                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 14a0005p.06

                 UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT
                                    _________________


                                            X
                        Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                             -
                                             -
                                             -
                                                                 Nos. 12-6522/13-5535
          v.
                                             ,
                                              >
                                             -
                                             -
 CORTEZ DEWAYNE COOPER (12-6522) and

                    Defendants-Appellants. N-
 TERRY LEE ADAMS (13-5535),


                      Appeal from the United States District Court
                   for the Western District of Tennessee at Memphis.
             No. 2:10-cr-20366—John Thomas Fowlkes, Jr., District Judge.
                             Decided and Filed: January 7, 2014
         Before: MOORE and COOK, Circuit Judges; GWIN, District Judge.*

                                      _________________

                                            COUNSEL
ON BRIEF: Kenneth P. Tableman, KENNETH P. TABLEMAN, P.C., Grand Rapids,
Michigan, for Appellant in 12-6522. Jeff Woods, Memphis, Tennessee, for Appellant
in 13-5535. Kevin G. Ritz, UNITED STATES ATTORNEY’S OFFICE, Memphis,
Tennessee, for Appellee.
                                      _________________

                                            OPINION
                                      _________________

        KAREN NELSON MOORE, Circuit Judge. On October 27, 2010, a grand jury
returned a thirty-nine-count indictment against fourteen individuals, including
Defendants-Appellants Terry Lee Adams and Cortez Dewayne Cooper. Among other
crimes, the grand jury charged Adams and Cooper with conspiring to distribute cocaine
and cocaine base (crack cocaine) in violation of 21 U.S.C. § 846. Both pleaded guilty.

        *
           The Honorable James S. Gwin, United States District Judge for the Northern District of Ohio,
sitting by designation.


                                                  1
Nos. 12-6522/13-5535       United States v. Cooper et al.                          Page 2


Given the defendants’ prior offenses, the district court found Adams and Cooper to be
career offenders, applied the U.S.S.G. § 4B1.1 sentencing enhancement, and sentenced
them to 165 months and 120 months of imprisonment, respectively. On appeal, the co-
conspirators challenge their sentences, objecting to the application and constitutionality
of the career-offender guidelines. We AFFIRM.

                                 I. BACKGROUND

       The Federal Bureau of Investigation started tapping Pierre Isom’s telephone in
April 2010, suspecting that Isom was distributing powder cocaine and crack cocaine in
and around Dyersburg, Tennesseee. While monitoring the wiretap, the FBI learned that
Adams and Cooper were involved in Isom’s distribution operation. The intercepted
conversations led to Adams and Cooper being charged in the thirty-nine-count
indictment.

A. Adams

       Between April 3 and April 18, 2010, the FBI heard Adams ask—in code—for a
total of ninety-one grams of powder cocaine. Based on this information, the grand jury
indicted Adams on one count of conspiring to distribute powder cocaine and crack
cocaine, in violation of 21 U.S.C. § 846, and two counts of using a telecommunications
device to facilitate the distribution of powder cocaine and crack cocaine, in violation of
18 U.S.C. § 2 and 21 U.S.C. § 843. R. 4-1 (Indictment at 1–2, 14) (Page ID #126–27,
139). On November 18, 2010, officers arrested Adams, and a magistrate judge released
Adams on bond pending trial. While on pretrial release, however, Adams sold 3.37
grams of crack cocaine—$90 worth—to a confidential informant used by the Dyersburg
Police Department. These undercover buys led to a grand jury indicting Adams in
another federal case.

       On October 5, 2012, Adams entered into a Rule 11(c)(1)(C) plea agreement with
the government. In exchange for the government dropping the remaining counts and
cases against him, Adams pleaded guilty to one count of conspiracy to possess with
intent to distribute and to distribute controlled substances in violation of 21 U.S.C.
Nos. 12-6522/13-5535       United States v. Cooper et al.                          Page 3


§ 846. R. 540 (Adams Plea Agreement at 1–4) (Page ID #942–45). For purposes of the
guilty plea, the parties agreed that Adams was responsible for possessing ninety-one
grams of powder cocaine. Id. at 1–2 (Page ID #942–43).

       Under the Sentencing Guidelines, ninety-one grams of powder cocaine equals
18.2 kilograms of marijuana and corresponds with a base offense level of 16. U.S.S.G.
§ 2D1.1(c)(12), cmt. n.8(D); see also Adams Presentence Investigation Report (“Adams
PSR”) at 8 ¶ 19. However, the probation office recommended the application of the
career-offender enhancement due to Adams’s prior state convictions for the sale of
cocaine in 1996 and for aggravated assault in 1999. Adams PSR at 9 ¶ 27, 13 ¶ 41,
15 ¶ 44; see also U.S.S.G. § 4B1.1(a). With the enhancement, which is based on the
statutory maximum, Adams’s total offense level rose to 32. Adams PSR at 9 ¶ 27.

       Adams objected to the classification of his aggravated-assault conviction as a
crime of violence under U.S.S.G. § 4B1.1(a). See R. 652 (Adams Am. Sent. Mem. at 1)
(Page ID #1309). At the sentencing hearing, Adams restated and elaborated upon his
objection to no avail. The district court recognized that Tennessee Code Annotated
§ 39-13-102 (1998), the applicable statute, punished intentional and knowing conduct
as a Class C felony, but it also criminalized reckless assault as a Class D felony. R. 672
(Adams Sent. Hr’g Tr. at 15:18–23) (Page ID #1362). The former would be a crime of
violence, but the latter might not qualify. Relying on the state-court indictment and
judgment, however, the district court found that Adams was convicted of the Class C
felony, meaning that his aggravated-assault conviction qualified as a crime of violence.
Id. at 22:5–14 (Page ID #1369). Thus, after granting Adams a three-level adjustment for
acceptance of responsibility under U.S.S.G. § 3E1.1, the district court fixed Adams’s
final offense level at 29, which corresponded to a guidelines range of 151 to 188 months.
R. 672 (Adams Sent. Hr’g Tr. at 23:12–16) (Page ID #1370). The district court imposed
a sentence of 165 months of incarceration. Id. at 39:10–11 (Page ID #1386). Adams
appeals, arguing (1) that the district court erred by designating him a career offender;
and (2) that his Sixth Amendment rights were violated when the court, as opposed to a
jury, found as a matter of fact that Adams had been convicted of two qualifying felonies.
Nos. 12-6522/13-5535       United States v. Cooper et al.                          Page 4


B. Cooper

       The FBI also caught Cooper conversing with Isom regarding the distribution of
crack cocaine, which led to his indictment on one count of conspiracy to distribute a
controlled substance, in violation of 21 U.S.C. § 846, and four counts of using a
telecommunications device to facilitate the distribution of a controlled substance, in
violation of 18 U.S.C. § 2 and 21 U.S.C. § 843. See R.4-1 (Indictment at 1–2, 17)
(126–27, 142). On June 8, 2012, Cooper entered into a Rule 11(c)(1)(C) agreement with
the government in which he pleaded guilty to one count of conspiring to possess with
intent to distribute and to distribute crack cocaine. R. 422 (Cooper Plea Agt. at 1–3)
(Page ID #752–54). The parties agreed that Cooper was responsible for seventy-five
grams of crack cocaine, which gave Cooper a base offense level of 26. Id. at 2 (Page ID
#753); see also U.S.S.G. § 2D1.1(c)(7). During the compilation of Cooper’s PSR,
however, the probation office discovered that Cooper had two prior convictions for
controlled-substance offenses. Cooper PSR at 12 ¶ 39, 13 ¶ 40. These convictions
triggered the application of the career-offender enhancement, causing his total offense
level to rise to 31, even after a three-level adjustment for acceptance of responsibility.
Id. at 7 ¶ 30. An offense level of 31 corresponded to a guidelines-recommended
sentence of 188 to 235 months of imprisonment. Id. at 21 ¶ 77.

       Cooper did not dispute that he qualified as a career offender under U.S.S.G.
§ 4B1.1(a), but he objected to the guideline enhancement itself, arguing that it was
“much more than is necessary to satisfy the sentencing factors set forth in 18 U.S.C.
§ 3553(a).” R. 529 (Cooper Sent. Mem. at 2) (Page ID #878). The district court rejected
Cooper’s policy objection and sentenced him to 188 months in prison. R. 618 (Cooper
Sept. 25, 2012 Sent. Hr’g Tr. at 22:7–17) (Page ID #1158). A week later, however, the
district court adjusted Cooper’s sentence down to 120 months because it considered the
188-month sentence “more time than is sufficient to accomplish the goals of the
sentencing factors.” R. 619 (Cooper Oct. 1, 2012 Sent. Hr’g Tr. at 7:14–16) (Page ID
#1168). The government made no objection, and Cooper’s attorney had “no objection
to the court’s determination that a hundred and [twenty] months is an adequate sentence
Nos. 12-6522/13-5535       United States v. Cooper et al.                          Page 5


in this matter.” Id. at 8:16–18 (Page ID #1169). Now on appeal, Cooper attacks his
sentence; he claims (1) that the application of the career-offender guideline makes his
sentence substantively unreasonable; and (2) that his constitutional rights were violated
because his prior convictions were not proven to a jury beyond a reasonable doubt.

                                    II. ANALYSIS

A. Crime of Violence

       Adams first challenges the district court’s application of the career-offender
enhancement, particularly the court’s determination that Adams’s 1999 state-court
conviction for aggravated assault qualifies as a crime of violence under
U.S.S.G. § 4B1.2(a). Whether a defendant is a career offender and whether a crime is
a crime of violence under the guidelines are legal questions that we review de novo. See
United States v. Rede-Mendez, 680 F.3d 552, 555 (6th Cir. 2012).

       The guidelines classify a defendant as a career offender if he (1) was at least
eighteen years old at the time of the instant offense; (2) was convicted of “a felony that
is either a crime of violence or a controlled substance offense; and (3) the defendant
ha[d] at least two prior felony convictions of either a crime of violence or a controlled
substance offense.” § 4B1.1(a) (emphasis added). In turn, the guidelines define a
“crime of violence” as

       any offense under federal or state law, punishable by imprisonment for
       a term exceeding one year, that—
       (1) has as an element the use, attempted use, or threatened use of
       physical force against the person of another, or
       (2) is burglary of a dwelling, arson, or extortion, involves use of
       explosives, or otherwise involves conduct that presents a serious
       potential risk of physical injury to another.


§ 4B1.2(a). Complicating matters slightly, the commentary to the guidelines expands
on this definition and lists “aggravated assault” as an example of a crime of violence.
§ 4B1.2 cmt. n.1. As a result, we have previously said that
Nos. 12-6522/13-5535       United States v. Cooper et al.                             Page 6


       a prior felony conviction can qualify as a ‘crime of violence’ in one of
       three ways: (1) the conviction is one of the crimes specifically
       enumerated in Application Note 1 to the career offender guideline; (2) if
       not specifically enumerated, the crime has as an element the use,
       attempted use, or threatened use of physical force; or (3) if the offense is
       not specifically enumerated or does not include physical force as an
       element, the crime involved conduct posing a serious potential risk of
       physical injury to another person.

United States v. Rodriguez, 664 F.3d 1032, 1036 (6th Cir. 2012) (citing United States
v. Ruvalcaba, 627 F.3d 218, 221 (6th Cir. 2010)). For the sake of clarity, we will refer
to these three approaches as, respectively, the “enumerated-offense prong,” the
“elements prong,” and the “residual prong.”

       In determining whether a prior conviction qualifies as a crime of violence, we
conduct a well-established two-step analysis. First, we apply the categorical approach
outlined in Taylor v. United States, 495 U.S. 575 (1990), “look[ing] only to the fact of
conviction and the statutory definition—not the facts underlying the offense—to
determine whether that definition supports a conclusion that the conviction was for a
crime of violence.” United States v. Bartee, 529 F.3d 357, 359 (6th Cir. 2008) (citing
United States v. Armstead, 467 F.3d 943, 947 (6th Cir. 2006)). Second, “[i]f it is
possible to violate the statute in a way that would constitute a crime of violence and in
a way that would not, [we] may consider the indictment, guilty plea, or similar
documents to determine whether they necessarily establish the nature of the prior
conviction.” United States v. Gibbs, 626 F.3d 344, 352 (6th Cir. 2010) (citing Shepard
v. United States, 544 U.S. 13, 26 (2005)).

1. Categorical Approach

       We first consider whether a prior conviction under Tennessee Code Annotated
§ 39-13-102 categorically qualifies as a crime of violence. At the time of Adams’s
conviction, § 39-13-102 read:

       (a) A person commits aggravated assault who:
              (1) Intentionally or knowingly commits an assault as
              defined in § 39-13-101 and:
Nos. 12-6522/13-5535      United States v. Cooper et al.                           Page 7


                       (A) Causes serious bodily injury to
                       another; or
                       (B) Uses or displays a deadly weapon; or
               (2) Recklessly commits an assault as defined in § 39-13-
               101(a)(1), and:
                       (A) Causes serious bodily injury to
                       another; or
                       (B) Uses or displays a deadly weapon.
       (b) A person commits aggravated assault who, being the parent or
       custodian of a child or the custodian of an adult, intentionally or
       knowingly fails or refuses to protect such child or adult from an
       aggravated assault as defined in subdivision (a)(1) or aggravated child
       abuse as defined in § 39-15-402.
       (c) A person commits aggravated assault who, after having been enjoined
       or restrained by an order, diversion or probation agreement of a court of
       competent jurisdiction from in any way causing or attempting to cause
       bodily injury or in any way committing or attempting to commit an
       assault against an individual or individuals, intentionally or knowingly
       attempts to cause or causes bodily injury or commits or attempts to
       commit an assault against such individual or individuals.
       (d) Aggravated assault under subdivision (a)(1) or subsection (b) or (c)
       is a Class C felony. Aggravated assault under subdivision (a)(2) is a
       Class D felony. . . .

Furthermore, in Tennessee at that time:

       (a) A person commits assault who:
              (1) Intentionally, knowingly or recklessly causes bodily injury to
       another;
              (2) Intentionally or knowingly causes another to
              reasonably fear imminent bodily injury; or
              (3) Intentionally or knowingly causes physical contact
              with another and a reasonable person would regard the
              contact as extremely offensive or provocative. . . .
Tenn. Code Ann. § 39-13-101 (1998).

       As the parties recognize, § 39-13-102 can be offended in a number of ways. For
instance, a person could intentionally or knowingly commit an assault using a deadly
weapon, violating § 39-13-102(a)(1)(B); a person could recklessly commit an assault
causing serious bodily injury, violating § 39-13-102(a)(2)(A); or a person could
knowingly fail to protect a child from an aggravated assault as defined in § 39-13-
Nos. 12-6522/13-5535         United States v. Cooper et al.                         Page 8


102(a)(1), violating § 39-13-102(b). If the statute is to satisfy the categorical approach,
each avenue for violating § 39-13-102 must constitute a crime of violence. See Gibbs,
626 F.3d at 352. To its credit, the government concedes that Adams’s prior conviction
under § 39-13-102 “does not categorically qualify as a crime of violence under either the
[elements prong] or the residual [prong],” according to our past decisions, because the
statute criminalizes reckless conduct. Appellee Br. at 19 (citing United States v.
McMurray, 653 F.3d 367 (6th Cir. 2011)); see also United States v. Portela, 469 F.3d
496, 499 (6th Cir. 2006) (“[A] crime requiring only recklessness does not qualify as a
‘crime of violence’ . . . .”).

        The government’s arguments are less clear with regard to the enumerated-offense
prong. We recognize that our holdings regarding § 39-13-102 and the enumerated-
offense prong have been less than clear, see McMurray, 653 F.3d at 373 n.4 (collecting
cases), but we now hold that a violation of § 39-13-102 is not categorically a crime of
violence for sentencing-enhancement purposes purely by virtue of its inclusion as an
enumerated offense in U.S.S.G. § 4B1.2 cmt. n.1.

        On prior occasions, we have recognized that “a specific offense [does not]
automatically qualify as a crime of violence just because it has the same name as one of
the enumerated offenses.” Rede-Mendez, 680 F.3d at 556 (citing Taylor, 495 U.S. at
588–89). Instead, we must look to the generic definition of aggravated assault, “which
is found by surveying how the crime is described across jurisdictions, as well as
consulting sources such as the Model Penal Code,” and then compare the scope of § 39-
13-102 to that definition. Id. (citing Taylor, 495 U.S. at 598 & n.8; United States v.
McFalls, 592 F.3d 707, 716–17 (6th Cir. 2010)). Only if § 39-13-102 criminalizes the
same or a narrower set of conduct as generic aggravated assault will the statute
categorically qualify as a crime of violence under the enumerated-offense prong.

        In McFalls, we examined the South Carolina common-law crime of aggravated
assault and observed:

        Defining aggravated assault generically is particularly difficult because
        many states define assault in terms of degrees rather than with the terms
Nos. 12-6522/13-5535           United States v. Cooper et al.                                   Page 9


         simple or aggravated, see, e.g., Ala. Code § 13A-6-20(a), and because
         some states still retain the common law distinction between assault and
         battery. See, e.g., W. Va. Code § 61-2-9. After surveying these laws, the
         Model Penal Code concluded that a person should be guilty of
         aggravated assault if he “(a) attempts to cause serious bodily injury to
         another, or causes such injury purposely, knowingly, or recklessly under
         circumstances manifesting extreme indifference to the value of human
         life; or (b) attempts to cause or purposely or knowingly causes bodily
         injury to another with a deadly weapon.” Model Penal Code § 211.1(2).

592 F.3d at 716–17. The South Carolina crime failed to qualify under the enumerated-
offense prong because it criminalized conduct requiring a mens rea of simple
recklessness, which was outside the generic definition. Id. at 717. In contrast, we held
that Ohio’s fourth-degree aggravated assault statute fit within the enumerated-offense
prong because it required the state to prove that a person acted at least knowingly, a
mens rea covered by generic aggravated assault. See Rodriguez, 664 F.3d at 1037–39.
Here, like the South Carolina crime, § 39-13-102 is broader than the generic definition
and thus fails to satisfy the enumerated-offense prong. Specifically, § 39-13-102 reaches
conduct outside the scope of that covered by the generic definition in at least two ways.
One, it criminalizes reckless conduct without requiring the state to prove “extreme
indifference to the value of human life.” See § 39-13-102(a)(2). Two, it punishes a
parent’s failure to prevent an aggravated assault against his or her child. § 39-13-102(b).
In doing so, § 39-13-102 encompasses more conduct than generic aggravated assault,
and therefore it does not categorically qualify as a crime of violence under the
enumerated-offense prong.1




         1
           The government cites our unpublished decision in United States v. Mendoza-Mendoza, 239 F.
App’x 216, 222 (6th Cir. 2007), which held that the reckless version of § 39-13-102 qualified as a crime
of violence under the analogous U.S.S.G. § 2L1.2(b)(1) cmt. n.1(B)(iii). Appellee Br. at 20. Mendoza-
Mendoza is arguably in conflict with our decision today, but that panel and the Fifth Circuit in United
States v. Mungia-Portillo, 484 F.3d 813, 816–17 (5th Cir. 2007), upon which the opinion in Mendoza-
Mendoza heavily relies, failed to consider subsections (b) and (c) of § 39-13-102. Moreover, those prior
cases tolerated a greater degree of variance between the generic offense and § 39-13-102 than we believe
our previous published decisions in McFalls and McMurray allow. In any event, this panel is bound only
by holdings of the Supreme Court and published decisions of prior panels. See Darrah v. City of Oak
Park, 255 F.3d 301, 310 (6th Cir. 2001). No such precedent exists to bind or guide us today.
Nos. 12-6522/13-5535            United States v. Cooper et al.                                  Page 10


         2. Modified-Categorical Approach

         Under the categorical approach, it is unclear whether Adams’s aggravated-assault
conviction constitutes a crime of violence, so we turn to the Shepard documents to
determine, if we can, which subsection of § 39-13-102 Adams was convicted of
violating.2 We may look “to the terms of the charging document, the terms of a plea
agreement or transcript of colloquy between judge and defendant in which the factual
basis for the plea was confirmed by the defendant, or to some comparable judicial record
of this information.” Shepard, 544 U.S. at 26. Furthermore, “our inquiry is limited to
facts [the] defendant necessarily admitted in entering a guilty plea.” McMurray, 653
F.3d at 377 (quoting United States v. Medina-Almaguer, 559 F.3d 420, 424 (6th Cir.
2009)) (alteration in original; internal quotation marks omitted). We may not consider
the factual recitations in the PSR. United States v. Hockenberry, 730 F.3d 645, 666–67
(6th Cir. 2013); United States v. Wynn, 579 F.3d 567, 576 (6th Cir. 2009) (citing Bartee,
529 F.3d at 361).

         In this case, the indictment, plea agreement, and state-court judgment
demonstrate that Adams necessarily pleaded guilty to a violation of Tennessee Code
Annotated § 39-13-102(a)(1).3 In the indictment, the grand jury charged Adams with
“unlawfully and intentionally, knowingly[,] or recklessly [causing] ERIC THORNTON
to reasonably fear imminent bodily injury, by use or display of a deadly weapon, namely,



         2
           Adams contends that it is inappropriate to resort to the modified-categorical approach. See
Adams Br. at 10 (citing Descamps v. United States, 133 S. Ct. 2276 (2013)). He is in error. Descamps
reaffirmed that the modified-categorical approach is a tool that “merely helps implement [Taylor’s]
categorical approach,” and the Court held that using Shepard documents was inappropriate when the
statute was indivisible. 133 S. Ct. at 2285. As explained above, however, § 39-13-102 is divisible, and
therefore it is necessary to use the modified-categorical approach to determine whether Adams’s conviction
qualifies as a crime of violence.
         3
           In the district court, Adams claimed that “[t]he burden is on the United States Government to
produce . . . certified copies of the indictment or the—the judgment of conviction or any other [Shepard]
documents.” R. 672 (Adams Sent. Hr’g Tr. at 17:8–12) (Page ID #1364). On appeal, he arguably renews
this challenge. See Adams Br. at 10 (“Moreover, Mr. Adams would argue that the documents relied upon
were not certified copies.” (citation omitted)). We need not decide whether the government has a duty to
produce (or did produce) “certified copies” of Shepard documents because Adams has waived this
argument by quoting the indictment in papers filed before the district court. See R. 652 (Adams Am. Sent.
Mem. at 2–3) (Page ID #1310–11); see also Hockenberry, 730 F.3d at 667 (“[W]ithin his sentencing
memorandum, [the defendant] conceded—at least implicitly—that he had been convicted of the prior
offenses.”).
Nos. 12-6522/13-5535            United States v. Cooper et al.                                  Page 11


a handgun, . . . in violation of [Tenn. Code Ann.] § 39-13-102, a Class C Felony . . . .”
R. 654 at Ex. 2 (Indictment); see also R. 652 (Adams Am. Sent. Mem. at 2–3) (Page ID
#1310–11) (quoting indictment). Because the only aggravating factor that the grand jury
listed was the use or display of a deadly weapon, Adams must have been charged with
and pleaded guilty to violating either § 39-13-102(a)(1)(B), which requires a mens rea
of intent or knowledge, or § 39-13-102(a)(2)(B), which requires only recklessness.
While the indictment references both mental states, the grand jury explicitly alleged that
Adams committed a Class C felony. See R. 654 at Ex. 2 (State-court Indictment). The
plea agreement and state-court judgment confirm that Adams pleaded guilty to a Class
C felony. See R. 654 at Ex. 2 (State-court Plea Agreement at 2); Id. at Ex. 2 (State-court
Judgment). Of the two possible versions of the crime, only § 39-13-102(a)(1)(B) is a
Class C felony4; the provision criminalizing reckless aggravated assault, on the other
hand, is a Class D felony. See § 39-13-102(d). As a result, the Shepard documents show
that Adams necessarily pleaded guilty to a violation of § 39-13-102(a)(1)(B):
intentionally or knowingly assaulting someone using or displaying a deadly weapon.

         Concluding that Adams necessarily pleaded guilty to violating § 39-13-
102(a)(1)(B), we look again to see if Adams’s conviction qualifies as a crime of violence
under U.S.S.G. §§ 4B1.1 and 4B1.2. We hold that it does qualify under the enumerated-
offense prong. As noted above, Application Note 1 classifies “generic aggravated
assault” as a crime of violence. McFalls, 592 F.3d at 716–17. Specifically, this crime
includes “‘knowingly caus[ing] [or attempting to cause] bodily injury to another with a
deadly weapon.’” Id. at 717 (quoting Model Penal Code § 211.1(2)). Tennessee Code
Annotated § 39-13-102(a)(1)(B) mirrors this language almost exactly, and most
importantly, § 39-13-102(a)(1)(B) does not criminalize conduct left untouched by the


         4
           In McMurray, we addressed whether the Shepard documents demonstrated that a prior version
of § 39-13-102 qualified as a crime of violence. See 653 F. 3d at 377–78. As in this case, the Shepard
documents showed that the defendant pleaded guilty to a Class C felony-version of aggravated assault.
Id. at 378. Importantly, though, the statute at that time lumped together all aggravated assaults with a
deadly weapon as Class C felonies, regardless of the mens rea required. Id. (citing Tenn. Code Ann. § 39-
13-102(b) (1991)). “Therefore, the fact that McMurray pleaded guilty to a Class C felony d[id] not
establish whether he pleaded guilty to intentional, knowing, or reckless aggravated assault.” Id. Here,
however, the facts and applicable statute are different, which allows us to determine that Adams must have
pleaded guilty to a violation of § 39-13-102(a)(1)(B).
Nos. 12-6522/13-5535           United States v. Cooper et al.                                Page 12


Model Penal Code, which § 39-13-102(a)(2)(B) does. Accordingly, we conclude that
the offense to which Adams pleaded guilty is a crime of violence based on the text of the
statute and the guidelines.

        Our decisions in Rodriguez and McFalls add strength to and confirm this
decision. In Rodriguez, we held that Ohio’s fourth-degree aggravated-assault statute fit
within the enumerated-offense prong. 664 F.3d at 1036–37. That statute stated that
“‘[n]o person, while under the influence of sudden passion . . . , shall knowingly: . . .
[c]ause or attempt to cause physical harm to another . . . by means of a deadly weapon
. . . .’” Id. at 1037 (quoting Ohio Rev. Code § 2903.12(A)(2)). We held that “[b]ecause
Ohio’s fourth-degree aggravated assault statute . . . requires knowing and intentional
conduct, a felony conviction under § 2903.12 qualifies as an enumerated ‘crime of
violence’ under Application Note 1 to [U.S.S.G.] § 4B1.2 for purposes of applying the
career offender guideline.” Rodriguez, 664 F.3d at 1037. The only difference between
Ohio’s statute and § 39-13-102(a)(1)(B) is the sudden-passion language. However, that
means little, because the generic definition of aggravated assault does not touch on
whether the assault must be a crime of passion. More importantly, the mens rea required
by § 39-13-102(a)(1)(B) and the Ohio statute—knowledge—is covered by the generic
statute, unlike the statute at issue in McFalls, which criminalized reckless aggravated
assault. See 592 F.3d at 717 (finding that a felony conviction under South Carolina’s
common-law aggravated assault crime was not categorically a crime of violence because
it covered reckless conduct, which was outside the generic definition). Section 39-13-
102(a)(1)(B) criminalizes acts covered by the generic definition, as recognized by our
prior cases, and it requires the prosecutor to prove a knowing state of mind. Therefore,
we hold that the enumerated-offense prong covers Adams’s conviction under § 39-13-
102(a)(1)(B) and, thus, his conviction qualifies as a crime of violence.5




        5
          Because a defendant’s conviction need only qualify as a crime of violence under one prong and
the enumerated-offense prong answers the question before us, we have no need to analyze Adams’s
conviction under the elements prong or the residual prong.
Nos. 12-6522/13-5535      United States v. Cooper et al.                        Page 13


                                          ***

       In summary, as the government concedes, a felony conviction under § 39-13-102
does not categorically qualify as a crime of violence under U.S.S.G. §§ 4B1.1 and 4B1.2.
However, the Shepard documents demonstrate that Adams necessarily pleaded guilty to
violating Tennessee Code Annotated § 39-13-102(a)(1)(B), a Class C felony. This
section of the statute criminalizes conduct within the generic definition of aggravated
assault and does not cover a wider range of behavior. Thus, Adams’s conviction
qualifies as a crime of violence under Application Note 1 of U.S.S.G. § 4B1.2, and the
district court correctly applied the career-offender enhancement to Adams.

B. Reasonableness of Cooper’s Sentence

       We next turn to Cooper’s challenge regarding his 120-month sentence. Since the
Supreme Court’s decision in United States v. Booker, 543 U.S. 220 (2005), we review
sentences for procedural and substantive reasonableness under an abuse-of-discretion
standard. United States v. Bolds, 511 F.3d 568, 578 (6th Cir. 2007). A sentence is not
procedurally reasonable if the district court “fail[s] to calculate (or improperly
calculat[es]) the Guidelines range, treat[s] the Guidelines as mandatory, fail[s] to
consider the [18 U.S.C.] § 3553(a) factors, [or] select[s] a sentence based on clearly
erroneous facts . . . .” Gall v. United States, 552 U.S. 38, 51 (2007). “Substantive
unreasonableness focuses on the length and type of the sentence and will be found when
the district court selects a sentence arbitrarily, bases the sentence on impermissible
factors, fails to consider relevant sentencing factors, or gives an unreasonable amount
of weight to any pertinent factor.” United States v. Camacho-Arellano, 614 F.3d 244,
247 (6th Cir. 2010) (internal citations and quotation marks omitted).

       Cooper admits that the district court correctly applied the career-offender
guidelines, see Cooper Br. at 12, but he argues that we “should hold that application of
the Career Offender guideline, at all, produces an unreasonable sentence,” id. at 15
(citing United States v. Newhouse, 919 F. Supp. 2d 955 (N.D. Iowa 2013)). District
courts may depart downward from a guidelines-recommended sentence, in certain cases,
based on a policy disagreement with the Sentencing Commission. See, e.g., Spears v.
Nos. 12-6522/13-5535       United States v. Cooper et al.                          Page 14


United States, 555 U.S. 261, 263–64 (2009); Kimbrough v. United States, 552 U.S. 85,
91 (2007); United States v. Johnson, 553 F.3d 990, 995–96 (6th Cir. 2009). We have
never held, as Cooper acknowledges, that a district court must depart downward from
a guidelines-recommended sentence. See, e.g., United States v. Brooks, 628 F.3d 791,
800 (6th Cir. 2011). We refuse to do so now. The career-offender guidelines may be
less than perfect, but district courts are best positioned—at least in the first instance—to
sift through the facts of an individual case and determine an appropriate sentence for
each defendant.

        In Cooper’s case, the district court met its responsibility. At the sentencing
hearing, the district court took considerable time to determine “the sentence that best fits
[Cooper’s particular] circumstances.” R. 618 (Cooper Sept. 25, 2012 Sent. Hr’g Tr. at
20:10) (Page ID #1156). Specifically, the district court addressed Cooper’s extensive
role in the conspiracy, his long criminal history, his drug use, and his lack of work
history. See, e.g., id. at 21:20–22:6 (Page ID #1157–58). The district court initially
imposed a sentence of 188 months of imprisonment but then resumed the hearing a week
later and sentenced Cooper to 120 months of imprisonment because the court determined
upon reflection that the 188-month sentence was “more time than is sufficient to
accomplish the goals of the sentencing factors.” R. 619 (Cooper Oct. 1, 2012 Sent. Hr’g
Tr. at 7:14–16) (Page ID #1168). Cooper does not claim that the district court ignored
certain mitigating factors, or relied upon impermissible considerations, or imposed his
sentence arbitrarily. Thus, on this record, we cannot say that the district court abused
its discretion by imposing a 120-month sentence.

C. Applicability of Alleyne

        Finally, we take up Adams’s and Cooper’s allegations that the district court
violated the defendants’ Sixth Amendment rights by failing to require the government
to prove the fact of the defendants’ prior convictions to a jury. “The Sixth Amendment
provides that those ‘accused’ of a ‘crime’ have the right to a trial ‘by an impartial jury.’
This right, in conjunction with the Due Process Clause, requires that each element of a
crime be proved to the jury beyond a reasonable doubt.” Alleyne v. United States, 133
Nos. 12-6522/13-5535       United States v. Cooper et al.                         Page 15


S. Ct. 2151, 2156 (2013) (quoting U.S. Const. amend. VI). In Apprendi v. New Jersey,
530 U.S. 466, 490 (2000), the Supreme Court held that facts that lead to an increased
statutory maximum count as elements and that “[o]ther than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
Recently, the Court decided that the same is true for facts that trigger an increase in the
statutory minimum sentence. Alleyne, 133 S. Ct. at 2163. This new constitutional
ruling, however, means little for the defendants here.

       First, Alleyne dealt with judge-found facts that raised the mandatory minimum
sentence under a statute, not judge-found facts that trigger an increased guidelines range,
such as happened to the defendants. This distinction has been acknowledged by the
Supreme Court. In Alleyne, the Court stated that it has “long recognized that broad
sentencing discretion, informed by judicial factfinding, does not violate the Sixth
Amendment.” Id. at 2163 (citing Dillon v. United States, 130 S. Ct. 2683, 2692 (2010);
Apprendi, 530 U.S. at 481). Unlike the statutes at issue in Alleyne and Apprendi, the
career-offender guidelines, which are triggered by judicial factfinding, do not require a
district court to give a defendant a higher sentence, nor do they allow a judge to impose
a harsher sentence that was necessarily unavailable before. The career-offender
guidelines merely advise a district court how to wield its discretion, and therefore the
commands of Alleyne do not apply here.

       Second, even if Alleyne extended to cover increases in the guidelines-
recommended sentences, the opinion itself recognizes that federal courts treat the fact
of prior convictions differently than other facts that might trigger a change in a
defendant’s minimum or maximum sentence. Alleyne, 133 S. Ct. at 2160 n.1 (discussing
Almendarez-Torres v. United States, 523 U.S. 224 (1998)). In Almendarez-Torres, the
Supreme Court rejected a constitutional challenge to judges finding the facts of prior
convictions, which then triggered increased statutory penalties. 523 U.S. at 247. While
we have recognized that “Almendarez-Torres may stand on shifting sands, the case
presently remains good law and we must follow it until the Supreme Court expressly
Nos. 12-6522/13-5535      United States v. Cooper et al.                        Page 16


overrules it.” United States v. Mack, 729 F.3d 594, 609 (6th Cir. 2013) (citing, inter
alia, Alleyne, 133 S. Ct. at 2160 n.1). As a result, we must hold that defendants’ Sixth
Amendment challenges lack merit.

                                III. CONCLUSION

         For the foregoing reasons, we AFFIRM the sentences imposed by the district
court.
