                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0386n.06

                                        Case No. 18-5008

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                     FILED
                                                                                Jul 30, 2019
UNITED STATES OF AMERICA,                           )                      DEBORAH S. HUNT, Clerk
                                                    )
       Plaintiff-Appellant,                         )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE EASTERN DISTRICT OF
LONNIE WAYNE BAWGUS,                                )       TENNESSEE
                                                    )
       Defendant-Appellee.                          )


       BEFORE: MOORE, COOK, and THAPAR, Circuit Judges.

       COOK, Circuit Judge. Following our decision in United States v. Stitt, 860 F.3d 854 (6th

Cir. 2017) (en banc), the district court granted Lonnie Wayne Bawgus 28 U.S.C. § 2255 relief,

vacated his enhanced sentence, and resentenced him to a shorter prison term. But because the

Supreme Court ultimately reversed the Stitt decision, annulling the foundation for Bawgus’s relief,

we VACATE his amended sentence and REMAND with instructions to reinstate the original,

enhanced sentence.

       In 2008, a jury convicted Bawgus of possessing a firearm as a felon, in violation of

18 U.S.C. § 922(g). Because of his fourteen prior convictions for Tennessee aggravated burglary,

and one prior conviction for aggravated assault, the district court designated Bawgus a career

offender pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Bawgus thus

received an enhanced sentence of 210 months’ imprisonment and five years’ supervised release.
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He appealed, and we affirmed. United States v. Bawgus, No. 11-5649 (6th Cir. July 16, 2012)

(order).

       Less than a year later, Bawgus filed a § 2255 motion. During the pendency of that motion,

the Supreme Court invalidated the ACCA’s residual clause in Johnson v. United States, 135 S. Ct.

2551 (2015), and Bawgus amended his filing to include a Johnson challenge to his career offender

status. After we granted en banc rehearing to consider whether Tennessee aggravated burglary

constituted a “violent felony,” the government moved for—and the district court granted—a stay

in Bawgus’s § 2255 proceedings.

       Finding Tennessee’s aggravated burglary statute indivisible and broader than generic

burglary, our en banc decision held that the offense could not serve as a violent felony under the

ACCA. Stitt, 860 F.3d at 856–57, 862 (overruling United States v. Nance, 481 F.3d 882, 888 (6th

Cir. 2007)). Without Bawgus’s aggravated burglary convictions, he had fewer than the three

violent felony predicates needed to sustain an ACCA enhancement. See 18 U.S.C. 924(e)(1).

Thus, citing Johnson and Stitt, the district court granted Bawgus § 2255 relief, vacated the ACCA-

enhanced sentence, and resentenced him to 105 months’ imprisonment and three years’ supervised

release.

       We held the appeal in abeyance while the Supreme Court reviewed our en banc Stitt

decision. At the end of last year, the Court reversed. United States v. Stitt, 139 S. Ct. 399, 406–

08 (2018). As a result, the government now asks us to vacate Bawgus’s amended sentence and

instruct the district court to reinstate his original ACCA-enhanced sentence.

       We review de novo the district court’s legal conclusions, including whether a prior

conviction constitutes a violent felony under the ACCA. Braden v. United States, 817 F.3d 926,

929–30 (6th Cir. 2016). The district court granted Bawgus § 2255 relief because, at the time of its


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Case No. 18-5008, United States v. Bawgus


decision, “the Johnson and [en banc] Stitt decisions dictate[d] that [Bawgus] no longer [could] be

designated an armed career criminal under § 924(e).” R. 188, PageID 1049. But the Supreme

Court reversed our Stitt decision, and Bawgus’s fourteen convictions for Tennessee aggravated

burglary once again qualify as violent felonies under the ACCA’s enumerated offense clause, so

the district court’s grant of relief cannot stand. See Brumbach v. United States, Nos. 18-5703/5705,

2019 WL 3024727, at *3, --- F.3d ---- (6th Cir. July 11, 2019).

       Acknowledging that the Supreme Court’s reversal undercuts the district court’s grant of

relief, Bawgus seeks remand for consideration of arguments stemming from Mathis v. United

States, 136 S. Ct. 2243 (2016), that he purportedly raised in his § 2255 petition. But the record

reflects that he never raised such claims. And, in any event, allowing the district court to entertain

Bawgus’s new Mathis-styled arguments would be futile, as Nance’s holding affirming Tennessee

aggravated burglary’s ACCA-predicate status once again binds its hands (and ours) until either the

en banc court or the Supreme Court says otherwise. See Brumbach, 2019 WL 3024727, at *3

(citing Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)).

       Bawgus alternatively argues that the government’s failure to respond to a district court

order to brief the impact of Mathis bars it from challenging his § 2255 relief. But whether the

government appropriately responded to that order does not discharge Bawgus’s burden to prove

entitlement to habeas relief. See Allen v. Perini, 424 F.2d 134, 138 (6th Cir. 1970) (“The failure

of State officials to file a timely return does not relieve the prisoner of his burden of proof.”);

Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (affirming that the burden of proof in

§ 2255 proceedings lies with the petitioner).




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Case No. 18-5008, United States v. Bawgus


       We therefore VACATE Bawgus’s amended sentence and REMAND with instructions to

reinstate his ACCA-enhanced sentence of 210 months’ imprisonment with five years’ supervised

release.




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Case No. 18-5008, United States v. Bawgus


        KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. Petitioner

Lonnie Bawgus’s appeal once again raises the issues of what constitutes “generic burglary” under

the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 924(e). Having lost his primary basis for

relief under 28 U.S.C. § 2255, Bawgus requests that this court remand his case so that the district

court may consider his additional claims under Mathis v. United States, 136 S. Ct. 2243 (2016),

and Johnson v. United States, 135 S. Ct. 2551 (2015). See Appellee Br. at 9. Because Bawgus

has not, in fact, raised any additional claims for the district court to review,1 and because his appeal

is otherwise foreclosed by our decision in Brumbach v. United States, Nos. 18-5703/5705, 2019

WL 3024727, at *3, __F.3d__ (6th Cir. July 11, 2019), I agree with the majority that Bawgus’s

amended sentence must be vacated. I write separately to explain, however, that were it not for our

decision in Brumbach or Bawgus’s failure to address additional bases for § 2255 relief, I would




        1
         The only claim Bawgus fairly raised pursuant to Mathis and Johnson before the district
court related to the definition of “habitation” under Tennessee’s aggravated burglary statute, Tenn.
Code Ann. § 39-14-403. True, Bawgus asserted generally that, under Johnson, 135 S. Ct. at 2563,
his convictions for Tennessee aggravated burglary were based on the now-void residual clause of
18 U.S.C. § 924(e) and were, therefore, invalid predicate offenses. See R. 169 (Mot. Judicial
Notice at 1–5) (Page ID #966–970); R. 173 (Suppl. Br. at 1) (Page ID #982). However, as the
district court correctly noted, this argument could succeed only if Bawgus’s sentence was also
incorrectly enhanced pursuant to the enumerated-offenses clause of the ACCA. See R. 188 (Order
Granting § 2255 Mot. at 7) (Page ID #1049). To support the latter argument, Bawgus pointed to
the Supreme Court’s decision in Mathis and, specifically, the definition of “building” and
“structure” discussed in Mathis. See R. 178 (Suppl. Pro Se Br. at 2) (Page ID #993) (“During the
pendency of my motion the United States Supreme Court decided Mathis . . . ‘Structure’ or
‘Building’ structure element of burglary statute was broader than the parallel element of generic
burglary the court concluded that the petitioner prior convictions were incapable of supporting
enhancement . . . . ”). Any argument that the Tennessee aggravated burglary statute is broader
than generic burglary based on the scope of the buildings or structures it covers is clearly
foreclosed by the Supreme Court’s decision in United States v. Stitt, 139 S. Ct. 399, 403–04 (2018)
(concluding that “the statutory term ‘burglary’ includes burglary of a structure or vehicle that has
been adapted or is customarily used for overnight accommodation”). Because Bawgus did not
raise any additional arguments pursuant to Mathis or Johnson for the district court to consider,
I agree with the majority that remand is inappropriate in this case.
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Case No. 18-5008, United States v. Bawgus


permit Bawgus to return to the district court to raise additional arguments under Mathis and

Johnson.

       I start with the applicable law. Bawgus was sentenced to 210 months of imprisonment

under the Armed Career Criminal Act (“ACCA”) based on fourteen prior convictions for

Tennessee aggravated burglary. The ACCA “imposes a fifteen-year mandatory-minimum prison

sentence on persons who violate 18 U.S.C. § 922(g) . . . and who have three previous state or

federal convictions for ‘violent felon[ies] or serious drug offense[s].’” United States v. Burris,

912 F.3d 386, 391–92 (6th Cir. 2019) (en banc) (quoting 18 U.S.C. § 924(e)(1)), petition for cert.

docketed May 24, 2019. As applicable to Bawgus’s appeal, the ACCA defines “violent felony” to

include a felony which “is burglary, arson, or extortion, [or] involves use of explosives.” 18 U.S.C.

§ 924(e)(2)(B). However, not every “burglary” conviction qualifies as an ACCA predicate

offense; rather, only “generic burglary,” or “an unlawful or unprivileged entry into, or remaining

in, a building or other structure, with intent to commit a crime,” qualifies. Taylor v. United States,

495 U.S. 575, 598 (1990). Thus, in order for Bawgus’s fourteen convictions for Tennessee

aggravated burglary to constitute predicate offenses under the ACCA, the elements of Tennessee’s

aggravated burglary statute must be “the same as, or narrower than, those of the generic offense.”

Descamps v. United States, 570 U.S. 254, 257 (2013).

       “Tennessee defines aggravated burglary as the ‘burglary of a habitation,’ Tenn. Code Ann.

§ 39-14-403, and defines ‘habitation’ as ‘any structure . . . which is designed or adapted for the

overnight accommodation of persons,’ id. § 39-14-401(1)(A).” United States v. Stitt, 860 F.3d

854, 857 (6th Cir. 2017) (en banc), reversed by United States v. Stitt, 139 S. Ct. 399 (2018) (“Stitt

II”). In examining certain sections of this statute, we have previously concluded that Tennessee

aggravated burglary corresponds to the generic definition of “burglary” under Taylor. See, e.g.,


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Case No. 18-5008, United States v. Bawgus


Nance, 481 F.3d at 888 (reciting Tennessee’s aggravated burglary statute and concluding that

“aggravated burglary in Tennessee clearly comports with Shepard’s definition of a generic

burglary as ‘committed in a building or enclosed space’”); United States v. Priddy, 808 F.3d 676,

684 (6th Cir. 2015) (following Nance without discussion of particular statutory language); see also

United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017) (rejecting the defendant’s argument

that Tennessee burglary is broader “because it allows a defendant to be convicted of burglary if he

enters a building and then forms the requisite intent to commit a crime while inside”).

       In his appeal brief, however, Bawgus points to a separate and distinct segment of

Tennessee’s aggravated burglary statute (the use of the word “entry”) to argue that Tennessee

aggravated burglary is broader than generic burglary. See Appellee Br. at 18–19 (asserting that

because Tennessee’s statute criminalizes instances where an instrument, as opposed to a body part,

enters a building or structure, it is broader than generic burglary).2 Nance, Priddy, and Ferguson

did not address this section of the statute and, instead, focused on different language in the

Tennessee code; thus, their conclusory holdings are not “directly on point” and––assuming

Bawgus had raised this claim before the district court––would not resolve Bawgus’s § 2255

motion. Brumbach, 2019 WL 3024727, at *3. Moreover, to the extent the panels in Nance, Priddy,

and Ferguson assumed that the scope of Tennessee’s “entry” definition was consistent with

“generic burglary,” we should not be bound by such silent and unexamined assumptions. See Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 63 n.4 (1989) (“[T]his Court has never considered



       2
         Bawgus also contends that Tennessee’s “burglary and aggravated burglary statutes expand
the definition of generic burglary by including conduct where there is no intent to commit a crime
when entering the building or habitation.” Appellee Br. at 19. The Supreme Court has recently
clarified, however, that “we interpret remaining-in burglary under § 924(e) to occur when the
defendant forms the intent to commit a crime at any time while unlawfully present in a building or
structure.” See Quarles v. United States, 139 S. Ct. 1872, 1879 (2019).
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Case No. 18-5008, United States v. Bawgus


itself bound [by prior sub silentio holdings] when a subsequent case finally brings the jurisdictional

issue before us.” (quotation marks omitted) (second alteration in original)); accord Staley v. Jones,

239 F.3d 769, 776 (6th Cir. 2001). Rather, “[q]uestions which merely lurk in the record, neither

brought to the attention of the court nor ruled upon, are not to be considered as having been so

decided as to constitute precedents.” Rinard v. Luoma, 440 F.3d 361, 363 (6th Cir. 2006)

(quotation marks omitted) (alteration in original). Indeed, in an unpublished opinion issued before

this court decided Brumbach, we strongly implied that neither Nance nor Stitt II foreclosed a

§ 2255 petitioner from raising a novel argument relating to his Tennessee aggravated burglary

convictions. See Lee v. United States, No. 17-6513/6514, 2019 WL 2513795, at *1 (6th Cir. June

18, 2019) (unpublished) (remanding for the district court to consider whether “generic burglary

requires entry by an instrument used to commit the intended felony inside”).3

       I believe our en banc decision in United States v. Mateen, 764 F.3d 627 (6th Cir. 2014) (en

banc), is instructive on this point. Mateen involved the interpretation of a sentencing enhancement

which applied when an individual had previously been convicted of a crime “relating to aggravated

sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Id. at 628

(quoting 18 U.S.C. § 2252(b)(2)). The question before the en banc court was whether the language

“involving a minor or ward” modified only “abusive sexual conduct” or, instead, modified all three



       3
         True, we have previously explained that “we are bound by the published opinions of
previous panels” despite any “analytical flaws” we may identify in those opinions. Grundy Mining
Co. v. Flynn, 353 F.3d 467, 479 (6th Cir. 2003). However, the parties in Grundy were attempting
to attack the reasoning of an issue that a previous panel had directly decided and considered. Id.
at 478–79. In contrast, Bawgus’s argument rests on a particular issue (the meaning of the word
“entry”) that was neither considered nor decided by Nance, Priddy, or Ferguson. This is not a
case in which Bawgus contends that, in interpreting the “entry” requirement of Tennessee Code
Annotated § 39-14-403, the Nance court’s “analytical flaws” led it to the wrong conclusion.
Rather, Bawgus asserts––correctly––that Nance, Priddy, and Ferguson never even reached the
“entry” issue.
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Case No. 18-5008, United States v. Bawgus


types of sexual abuse described in the enhancement. Id. at 628–29. In a previous case, United

States v. Gardner, 649 F.3d 437 (6th Cir. 2011), we appeared to endorse the latter interpretation

of § 2252(b)(2) when we stated that the defendant’s prior conviction triggered the enhancement

because it involved the “sexual abuse” of a “minor or ward,” id. at 442–43. Indeed, the original

Mateen panel believed that it was bound by Gardner’s interpretation of § 2252(b)(2) and,

accordingly, affirmed Mateen’s sentence. United States v. Mateen, 739 F.3d 300, 306 (6th Cir.

2014). The en banc court, however, implicitly concluded otherwise when, without addressing

Gardner or overruling the decision, the en banc court determined that “involving a minor or ward”

modified only “abusive sexual conduct.” Mateen, 764 F.3d at 629. Had the en banc court thought

Gardner’s unexamined discussion of § 2252(b)(2) to be controlling, the en banc court would have

had to overrule Gardner. Instead, to reach the decision it did, the en banc court necessarily

accepted Judge McKeague’s dissent at the panel level, where Judge McKeague noted that because

“[t]he unaddressed issues in the present case were not actually decided or implicitly held[,] . . .

Gardner’s unconsidered application of that understanding is not binding precedent on this point.”

Mateen, 739 F.3d at 309 (McKeague, J., dissenting). I believe the same reasoning would apply to

Bawgus’s claim before the district court.

       In conclusion, we have never held that––or even considered whether––Tennessee’s

definition of the word “entry” corresponds to generic burglary, despite the fact that, according to

Bawgus, Tennessee’s statute criminalizes entry by instruments only. Consequently, had Bawgus

raised this argument before the district court, I believe remand would have been appropriate.

I therefore concur in judgment only.




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