United States v. Brian Howard ( 2020 )


Menu:
  •                        NOT RECOMMENDED FOR PUBLICATION
    File Name: 20a0251n.06
    Case No. 19-5848
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT                                   FILED
    May 05, 2020
    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
    BRIAN HOWARD,                                         )
    )
    Defendant-Appellant.                           )                            OPINION
    BEFORE:        COLE, Chief Judge; BATCHELDER and STRANCH, Circuit Judges.
    COLE, Chief Judge. Brian Howard pleaded guilty to being a felon in possession of a
    firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced as an armed career criminal under
    the Armed Career Criminal Act (“ACCA”) based on four prior convictions for aggravated burglary
    in Tennessee. Howard now appeals his sentence of 180 months’ imprisonment, contending that
    he is not an armed career criminal under the ACCA. We affirm.
    I.
    Between 2008 and 2010, Howard was convicted four times of aggravated burglary in
    violation of Tenn. Code Ann. § 39-14-403(a). Then, on April 16, 2017, police officers pulled over
    Howard while he had a firearm in his vehicle. Howard pleaded guilty to being a felon in possession
    of a firearm, while expressly reserving his right to appeal any determination that he was an armed
    Case No. 19-5848, United States v. Brian Howard
    career criminal under the ACCA. At his sentencing, the district court determined that Howard was
    an armed career criminal under the ACCA, and, accordingly, sentenced him to the ACCA’s
    mandatory-minimum prison sentence of 180 months. See 18 U.S.C. § 924(e)(1).
    II.
    18 U.S.C. 922(g) makes it unlawful for certain classes of people, including convicted
    felons, to possess a firearm that has been shipped or transported in interstate or foreign commerce.
    The ACCA provides for enhanced sentences for people who violate that law after being convicted
    of three violent felonies committed on different occasions from each other. 18 U.S.C. § 924(e)(1).
    The ACCA specifically lists burglary as a violent felony.
    Id. § 924(e)(2)(B)(ii).
    In enacting the
    ACCA, however, Congress did not intend to include all forms of burglary offenses in its definition
    of violent felonies. See Mathis v. United States, 
    136 S. Ct. 2243
    , 2248 (2016) (citing Taylor v.
    United States, 
    495 U.S. 575
    , 598 (1990)). Rather, burglary under the ACCA includes only the
    “generic” form of the offense.
    Id. The Supreme
    Court has defined generic burglary as “an
    unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to
    commit a crime.” 
    Taylor, 495 U.S. at 598
    .
    The determination of whether prior offenses constitute predicate violent felonies under the
    ACCA carries a great deal of importance. When the ACCA enhancement for armed career
    criminals applies, the mandatory-minimum prison sentence is 15 years, but when the enhancement
    does not apply, the maximum sentence for the same underlying violation is ten years’
    imprisonment. See 18 U.S.C. § 924(a)(2), (e)(1).
    Whether Tennessee’s aggravated burglary statute constitutes a “generic” form of burglary
    is an issue that has been litigated at great length over the past few years. In 2017 we held that by
    including burglary of vehicles and movable enclosures, Tennessee’s aggravated burglary statute
    -2-
    Case No. 19-5848, United States v. Brian Howard
    includes more conduct than is encompassed in generic burglary. United States v. Stitt (Stitt I), 
    860 F.3d 854
    , 858 (6th Cir. 2017) (en banc). The Supreme Court, however, reached the opposite
    conclusion, holding that the inclusion of vehicles and movable structures did not expand the scope
    of the Tennessee aggravated burglary law beyond that of generic burglary. United States v. Stitt
    (Stitt II), 
    139 S. Ct. 399
    , 403–04 (2018). Since Stitt II, we have accordingly recognized Tennessee
    aggravated burglary convictions as predicate violent felonies for ACCA purposes. See Brumbach
    v. United States, 
    929 F.3d 791
    , 792 (6th Cir. 2019).
    III.
    Here, Howard contends that his aggravated burglary convictions are not predicate violent
    felonies on a different basis than the vehicle argument raised in Stitt I and Stitt II. He argues that
    the aggravated burglary statute defines entry more broadly than generic burglary and, as such,
    allows for the possibility that someone could be convicted of aggravated burglary for only
    attempting to enter a structure. Specifically, Howard argues that Tennessee courts have found that
    the “entry” element of aggravated burglary is satisfied by crossing a structure’s threshold with an
    instrument, even if the body of the person alleged to have committed the crime does not enter the
    structure and the person does not intend to use the instrument to commit the subsequent felony
    inside of the structure. See State v. Crow, 
    517 S.W.2d 753
    , 753–55 (Tenn. 1974). In Howard’s
    view, this definition of “entry” allows for a conviction upon what, at common law, would only
    constitute attempted burglary. As attempted burglary is not generic burglary—and, thus, not a
    predicate felony under the ACCA—Howard concludes that the district court designated him an
    armed career criminal in error. See James v. United States, 
    550 U.S. 192
    , 197 (2007), overruled
    on other grounds by Johnson v. United States, 
    135 S. Ct. 2551
    (2015).
    -3-
    Case No. 19-5848, United States v. Brian Howard
    Our precedent bars us from adopting Howard’s position. The defendant in Brumbach
    raised the same argument, and we rejected it as inconsistent with our precedent in light of Stitt II.
    
    Brumbach, 929 F.3d at 795
    . We have since observed that although Tennessee aggravated
    burglary’s definition of “entry” may have “modestly departed” from the common law rule of
    burglary at the time the ACCA was enacted, Congress intended for states to have some leeway in
    how they defined burglary, and thus Tennessee aggravated burglary’s possible slight departure
    from the majority definition of “entry” does not bring it outside of the Supreme Court’s conception
    of generic burglary. United States v. Brown, --- F.3d ----, 
    2020 WL 1966845
    at *7 (6th Cir. Apr.
    24, 2020). Howard cannot overcome these prior decisions rejecting his argument. 
    Brumbach, 929 F.3d at 795
    (citing Salmi v. Sec’y of Health & Human Servs., 
    774 F.2d 685
    , 689 (6th Cir. 1985)).
    We affirm the judgment of the district court.
    -4-
    

Document Info

Docket Number: 19-5848

Filed Date: 5/5/2020

Precedential Status: Non-Precedential

Modified Date: 5/5/2020