffered sup factual basis the state to judge dant —not the trial Alford-type plea an relevant port to establish the —is is, moreover, nature conviction of decisionmaker. When pleading guilty, the in line with other earlier decisions of this waiving right defendant is his to trial and interpreting Shepard. court We have not consenting to the of imposition punish- that Shepard ed does not limit “the dis Alford, 37-38, ment. tinct, of inquiry” “establish[ing] antecedent 160. We must determine what the defen- the prior convictions and the fact actually dant was required to admit when resulting imposed”; rather, sentences thus, pleading guilty; we look to “a tran- Shepard may limits what be used “to es script plea colloquy ... plea written tablish the nature the convictions or the agreement presented court, to the ... specific offense conduct.” findings record comparable of fact Jimenez, (6th Cir.2010). adopted by upon entering the defendant We have also rely declined a tran plea.” Shepard, 544 U.S. at script a preliminary from examination added). S.Ct. 1254 (emphasis The state a prior determine the nature of conviction trial court was not required to determine because the defendant “did not admit [to] the truth of the proffered state’s facts during conduct the examination.” relating how was the crime be- committed Medina-Almaguer, 559 F.3d at 423. We accepting McMurray’s fore best-interest Shepard “requires judi concluded plea guilty. The factual-basis require- cial record that identifies the facts a defen ment in Federal Rule of Criminal Proce- dant ‘necessarily admitted’ in entering a equivalent dure 11 and the state criminal- guilty plea.” Id. at 424. procedure rules, Tennessee, including Nor does finding the state trial court’s designed to help the trial judge evaluate aof factual for the charge basis establish voluntariness the defendant’s plea. the defendant necessarily admitted States, McCarthy See v. United 394 U.S. proffered by prosecutor. facts 459, 465, L.Ed.2d 418 context, a trial we must determine that the (1969); Tunning, United States v. jury or trial judge decisionmaker — —-was Cir.1995); Yant, 2008 WL “actually required ... to find all the ele- “Thus, at *8. although a ments of court qualifying [a crime] order to presented with convict the an Taylor, defendant.” must make 495 U.S. Alford inquiry S.Ct. 2143. Thus a careful into we look to the factual basis for documents like charging papers, jury in- it, accepting before the distin- every pleaded documents will be different in guilty case. to the elements of Where we differ from the dissent is in its proffered assault but not by the factual basis to, belief that "an admission" or "Al- prosecution. plea agreement, Alford of, acceptance” Shepard in the facts doc-

ford colloquy, Shepard or other documents uments establishes that the defendant "neces- demonstrate that a defendant otherwise did sarily" admitted those facts. Dissent at underlying admit to the factual basis below, explained As a defendant who enters plea, but the documents available Alford-type guilty plea "necessarily” an has McMurray’s case do not establish that he admitted the elements of the but necessarily underlying admitted the facts Thus, underlying not the factual basis. during plea process. entering plea, best interest only pleas”). is that We must consider guishing feature of Alford necessarily the defen- that factu- facts admitted does not confirm the defendant (altera- if Alston, pleading are guilty dant even 611 F.3d at al basis.” omitted) (citation (internal omitted) feign agnosticism clearly “to about forced tion omitted). words, at 34- Shepard, In other knowable facts.” marks quotation (O’Connor, J., necessarily 125 S.Ct. dissent- is not convicted the defendant Moreover, similarly ing). ex- the district Shepard permitting facts. of those rely trial court to on facts transcript jury proffer the of a the state’s plained that conviction, underlying underlying facts the when the facts report may reveal police are in the they but do not not inherent crime conviction defendant’s conviction defendant, implicates was or admitted to the defendant convicted establish the. Shepard the plurality’s U.S. at Sixth Amendment of those facts. 544 24-26, at resulting from an concerns. Id. 125 S.Ct. 1254 1254. For conviction Alston, guilty the defendant has 611 F.3d at 225-26. Alford-type plea, (plurality); “necessarily” the elements admitted to Finally, plea the fact that a is an necessarily underly- the charge the but not Alford-type plea not re prevent does Alston, 611 F.3d ing factual basis. See at, sulting from serving conviction ever as 226-27; 966-67; Savage, Tun- 542 F.3d at predicate conviction sentence enhance at that “a defen- ning, (stating ment. Alford-type Convictions based on ... to pleads guilty who admits acts dant can pleas be under convictions crime,” constituting the whereas “a defen- qualifying ACCA if the crime inher is guilty an pleads [under dant who Alford- i.e., in the ent fact of the conviction— 1) affirmatively protests either type plea] if categorically the statute of conviction is 2)or to admit to acts his innocence refuses felony” Shepard a “violent or the docu crime”). constituting certainty ments demonstrate with that the every pleaded guilty no defendant to a narrowed

It makes difference plea qualify as relat that would as a McMurray’s charge one understood “violent Vinton, felony.” at ing alleged by to the facts state United States Cf. Cir.2011) Savage, (concluding at 967. plea hearing. See rejected argu “precisely charging that a drawn docu Shepard The Court ment, necessarily which narrowed the to a ment that a defendant’s as” “crime of vio particular qualifies on facts because those rested 4B1.2(a), are in the un lence” under “is one of the only facts ones record judicial conclusive records that can estab derlying charges defendant disputed Shep them. lish the basis for a defendant’s conviction explicitly never See statute,” ard, 19, 21-22, 1254; at under an even if the. overinclusive (stat (internal Medina-Almaguer, 559 F.3d defendant enters an Alford omitted)). quotation Additionally, explaining Shepard, marks ing, “[w]hat Shepard it likely any how was that facts reflected in the docu mattered was not did pleaded guilty burglarizing ments which the defendant admit in Shepard had (or buildings unlikely Alford-type it the course of can be how was he See, ‘ship[s], e.g., v. Es pleaded guilty burglarizing had considered. (2d vehicle[s]’), calera, 571, 573 but whether the Cir. vessel[s] or 2010) decision) (unpublished (affirming government produce could evidence show the of Shepard ‘necessarily admitted’ to district court’s “determination that ing that defi- breaking buildings entered fell within narrowed federal into when he fense the. defendant, burglary” nition of because the statute effect at the time of “ although entering plea, ‘con- McMurray’s categorical- conviction not Alford ” plea’ firmed’ the ‘factual basis for the ly felony” a “violent and that we cannot responded “yes” to district when he determine from the available question allega- court’s the factual McMurray’s documents the nature proffered prosecution tions were conviction. Accordingly, McMurray’s (quoting Shepard, accurate conviction does 1254)); Smith, qualify (relying judgment ACCA. We VACATE the express defense counsel’s admission of the district court and REMAND for hearing that the defendant entered a resentencing with opinion. consistent this home to conclude that the defendant’s con- by viction nolo contendere encom- McKEAGUE,

passed generic burglary), Judge, Circuit dissenting. elements denied, cert 546 U.S. 126 S.Ct. majority plainly The asserts that a con- (2005). Nevertheless, 163 L.Ed.2d 230 viction under aggravated Tennessee’s as- Court in contemplated that some sault categorically statute is not a violent convictions, here, may as not serve as However, felony. binding, because and in- for predicate crimes sentence enhance- recent, published deed from authority this happenstance ment because of “the otherwise, explicitly Circuit has held I record-keeping practices state court must I vagaries prosecutors’ of state dissent. further note that charging even if practices.” U.S. at 125 S.Ct. 1254 majority correctly were free to pro- (internal omitted). quotation marks analysis ceed to modified-categorical un- Shepard, der recognize it fails to that all of

Accordingly, we that conclude the state’s proffer approved by Shepard of the sources for McMurray’s factual basis con- best-interest does not demonstrate in guilty sideration plea case can be used McMurray’s plea necessarily rested evaluation of an same .the Alford identifying aggravated-assault on facts a guilty plea. extent as felony.” conviction as a “violent There is no indication in the transcript I. McMurray government’s admitted to the proffer of the supporting charge facts First, majority plainly ignores bind when plea. he entered a best-interest See ing precedent from within our Circuit. (Plea Colloquy). R.181-3 Nor do the doc- Matthews, United States v. pleaded uments demonstrate he to a (6th Cir.2002), denied, 535 U.S. cert. more narrowed “aggravated than L.Ed.2d 1038 assault.” Because the do documents (2002), clearly aggravated held that assault establish necessarily in Tennessee felony constitutes violent pleaded guilty to a section the Tennes- (“Reckless the. ACCA. see qualifying statute ‘presents’ a certainly serious risk of felony,” McMurray’s convic- victim.”). injury majority The its here qualify tion does not as a convic- reasons, however, precedent that this is no tion under the ACCA. longer light Begay valid v. United III. CONCLUSION States, (2008). above, For the L.Ed.2d 490 Had explained reasons Matthews been conclude that the aggravated- subject Tennessee last decision from this Circuit, precisely it re- majority physical injury,” been cor- because might have underly- upon lied the conclusion that the precedent, because to reconsider rect ing no would be a “violent fel- published opinion conduct itself instances some ony.” determined subsequent “incon- Benton that because binding when longer requires Su- solicitation intent that under- decision of United States sistent occur, “it lying force or threat of requires ... modification force preme Court ag- criteria of ‘violent and Kelsey-Hayes also meets the the decision.” Golden ” (inter- Co., conduct.’ gressive Id. omitted). citation nal today directly majority’s decision contrary to However, directly with Benton. That is Begay did not over- conflicts Matthews,1 time, principle most fundamental of stare and since that this our rule long court has again determined that Tennes- decisis: “This adhered Court has prior pub that a categor- principle’ remains a the ‘venerable aggravated assault see controlling felony. lished decision remains unless ically violent Benton, Cir.2011), is a overturned decision of inconsistent De- the United States Supreme from this Court published decision Circuit. court itself explicitly sitting it states that this en banc.” Brown v. Begay, cided after (6th States, aggravated United 462 F.3d 620 Cir. [in “[t]he 2006) (Graham, J., dissenting) (citing ... as a ‘violent felo- Scho qualifies Tennessee] Russell, (6th enberger Id. at 730. v. ny’ purposes.” for ACCA 841 Cir.2002); Smith, v. this majority concludes state- (6th Cir.1996)); necessary 6 Cir. R. merely ment was “dicta”—“not 206(c) (“Reported panel opinions binding Majority of the case. are to the outcome” panels.... con disagree. subsequent I Court en banc respectfully 375. Benton’s aggravat- required pub is to pronouncement that Tennessee sideration overrule court.”); felony opinion of is an was lished the see also ed assault Hunt, necessary to the Court’s ultimate conclu- United States (“Unless and until over height- that solicitation “create[s] sion by by oc- turned the Sixth Circuit en banc or potential serious risk the ened and Benton, Court, [published the decisions physical injury.” Supreme currence of and must binding Circuit] did not to from this are be at 732. The Court have F.3d followed.”); States, to wheth- Solomon v. United engage separate inquiry in a as Cir.2006) (Griffin, n. 1 er solicited conduct was serious (“[B]ecause J., enough dissenting) solicitation itself [a case] to make the published in potential subsequent risk of has been followed “present! serious ] fact, qualify opinion generally Supreme "dividefs] Court’s recent crimes that from 1. Sykes Begay not”; it less clear in makes assess- those do and that such an require today's Sykes all. result at would "purposeful, ment will sometimes render target to reiterated that the ACCAis intended violent, aggressive inquiry” and “redundant.” an increased likelihood crimes that "show Ultimately, Sykes "[a]s Id. stated that between person who is the kind of that the offender inquiries, provide cate- the two levels risk gun pull might deliberately point manageable gorical and standard that suffices trigger.” Sykes, (quoting at 2275 to the case Id. at 2275- resolve before us.” 1581). Begay, majority opinion It is from in unclear Sykes phrase ‘purposeful, "[t]he stated that Sykes "purposeful” whether conduct must be violent, aggressive' precise no textual has qualify clause”; clause in order to residual the “risk” link to the residual felony.” text what as “violent assessment ACCA is Cir.2001). court intervening of our and until Benton is [after decisions Unless ... Supreme by Court I consider the whole precedent] Court and overruled — just until such time it—it precedentially binding it two members of remains con- byor by Supreme trolling. it is overruled Court banc.”). en

this court II. Put follow simply, we are “bound to [a Moreover, majority precedent’s] Circuit mandate unless and even the were free if contrary analy- rule developed proceed modified-categorical until this to a sis, Supreme analysis comport court en banc or Court.” its does not with that, I Merkosky, Fed.Appx. Shepard. agree majority with the Cir.2005) case, (noting particular n. application dis this of the with agreement binding precedent modified-categorical but ac approach would fail knowledging duty McMurray “necessarily” it to follow nonethe establish that less); Schoenberger, pleaded guilty felony; to a violent howev- J., (Moore, er, concurring) (acknowledging I with disagree majority’s analysis controls, questionable precedent majority agrees but of the issue. The that the stating that may the Court wish to recon itself statute or narrowed indictment can banc). it very evaluating sider en While Benton be plea. considered an Alford light agree well be incorrect It Begay purports further other express opinion Leocal—and I on that Shepard agreements, no documents — possibility plea colloquies, is the law this Circuit. and factual bases at the —it panel considered, of this plea hearing Court cannot overturn be “[0]ne but then —can panel; only a decision another an important the Court creates limitation: these can sitting may en banc Schoenberger, only upon, do so.” the majority be relied con- J., (Keith, cludes, at 841 concurring); actually 290 F.3d if the defendant admits Auto., Geiger v. Tower guilt 579 F.3d 622 constituting to the facts a violent (6th Cir.2009) (Gibbons, J., authoring) felony. I all would instead hold that of the (“[W]e authority are without to overrule categories of documents approved published prior decisions of our evaluating guilty court ab pleas can be an sent inconsistent upon decision the Su relied the same extent —when the —to reversal.”); preme Court or an en banc an plea. defendant instead enters Alford (6th Perry, Bonner v. 564 F.3d 431 It clearly is established that several Cir.2009) J., (“Bonner (Moore, authoring) types of documents can demonstrate that argues that Kentucky [v. Collard Board of an underlying guilty-plea conviction is a “ Nursing, 896 F.2d 179 ] definition, felony: statutory violent ‘the However, should be overruled. Bonner document, charging written plea agree- any intervening Supreme does not cite ment, transcript plea colloquy, any decision Court that would allow to re us explicit finding by factual judge the trial to ” issue, consider the nor sitting are we en which the defendant assented.’ United Therefore, banc. do pow we not have the Wells, (6th v. States 473 F.3d ...”). er Cir.2007) (quoting Shepard, 544 U.S. at 1254). I also note that “when a later majority decision of 125 S.Ct. The recognizes this court conflicts with one of our that an conviction does serve as Alford decisions, published predicate still are bound offense the when conviction was holding the earlier categorically felony, case.” Darrah v. a violent and when the (6th Park, City Oak charging charge document narrows to convic- underlying not on a statutory rely particular section basis or a factual either pursuant to an tion it was entered Majority at 381— because felony. a violent that is However, Court reiterat- plea. this also, Savage, v. 82; e.g., United States see Alford (2nd Cir.2008); guilty is a Alford-type plea ed that “[a]n United 542 F.3d Cruz-Serrano, respects,” Fed.Appx. guilty plea in all material v. Cir.2005) rely upon (citing permissible held that it is 28-29 (9th Cir.2004)) Smith, plea contained in indictment and “facts categorical hear- agreement during plea that in modified as well as (holding added). en (emphasis “the fact that Cruz-Serrano The analysis, ing.” Id. no plea conse a nolo contendere to ex- majority tered states it “decline[s] Ikharo, conviction assessing 379-80, whether the quence majority but tend” no offense”); be counted rejected is needed. Ikharo extension Ortkiese, indictment, argument plea that facts Cir.2006) (holding nolo agreement, hearing could not plea be preclude did not sen plea contendere plea is- due to considered —the Alford charging relying from tencing court not Ikharo should be ex- sue is conviction was a to establish the document tended, simply but that it be should fol- Vinton, felony”); lowed. charg (concluding “precisely drawn by entering majority states that document, narrowed the which ing McMurray pleaded plea, best interest as” “crime of qualified to a crime as- guilty to elements of predicate offense can establish violence” proffered by sault but the factual basis entered); United States when Alford n. Majority at 379-80 prosecution. (3d Mackins, Cir. First, a This is inaccurate. defendant 2000). pleading guilty attempt could the same Unfortunately, majority then de- argument guilt he admitted simply —that approved list of doc- parts Shepard’s from crime, elements of the but not recognizes Shepard ap- uments. It contained additional facts upon agreements, proved reliance colloquy, agreement, in the discussed at colloquies, and factual bases the plea accepted or the factual basis for the as immediately plea colloquy, but then states Shepard convictions. But demonstrates “persuaded” by it is other circuit deci- an fails: an individual argument that such proffer refused to allow the sions have pleads guilty pleading guilty to an offense to plea of factual basis for an be the Alford responsible can held for—the to—and be resulting identify conviction as used statutory in the offense and facts elements predicate. Majority at 379-80. an ACCA they in additional documents when these is, however, contrary to this. Court’s This necessarily nature demonstrate violent Holder, holding in Ikharo v. 614 F.3d 622 for of act. The same is true an Alford (6th Cir.2010). Second, an entering plea. defendant immigra- plea guilt does not admit at all—to of an

Ikharo involved review Alford of offense— had the facts or the elements that an alien been judge’s tion decision responsible be held for but he can likewise particularly of “a serious crime.” convicted could both.2 argued that the court The defendant entering plea only to majority's bother an Additionally,

2. concession re- will Alford Analyz- actually guilt plea colloquies admit facts. garding and factual bases is then differently plea colloquy de- any— ing an identical illusory; very quite few defendants —if 386 Therefore, approved

I all explicitly ap believe that of the sources the documents Shepard guilty in a by consideration proved by Shepard equally appropriate are be in plea case can used the same manner in Alford-plea setting consider an —this in of in plea, appro evaluation an analysis only Alford includes same of not Shepard held priate circumstances. statutory charging definition and docu a court such documents enable to make the (as majority ment acknowledges), but determinations, necessary thus this analysis also the same the “statement any information “would do sort of case.” by factual basis for the ... shown 20-21, Shepard, 544 at U.S. 125 S.Ct. 1254. transcript plea colloquy by written plea of guilty difference between plea agreement court,” presented to an plea is of “no constitutional Alford by comparable findings a “record of of fact significance.” Alford, 400 U.S. adopted upon entering the defendant 160. We are bound this Court’s plea.” Shepard, 544 determination that a “plea nolo conten supported by This result is legal dere ‘has a similar effect pleading as ample case multiple ” law from circuits. See Arnold, v. guilty.’ United States 964; Cruz-Serrano, Savage, Cir.1995) (6th n. (citing (9th Cir.2005) Fed.Appx. (citing Dictionary Black’s Law Smith, United States v. ed.1990)). categorical An to a Alford (9th Cir.2004)) (holding a modified ly felony violent supports ACCA enhance categorical analysis, “the fact that Cruz- exactly ment in way a guilty same Serrano nolo entered a contendere so; plea would principled do there is no consequence of no in assessing whether say reason to that the same is not true for the conviction may predi be counted as a analysis of the facts the underlying offense”); Mackins, cate documents.3 218 F.3d at 268 (“[W]e is, conclude that an Alford Because the ACCA “refers to doubt, adjudication without of guilt and prior offenses in terms not of conduct but is no any different than other guilty plea ‘convictions’and £element[s]’ for purposes of 4A1.1 [of Guide crimes,” Shepard, 544 U.S. at lines].”); Salean, United States “analyzfe] we must [a defen Cir.2009); 1061 n. 3 dant] of particularly ha[s] been convicted crime, Delgado-Lucio, serious whether he admit ha[s] (10th Cir.2006) (“[A]n Ikharo, guilt.” ted his F.3d at 633-34 Alford (emphasis original). guilty plea is a properly considered basis?,” pending plea guilty on whether the is a or an support answer of "Yes” will clearly prece- one violates established majority’s ACCA Alford enhancement under the Alford, dent. See at 400 U.S. 91 S.Ct. 160 analysis. judge But if the the same —in (noting the difference between the two is of says, government alleges case—instead “The significance.”). "no constitutional you that a brandished firearm and it waived police you at acknowledge officers. Do this Indeed, distinction, majority's prac- the in basis?,” factual it cannot be a used. This is terms, tical will that mean ACCA enhance- distinction, especially nonsensical the since ment in will cases now turn on the Alford question support second can still en- ACCA happen-stance by choice of words used the guilty plea Shepard, hancement in a See case. judge plea colloquy and defendant in the or at (determining provision judge of factual If basis. the asks defendant, that "the own defendant's admissions or ac- government alleges the "The that cepted findings you provide type brandished a the of firearm waived it at of fact" police enhancement). you certainty officers. Do admit to this factual sufficient for ACCA (4) plea felony; colloquy the the purposes of violent conviction a criminal to Guidelines.”); an admission facts consti- reveals Abimbola Sentencing the Alford (5) (2d Cir.2004) felony; a violent or the sentenc- tuting Ashcroft, 378 F.3d ing requires the defendant to con- guilty a court plea is (noting that “an Alford through acceptance an question the relevant plea,” and that firm — Alford —a conviction, constituting felony. a violent “as factual basis op a there was recognize to majority The fails latter guilt”) (emphasis to an admission posed list, Ikharo, require- adding in this instead F.3d at 633-84 three see original); explicitly facts be admitted. predicate in ment that the offense (using plea Alford context); see also United immigration consequences to second- There are 895 F.2d 1415 Cir. Wesley, determina- guessing Supreme Court’s 1990) (holding plea was suffi that Alford be tion that these documents should con- violence,” finding cient for of “crime any pleading sidered: defendant to crime denials of the despite explicit defendant’s categorically felony is not violent sentencing). “violent” conduct at can enhancement if the indict- avoid ACCA offense, case, simply ment does not narrow the a modified-cate- particular this if by entering plea an analysis that the state gorical would reveal Alford —even conduct, plea agreement predicate states McMurray has failed establish acknowledges violent or the defendant himself “necessarily” guilty pleaded presented the court that the factual basis felony is because none —but by predicate the state would demonstrate pres- circumstances are Shepard-approved conduct at trial. The indictment is not ent in this case. plea agree- The in the record. contained plea guilty plea an and a Because Alford demonstrating not contain facts ment does same, are as legally requiring Alford And while factual basis felony. a violent requisite writing sent to facts—either plea colloquy, the sentenc-

was read agreement, or verbal plea acknowl the defendant to ing judge never asked edgment hearing —means oth- accept by confirm Alford — “necessarily” predicate conviction involved court erwise—that factual basis. extent as it would in a conduct to the same read, had factual basis merely guilty plea Shepard, case. asked, you entering “Are best then later that “written (holding guilty on that one interest fact, agreements,” “accepted” findings of McMur- assault?” to which “confirming or statements factual basis Therefore, “Yes, ray replied sir.” suffice). plea” will The Ninth for a valid failed to establish that state majority, case Circuit cited to a violent “necessarily” pleaded guilty Vidal, 504 F.3d 1072 Cir. felony required not the result that is —but 2007), It agrees with this conclusion. case. every similar categories states that all five documents considered, It Instead, can see id. at 1086. guilty plea can serve be Alford (1) explains agree statu- further a West as a offense where: provide determining a basis for the con- ment can tory demonstrates that definition (2) underlying of the felony; qualifying nature categorically viction is a violent conviction, at but that that see id. narrows the charging document case, no facts statutory particular qualifying were a basis or sec- to either factual (3) section of the plea contained in the “facts” felony; is a tion that violent if that agreement. Id. Vidal indicates demonstrating contains facts agreement a possessed court “memorialization these documents equally should be relied that “in plea bargain,” upon any Shepard, terms document sort of case.” 20-21, 125 at determining could have been considered 1254. conviction was for generic Id. That decision also theft. states III. plea a a collo- where defendant admits Because Benton Matthews and are bind- quy the context of nolo contendere —in ing controlling, object and I am bound to entering dwelling, plea the offense —to majority’s contrary to the holding that generic burglary. (citing constitutes Id. McMurray’s aggravated assault conviction Smith, v. United States categorically felony. is not I violent also (9th Cir.2004)). Similarly, Smith held hold if modified-categorieal would case, in a nolo contendere “the district analysis reached, a defendant’s Alford may rely undisputed court on the factual prohibit does not from looking court plea hearing sup- basis stated definition, statutory to the docu- charging Smith, port the ACCA enhancement.” ment, plea agreement, plea colloquy, or 665-66; (“The legal see id. effect findings determining factual whether a nolo [aof contendere ... shall ] be qualifies as a “violent same of plea guilty as that for all Therefore, the ACCA. I dissent. 1016).

purposes.”) (citing Code Cal.Penal The Second Circuit has also explicitly

agreed approach. with this In United Palmer, (2nd 68 F.3d 52 Cir.

1995), the defendant had entered a nolo

contendere in his underlying convic

tion, and the information document in the did specify qualifying

case conduct. America, UNITED STATES of However, plea colloquy, at the the court Plaintiff-Appellee, “inquired whether Palmer had ‘heard the [foregoing] facts that were read

prosecutor’ agreed he was enter HARVEY, Defendant-Appellant. Aaron ing thereto, of nolo contendere No. 09-4261. and Palmer answered affirmatively.” Id. at 54. The court held that where a defen of Appeals, States Court plea, dant enters a nolo contendere but the Sixth Circuit. proceeding

“plea descrip includes lucid Argued: June 2011. tion of the conduct for [the which defen convicted,” was dant] defendant’s Aug. Decided and Filed: 2011. “on-the-record-agreement to the descrip

tion of his proffered by conduct the prose

cuting attorney,” it results in “the func equivalent agreement

tional of a plea with conduct,”

respect to that en sentence

hancement based that conviction was

appi'opriate. Id. join

I would holding these circuits in meant it what said: all of

Case Details

Case Name: United States v. McMurray

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 4, 2011

Citation: 653 F.3d 367

Docket Number: 09-5806

Court Abbreviation: 6th Cir.