Lead Opinion
SUHRHEINRICH, J., delivered the opinion of the court in which BATCHELDER and STRANCH, JJ„ joined. STRANCH, J. (pg. 371), delivered a separate concurring opinion.
OPINION
Defendant-Appellant Rodney Southers appeals the district court’s finding at sentencing that he qualified as an armed career criminal' under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and claims, for the first time on direct appeal, that he had'ineffective counsel at sentencing. For the following reasons we affirm the district court’s finding, and decline to entertain Defendant’s Sixth Amendment claim.
I.
On January 21, 2014, Defendant was arrested on an outstanding warrant. Pursuant to a search incident to arrest, police found on Defendant’s person seventeen rounds of ammunition. An Alcohol, Tobacco and Firearms task force officer then filed a criminal complaint against Defendant in the United States District Court for the Eastern District of Tennessee alleging Defendant was a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). Evidence was then presented to a grand jury, which charged Defendant on this offense. Defendant pleaded guilty without a plea agreement.
The probation office classified Defendant as an armed career criminal under the ACCA due to Defendant’s two prior robbery convictions and one prior attempted-aggravated-robbery conviction. Based on this designation, Defendant’s sentencing range was enhanced to a range of fifteen years to life imprisonment.
At sentencing, Defendant’s only objection was that his convictions for robbery and attempted-aggravated robbery on May 24, 2000, should be considered a single event for purposes of the ACCA. In response, the government produced the indictments and judgments for each predicate offense. Each indictment listed a distinct business as the victim, and the corresponding judgments which cross-referenced the relevant indictment; As part of an effort to persuade the court that these crimes were a single event or part of the same course of conduct, Defendant testified at sentencing. He stated that he and his partner “planned to hit two stores,” first “the Golden Gallon, and then ... the Favorite Market.”
The district court found that, despite possibly being connected by one conspiratorial agreement, the two robberies were “legally and factually distinct,” and therefore were “properly considered separate offenses for purposes of the [ACCA].” However, the court did grant the government’s motion to reduce Defendant’s sentence pursuant to U.S.S.G. § 5K1.1 and 18
II.
■ On appeal, Defendant alleges two errors by the district court in applying the ACCA. First, Defendant argues, for the first time on appeal, that his Tennessee robbery convictions were improperly found to be “violent felonies” for purposes of the ACCA. Second, he reiterates his objection that his • two May 24, 2000 predicates should be considered one predicate for purposes of the ACCA. Both arguments fail.
A.
Although we generally review a district court’s determination that a prior conviction qualifies as a “violent felony” under the ACCA de novo,, where, as here, a defendant fails to make this objection to the district court, we review for plain error. United States v. Anderson, 695 F.3d 390, 399 (6th Cir. 2012). To prevail under this standard, Defendant must establish “(1) error, (2) that is plain, and (3) that affects substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quotation marks and citation omitted). We “may then exercise [our] discretion to notice [this] forfeited error, but only if (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. Defendant fails here at the first step.
If a felon convicted of unlawfully possessing ammunition also has three previous convictions for, among other things, “violent felonies,” the ACCA provides for a mandatory sentencing enhancement. 18 U.S.C. § 924(e)(1). The ACCA defines violent felony- as “any crime punishable by imprisonment for a term exceeding one year ... that ... has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. § 924(e)(2)(B). The meaning of “physical force” is a matter of federal law, and is defined as “force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 138, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). However, the meaning,' scope, arid elements of the predicate violent felonies are matters of state law. Id. at 138, 130 S.Ct. 1265. i
In determining whether a prior conviction qualifies as violent felony under the ACCA, the courts use the “categorical approach,” examining' only “the statutory definition of the offenjse and not the particular facts underlying the conviction.” Anderson, 695 F.3d at 399. If it is possible to violate the statute both in a manner that qualifies as violent felony and in a manner that does not—i.e., a divisible statute—-the court inay “consider the indictment, guilty plea, or similar documents to determine whether they necessarily establish the nature of the prior conviction.” Id. (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). However, if all modes of violating a divisible statute constitute qualifying offenses, the statute is categorical, and it is unnecessary to look beyond its face. Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013).
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. Although robbery in Tennessee can be committed in two manners, our inquiry into whether it is a categorically violent felony is made easy due to the fact that- this Court has already answered this question.
Defendant argues that Mitchell is' not controlling because the Supreme Court’s decision in Moncrieffe v. Holder, 569 U.S. 184, 133 S.Ct. 1678, 185 L.Ed.2d 727 (2013), is an .inconsistent intervening Supreme Court decision that allows us .to revisit the issue.
Defendant alleges that, per Moncrieffe, the Mitchell court should have examined intermediate state appellate decisions of the Tennessee robbery statute to “discern the ‘least of the acts criminalized’ under the Tennessee' robbery statute.” Appellant’s Br. at 17 (quoting Moncrieffe, 133 S.Ct. at 1684). Defendant directs our attention to, three Tennessee intermediate court cases wherein, he argues, the courts upheld the application of the Tennessee robbery statute to actions that do not meet the federal definition of use, attempted use, or threatened use of “physical force.” See State v. Crenshaw, No. W2014-01367-CCA-R3-CD, 2015 WL 2447717 (Tenn. Crim. App. May 22, 2015) (affirming, defendant’s .robbery conviction where defendant
The Sixth Circuit’s recent decision in United States v. Patterson makes clear that Moncrieffe and its “realistic probability" inquiry applies in the ACCA context. See United States v. Patterson, 853 F.3d 298, 302 (6th Cir. 2017). However, Defendant’s argument still fails. If anything, the fact that Moncrieffe only looked to state intermediate appellate court decisions supports the adage that after a state supreme court’s decisions, “intermediate [state] appellate court decisions constitute the next best indicia of what state law is.” United States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016) (quotation marks omitted). As we noted in Mitchell, “in determining the meaning or scope of robbery, we are bound by the Tennessee Supreme Court’s interpretation, including its guidance on the elements of the crime.” 743 F.3d at 1059 (emphasis added) (citing Johnson, 559 U.S. at 138, 130 S.Ct. 1265); see also Patterson, 853 F.3d at 303 (noting that the Ohio Supreme Court is the authoritative interpreter of Ohio law). To the extent that these lower Tennessee court decisions apply the.. Tennessee robbery statute in a manner inconsistent with the federal definition of a violent felony, we believe that such applications are also inconsistent with Tennessee Supreme Court precedent. See Mitchell, 743 F.3d at 1059. Consequently, identification of these cases does not amount to demonstrating the “realistic probability” Moncrieffe and Duenas-Alvarez call for.
Indeed, the two cases that Defendant points to, where our sister circuits applied the “realistic probability” inquiry in the ACCA context, support this analysis. In concluding that North Carolina’s robbery statute does not qualify as a violent felony under the ACCA, the Fourth Circuit in United States v. Gardner quoted the North Carolina Supreme Court’s definition of “violence" which states that, “Although actual force implies personal violence, the degree of force used is immaterial.” 823 F.3d at 803 (quoting State v. Sawyer, 224 N.C. 61, 29 S.E.2d 34, 37 (1944)). Thus, as the Fourth Circuit held, the intermediate North Carolina court opinions upholding robbery convictions for less than federally defined “physical force,” were instances in which intermediate courts faithfully applied their state’s supreme court precedent. See id. at 803-04.
Similarly, in United States v. Bell, the Eighth Circuit held that violation of Missouri’s second-degree robbery statute is not a violent felony under the ACCA. 840 F.3d 963, 966-67 (8th Cir. 2016). In reaching this conclusion, the- court primarily relied on an intermediate Missouri court decision holding that a second-degree robbery conviction could be upheld where the robber made physical contact with the victim, but not sufficient contact to cause pain or injury. Id. at 966 (relying on State v. Lewis, 466 S.W.3d 629, 632 (Mo. Ct. App. 2015)). However, it appears that
In short, federal courts should look to intermediate state appellate court decisions in determining what is the least conduct criminalized under a state’s statute. However, when the state supreme court has. defined what this conduct is, the buck stops there, along with our inquiry, as the state supreme court is the ultimate interpreter of its state’s law. See Patterson, 853 F.3d at 303. Therefore, even after Mon-crieffe and Duenas-Alvarez, Mitchell is still controlling, because it applies Tennessee Supreme Court precedent. Defendant has failed to show error, much less plain error.
B.
Next, Defendant objects to the district court’s ruling that his two May 24, 2000 predicates are distinct for purposes of the ACCA. Appellant’s Br. at 22-24. We review the district court’s decision that Defendant’s offenses were committed on separate occasions under the ACCA de novó. United States v. Hill, 440 F.3d 292, 295 (6th Cir. 2006).
Two offenses are committed on different occasions for purposes of the ACCA if:
(1) “it is possible to discern the point at which the first offense is completed, and the subsequent point at which the second offense begins”; (2) “it would have been possible for the offender to cease his criminal conduct after the first offense, and withdraw without committing the second offense”; or (3) “the offenses are committed, in different residences or business locations.”
United States v. Jones, 673 F.3d 497, 503 (6th Cir. 2012) (quoting Hill, 440 F.3d at 297-98). “Offenses are separate if they meet any of these three tests.” Id. at 503. The government bears the burden of proof to show that the offenses occurred on separate occasions. United States v. Barbour, 750 F.3d 535, 546 (6th Cir. 2014). The government must do so through so-called “8%epard-approved” documents, which include charging documents from the predicate offenses. United States v. King, 853 F.3d 267, 273, 275 (6th Cir. 2017). This includes “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.” Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); However, the judge considering imposition of the ACCA might not be the first to determine that the allegations recited in those charging documents are facts. King, 853 F.3d at 273.
At sentencing, the government produced the two Tennessee indictments charging Defendant with his May 24, 2000 offenses, and the corresponding judgments. Under the first indictment, Number 230764, grand jurors charged Defendant with attempted aggravated robbery for trying to steal property of the Golden Gallon, a convenience store. Under the second indictment, Number 230761, grand jurors charged Defendant with robbing Favorite Market, also a convenience store, Each judgment cross references the corresponding indictment. Because ' the judgments and indictments establish that the robberies occurred at two different business locations, the district court did not err in treating them as distinct predicates under the ACCA. See United States v. Perez, 477 Fed.Appx. 337, 343 (6th Cir. 2012) (holding that the defendant’s prior aggravated robberies were separate be
Defendant contends that the Shepard documents in this caser—indictments and judgments—provide insufficient evidence to determine that his two robberies were different occasions for purposes of the ACCA because they lacked any specific factual findings regarding each robbery. He cites our recent decision in King for support. In that case, the defendant pleaded guilty in 2002 to three Ohio indictments charged the defendant with: (1) robbing and kidnapping one Arthur Lund-berg on or about February 18, 2002; (2) robbing and kidnapping one David Mariano on or about February 18, 2002; and (3) aggravated robbery against five "victims on or about February 18, 2002. King, 853 F.3d at 269. Because the indictments did not provide any more details, namely the time and location of the crimes, it was impossible to tell if these were separate occasions by solely looking at the indictments. See id. Lacking a plea colloquy or a copy of a written plea agreement, the federal district judge considered the corresponding three Ohio bills of particulars,
King is distinguishable. There the district court relied on' non-Shepard documents—the Ohio bills of particulars—because the indictments lacked the information- necessary to make a different óccasions finding. -Here, the indictments provide the information necessary to determine that - Defendant’s crimes took place at- separate businesses. Under our precedent this was all that was required for the district court to find that Defendant’s, robberies qualified as separate predicates for purposes of the ACCA. See Jones, 673 F.3d at 503 (holding that crimes occur on different occasions if they are “committed .in different residences or business locations”). What’s more, Defendant actually admitted under oath in the federal proceedings that he and' his partner “planned to hit two stores,” first “the Golden Gallon, and then ... the Favorite Market.”
Thus, the district court did not err in applying the ACCA.
Finally, Defendant raises an ineffective assistance of counsel claim. Defendant claims that his attorney’s decision to have him testify at sentencing resulted in his receiving a greater sentence. Appellant’s Br. 25-27.
To prevail on an ineffective-assistanee-of-counsel claim, a defendant must demonstrate that his trial “counsel’s performance (1) ‘fell below an objective standard of reasonableness’ and (2) was prejudicial, i.e., ‘but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” United States v. Franklin, 415 F.3d 537, 556 (6th Cir. 2005) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We generally do not address claims of ineffective assistance of counsel on direct appeal, except in rare cases in which “the record'is adequate to assess the merits of defendant’s allegations.” United States v. Bradley, 400 F.3d 459, 462 (6th Cir. 2005).
■ This case does not fall within that narrow exception to the general rule of declining to consider in-effective-assistancé-of-counsel claims on direct appeal. Because Defendant’s claim is challenging his counsel’s strategy on direct appeal, his “counsel has not been- afforded an opportunity to answer this charge against him, and the reasons for his [sentencing] strategy lie completely outside the record.” United States v. Hill, 142 F.3d 305, 308 (6th Cir. 1998). Therefore, review by this court at this time is premature.
IV.
For the foregoing reasons, the judgment of the district court is affirmed.
. Although Moncrieffe was published before Mitchell, Mitchell did not address Moncrieffe.
. Under Ohio "law, a bill of particulars is a document authored by the prosecuting Ohio attorney "setting up specifically the nature of the offense charged and the conduct of the defendant which is alleged to constitute the offense.” Ohio Rev, Code Ann. § 2941.07.
. Although clearly not Shepard evidence, to the extent that the district court relied on this testimony, or information in Defendant’s PSR, doing so was harmless. The district court is presumed to have considered all the materials before it and "need not describe in detail or list all of the documents or other evidence it considered.” United States v. Gale, 468 F.3d 929, 941 (6th Cir. 2006).
Concurrence Opinion
CONCURRENCE
concurring. I join this opinion because here the Tennessee Supreme Court directly and in detail addressed the elements of the robbery statute at issue. This placed contradictory language from state intermediate court decisions in direct conflict with a decision of the highest court in the jurisdiction. We would have a different ease had language from a state supreme court decision been more ambiguous in defining the conduct covered by a statute. It is a familiar exercise for federal courts to look to state law to determine offense conduct. No one disputes that if a state supreme court decision clearly conflicts with intermediate court-decisions—as in this case— then the state supreme court decision controls. Outside such head-on conflict, I do not see this case as restricting courts-from looking at state intermediate court decisions where they include helpful explanations such as discussions of how to characterize offense conduct. Lwrite only to note that our decision should not -be read as foreclosing continuation of that practical and helpful existing practice.