                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 18a0153n.06

                                           No. 16-5669


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

BILLY CHAD REESE,                                                                   FILED
                                                                                 Mar 22, 2018
       Petitioner-Appellant,                                                 DEBORAH S. HUNT, Clerk

v.                                                    ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA,                             EASTERN DISTRICT OF
                                                      TENNESSEE
       Respondent-Appellee.




BEFORE:        CLAY, STRANCH, and LARSEN, Circuit Judges.

       CLAY, Circuit Judge. Petitioner Billy Chad Reese appeals the district court’s denial of

his 28 U.S.C. § 2255 motion, which challenged the sentencing enhancement he received under

the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). For the reasons set forth below,

we VACATE the district court’s denial of Reese’s § 2255 motion and REMAND with

instructions to resentence Reese without the ACCA enhancement.

                         FACTUAL AND PROCEDURAL HISTORY

       From May 2010 to January 2011, Reese stole credit and debit cards from vehicles parked

in national parks, using the cards to buy merchandise at convenience stores. In March 2011, law

enforcement officers executed search warrants at the residences of Reese and his mother. The

officers found items that had been stolen from the vehicles, as well as firearms.
                                          No. 16-5669


       Reese subsequently pleaded guilty to using an unauthorized access device and obtaining

over $1,000 during a one-year period, in violation of 18 U.S.C. § 1029(a)(2), and to possessing a

firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court

determined that Reese was a career criminal under the ACCA, due to his seven prior Tennessee

convictions for aggravated burglary under Tenn. Code Ann. § 39-14-403.1 Although the ACCA

enhancement triggered a 15-year mandatory minimum sentence on the § 922(g) count, see

18 U.S.C. § 924(e)(1), the government moved for a downward departure pursuant to 18 U.S.C.

§ 3553(e). That provision authorizes a sentence below the mandatory minimum if the defendant

provided “substantial assistance in the investigation or prosecution of another person who has

committed an offense.” 18 U.S.C. § 3553(e). The district court granted the government’s

motion for a downward departure, sentencing Reese to 132 months’ imprisonment on the

§ 922(g) count and to 120 months’ imprisonment on the § 1029(a)(2) count, with the sentences

running concurrently. Without the ACCA enhancement, the statutory maximum sentence on the

§ 922(g) count would have been 10 years’ imprisonment. See 18 U.S.C. § 924(a)(2).

       In 2013, Reese filed a § 2255 motion in the district court to vacate or set aside his

conviction and sentence. He later amended his motion, raising the only claim relevant to this

appeal: that his ACCA enhancement was invalid in light of Johnson v. United States, 135 S. Ct.

2551 (2015), which held the ACCA’s residual clause void for vagueness.




       1
          A defendant qualifies as a career criminal under the ACCA if, as relevant here, the
defendant has three or more convictions for a “violent felony.” 18 U.S.C. § 924(e)(1).
A “violent felony” is defined as “any crime 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” (the “use-of-force clause”); (2) “is burglary, arson, or extortion,
involves use of explosives” (the “enumerated-offense clause”); or (3) “otherwise involves
conduct that presents a serious potential risk of physical injury to another” (the “residual
clause”). § 924(e)(2)(B).
                                                2
                                           No. 16-5669


       In March 2016, the district court denied Reese’s § 2255 motion, rejecting Reese’s

argument that he was not a career criminal under the ACCA. See Reese v. United States, No. 11-

cr-36, 2016 WL 1050719, at *5–6 (E.D. Tenn. Mar. 16, 2016). The district court cited United

States v. Nance, 481 F.3d 882 (6th Cir. 2007), where this Court held that Tennessee aggravated

burglary qualifies as an ACCA predicate under the ACCA’s enumerated-offense clause, which

was not affected by Johnson.

       In December 2016, this Court granted Reese a certificate of appealability on the ACCA

issue. While Reese’s appeal was pending, this Court sitting en banc decided United States v.

Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc), overruling Nance and holding that “a conviction for

Tennessee aggravated burglary is not a violent felony for purposes of the ACCA.” 860 F.3d at

856. In light of Stitt, Reese and the government agree that Reese is not a career criminal under

the ACCA, and that he should be resentenced without the ACCA enhancement. (See Petr.’s Br.

at 16 (“Because his prior convictions cannot be considered predicate offenses under either the

enumerated or residual clause of ACCA, Mr. Reese’s . . . sentence is outside of the statutory

limits. Mr. Reese is entitled to relief under 28 U.S.C. § 2255, and he requests resentencing.”);

Gov’t Br. at 12 (“In light of Stitt, this Court should vacate the denial of petitioner’s § 2255

motion and remand to the district court with instructions to modify petitioner’s sentence so that it

does not exceed the non-ACCA statutory maximum now applicable to him.”)).

                                          DISCUSSION

                                       Standard of Review

       “We review de novo the district court’s denial of a motion to vacate under 28 U.S.C.

§ 2255, but review the district court’s factual findings only for clear error.” Campbell v. United

States, 686 F.3d 353, 357 (6th Cir. 2012). We review “de novo a district court’s determination



                                                 3
                                          No. 16-5669


regarding whether a prior conviction constitutes a ‘violent felony’ under the ACCA.” Braden v.

United States, 817 F.3d 926, 930 (6th Cir. 2016) (quotation marks and citation omitted).

                                            Analysis

       Under Stitt, Reese’s convictions for Tennessee aggravated burglary cannot serve as

ACCA predicates. See 860 F.3d at 856 (“[A] conviction for Tennessee aggravated burglary is

not a violent felony for purposes of the ACCA.”). Accordingly, we agree with the parties that

Reese is not a career criminal under the ACCA and that he should be resentenced without the

ACCA enhancement.

                                        CONCLUSION

       For the foregoing reasons, we VACATE the district court’s denial of Reese’s § 2255

motion and REMAND with instructions to resentence Reese without the ACCA enhancement.2




       2
           Reese has moved to expedite this appeal. We deny that motion as moot.
                                                4
