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United States v. Malone

United States Court of Appeals, Sixth Circuit

May 8, 2018

United States of America, Plaintiff-Appellee,
v.
Jimmy David Malone, Defendant-Appellant.

          Argued: April 26, 2018

          Appeal from the United States District Court for the Eastern District of Tennessee at Knoxville. No. 3:16-cr-00058-1-Thomas A. Varlan, Chief District Judge.

         ARGUED:

          Robert R. Kurtz, STANLEY & KURTZ, PLLC, Knoxville, Tennessee, for Appellant.

          Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

         ON BRIEF:

          Robert R. Kurtz, STANLEY & KURTZ, PLLC, Knoxville, Tennessee, for Appellant.

          Luke A. McLaurin, UNITED STATES ATTORNEY'S OFFICE, Knoxville, Tennessee, for Appellee.

          Before: GUY, SUTTON, and COOK, Circuit Judges.

          OPINION

          COOK, CIRCUIT JUDGE.

         This appeal presents the latest episode in the saga of determining whether a prior conviction is a "violent felony" for purposes of the Armed Career Criminal Act's sentencing enhancement. Guided by canons of statutory construction, we hold that Kentucky second-degree burglary categorically qualifies as generic burglary under the ACCA and AFFIRM the sentence.

         I.

         Knoxville police pulled over Jimmy Malone for driving with unlit taillights. But his lights were the least of his worries. The handgun found under Malone's seat prompted a federal grand jury indictment on felon-in-possession charges. See 18 U.S.C. § 922(g)(1). A witness-intimidation charge came later after Malone bade his sister lie to officers about who bought the gun. See id. § 1512(b)(1). He pleaded guilty to all counts.

         The Presentence Report classified Malone as an armed career criminal under the ACCA based on three prior convictions for "violent felonies" or "serious drug offenses"-Tennessee aggravated assault, federal drug trafficking, and Kentucky second-degree burglary. See id. ยง 924(e). He contested the classification, arguing only that his Kentucky conviction was incorrectly considered an ACCA predicate offense because the crime's elements are broader than generic burglary's. Overruling Malone's ...


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