United States v. Brian Howard ( 2020 )

NOT RECOMMENDED FOR PUBLICATION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
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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).
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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.
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