                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                       Case No. 16-6404

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                   FILED
                                                                              Jun 13, 2018
UNITED STATES OF AMERICA,                          )                      DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellee,                         )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE WESTERN DISTRICT OF
JOHN T. DAVIS,                                     )      TENNESSEE
                                                   )
       Defendant-Appellant.                        )
                                                   )
                                                   )


BEFORE: BOGGS, CLAY, and DONALD, Circuit Judges.

       BERNICE BOUIE DONALD, Circuit Judge. Defendant-Appellant John T. Davis

pleaded guilty to illegal possession of ammunition by a felon and was sentenced under the Armed

Career Criminal Act (“ACCA”) to 180 months’ imprisonment. Davis now contends that his

Tennessee burglary conviction cannot serve as an ACCA predicate offense due to this Circuit’s

rulings in United States v. Priddy, 808 F.3d 676 (6th Cir. 2015), and United States v. Stitt, 860

F.3d 854 (6th Cir. 2017) (en banc), as well as a Tennessee gang enhancement statute in place at

the time of his sentencing. For the reasons that follow, we reject Davis’ arguments and AFFIRM

his sentence.
Case No. 16-6404, United States v. Davis


                                                  I.

       On March 14, 2012, Davis was arrested by Ripley, Tennessee Police Officers on an

outstanding warrant and transported to Lauderdale County Jail. Upon searching Davis, correction

officers recovered a bag from his pocket containing one .22 caliber round, one .380 caliber round,

and six 9mm rounds. Davis initially said the ammunition was left over from a hunting trip with

friends. However, he later admitted that he had been out drinking and shooting guns.

       On December 20, 2012, Davis pleaded guilty to illegal possession of ammunition by a

felon, in violation of 18 U.S.C. § 922(g). In 2013, Davis was sentenced as a career offender under

the ACCA to 180 months’ imprisonment. The Presentence Investigation Report (“PSR”) clarified

that Davis’ career-offender status was based on three Tennessee felony convictions: burglary of a

building, aggravated assault, and robbery. At sentencing, Davis did not object to his ACCA

classification or the PSR. Davis’ attorney also conceded that Davis had “three prior convictions

for a violent felony or drug offense, one of the qualifying felon[ies] being burglary of a building.”

RE 25, PageID# 30-31; RE 36, PageID #95; see also Davis v. United States, No. 14-cv-02201

(W.D. Tenn. 2014).

       After sentencing, Davis filed an untimely notice of appeal, which this Court dismissed.

United States v. Davis, No. 13-6091 (6th Cir. Dec. 16, 2013). Davis then filed a 28 U.S.C. § 2255

motion to have his sentence vacated, set aside, or altered and to allow the filing of a late notice of

appeal. Davis, No. 14-cv-02201. The district court in that action held an evidentiary hearing and

found that Davis received ineffective assistance of counsel when his attorney failed to file an

appeal, as Davis had requested. Id. Davis then filed the operative notice of appeal. Davis also

filed a motion to reconsider the judgment granting in part his § 2255 motion, seeking to expand

the scope of his appeal and challenge his ACCA status, Davis, No. 14-cv-02201. The district



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Case No. 16-6404, United States v. Davis


court denied Davis’ challenge. Id. After this Court published its en banc decision in Stitt, Davis

unsuccessfully moved the district court to reconsider that denial. Id.

         Davis now appeals his sentence, arguing that his Tennessee burglary conviction can no

longer stand as an ACCA predicate offense in light of Stitt. Davis also argues that if a Tennessee

state enhancement statute was applied, it could transform a non-ACCA burglary into a predicate

offense without regard to the underlying conduct.

                                                          II.

         The district court’s jurisdiction in this action arose from 18 U.S.C. § 3231, as Davis was

indicted by a federal grand jury for a federal offense—illegal possession of ammunition by a felon

in violation of 18 U.S.C. § 922(g). We have jurisdiction under 28 U.S.C. § 1291 after Davis’ late

notice of appeal that was authorized by the district court in Davis, No. 14-cv-2201.

                                                         III.

    Typically, we review de novo a district court’s determination that an offense constitutes a

“violent felony” under the ACCA. United States v. Mitchell, 743 F.3d 1054, 1058 (6th Cir. 2014).

However, we apply “a plain-error standard of review where . . . a defendant fails to raise a claim

during the sentencing procedures.” United States v. Lumbard, 706 F.3d 716, 720 (6th Cir. 2013).1

We review a district court’s factual findings at sentencing, including findings as to the existence

of prior convictions, for clear error. United States v. Crowell, 493 F.3d 744, 748 (6th Cir. 2007).




1
  As discussed below, Davis argues that we ought not apply plain-error review because a district court found his
counsel at sentencing ineffective. But that court only admonished Davis’ counsel for failure to file a timely appeal—
not for any other representation conduct. We therefore need not relax our standard of review due to the district court’s
finding.

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Case No. 16-6404, United States v. Davis


                                                 IV.

                                                 A.

       Davis first argues that Mathis v. United States, 136 S.Ct. 2243 (2016), and Stitt require

reversal of his sentence. Davis reasons that Stitt held that Tennessee’s aggravated-burglary statute

was broader than generic burglary and indivisible for ACCA purposes.

       Davis’ initial argument—which generally analogizes Tennessee burglary with the Iowa

statute at issue in Mathis—is without merit. The statute at issue in Mathis indivisibly criminalized

unlawful entry into “any building, structure, [or] land, water, or air vehicle.” 136 S.Ct. at 2250

(citing Iowa Code § 702.12). Because of that language, Mathis held that the Iowa statute was

broader than generic burglary and that convictions under that section could not serve as ACCA

predicates. Id. at 2257. While Tenn. Code Ann. § 39-14-402(a)(4) similarly criminalizes entry

into “any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle”

with criminal intent, it is set off—and thus divisible—from §§ 39-14-402(a)(1)-(3), which do not

similarly expand on the federal system’s definition of generic burglary. In Priddy, this Court

established that violations under § 39-14-402(a)(1), (a)(2), or (a)(3) qualify as generic burglary

because they each involve “unprivileged entry into, or remaining in, a building or structure, with

intent to commit a crime,” Taylor v. United States, 495 U.S. 575, 599 (1990), and violations of

§ 402(a)(4) do not qualify, 808 F.3d at 684-85. Thus, Mathis plainly does not imply that Tennessee

burglary convictions are not ACCA predicate offenses.

       Davis’ next argument—that Stitt abrogated Priddy, thereby rendering his Tennessee

burglary conviction a non-predicate offense—is also unavailing. In United States v. Ferguson,

868 F.3d 514 (6th Cir. 2017), we held that Stitt abrogated Priddy’s holding on aggravated burglary

only, leaving its generic burglary analysis intact. Id. at 515-16. Ferguson found that the defendant



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Case No. 16-6404, United States v. Davis


there was convicted of the Class D variant of Tennessee burglary, that such Class D burglary

convictions under Tennessee law fit within the definition of generic burglary under Priddy, and

that Priddy still controls. Ferguson, 868 F.3d at 515.

        Ferguson also addressed an argument Davis raises for the first time in his Reply2: that § 39-

14-402(a)(3) cannot fit within the definition of generic burglary because it lacks the proper intent

element. Though the district court in Ferguson seemed to credit this argument, this Court

dismissed it, citing Priddy. Id. As we noted in Ferguson, “[o]ne panel of this court may not

overrule the decision of another panel; only the en banc court or the United States Supreme Court

may overrule the prior panel.” Id. (citing Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685,

689 (6th Cir. 1985)). Thus, we are bound by both Priddy and Ferguson. Under each, Davis’

conviction still fits within the definition of generic burglary and is therefore a violent felony for

ACCA purposes.

                                                         B.

        Davis next argues that, even if this Court continues to accept Priddy’s analysis of

Tennessee burglary—as we must—he is still entitled to relief due to a Tennessee enhancement

statute in effect at the time of his sentencing. Tennessee’s Criminal Sentencing Reform Act of

1989 created an enhancement that upgraded the classification of any violation of state law

committed by a defendant in the perpetration of a “criminal gang offense.” Tenn. Code Ann. § 40-

35-121. It defined a criminal gang offense as any violation of Tennessee law committed:

        (A) During the perpetration of which the defendant knowingly causes, or threatens
        to cause, death or bodily injury to another person or persons and specifically
        includes rape of a child, aggravated rape and rape; or




2
  See United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006) (“An argument first presented to the Court in a
reply brief is waived.”).

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Case No. 16-6404, United States v. Davis


       (B) That results, or was intended to result, in the defendant receiving income,
       benefit, property, money or anything of value from the illegal sale, delivery or
       manufacture of a controlled substance or firearm.

Id. Davis submits that the scope of the enhancement regime encompasses burglary offenses, so

long as the commission of that burglary involved a criminal gang offense.

       If sentenced under the enhancement statute, a defendant was to be “punished one (1)

classification higher than the classification established by the specific statute creating the offense

committed.” Id. at § 40-35-121(c). Davis states that Tennessee judges had no discretion in

sentencing under the enhancement statute and that an affirmative finding resulted in a

reclassification of the underlying conviction, not a separate conviction. As Davis’ argument goes,

a defendant could commit a Class E burglary—which, according to Priddy, would signify a

violation of § 39-14-402(a)(4), a non-ACCA predicate—and then be convicted of Class D burglary

if the enhancement statute applied. For example, if a factfinder determined that a defendant

committed a Class E burglary of an automobile for the purposes of joining a criminal gang, Davis

argues, that state conviction would be for a Class D burglary—despite the underlying facts giving

rise to the Class E offense. Davis argues that because Stitt held—in his determination—that

Tennessee’s burglary statute is indivisible, thereby precluding a modified categorical analysis, the

district court could not have concluded that Davis’ Tennessee burglary conviction is an ACCA

predicate without relying on the Class E, Class D distinction. Davis’ argument fails for multiple

reasons.

       First, Stitt only held that Tennessee’s aggravated-burglary statute was indivisible, not its

generic burglary statute. 860 F.3d at 862. And this Court has elsewhere affirmatively held that

“Tennessee robbery statutes are divisible.” United States v. Mitchell, 743 F.3d 1054, 1066 (6th

Cir. 2014). Stitt did not change this. 860 F.3d at 862 (“Our review confirms that Tennessee’s


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Case No. 16-6404, United States v. Davis


aggravated-burglary statute is indivisible.”) (emphasis added). Thus, a modified categorical

approach to Tennessee’s burglary statute remains possible.

       Second, as the Government notes, Priddy simply noted that distinguishing between Class

E and Class D felonies is an “easier way” to determine whether a defendant violated §§ 39-14-

402(a)(1)-(3) or (a)(4). 808 F.3d at 685. Thus, the fact that the enhancement statute might have

transformed a Class E felony into a Class D felony does not mean that the offense would

automatically qualify as an ACCA predicate offense under Priddy. In a case where a defendant’s

ACCA predicate offense was a Class E felony enhanced by § 40-35-121, defendants have ample

opportunity to ensure that the classification system does not unwarrantedly subject them to ACCA

enhancement.

       Third, there is no controversy as to what crime Davis actually committed. Indeed, the PSR

specifically indicates that Davis was convicted of burglary of a building, see RE 25, PageID #30-

31; RE 36, PageID #95, and he repeatedly acknowledged that he committed burglary of a building,

and career-offender status. See also United States v. Birdsong, 330 F. App’x 573, 586 (6th Cir.

2009) (holding that a district court did not err in relying on a PSR when the defendant did not

specifically challenge “the correctness of any particular conviction identified in the report”);

United States v. Vonner, 516 F.3d 382, 385 (6th Cir. 2008) (en banc) (“By failing to object to the

presentence report, [a defendant] accept[s] all of the factual allegations contained in it.”); United

States v. Carter, 355 F.3d 920, 925 (6th Cir. 2004) (“The district court is allowed to accept as true

all factual allegations in a presentence report to which the defendant does not object.”) (citation

omitted); United States v. Thomas, 13 F. App’x 233, 241 (6th Cir. 2001) (holding that, absent

objections at sentencing, a district court could rely on a PSR to establish the existence of prior

convictions for an ACCA enhancement). Davis attempts to avoid these facts by arguing that the



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Case No. 16-6404, United States v. Davis


§ 2255 district court ruled that his counsel was ineffective, thereby negating counsel’s

acknowledgement of his crimes. This argument goes too far. Even a cursory review of that

proceeding shows that Davis’ only argument for ineffective assistance was failure to file a timely

appeal. See Davis, No. 14-cv-02201. Indeed, that is the only ground that the court addressed in

finding that Davis received ineffective assistance. Id. And prior to counsel’s failure to file an

appeal—including after Davis’ counsel acknowledged that Davis had burglarized a building—

Davis stated that he was satisfied with the representation he received. Moreover, Davis’ brief

affirmatively states that the district court “held that [Davis’] trial counsel was ineffective in that

she failed to file a notice of appeal as requested . . . .” (Appellant’s Br. at 3.) The judgment in

Davis’ Circuit Court of Lauderdale County action also lists “Burglary: Building” as the underlying

offense. Davis, No. 14-cv-02201 at RE 33-1.3

         Even ignoring the deficiencies inherent in Davis’ argument—his lack of objection to the

PSR, his career-offender classification, and his conviction, and the fact that the Tennessee burglary

statute remains divisible under existing precedent and does not rely solely on the state felony

classification distinction—Davis concludes his argument by requesting an impossible remedy: “for

this Honorable Court to overrule Priddy and its progenies . . . .” (Appellant’s Br. at 23.) Again,

we cannot.

                                                          V.

         We are bound by both Priddy and Ferguson. Under each, Davis’ conviction still fits within

the definition of generic burglary. Thus, the district court did not err in sentencing him under the




3
 Though Davis argues that Tennessee’s enhancement statute “theoretically converts a [C]lass E burglary into a [C]lass
D burglary,” (Appellant’s Br. at 11), we need not discuss this theoretical proposition. It is unclear if Davis was ever
sentenced under that statute and all evidence before the Court indicates that he was not. See PSR at 16; Davis, No.
14-cv-02201 at RE 33-1.

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Case No. 16-6404, United States v. Davis


ACCA and Davis’ cited precedent does nothing to alter that determination. We AFFIRM Davis’

sentence and deny the Government’s pending motion as moot.




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