United States District Court, E.D. Tennessee
MEMORANDUM AND ORDER
Jordan, United States District Judge.
defendant pleaded guilty to being a felon in possession of a
firearm and ammunition in violation of 18 U.S.C. §
922(g)(1). He will be sentenced on July 29, 2019.
November 2018, the United States Probation Office disclosed
its initial Presentence Investigation Report [doc. 22], which
in light of then-binding Sixth Circuit authority, United
States v. Stitt, 860 F.3d 854 (6th Cir.
2017), did not deem the defendant an Armed Career Criminal
under the Armed Career Criminal Act (“ACCA”). The
prosecution objected to the initial Presentence Investigation
Report because the United States Supreme Court had granted
certiorari in Stitt. [Doc. 25].
thereafter, the Supreme Court reversed Stitt.
See United States v. Stitt, 139 S.Ct. 399 (2018).
The probation office subsequently disclosed an Amended
Presentence Investigation Report (“PSR”) now
finding the defendant to be an Armed Career Criminal. [Doc.
ACCA tables having turned, the defendant then filed three
objections to his ACCA designation. [Doc. 32]. The United
States has responded to those objections and the defendant
has filed a reply. [Docs. 33, 36');">36]. For the reasons that
follow, the defendant's objections will be overruled.
ACCA provides, “In the case of a person who violates
section 922(g) of this title and has three previous
convictions by any court referred to in section 922(g)(1) of
this title for a violent felony or a serious drug offense, or
both, committed on occasions different from one another, such
person shall be fined under this title and imprisoned not
less than fifteen years . . . .”). See 18
U.S.C. § 924(e)(1). The PSR in this case cites four
prior convictions, found at paragraphs 28 through 31 of that
document, as meeting the ACCA definition of “violent
of those convictions are for Tennessee aggravated burglary,
and the other is for Tennessee burglary of a building. For
one or more reasons, the defendant objects that none of those
convictions constitute “violent felonies” for
purposes of the ACCA and, in the alternative, that less than
three of the felonies were “committed on occasions
different from one another.”
defendant first objects that the crimes of aggravated
burglary and burglary of a building under Tennessee law are
broader than the definition of “generic burglary”
described in Taylor v. United States, 495 U.S. 575,
598 (1990), and thus may not be used as ACCA predicates. The
defendant acknowledges “contrary precedent” under
Sixth Circuit law but urges this Court to “correct the
error” of the Sixth Circuit's prior
“incomplete summar[ies]” and “incomplete or
inaccurate descriptions of Tennessee law.” [Doc. 32, p.
11-12; doc. 36');">36, p. 15].
Court is of course bound by Sixth Circuit precedent and is
“not free to pick and choose the portion of a prior
published decision that [the Court] will follow and those
that [it] will disregard. Nor [does the Court] enjoy greater
latitude in situations where . . . precedents purportedly are
tainted by analytical flaws.” Grundy Mining Co. v.
Flynn, 353 F.3d 467, 479 (6th Cir. 2003). For
that reason, the defendant's first objection will be
the defendant objects that the ACCA cannot be applied in this
case because the “remaining-in” variant of
Tennessee aggravated burglary does not require proof of
intent to commit a crime upon entry and thus is not
“generic burglary.” The United States Supreme
Court recently issued its decision in Quarles v. United
States, 139 S.Ct. 1872 (2019). There, the unanimous
Court held that “generic remaining-in burglary occurs
under 924(e) when the defendant forms the intent to commit a
crime at any time while unlawfully ...