Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Gann

United States District Court, E.D. Tennessee

July 1, 2019

UNITED STATES OF AMERICA
v.
SAMUEL ALEX GANN

          MEMORANDUM AND ORDER

          Leon Jordan, United States District Judge.

         The 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.

         In 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].

         Soon 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. 30].

         The 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.

         I.

         Background and Authority

         The 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 felony.”

         Three 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.”

         II.

         Objection One

         The 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].

         This 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 overruled.

         III.

         Objection Two

         Next, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.