United States District Court, M.D. Tennessee, Nashville Division
ORDER DENYING MOTION TO VACATE SENTENCE
M. Lawson United States District Judge.
21, 2016, the petitioner filed a motion asking the Court to
vacate his sentence under 28 U.S.C. § 2255 and order
that he be resentenced. The Court has reviewed the record of
the proceedings and the submissions of the parties and now
finds that the petitioner has not established that he is in
custody under a constitutionally defective judgment of
sentence. The motion therefore will be denied.
August 24, 2005, after a two-day jury trial, petitioner
Antonio Crowell was convicted of being a felon in possession
of a firearm, in violation of 18 U.S.C. §§
922(g)(1) and 924(e). At sentencing, the Court found that the
petitioner was subject to an enhanced sentence under the
Armed Career Criminal Act (“ACCA”) as the result
of several prior felony convictions, which included, as
relevant here, two convictions for robbery and one conviction
for aggravated assault, all under Tennessee law. On July 4,
2006, he was sentenced to 235 months in prison. The
conviction and sentence subsequently were affirmed on appeal.
United States v. Crowell, 493 F.3d 744 (6th Cir.
2007). Crowell concedes that under the applicable controlling
case law, e.g., United States v. Mitchell,
743 F.3d 1054, 1058 (6th Cir. 2014), his robbery convictions
still qualify as “violent felonies” for the
purposes of the ACCA. However, he now argues that his 1999
Tennessee conviction for aggravated assault no longer counts
as a valid ACCA predicate offense.
federal prisoner challenging his sentence under section 2255
must show that the sentence “was imposed in violation
of the Constitution or laws of the United States, ” the
sentencing court lacked jurisdiction, the sentence exceeds
the maximum penalty allowed by law, or the conviction
“is otherwise subject to collateral attack.” 28
U.S.C. § 2255(a). “A prisoner seeking relief under
28 U.S.C. § 2255 must allege either: ‘(1) an error
of constitutional magnitude; (2) a sentence imposed outside
the statutory limits; or (3) an error of fact or law that was
so fundamental as to render the entire proceeding
invalid.'” Short v. United States, 471
F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United
States, 334 F.3d 491, 496-97 (6th Cir. 2003)).
parties agree that in 1999 Tennessee defined aggravated
assault as an offense with several variations, including the
variant described as follows: “A person commits
aggravated assault who: (1) Intentionally or knowingly
commits an assault as defined in § 39-13-101 and: (A)
Causes serious bodily injury to another; or (B) Uses or
displays a deadly weapon.” 1993 Tennessee Laws Pub. Ch.
306 (S.B. 567) (amending former Tenn. Code §
39-13-102(a), eff. May 12, 1993). That enactment also graded
aggravated assault into several felony classes, stating in
pertinent part: “Aggravated assault under subsection
(a)(1), (b) or (c) is a Class C felony.” Ibid.
(amending Tenn. Code § 39-13-102(d)).
state court record of the 1999 conviction reveals that the
petitioner was indicted for “aggravated assault.”
The indictment charged in Count 1 that the petitioner
“intentionally or knowingly did cause bodily injury to
Shereca Jones by the use or display of a deadly weapon, to
wit: a screwdriver, in violation of Tennessee Code Annotated
§ 39-13-102.” Indictment, Count 1, ECF No. 11,
PageID.30. The petitioner's “petition to enter
guilty plea” stated that he agreed to plead guilty to,
among other things, “Ct. 1 - Aggravated Assault - C
felony.” Plea Agrmt., ECF No. 11, PageID.33.
petitioner now argues that he is entitled to relief from his
ACCA-enhanced sentence under the holding of Johnson v.
United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), in
which the Supreme Court held that the residual clause of the
Armed Career Criminal Act (ACCA) was unconstitutionally
vague. The petitioner contends that his 1999 conviction for
aggravated assault only could qualify under the now defunct
residual clause of the ACCA, and that he therefore is
entitled to resentencing without the ACCA enhancement.
However, the relevant portions of the state court record of
proceedings establish that the petitioner was convicted of an
offense that indisputably qualifies as a violent felony under
the ACCA's so-called “use-of-force” clause,
without resort to the defective residual clause definition.
the ACCA, a felon who unlawfully possesses a handgun can have
his sentence enhanced if he has three previous convictions
for violent felonies.” United States v.
Phillips, 768 Fed.Appx. 474, 476 (6th Cir. 2019) (citing
18 U.S.C. § 924(e)(1)). “A violent felony is
defined in two ways: it can either involve the use, attempted
use, or threatened use of physical force against the person
of another (the ‘use-of-force clause'), or it can
be one of several enumerated offenses.” Ibid.
(citing 18 U.S.C. § 924(e)(2)(B)). “Because
aggravated assault is not an enumerated offense in the ACCA,
it must have ‘as an element the use, attempted use, or
threatened use of force against the person of another' to
qualify.” Id. at 479 (quoting 18 U.S.C. §
924(e)(2)(B)(i)). “For the ACCA, force is
‘violent force - that is, force capable of causing
physical pain or injury to another person.'”
Ibid. (quoting Johnson v. United States,
559 U.S. 133, 140 (2010)).
decide if a conviction satisfies the ACCA, the Supreme Court
has developed a categorical approach that consists of
comparing elements of the ‘generic' crime as it is
commonly understood with the elements of the conviction. If
the statute's elements are identical to or narrower than
the generic crime, then a conviction under that statute is a
violent felony under the ACCA.” Id. at 466-67
(citing Descamps v. United States, 570 U.S. 254, 257
(2013)). “If, however, the statute is divisible -
meaning that it ‘sets out one or more elements of the
offense in the alternative' - then whether a defendant is
convicted of a violent felony depends entirely upon which
elements served as the basis of his conviction. In these
instances, courts are allowed to use the ‘modified
categorical approach' to determine which set of elements
provided the basis for the defendant's conviction.”
Id. at 477 (citations omitted). “Under the
modified categorical approach, courts may look to certain
documents to narrow a defendant's conviction to a
particular set of elements.” Ibid. “In
Shepard v. United States, the Supreme Court
identified records that are appropriate to determine the
character of a conviction: ‘a later court [may look to]
the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit
factual finding by the trial judge to which the defendant
assented.'” Ibid. (quoting 544 U.S. 13,
16). “That Tennessee's aggravated assault statute,
§ 39-13-102 [in the version extant in 1999], is a
divisible statute is not contested, ” and, accordingly,
the modified categorical approach is the proper framework for
analyzing a conviction thereunder. Ibid. (citing
Braden v. United States, 817 F.3d 926, 933 (6th Cir.
undisputed record of the state court proceedings discloses
that the petitioner pleaded guilty to and was convicted of an
intentional or knowing aggravated assault, in which he was
charged with causing bodily injury to a person, by the use or
display of a deadly weapon. Applying the modified categorical
approach to identical statutory language, on
indistinguishable circumstances of conviction, the Sixth
Circuit has “held that convictions under §
39-13-102(a)(1)(B) - knowing or intentional assaults
involving the use or display of a weapon - [are] violent
felonies under the force clause of the ACCA, ” and that
even “reckless aggravated assaults involving the use or
display of a deadly weapon are also crimes of
violence.” Phillips, 768 Fed.Appx. at 479
(citing Braden, 817 F.3d at 933; United States
v. Harper, 875 F.3d 329, 330 (6th Cir. 2017); Davis
v. United States, 900 F.3d 733, 736 (6th Cir. 2018)).
“Thus, [the petitioner's] conviction would qualify
for the ACCA regardless of whether he was convicted for a
knowing or intentional aggravated assault or a reckless
assessing the defendant's status under the ACCA, the
Court considered the defendant's prior convictions for
robbery and aggravated assault and found that they qualified
as violent felonies under the ACCA. Under the guidance of the
controlling decisions on point, there was no error of
constitutional dimension in that conclusion. Because the
petitioner's aggravated assault convictions
unquestionably qualifies under the use-of-force clause,
without resort to the constitutionally defective residual
clause, the petitioner has not established that he is
entitled to relief from his ACCA-enhanced sentence.
it is ORDERED that the petitioner's
motion to ...