                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                     FILED
                         ________________________          U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                                  May 29, 2007
                               No. 06-11383                   THOMAS K. KAHN
                           Non-Argument Calendar                  CLERK
                         ________________________

                   D. C. Docket No. 05-00327-CR-01-JOF-1

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

CONLEY PETERS,

                                                            Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                                (May 29, 2007)

Before ANDERSON, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

     Conley Peters pleaded guilty to one count of possessing a firearm after being
convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). The district court

sentenced him to serve 180 months in prison, the minimum sentence the court

was able to impose under the Armed Career Criminal Act (ACCA), 18 U.S.C.

§ 924(e)(1). ACCA’s 180-month mandatory minimum applies to any person who

violates § 922(g) and has had three previous convictions “for a violent felony or

a serious drug offense.” Id. At sentencing, after reviewing the presentence

investigation report prepared by the probation office, the district court concluded

that Peters was subject to ACCA’s mandatory minimum because he had three

previous convictions, each of which qualified as a “violent felony.”

       One of the three felonies that the district court treated as a “violent felony”

for ACCA purposes was Peters’s 1981 conviction for attempted second degree

burglary under Tennessee law. On appeal, Peters argues that the district court

miscalculated his sentence because, he says, his 1981 conviction for attempted

burglary, as defined by Tennessee law, cannot be considered a violent felony under

ACCA.1 We disagree and therefore affirm Peters’s sentence. Our analysis of this

appeal tracks the approach set forth by the Supreme Court’s recent decision in

James v. United States, ___ U.S. ___, 127 S. Ct. 1586 (2007).



       1
          Peters does not challenge the district court’s conclusion that his other two felonies
constituted “violent felon[ies]” under ACCA.


                                              2
             The term “violent felony” is defined by ACCA as

             any crime punishable by imprisonment for a term
             exceeding one year . . . that—

                    (i) has as an element the use, attempted use, or
             threatened use of physical force against the person of
             another; or

                   (ii) is burglary, arson, or extortion, involves use of
             explosives, or otherwise involves conduct that presents a
             serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B).

      At the time Peters was convicted, Tennessee defined second degree burglary

as follows: “Burglary in the second degree is the breaking and entering into a

dwelling house or any other house, building, room or rooms therein used

and occupied by any person or persons as a dwelling place or lodging either

permanently or temporarily and whether as owner, renter, tenant, lessee or paying

guest, by day, with the intent to commit a felony.” Tenn. Stat. § 39-903 (repealed

1989). Peters was convicted under Tennessee’s general attempt statute, which at

the time provided as follows: “If any person . . . attempt[s] to commit[] any felony

or crime punishable by imprisonment in the penitentiary, where the punishment is

not otherwise prescribed, he shall, on conviction, be punished by imprisonment in

the penitentiary not exceeding five (5) years, or, in the discretion of the jury, by

imprisonment in the county workhouse or jail not more than one (1) year.” Tenn.

                                           3
Stat. § 39-603 (repealed 1989); see State v. Staggs, 554 S.W.2d 620, 624 (Tenn.

1977) (“We hold that Sec. 39-603 is our general attempt statute.”). Second degree

burglary was a felony for purposes of the general attempt statute. See State v.

Cole, 665 S.W.2d 407, 408 (Tenn. Cr. App. 1983).

      At the time Peters was convicted, Tennessee’s “law of criminal attempt,

though sanctioned by various statutes, was judicially defined.” State v. Reeves,

916 S.W.2d 909, 910-11 (Tenn. 1996). As defined by the Tennessee courts, the

elements of criminal attempt were: “(1) an intent to commit a specific crime; (2) an

overt act toward the commission of that crime; and (3) a failure to consummate the

crime.” Id. at 911. As required for application of ACCA, Peters’s conviction

for attempted second degree burglary was “punishable by imprisonment for a term

exceeding one year.” 18 U.S.C. § 924(e)(2)(B); see Rafferty v. State, 16 S.W.

728, 728 (Tenn. 1891) (construing former version of § 39-603 and holding that

“[t]he fact that the punishment for the attempt is in the alternative, either by

imprisonment in the penitentiary or by fine and imprisonment in the county jail,

does not make it any less an offense punishable by imprisonment in the

penitentiary, or take from it the characteristic of a felony”).

      As did the parties in James, which involved a conviction for attempted

burglary under Florida law, the parties here agree that Peters’s attempted burglary



                                            4
conviction cannot be considered a “violent felony” under clause (i) of ACCA’s

definition because attempted second degree burglary under Tennessee law does not

have “as an element the use, attempted use, or threatened use of physical force

against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); see James, ___ U.S. at

___, 127 S. Ct. at 1591. And as the Court recognized in James, attempted burglary

cannot qualify as any of the crimes specifically enumerated in clause (ii). Id. That

is because attempted burglary is not arson or extortion and does not involve the use

of explosives. Nor does attempted burglary qualify as “burglary” under clause (ii)

because it does not meet the ACCA definition of burglary set forth in Taylor v.

United States, 495 U.S. 575, 598, 110 S. Ct. 2143, 2158 (1990): “an unlawful or

unprivileged entry into, or remaining in, a building or other structure, with intent to

commit a crime.” Attempted burglary is not Taylor-defined burglary because one

of the required elements of attempted burglary under Tennessee law is “a failure to

consummate the [underlying] crime.” Reeves, 916 S.W.2d at 911; see James, ___

U.S. at ___, 127 S. Ct. at 1591 (noting that attempted burglary under Florida law is

not Taylor-defined burglary because it requires that the defendant “‘fai[l] in the

perpetration or [be] intercepted or prevented in the execution’ of the underlying

offense”).

      Thus, the only question presented in this appeal, similar to the question



                                           5
addressed by the Court in James with respect to Florida law, is whether attempted

second degree burglary, as defined by Tennessee law at the time of Peters’s

conviction, falls within ACCA’s clause (ii) residual provision for crimes that

“otherwise involv[e] conduct that presents a serious potential risk of physical

injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).2

       To answer this question, we must use the “categorical approach” adopted by

the Supreme Court for the purpose of defining other ACCA offenses. See James,

___ U.S. at ___, 127 S. Ct. at 1593. “Under this approach, we look only to the fact

of conviction and the statutory definition of the prior offense and do not generally

consider the particular facts disclosed by the record of conviction. That is, we

consider whether the elements of the offense are of the type that would justify its

inclusion within the residual provision, without inquiring into the specific conduct

of this particular offender.” Id. at ___, 127 S. Ct. at 1594 (citations and internal

quotation marks omitted).

       We must look first to Tennessee law to determine what type of conduct

constituted attempted burglary at the time of Peters’s conviction. The general

attempt statute under which Peters was convicted is unhelpful for that purpose



       2
         Although Peters does not so argue in this appeal, we note that the Court in James rejected
the argument that attempt crimes are categorically excluded from the scope of § 924(e)(2)(B)(ii)’s
residual provision.

                                                6
because, as we noted above, the law of criminal attempt in 1981 was judicially, not

statutorily, defined. At that time, Tennessee courts required as an element of

attempted burglary that the defendant engage in an “overt act directed to [the]

commission” of burglary. See Gervin v. State, 371 S.W.2d 449, 450 (Tenn. 1963).

Without citing any authority that supports the proposition, Peters maintains that

Tennessee’s attempt statute is construed “in an extremely broad manner,” so broad

that in Peters’s view “a defendant would be guilty of attempted burglary by merely

collecting some burglar tools and driving around a neighborhood looking for an

empty house.” Peters Br. at 16. Based on this observation, Peters reasons that

attempted burglary under Tennessee law is not a violent felony under ACCA

because it does not “presen[t] a serious potential risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B)(ii). We disagree with Peters’s view of Tennessee law

and thus his conclusion about the applicability of ACCA in this case.

      The gist of Peters’s argument, much like the petitioner’s argument in James,

is that in Tennessee a person can be convicted of attempted burglary by engaging

in merely preparatory conduct — conduct that does not pose a physical risk to

others. See James, ___ U.S. at ___, 127 S. Ct. at 1594 (“James contends that this

broad statutory language sweeps in merely preparatory activity that poses no real

danger of harm to others — for example, acquiring burglars’ tools or casing a



                                           7
structure while planning a burglary.”). But that is not an accurate statement of the

law in Tennessee today, nor is it an accurate statement of the law in Tennessee at

the time of Peters’s conviction in 1981. The leading case on criminal attempts in

Tennessee at the time of Peters’s conviction was Dupuy v. State, 325 S.W.2d 238

(Tenn. 1959), overruled by Reeves, 916 S.W.2d at 914 (recognizing Dupuy as the

“best example” of Tennessee courts’ pre-1989 interpretation of criminal attempt).3

Although the typical phrasing of the overt act element of a criminal attempt, as

recited in Gervin and other Tennessee cases, may seem fairly broad in a general

sense — the act must be “directed at the commission of” burglary 4 — the

Tennessee Supreme Court in Dupuy had significantly restricted the meaning and

application of that element, stating that “[t]he overt act necessary to constitute an

attempt to commit crime must go beyond mere preparation, and commission of

the crime must be at least apparently possible to the reasonable apprehension

of [the] accused.” 325 S.W.2d at 240 (emphasis added). The Court in Dupuy

characterized the overt act as “the direct movement toward the commission [of the

crime] after the preparations have been made.” Id. Citing Dupuy as the archetypal

       3
          In 1989, Tennessee’s general attempt statute, § 39-603, was replaced with a substantive
attempt statute, § 39-12-101, which displaces the judicially imposed “overt act” requirement in favor
of a statutorily imposed “substantial step” requirement.
       4
        See James, ___ U.S. at ___, 127 S. Ct. at 1594 (noting the breadth of the virtually identical
language used in Florida’s attempt statute — requiring “any act toward the commission” of
burglary).

                                                 8
case on the application of the overt act requirement, the Tennessee Supreme Court

in Reeves confirmed that, prior to 1989, “Tennessee courts [following the lead of

Dupuy] construed the term ‘overt act’ very narrowly.” 916 S.W.2d at 911

(emphasis added).

      The Supreme Court in James similarly recognized that the Florida Supreme

Court, applying Florida’s attempt statute in the burglary context, has “considerably

narrowed” the statute’s broad language by requiring that a defendant engage in

some “overt act directed toward entering or remaining in a structure or

conveyance.” James, ___ U.S. at ___, 127 S. Ct. at 1594 (citing Jones v. State, 608

So.2d 797, 799 (Fla. 1992)). The Court in James pointed out that this “narrowed”

application of Florida’s attempt statute confirms the fact that “[m]ere preparation is

not enough” to sustain a conviction for attempted burglary in Florida. Id.

Similarly, and contrary to Peters’s argument on appeal, it is clear from the

Tennessee case law that mere preparation would not have been enough to sustain a

conviction for attempted second degree burglary in 1981. See Dupuy, 325 S.W.2d

at 239 (“A mere preparation is not enough.”); id. at 240 (“For example the

procurement by a prisoner of tools adapted to breaking jail does not render him

guilty of an attempt to break jail.”).

      We think that the “heightened standard,” James, ___ U.S. at ___, 127 S. Ct.



                                          9
at 1594, used by Florida courts to apply the overt act requirement of Florida’s

attempt statute in the burglary context is materially indistinguishable from the

“very narro[w],” Reeves, 916 S.W.2d at 911, construction given to the overt act

requirement by Tennessee courts at the time of Peters’s conviction. In Florida, to

be convicted of attempted burglary, a defendant must engage in some conduct

“directed toward entering or remaining in a structure or conveyance.” James, ___

U.S. at ___, 127 S. Ct. at 1594. This formulation of the rule is, in our view, merely

another way of stating, in the burglary context, the overt act standard applied by

Tennessee courts at the time of Peters’s conviction. At that time, to be convicted

of attempted burglary in Tennessee, a defendant must have been in such close

proximity to the targeted structure that the “commission of the [burglary] [would

have been] at least apparently possible to the reasonable apprehension of [the]

accused.” Dupuy, 325 S.W.2d at 240. Stated differently, it is inconceivable to

think that, under Tennessee law, a burglary could have been “apparently possible

to the . . . accused” unless the accused had engaged in some conduct substantially

similar to that required under Florida law — conduct found by the Court in James

to pose a serious potential risk of physical injury.

      Our reading of Tennessee law is consistent with the conclusion reached by

the Sixth Circuit in United States v. Bureau, 52 F.3d 584 (6th Cir. 1995), in which



                                           10
the court was faced with the exact same question presented in this appeal. There,

the court surveyed “affirmed convictions for attempted burglary in Tennessee,

under both § 39-603 and its replacement” and concluded “that a defendant

convicted of this crime likely entered or nearly entered a building.” Bureau, 52

F.3d at 592 (emphasis added). On the basis of that survey, which confirms

Dupuy’s restrictive interpretation of the overt act requirement, the Sixth Circuit in

Bureau determined that attempted burglary, as defined by pre-1989 Tennessee

law,5 constitutes as a “violent felony” under ACCA’s residual provision for crimes

that “involv[e] conduct that presents a serious potential risk of physical injury to

another.” 18 U.S.C. § 924(e)(2)(B)(ii); see Bureau, 52 F.3d at 593.

       Our reading of Tennessee law in this respect is also supported by James, in

which the Supreme Court identified the Sixth Circuit — specifically, its decision in

Bureau — as one of seven Courts of Appeal that “has construed an attempted

burglary law similar in scope to Florida’s.” ___ U.S. at ___ & n.3, 127 S. Ct. at

1595 & n.3 (emphasis added).

       The Supreme Court in James concluded that attempted burglary under

Florida law is a “violent felony” under the residual provision of ACCA’s clause (ii)



       5
         The court in Bureau also surveyed affirmed attempted burglary convictions under the post-
1989, “substantial step” attempt statute, but we are not concerned with those cases because our focus
is necessarily constrained to the law as it existed at the time of Peters’s conviction.

                                                11
because, as narrowly construed by the Florida courts, it “involves conduct that

presents a serious potential risk of physical injury to another.” Having determined

that attempted second degree burglary, as defined by pre-1989 Tennessee case law,

is materially indistinguishable from attempted burglary under Florida law, we too

are bound to conclude, for the reasons stated by the Supreme Court in James, that

Peters’s 1981 conviction for attempted second degree burglary is a “violent felony”

under the residual provision of clause (ii). See James, ___ U.S. at ___, 127 S. Ct.

at 1594-96.

      Peters’s 180-month sentence is accordingly affirmed.

AFFIRMED




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