United States v. Christopher Farrow , 574 F. App'x 723 ( 2014 )


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  •                        NOT RECOMMENDED FOR PUBLICATION
    File Name: 14a0600n.06
    No. 13-5401
    UNITED STATES COURTS OF APPEALS                                 FILED
    FOR THE SIXTH CIRCUIT                                Aug 06, 2014
    DEBORAH S. HUNT, Clerk
    UNITED STATES OF AMERICA,                                )
    )
    Plaintiff-Appellee,                               )
    ON APPEAL FROM THE
    )
    UNITED STATES DISTRICT
    v.                                                       )
    COURT FOR THE WESTERN
    )
    DISTRICT OF TENNESSEE
    CHRISTOPHER FARROW,                                      )
    )
    OPINION
    Defendant-Appellant.                              )
    )
    BEFORE:         MERRITT, BOGGS, and STRANCH, Circuit Judges.
    STRANCH, Circuit Judge. Christopher Farrow appeals his jury conviction for being a
    felon in possession of a firearm under 18 U.S.C. § 922(g)(1). He alleges that the prosecution:
    (1) shifted the burden of proof to the defense; (2) denigrated defense counsel and its strategy; and
    (3) commented on defendant’s failure to testify. He also appeals his conviction based on an
    allegedly improper jury instruction. These alleged errors provide no basis for reversal. Farrow
    additionally appeals his sentence, alleging that the district court incorrectly classified him as an
    armed career criminal and erroneously included an enhancement. Farrow fails to identify an
    error in his sentencing. Accordingly, we AFFIRM his conviction and sentence.
    I. BACKGROUND
    On April 1, 2012, Farrow returned from a grocery store in Memphis, Tennessee and was
    standing with a group of men in an apartment complex. Individuals associated with the complex
    flagged down the police and told them about the men. Police officers approached the group and
    Farrow allegedly ran, as did another man, Kenny Lockhart. During trial, two officers testified to
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    United States v. Christopher Farrow
    seeing Farrow possess and toss a gun to the ground as he started to run. A civilian witness
    testified that Farrow had shown him the gun at the grocery store and that he had seen Farrow toss
    the gun. Lockhart subsequently tried to pick up the gun and was tackled by police. Farrow was
    chased down and arrested by the officers. Farrow’s theory of the case was mistaken identity—
    someone else, most likely Lockhart, initially possessed the gun and tossed it to the ground.
    Farrow went to trial. On cross examination, defense counsel asked Officer Dennis
    Rodgers whether he had ever stopped Farrow in the apartment complex before this incident.
    Officer Rodgers responded that he had never seen Farrow before the incident. Defense counsel
    then asked specifically:
    Defense Counsel: Okay. It’s your testimony under oath today that you never
    stopped him and told him if I see you walking through here again, I’m putting you
    under arrest?
    Officer Rodgers: That’s correct.
    Later, defense counsel asked Detective Brandon Champagne whether he had tested the dropped
    gun for touch DNA. Champagne responded: “No. But you yourself can have the gun tested
    behind me for DNA if you would like by your investigator.”
    During the prosecution’s closing, the prosecutor referenced the questioning of Officer
    Rodgers, noting the defense’s failure to provide any evidence of the conversation that Officer
    Rodgers denied having with Farrow:
    Defense counsel also asked Officer Rodgers about what – question, also
    tried to attack his credibility or give you the [i]llusion of a doubt by asking a
    questions [sic] like isn’t it true that you told the defendant the next time you saw
    him you were going to arrest him. Might make you think maybe it happened,
    maybe you are going to hear evidence to that effect at some point.
    Officer Rodgers testified no, he didn’t do that. As a matter of fact, I had
    not seen him prior to that date, you know.
    The neat thing about criminal law is even as defense counsel, sometimes a
    witness can come in you’ve never seen before, they can say whatever they want to
    say.
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    So like you, I’m sitting there saying, thinking is someone going to come in
    and testify, is someone going to come water that seed or plant that defense
    counsel has tried to plant, water that seed. There is no evidence to the contrary.
    During its closing, defense counsel referred to Lockhart as “the real defendant” and
    contended that the prosecution should have called him to testify so the jury could hear from him
    about possession of the gun. In closing rebuttal, the prosecutor responded that Farrow had the
    same subpoena powers as the prosecution, though also noting that Farrow had no obligation to
    put on any proof. The court instructed the jury:
    The defendant has not taken the stand to testify as a witness, but you shall place
    no significance on this fact. The defendant is presumed innocent, and the burden
    is upon the government to prove his guilt beyond a reasonable doubt. He is not
    required to take the stand in his own behalf, and his election not to do so cannot
    be considered for any purpose against him, nor can any inference be drawn from
    that fact.
    At the jury instruction conference, the prosecution requested that Pattern Criminal Jury
    Instruction (PCJI) for the Sixth Circuit 8.08 be added to the district court’s initial draft. PCJI
    8.08 provides:
    (1) Remember that the defendant is only on trial for the particular crime charged
    in the indictment [and the lesser charges which I described]. Your job is limited to
    deciding whether the government has proved the crime charged [or one of those
    lesser charges].
    [(2) Also remember that whether anyone else should be prosecuted and convicted
    for this crime is not a proper matter for you to consider. The possible guilt of
    others is no defense to a criminal charge. Your job is to decide if the government
    has proved this defendant guilty. Do not let the possible guilt of others influence
    your decision in any way.]
    This instruction comes with the following use note:
    Bracketed paragraph (2) should be included if the possible guilt of others has been
    raised as an issue during the trial. Modifications of this paragraph may be
    necessary in conspiracy, aiding and abetting, alibi or mistaken identification
    cases, where the possible guilt of others may be a legitimate issue.
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    PCJI 8.08, Use Note. The commentary states the purpose of the instruction and explains that
    whether paragraph (2) should be used depends on the defendant’s theory of the case.
    Committee Commentary 8.08:
    (current through April 1, 2013)
    The purpose of this instruction is twofold. The first purpose is to remind the jurors
    that their verdict is limited to the particular charge made against the defendant.
    The second is to remind them that their verdict is limited to the particular
    defendant who has been charged. The instruction is a plain English restatement of
    various concepts found in comparable instructions.
    Paragraph (2) should not be given in every case. If the possible guilt of others has
    not been raised during trial, this paragraph is unnecessary and should be omitted
    to avoid confusion. Note also that this paragraph may require modification in
    cases where vicarious criminal liability is alleged, such as conspiracy or aiding
    and abetting cases. In such cases the jury may be required to decide the guilt of
    other persons not charged in the indictment. Paragraph (2) may also require
    modification in cases in which the defendant has raised an alibi defense or has
    argued mistaken identification. Where the defendant claims that someone else
    committed [the] crime, it may be confusing to instruct the jurors that they should
    not be concerned with anyone else’s guilt.
    PCJI 8.08, Committee Commentary.
    The defense objected to the instruction and asked that it not be included or, alternatively,
    that a modification be made. The defense proposed adding the statement: “[T]his does not mean
    that you should disregard[] the defense’s theory that someone other than the defendant
    committed this crime. What it means is that your ultimate decision should be based only on
    whether the government has proven its case against the defendant beyond a reasonable doubt.”
    In arguing against use of the instruction or for modification of it, the defense argued: “We have
    a theory of the case, . . . our defense is that someone else committed the crime. And under [the]
    Sixth Amendment Mr. Farrow is entitled to present a complete defense.”
    The prosecution initially opposed Farrow’s proposed modification.                Under the
    prosecution’s theory of the case, Farrow possessed the gun, then threw it, then Lockhart picked it
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    up and possessed the gun. The prosecutor wanted to ensure that the jury would not acquit
    Farrow merely because Lockhart subsequently possessed the gun. In response, defense counsel
    suggested changing the proposed modification to “this does not mean that you have to disregard
    the defense’s theory.” The district court acknowledged that PCJI 8.08 appeared to directly
    conflict with Farrow’s theory of the case that someone else committed the crime.                The
    prosecution then conceded that the defense theory was based on mistaken identity and agreed
    that some version of Farrow’s proposed modification should be included.
    The district court refused to include PCJI 8.08, stating: “Well, out of all the language in
    the commentary, and in light of the defense, I’m going to deny the government’s request for the
    instruction and we’ll just remove it.” After closing argument by the defense, however, the
    prosecution renewed its request for PCJI 8.08. The defense renewed its objection that the
    instruction would tell the jury to disregard its theory of the case. The court changed its mind,
    granted the government’s request to give PCJI 8.08 and denied Farrow’s proposed modification
    to the instruction even though the prosecution had agreed to part of it.
    The court itself modified the pattern instruction by removing the last sentence, “[d]o not
    let the possible guilt of others influence your decision in any way,” and by adding the phrase
    “your job is to decide if the government has proved this defendant guilty. And you should
    consider all of the evidence presented by both sides in making your decision.” The district court
    placed modified PCJI 8.08 immediately after the definitional instructions on the elements of the
    crime. It was the last substantive jury instruction. The district court instructed the jury on joint
    possession, but did not include specific instruction on Farrow’s theory of the case.
    The jury found Farrow guilty of being a felon in possession of a firearm. The district
    court assigned Farrow the “armed career criminal” classification after determining that his two
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    prior Tennessee convictions for facilitation of aggravated robbery qualify as violent felonies
    under the Armed Career Criminal Act (ACCA). The district court also applied an enhancement
    for reckless endangerment. Farrow was sentenced to 240 months of imprisonment.
    II. ANALYSIS
    Farrow raises four issues on appeal. He alleges that: (1) three errors occurred during
    trial; (2) the district court erred by giving jury instructions that told the jury to disregard his
    theory of the case; (3) the district court incorrectly determined that he qualified as an “armed
    career criminal” under the ACCA; and (4) the district court erred in applying a reckless
    endangerment enhancement for sentencing.
    A. Trial Errors
    Farrow identifies three alleged trial errors: (1) a prosecutor’s statement during closing
    and testimony by a prosecution witness improperly shifted the burden to the defense; (2) the
    prosecution’s use of the phrase “illusions of doubt” during closing denigrated the defense
    strategy and deprived Farrow of a fair trial; and (3) the prosecution improperly commented
    during closing on Farrow’s failure to testify.
    Because Farrow did not object to the alleged errors at the time, we review for plain error.
    United States v. Gardiner, 
    463 F.3d 445
    , 459 (6th Cir. 2006). Plain-error review evaluates
    whether: “(1) an error occurred in the district court; (2) the error was obvious or clear; (3) the
    error affected defendant’s substantial rights; and (4) this adverse impact seriously affected the
    fairness, integrity, or public reputation of the judicial proceedings.”         United States v.
    Emuegbunam, 
    268 F.3d 377
    , 406 (6th Cir. 2001).
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    1. Burden-Shifting
    Farrow argues that by faulting the defense for not calling Lockhart as a witness, the
    prosecution shifted the burden, making it appear that Farrow was obligated to call witnesses to
    prove his innocence. However, when the defense has questioned why the prosecution has not
    called a particular witness, the prosecution may respond that the defense also could have called
    that witness to testify. United States v. Reynolds, 534 F. App’x 347, 368 (6th Cir. 2013) (citing
    United States v. Gonzalez, 
    512 F.3d 285
    , 292 (6th Cir. 2008)); United States v. Hernandez, 
    145 F.3d 1433
    , 1439 (11th Cir. 1998) (“[I]t is not improper for a prosecutor to note that the defendant
    has the same subpoena powers as the government, particularly when done in response to a
    defendant’s argument about the prosecutor’s failure to call a specific witness.” (internal
    quotation marks omitted)). The prosecution’s statements in closing rebuttal that Farrow had the
    same subpoena powers to bring Lockhart to testify were in response to defense counsel’s
    statements in closing criticizing the prosecution for not putting Lockhart on the stand. The
    statements did not shift the burden and do not otherwise constitute plain error.
    Farrow makes a similar burden-shifting argument with regard to Detective Champagne’s
    testimony but cites no caselaw in support. The police officer was a witness and did not have a
    prosecutor’s obligations, though even if he had, his statement that the defense could test the gun
    for DNA was volunteered in response to defense counsel’s questions regarding testing the gun.
    United States v. Wimbley, 
    553 F.3d 455
    , 461 (6th Cir. 2009) (finding that prosecutor’s comment
    regarding testing evidence was not improper where defense counsel had commented that the
    government had not tested the evidence). The statement did not shift the burden and it does not
    constitute plain error.
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    2. The phrase “illusions of doubt”
    Farrow also faults the prosecution for using the phrase “illusions of doubt” seven times in
    closing argument, citing United States v. Procopio, 
    88 F.3d 21
    (1st Cir. 1996) for the proposition
    that repeated use of the term “illusion” can be evidence of error. However, Procopio involved a
    prosecutor directly disparaging both defense counsel and the defense argument. Nonetheless,
    that court stated that “it is unrealistic to suggest that such empty clichés seriously affected the
    jury’s deliberations.” 
    Id. at 32.
    Here, the prosecution’s use of “illusions of doubt” was not
    disparaging, and in rebuttal closing, the prosecution is entitled to point out the lack of evidence
    supporting the defense theory of the case See United States v. Forrest, 
    402 F.3d 678
    , 686 (6th
    Cir. 2005). The prosecution’s use of the phrase “illusions of doubt” was not improper.
    3. Comment on Farrow’s failure to testify
    Farrow’s last alleged trial error merits more consideration. The prosecutor’s closing
    argument noted that Farrow did not offer any evidence of his alleged conversation with Officer
    Rodgers in which the officer supposedly told Farrow that he would arrest him next time. Farrow
    argues that this was a comment on his own failure to testify as he was the only other person who
    could have testified about the conversation.
    Defendants have the right under the Fifth Amendment not to testify and the prosecution
    cannot comment on a defendant’s failure to testify. Griffin v. California, 
    380 U.S. 609
    , 615
    (1965). A prosecutor may comment on a defendant’s failure to present certain evidence as long
    as those comments do not implicate the defendant’s right to not testify. See 
    Forrest, 402 F.3d at 686
    . This case involves an alleged indirect reference to Farrow’s decision not to testify. United
    States v. Moore, 
    917 F.2d 215
    , 225 (6th Cir. 1990). This court considers four factors when
    determining the constitutionality of such references:
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    1) Were the comments ‘manifestly intended’ to reflect on the accused’s silence or
    of such a character that the jury would ‘naturally and necessarily’ take them as
    such;
    2) were the remarks isolated or extensive;
    3) was the evidence of guilt otherwise overwhelming;
    4) what curative instructions were given and when.
    Lent v. Wells, 
    861 F.2d 972
    , 975 (6th Cir. 1988).
    The caselaw on these factors suggests that satisfaction of the first factor is necessary to
    finding a prosecutor’s comment unconstitutional and that a “court must look at all the
    surrounding circumstances in determining whether or not there has been a constitutional
    violation.” Butler v. Rose, 
    686 F.2d 1163
    , 1170 (6th Cir. 1982) (en banc). In analyzing the
    factors, this court may consider the relevance to the overall case of the evidence addressed in the
    comment, see United States v. Ursery, 
    109 F.3d 1129
    , 1134 (6th Cir. 1997), and whether the
    defendant was the only witness who could have contradicted the evidence, 
    Robinson, 651 F.2d at 1197
    . Importantly, this court will not find manifest intent if another explanation is equally
    plausible. 
    Lent, 861 F.2d at 975
    .
    The jury might infer from the prosecution’s statement that the only person who could
    rebut Officer Rodgers’s testimony was the defendant, which supports Farrow’s contention that
    the prosecution intended to comment on his failure to testify. However, another intent is equally
    plausible. 
    Id. Because Officer
    Rodgers was one of only three witnesses testifying that Farrow
    had a gun, his credibility was important to the prosecution’s case. The prosecutor prefaced his
    closing comments about the alleged conversation by stating that the defense questions were
    intended to damage Officer Rodgers’s credibility. The defense questions were the only reference
    to this supposed conversation in the entire case, and since Officer Rodgers denies this
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    conversation, no evidence of it exists in the record. Thus, the prosecutor’s comments are
    plausibly explained as an effort to protect Officer Rodgers’s credibility by pointing out that
    Farrow offered no evidence of the alleged interaction. Moreover, “the question is not whether
    the jury possibly or even probably would view the remark in this manner, but whether the jury
    necessarily would have done so.” 
    Ursery, 109 F.3d at 1135
    . A jury would not have necessarily
    taken the remarks as a comment on Farrow’s silence because both the questioning and the
    prosecutor’s remarks were vague and the remarks may have related to credibility.              The
    prosecutor’s comment was not manifestly intended to comment on Farrow’s failure to testify.
    The weight of the other factors also supports the Government. Here, the prosecution
    made only one, relatively unemphasized remark that could be considered a reference to Farrow’s
    failure to testify. See Raper v. Mintzes, 
    706 F.2d 161
    , 167 (6th Cir. 1983). Though the court did
    not address the remark at the time, it did give a thorough jury instruction that the defendant was
    not required to take the stand and that his failure to do so could not be held against him. While
    the ideal curative instruction is one that directly references improper comments, this is not
    required to make the curative instruction effective. See 
    Lent, 861 F.2d at 977
    (noting that the
    court gave a general instruction but did not specifically mention the improper comments).
    Finally, the evidence against Farrow was strong. Three witnesses testified that they saw Farrow
    with the gun. And though Officer Rodgers’s testimony was relatively important to the overall
    case, this alleged conversation did not address any evidence essential to the case.
    Analysis of the four factors establishes no error. Had error occurred, Farrow’s argument
    could not survive plain-error review because none of the claimed errors substantially affected his
    rights. The three trial errors alleged do not render Farrow’s conviction reversible.
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    B. Jury Instructions
    We review jury instructions for abuse of discretion, United States v. Russell, 
    595 F.3d 633
    , 642 (6th Cir. 2010), broadly considering whether the instructions fairly and adequately
    submit the issues and applicable law to the jury, United States v. Williams, 
    952 F.2d 1504
    , 1512
    (6th Cir. 1991). To determine if the instructions were fair and accurate, we ask whether “the
    instructions, viewed as a whole, were confusing, misleading, or prejudicial.” 
    Russell, 595 F.3d at 642
    (internal quotation marks omitted).
    Farrow challenges modified jury instruction PCJI 8.08 as improper because it told the
    jury to disregard his theory of the case. In many cases it may be appropriate to instruct the jury
    that the possible guilt of others is not a defense to a criminal charge. See, e.g., United States v.
    Young, 496 F. App’x 570, 578 (6th Cir. 2012). But in this case, the possible guilt of another
    person for initially possessing the gun instead of Farrow, rather than in addition to Farrow, was
    the defense to the criminal charge. Defendants have a right to have a theory of the case and are
    entitled to some mention of that theory in the instructions. See United States v. Theunick,
    
    651 F.3d 578
    , 589 (6th Cir. 2011).
    The government raises two unpublished circuit cases that address PCJI 8.08: United
    States v. Larch, 399 F. App’x 50 (6th Cir. 2010), and Young, 496 F. App’x 570. In both cases,
    this court found the use of a modified version of PCJI 8.08 to be proper. These cases are
    distinguishable from this situation because both Larch and Young involved a defense that other
    parties were also responsible for the crime. In Young, noting that both Larch and Young were
    not about mistaken identity, this court affirmed the district court’s use of PCJI 8.08 and quoted
    Larch for the proposition that the jury “‘should not permit the possible additional criminal
    liability of others to influence its decision.’” 
    Id. at 578
    (quoting Larch 399 F. App’x at 55). The
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    court considered it important that the defense theory did not allege mistaken identity. Young,
    496 F. App’x 578. In contrast, Farrow’s defense was mistaken identity.
    PCJI 8.08 is meant to prevent a defense theory that the defendant should be acquitted
    because someone else was also responsible for the crime. Larch, 399 F. App’x at 55–56 (the
    purpose of PCIJ 8.08 is “to ensure that a defendant is not excused from being held accountable
    for his actions simply because someone else also unlawfully possessed [the victim’s] firearms.”)
    Farrow did not assert such a defense.         Farrow’s theory that he never possessed the gun
    necessarily indicated his innocence.
    The district court’s modification did not wholly remedy the confusion from PCJI 8.08
    because it did not remove or even address the statement that the possible guilt of another was no
    defense, even though it did emphasize that the government had to prove this defendant guilty.
    Farrow’s proposed modification—though it also did not remove the problematic line—would
    have instructed the jury not to disregard the defense theory, which would have countered the
    prejudice. Moreover, “[a] trial court’s refusal to give a requested jury instruction is reversible
    error only if the instruction is (1) correct, (2) not substantially covered by the actual jury charge,
    and (3) so important that failure to give it substantially impairs defendant’s defense.” United
    States v. Heath, 
    525 F.3d 451
    , 456 (6th Cir. 2008). The above analysis demonstrates that
    Farrow’s proposed modification was legally correct, not substantially covered by the jury
    instructions, and its absence substantially impaired the defense. Farrow’s proposed modification,
    moreover, was an alternative request. The defense’s primary argument was that PCJI 8.08
    should not have been included in any form, an argument that the district court initially accepted.
    Based on the record before us, it is reasonable to conclude that the modified PCJI 8.08
    instruction given hampered the jury from considering the defense’s theory of the case. The other
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    instructions given failed to remedy the resulting confusion and the district court did not provide
    additional guidance to the jury, such as a defense-theory instruction. Thus, the instructions, as a
    whole, were confusing, misleading, or prejudicial and therefore erroneous. 
    Russell, 595 F.3d at 642
    .
    We will reverse a verdict on the basis of an erroneous jury instruction, however, only if
    the error is not harmless. United States v. Adams, 
    583 F.3d 457
    , 469 (6th Cir. 2009). A jury
    instruction error is harmless when it is clear beyond a reasonable doubt that the outcome would
    not change had the jury been properly instructed. United States v. Mack, 
    729 F.3d 594
    , 608 (6th
    Cir. 2013).
    The evidence identifying Farrow as the initial possessor of the gun was strong and
    Farrow’s theory did not offer a substantiated alternative—no one testified that someone other
    than Farrow initially possessed the gun and dropped it on the ground. The jury did not have a
    reasonable basis to disbelieve the testimony of the officers based simply on an unsupported
    inference that Lockhart or some other unknown, unidentified person may have possessed the gun
    without being seen.     Therefore, the instruction error was harmless because there was no
    reasonable basis upon which to conclude that the outcome would have changed had the
    instructions been proper.
    C. ACCA Violent Felony
    Farrow appeals his classification as an “armed career criminal” under the Armed Career
    Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B). Because Farrow did not present this argument
    at the sentencing hearing, plain-error review applies. As previously noted, in plain-error review,
    this court evaluates whether: “(1) an error occurred in the district court; (2) the error was
    obvious or clear; (3) the error affected defendant’s substantial rights; and (4) the adverse impact
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    seriously affected the fairness, integrity, or public reputation of the judicial proceedings.”
    
    Emuegbunam, 268 F.3d at 406
    .
    The district court assigned Farrow the “armed career criminal” classification after
    determining that his two Tennessee convictions for facilitation of aggravated robbery were
    violent felonies under the ACCA. The ACCA defines “violent felony” as:
    [A]ny crime punishable by imprisonment for a term exceeding one year . . . 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). Under Tennessee law, “[a] person is criminally responsible for the
    facilitation of a felony, if, knowing that another intends to commit a specific felony, but without
    the intent required for criminal responsibility under [the statute that criminalizes aiding the
    commission of an offense], the person knowingly furnishes substantial assistance in the
    commission of the felony.” Tenn. Code Ann. § 39–11–403. Facilitation also requires that the
    underlying crime actually occur. United States v. Sawyers, 
    409 F.3d 732
    , 738 (6th Cir. 2005),
    abrogated on other grounds by United States v. Vanhook, 
    640 F.3d 706
    (6th Cir. 2011).
    Farrow argues that Sixth Circuit precedent requires a finding that facilitation of
    aggravated robbery in Tennessee is not a violent felony.         Three recent circuit cases have
    considered whether certain facilitation crimes fall within particular sentencing categories.
    In United States v. Gloss, 
    661 F.3d 317
    (6th Cir. 2011), we considered whether
    Tennessee convictions for facilitation of aggravated robbery are violent felonies under the
    ACCA. Gloss analyzed the issue under the “use of force clause,” 18 U.S.C. § 924(e)(2)(B)(i),
    and found that the government must prove every element of aggravated robbery to prove
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    facilitation of an aggravated robbery. 
    Gloss, 661 F.3d at 320
    . Since aggravated robbery must be
    “either accomplished with a deadly weapon (or an article disguised as a deadly weapon), or
    result[] in the victim suffer[ing] serious bodily injury,” the use of force is an element of both
    aggravated robbery and facilitation of aggravated robbery. 
    Id. at 319
    (internal quotation marks
    omitted). Therefore, Gloss concluded, facilitation of aggravated robbery is a violent felony. 
    Id. at 319
    –20.
    Farrow contends that we should follow our opinion in United States v. Woodruff,
    
    735 F.3d 445
    (6th Cir. 2013), rather than Gloss. In Woodruff, we considered whether facilitating
    the sale of cocaine qualified as a controlled-substance offense for the purpose of a sentencing
    enhancement under the federal sentencing 
    guidelines. 735 F.3d at 449
    . For a conviction to
    qualify as a controlled-substance offense under USSG § 4B1.2(b), a defendant must himself have
    formed intent equivalent to the intent required for “aiding and abetting, conspiracy, and attempt.”
    
    Id. at 449–50
    (citing §4B1.2 cmt. n.1). A facilitator, under Tennessee law, lacks such intent. 
    Id. at 450–51.
    Thus, facilitating the sale of cocaine is not a controlled-substance offense. 
    Id. Woodruff and
    Gloss are not in conflict because the requirements necessary to qualify a
    Tennessee facilitation-of-sale-of-cocaine offense as a controlled-substance offense under USSG
    §4B1.2 are different from the requirements necessary to qualify a Tennessee facilitation-of-
    aggravated-robbery offense as a violent felony under the “use of force” clause of the ACCA.
    Unlike a controlled-substance offense under §4B1.2, the ACCA violent felony “use of force”
    clause includes no intent requirement; it is satisfied here because this case involves a crime under
    the ACCA “use of force” clause and the use of force is an element of both aggravated robbery
    and facilitation of aggravated robbery. 
    Gloss, 661 F.3d at 320
    . The intent requirement that was
    dispositive in Woodruff is not applicable here.
    -15-
    No. 13-5401
    United States v. Christopher Farrow
    The third case to consider facilitation was Vanhook, 
    640 F.3d 706
    , which analyzed
    whether Tennessee convictions for facilitation of burglary are violent felonies under the ACCA.
    The court considered the issue under the “residual clause,” § 924(e)(2)(B)(ii), and found that
    facilitation of burglary was not categorically a violent felony. 
    Vanhook, 640 F.3d at 710
    , 715–
    16. Farrow argues that because Vanhook was issued before Gloss, it established a binding
    analytical framework that Gloss failed to follow. Vanhook, however, involved facilitation of
    burglary, not facilitation of aggravated 
    robbery. 640 F.3d at 710
    . The threat or use of force or
    violence is not an element of burglary, but it is an element of aggravated robbery. 
    Id. at 711;
    Gloss, 661 F.3d at 319
    –20. Additionally, Gloss and Vanhook address facilitation under different
    clauses of the ACCA.
    Gloss is directly on point as it involves the same crime and the same sentencing scheme
    at issue in this case. The district court did not err in determining that Farrow’s convictions for
    facilitation of aggravated robbery were violent felonies under the use-of-force clause in
    §924(e)(2)(B). It properly applied the ACCA.
    D. Reckless Endangerment Sentencing Enhancement
    As Farrow concedes, we only reach this issue if we find that the district court erred in
    applying the ACCA. Because the ACCA applies, we need not address this argument.
    III. CONCLUSION
    For the foregoing reason, we AFFIRM Farrow’s conviction and sentence.
    -16-