                      NOT RECOMMENDED FOR PUBLICATION
                              File Name: 20a0409n.06

                                       Case No. 17-6535

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                 FILED
                                                                            Jul 16, 2020
UNITED STATES OF AMERICA,                         )                    DEBORAH S. HUNT, Clerk
                                                  )
       Plaintiff-Appellant,
                                                  )
                                                  )       ON APPEAL FROM THE UNITED
v.
                                                  )       STATES DISTRICT COURT FOR
                                                  )       THE EASTERN DISTRICT OF
LAWRENCE SCHUMAKER,
                                                  )       TENNESSEE
       Defendant-Appellee.                        )
                                                  )




BEFORE: SILER, WHITE, and DONALD Circuit Judges.

       SILER, Circuit Judge. Lawrence Schumaker was convicted of being a felon in possession

of a firearm in violation of 18 U.S.C. § 922(g)(1). Under the Armed Career Criminal Act

(“ACCA”), a defendant who violates § 922(g) and has three prior violent felony convictions is

subject to an enhanced mandatory minimum of fifteen years’ imprisonment. See 18 U.S.C.

§ 924(e)(1). When Schumaker was sentenced for violating § 922(g) he had fourteen prior

Tennessee aggravated burglary convictions.

       Before Schumaker was sentenced this court ruled en banc in United States v. Stitt that

Tennessee’s aggravated burglary statute does not qualify as a violent felony for purposes of the

ACCA. Schumaker was then sentenced without an ACCA enhancement to 54 months’

imprisonment. The government appealed and while the appeal was pending the U.S. Supreme
Case No. 17-6535, United States v. Schumaker


Court overturned Stitt. This court has interpreted the Supreme Court’s decision as reinstating pre-

Stitt Sixth Circuit case law, which recognizes Tennessee aggravated burglary as a violent felony

under the ACCA. Therefore, we REVERSE and REMAND for resentencing under the ACCA.

                                                   I.

        In 2016, Lawrence Schumaker pled guilty to possessing a firearm by a felon in violation

of 18 U.S.C. § 922(g)(1). The district court postponed the sentencing hearing until after we issued

an opinion in the Stitt case.

        In United States v. Stitt, we decided that Tennessee’s aggravated burglary statute is broader

than generic burglary, such that “Tennessee aggravated burglary is not a violent felony for

purposes of the ACCA.” 860 F.3d 854, 856 (6th Cir. 2017) (en banc). Because his armed-career-

criminal classification depended on his prior Tennessee aggravated burglary convictions, the

probation office revised Schumaker’s presentence report and calculated the guideline range

without the ACCA enhancement. Accordingly, the district court sentenced Schumaker to 54

months’ imprisonment without the ACCA enhancement.

        The government appealed the sentence. While the appeal was pending, the Supreme Court

reversed Stitt. United States v. Stitt, 139 S. Ct. 399 (2018).

                                                  II.

        We review de novo the district court’s interpretation and application of the ACCA. See

United States v. Stafford, 721 F.3d 380, 395–96 (6th Cir. 2013). Schumaker argues that plain error

review should apply because “the government presented no argument in support of its single

statement during the sentencing hearing that Stitt could one day be overturned.”

        Here, the government did not raise the issue for the first time on appeal. At the sentencing

hearing the government objected to the sentence insofar as it did not include the ACCA


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enhancement. After the district court issued its sentence the government timely appealed. The

government objected to the lack of the ACCA enhancement at the sentencing hearing and

adequately preserved the issue for review. See, e.g., United States v. Brown, 957 F.3d 679, 683

(6th Cir. 2020). Therefore, we apply a de novo standard of review.

                                                 III.

       The ACCA provides enhanced penalties, including a fifteen-year mandatory-minimum

prison sentence, for a felon who possesses a firearm if the defendant has three or more prior

convictions “for a violent felony or a serious drug offense, or both, committed on occasions

different from one another.” 18 U.S.C. § 924(e)(1). “Violent felony” is defined 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.1

Id. § 924(e)(2)(B). Courts interpret “this section to create three different grounds for liability: the

‘use-of-force’ clause in § 924(e)(2)(B)(i); the ‘enumerated-offenses’ clause in § 924(e)(2)(B)(ii);

and the ‘residual clause’ immediately following the enumerated-offenses in § 924(e)(2)(B)(ii).”

United States v. Priddy, 808 F.3d 676, 683 (6th Cir. 2015).

       The statute explicitly lists burglary as a violent felony in the enumerated-offense clause.

However, a burglary conviction does not qualify as a violent felony under this clause if “the

elements of [the relevant state burglary statute] are broader than those of generic burglary.” Mathis

v. United States, 136 S. Ct. 2243, 2257 (2016). Generic burglary is “any crime, regardless of its


       1
         The residual clause, “or otherwise involves conduct that presents a serious potential risk
of physical injury to another,” has been invalidated and deemed unconstitutionally vague. See
Johnson v. United States, 135 S. Ct. 2551 (2015).
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Case No. 17-6535, United States v. Schumaker


exact definition or label, having the basic elements of unlawful or 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). In Tennessee, “aggravated burglary is burglary of a habitation.” Tenn. Code

Ann. § 39-14-403(a). “Habitation’ [m]eans any structure, including buildings, module units,

mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation

of persons.” Id. § 39-14-401(1)(A).

       In Stitt, this court held en banc that Tennessee’s aggravated burglary statute criminalized

more conduct than generic burglary and therefore cannot qualify as a violent felony under the

ACCA. See Stitt, 860 F.3d at 857, 862. However, the Supreme Court held that burglary of a

structure adapted for overnight accommodation qualifies as a violent felony under the ACCA. See

Stitt, 139 S. Ct. at 405–07.

       Our holding in Stitt has now been overturned. Schumaker now makes three additional

arguments for why his case should not be remanded for resentencing under the ACCA:

(1) Tennessee burglary’s entry element is broader than generic burglary’s entry element; (2) his

burglary convictions could have been for reckless conduct; and (3) his prior offenses did not occur

on separate occasions. Each of these arguments is foreclosed by precedent.

                                                A.

       First, Schumaker argues that Tennessee aggravated burglary’s entry element is broader

than generic burglary’s entry element. He focuses on the entry-by-instrument form of burglary.

This form of burglary occurs when an instrument, such as a screwdriver or coat hanger, crosses a

structure’s threshold but no part of the person crosses it. Schumaker argues that under generic

burglary this is an entry only if the person also used or intended to use the instrument to commit a




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further felony inside. Under this definition, if the instrument is only used to make entry, then no

“entry” was made, and the individual committed attempted burglary instead of burglary.

       Schumaker contends that Tennessee’s aggravated burglary statute is broader because the

use of an instrument to cross the threshold of a structure is enough to commit burglary in

Tennessee. A defendant recently made the same argument in Brumbach v. United States. 929 F.3d

791, 795 (6th Cir. 2019), cert. denied, 2020 U.S. LEXIS 747 (Jan. 27, 2020). The court held that

even if there was merit to the argument, such an argument is foreclosed by Sixth Circuit precedent,

specifically the court’s decision in United States v. Nance. See id. at 794 (“Nance’s holding, which

is directly on point, is once again the law of this circuit.”). In Nance, the court considered the

“statutory elements of Tennessee’s aggravated burglary statute” and held that “Tennessee

aggravated burglary represents a generic burglary capable of constituting a violent felony for

ACCA purposes.” 481 F.3d 882, 888 (6th Cir. 2007).

       Accordingly, we have consistently rejected this entry argument. See, e.g., United States v.

Bailey, Nos. 18-6131/6147, 2020 U.S. App. LEXIS 5883, at *6–7 (6th Cir. Feb. 26, 2020)

(“‘Brumbach is now precedential,’ and it dictates the result here: [the defendant’s] Tennessee

aggravated-burglary conviction qualifies as an ACCA predicate offense under the enumerated-

offense clause, and his original ACCA sentence was proper.” (internal citation omitted)); United

States v. Crutchfield, 785 F. App’x 321, 323 (6th Cir. 2019) (“Brumbach then held that [Nance

and Priddy] foreclosed new arguments that Tennessee aggravated burglary is not generic

burglary.”). Most recently, in United States v. Brown, this circuit considered the merits of this

entry argument and again rejected the argument. See 957 F.3d at 683–89. Therefore, this argument

is foreclosed by precedent.




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                                                  B.

       Second, Schumaker argues that Tennessee’s aggravated burglary statute is broader than

generic burglary because Tennessee burglary can be committed even when the defendant is

reckless. The Supreme Court’s definition of generic burglary requires a defendant to have intent

to commit a crime. See Taylor, 495 U.S. at 599 (defining generic burglary as the “unlawful or

unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime”

(emphasis added)). In Tennessee “[a]ggravated burglary is burglary of a habitation.” Tenn. Code

Ann. § 39-14-403. Burglary occurs when a person, without the property owner’s consent:

       (1) Enters a building . . . not open to the public, with intent to commit a felony, theft
       or assault;
       (2) Remains concealed, with the intent to commit a felony, theft or assault, in a
       building;
       (3) Enters a building and commits or attempts to commit a felony, theft or assault;
       or
       ....

Id. § 39-14-402(a) (emphasis added).

       Schumaker points out that subsection (a)(3) “does not include an intent requirement related

to either the entry into the building or with respect to the commission of the underlying felony,

theft or assault.” He claims that because there is no intent requirement listed in this subsection the

intent can be “knowledge or recklessness.” He argues that because burglary could be committed

recklessly under subsection (a)(3), it does not qualify as a violent felony under the ACCA.

       This argument is foreclosed by precedent. In Brumbach, this court clarified that in light of

the Supreme Court’s decision in Stitt, United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017),

and Priddy, 808 F.3d 676, are once again the law of the circuit. See Brumbach, 929 F.3d at 794.

These decisions broadly held that “convictions under subsections (a)(1), (a)(2), or (a)(3) of the


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Tennessee burglary statute—fit within the generic definition of burglary and are therefore violent

felonies for purposes of the ACCA.” Ferguson, 868 F.3d at 515 (citing Priddy, 808 F.3d at 684–

85). Thus, we reject this argument.

                                               C.

       Third, Schumaker argues that the records of his convictions cannot establish that he

committed aggravated burglary on three separate occasions. In order for the ACCA enhancement

to apply, the defendant must have committed three violent felonies “on occasions different from

one another.” 18 U.S.C. § 924(e)(1). He argues that the “evidence does not establish that he

necessarily admitted that he committed the aggravated burglaries on occasions different from one

another—because the temporal circumstances of the offense are not elements of aggravated

burglary under Tennessee law.”

       We rejected this argument in Brown, 957 F.3d at 690–91, and in United States v.

Hennessee, 932 F.3d 437, 439 (6th Cir. 2019), cert. denied, 2020 U.S. LEXIS 347 (U.S., Jan. 13,

2020). In Hennessee, the court held that “a sentencing court may consider non-elemental facts such

as times, locations, and victims in Shepard documents when conducting the different-occasions

analysis.” 932 F.3d at 439.

       Here, the Shepard documents show that Schumaker committed violent felonies on several

different occasions. The charging documents demonstrate that all, except for two, of Schumaker’s

fourteen Tennessee aggravated burglary convictions were committed on different dates. Therefore,

Schumaker committed his offenses on “occasions different from one another.” 18 U.S.C.

§ 924(e)(1). Accordingly, we also reject this argument.




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Case No. 17-6535, United States v. Schumaker


                                               IV.

       We GRANT Schumaker’s motion to take judicial notice and we REVERSE and REMAND

for resentencing under the ACCA.




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