United States v. Tavaris Betts ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0321n.06
Case No. 22-5006
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Aug 05, 2022
) DEBORAH S. HUNT, Clerk
UNITED STATES of AMERICA, )
Plaintiff - Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE MIDDLE DISTRICT OF
TAVARIS BETTS, ) TENNESSEE
)
Defendant - Appellant. ) OPINION
)
Before: SUTTON, Chief Judge; BATCHELDER and DONALD, Circuit Judges.
BATCHELDER, J., delivered the opinion of the court in which SUTTON, C.J., joined.
DONALD, J. (pp. 3–5), delivered a separate dissenting opinion.
ALICE M. BATCHELDER, Circuit Judge. When sentencing Tavaris Betts as a felon in
possession of a firearm, 18 U.S.C. § 922(g)(1), the district court found that three of his prior
convictions were predicate felonies under the Armed Career Criminal Act, § 924(e)(2)(B)(ii),
triggering the mandatory minimum sentence, § 924(e)(1). Betts’s prior convictions were for
aggravated assault in violation of T.C.A. § 39-13-102, robbery in violation of § -13-401, and
aggravated burglary, in violation of § -14-403. Under our precedent, all three are ACCA predicate
felonies. Lowe v. United States, 920 F.3d 414, 416 n.1 (6th Cir. 2019) (§ -13-102 aggravated
assault); United States v. Southers, 866 F.3d 364, 367 (6th Cir. 2017) (§ -13-401 robbery);
Brumbach v. United States, 929 F.3d 791, 794 (6th Cir. 2019) (§ -14-403 aggravated burglary).
No. 22-5006, United States v. Betts
Betts argues that aggravated burglary under T.C.A. § 39-14-403(a)(3) should not be an
ACCA predicate. Even if he were correct, this panel cannot overrule published circuit precedent.
See Brumbach, 929 F.3d at 795. Betts concedes as much in his appellate brief, and urges en banc
review of Brumbach and its progeny. See Appellant Brief at 2, 4, 6, 7, 19, 33, and 39.
Given this posture, we AFFIRM the judgment of the district court.
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No. 22-5006, United States v. Betts
BERNICE BOUIE DONALD, Circuit Judge, dissenting. I disagree with the majority that
prior precedent forecloses our consideration of whether aggravated burglary under T.C.A. § 39-
14-403(a)(3) qualifies as a predicate felony under the Armed Career Criminal Act, and therefore,
I respectfully dissent.
For a decision by a prior panel to be holding, “it must be clear that the court intended to
rest the judgment (if necessary) on its conclusion about the issue.” Wright v. Spaulding, 939 F.3d
695, 701 (6th Cir. 2019). If the decision does not contribute to the judgment, then it is only dicta
and not binding authority. Id. at 701. Rampant dictum can produce a snowballing effect and “is
usually a bad idea, because judges think differently – more carefully, more focused, more likely
to think things through – when our words bring real consequences to the parties before us.” United
States v. Burris, 912 F.3d 386, 410 (6th Cir. 2019) (en banc) (Kethledge, J., concurring). However,
the majority is again kicking the can down the road by failing to apply the Wright standard to the
case at bar and summarily treating the issue as foreclosed.
The faulty path of foreclosure can be traced back to United States v. Sawyers, 409 F.3d 732(6th Cir. 2007). Curiously, however, Sawyers was a facilitation case, not an aggravated burglary
case. The court in Sawyers was asked to address whether a Tennessee conviction for facilitation
of aggravated burglary constituted a “violent felony” under the ACCA. Id. at 737-40. The panel
determined that “while aggravated burglary in Tennessee meets this standard, its facilitation does
not.” Id. at 737. Had the Sawyers panel rested its decision on this statement, our issue could be
considered foreclosed. But the panel instead rested its judgment on the now-unconstitutional
residual clause in the ACCA statute, finding that facilitation of aggravated burglary did not qualify
under the enumerated clause. Id. at 738; see Johnson v. United States, 576 U.S. 591 (2015).
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No. 22-5006, United States v. Betts
Following the Wright standard, the Sawyers panel’s statement must be considered dicta, not
binding precedent.
Sawyers created a slippery slope of opinions simply deferring to the analysis provided
therein. United States v. Nance was the first in the long line of cases. 481 F.3d 882 (6th Cir.
2007). Nance cited the Sawyers definition of aggravated burglary under Tennessee law and
determined that it “clearly comport[ed]” with generic burglary under the ACCA without any
further analysis of the issue. Id. at 888. Next came United States v. Priddy, 808 F.3d 676 (6th Cir.
2015). Priddy missed the opportunity to independently analyze the (a)(3) subsection, choosing
instead to defer to the broad ruling in Nance that the first three variants of Tennessee burglary
constitute generic burglary. Id. at 864-65. The mistake was further compounded by United States
v. Ferguson, in which the panel held that “Priddy dictates that [Tennessee burglary convictions]
are violent felonies.” 868 F.3d 514, 515 (6th Cir. 2017). Finally, we arrive at United States v.
Brumbach, which, just like the cases before it, deferred to prior panels as having foreclosed the
issue. 929 F.3d 791, 794 (6th Cir. 2019). The issue before us in Brumbach, however, was one
specifically concerned with the definition of “entry,” not the actor’s state of mind under the (a)(3)
subsection. Id. at 795.
Since Brumbach, panel after panel has mistakenly treated this issue as foreclosed without
providing a reasoned basis for doing so. See e.g., United States v. Brown, 957 F.3d 679 (6th Cir.
2020) (deferring to Brumbach and Ferguson instead of analyzing Brown’s argument that
subsection (a)(3) does not qualify as an ACCA predicate); United States v. Buie, 960 F.3d 767 (6th
Cir. 2020) (citing Brumbach as foreclosure precedent for consideration). Justice Sotomayor
highlighted this mistake in a recent statement respecting the denial of certiorari. See Gann v.
United States, 142 S. Ct. 1 (2021) (Sotomayor, J., concurring in denial of certiorari). She found
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No. 22-5006, United States v. Betts
that Brumbach “had rejected different arguments for why different elements of Tennessee’s
aggravated burglary did not match the elements of generic burglary” and noted that “the Sixth
Circuit neither discussed nor decided, whether Tennessee aggravated burglary also comports with
the requirement that generic burglary include the intent to commit a crime.” Id. at *2. Justice
Sotomayor “expect[ed] the Sixth Circuit to give the argument full and fair consideration in a future
case.” Id. Unfortunately, the majority fails to do so here in its conclusory, two-paragraph opinion.
It is crucially important that we distinguish dicta from binding precedent, and more
importantly, that each issue before the court “is investigated with care, and considered in its full
extent.” Cohens v. State of Virginia, 19 U.S. 264, 399 (1821). To foreclose an issue simply
because prior panels have done the same continues to entrench a troublesome precedent. For the
aforementioned reasons, I respectfully dissent.
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