                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0246n.06

                                       Case No. 18-5054

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                    FILED
                                                                               May 04, 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
MICHAEL TIGUE,                                       )    TENNESSEE
                                                     )
       Defendant-Appellee.                           )

____________________________________/

Before: GUY, THAPAR, and BUSH, Circuit Judges.

       RALPH B. GUY, JR., Circuit Judge. Defendant Michael Tigue’s sentence has been in

limbo for years. He was sentenced as an armed career criminal in 2011, but later moved to vacate

that sentence in the aftermath of some Supreme Court decisions. At the time, our court was

considering a case that was similar to Tigue’s. The en banc decision in that case favored Tigue,

and he subsequently received a new, shorter sentence. But the Supreme Court reversed our en

banc decision, undercutting the basis for Tigue’s new sentence. We now vacate the judgment and

remand for reinstatement of his original sentence.

                                             I.

       Tigue has a history of burglary in Tennessee. According to a presentence report, he

committed various aggravated burglaries there in 2006 and 2009. When the county sheriff’s office
Case No. 18-5054, United States v. Tigue


questioned him about another burglary in 2010, he confessed to stealing two firearms and selling

one of them. That made it a federal case and a grand jury indicted him for being a felon in

possession of a firearm and ammunition. See 18 U.S.C. § 922(g)(1). He pleaded guilty.

          The possession offense normally carries a ten-year maximum. 18 U.S.C. § 924(a)(2). But

the Armed Career Criminal Act (ACCA) imposes a mandatory minimum of 15 years if the

defendant has three prior convictions for violent felonies. 18 U.S.C. § 924(e)(1). “Burglary” is

one of the felonies specifically listed in the Act. 18 U.S.C. § 924(e)(2)(B)(ii). At sentencing,

Tigue’s attorney argued that applying the ACCA to Tigue would be unconstitutional, but

recognized that the law of this circuit was against him. The district court rejected Tigue’s argument

and sentenced him to nearly 18 years in prison. We affirmed.

          At the time of the sentencing, Tigue qualified for an ACCA-enhanced sentence in two

ways: the residual clause and the enumerated-offenses clause.1 Subsequent Supreme Court cases,

however, called the application of those clauses into doubt. Tigue originally filed a § 2255 motion

because he believed that the Court’s decision in Descamps meant that his burglary convictions no

longer satisfied the enumerated-offenses clause. See Descamps v. United States, 570 U.S. 254

(2013). The government disagreed, but while the motion was still pending, the Supreme Court

decided Johnson v. United States, and held that enhancing a sentence via the residual clause

violates the Due Process Clause. 135 S. Ct. 2551, 2563 (2015); see also Welch v. United States,

136 S. Ct. 1257, 1268 (2016) (holding that Johnson applies retroactively). This prompted Tigue

to supplement his motion to argue that the residual clause could no longer support his sentence

either.


1
  The ACCA defines a conviction as a “violent felony” if, among other things, it “is burglary, arson, or extortion,
involves use of explosives” or it “otherwise involves conduct that presents a serious potential risk of physical injury
to another.” 18 U.S.C. § 924(e)(2)(B)(ii). The former is the enumerated-offenses clause, while the latter is the residual
clause.

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       The government conceded that Johnson took the residual clause out of play, but insisted

that the enumerated-offenses clause still supported Tigue’s sentence. Binding precedent at the

time favored the government. See United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007)

(“Tennessee aggravated burglary represents a generic burglary capable of constituting a violent

felony for ACCA purposes”); see also United States v. Priddy, 808 F.3d 676, 684 (6th Cir. 2015)

(relying on Nance and holding, post-Johnson, that “a Tennessee conviction for aggravated

burglary is categorically a violent felony under the ACCA’s enumerated-offense clause”). But we

had recently granted rehearing en banc to reconsider that precedent. See United States v. Stitt, 646

F. App’x 454 (6th Cir. 2016). So, at the request of both parties, the district court stayed Tigue’s

case while the en banc case played out.

       Our en banc decision was favorable to Tigue: we overruled Nance and held “that a

conviction for Tennessee aggravated burglary is not a violent felony for purposes of the ACCA.”

United States v. Stitt, 860 F.3d 854, 856 (6th Cir. 2017) (en banc). The district court had asked

the parties to file a status report once Stitt was decided, and they did so. In the report, the

government agreed that, “after Stitt, [Tigue]’s prior Tennessee aggravated burglary convictions no

longer count as violent felonies under the ACCA.” The status report gave no indication that the

government planned to seek a writ of certiorari in Stitt, nor even that the government disagreed

with our en banc decision. Rather, the parties agreed that the motion should be granted—they

simply disagreed “about the appropriate type of relief.”

       So the district court gave the parties what they asked for. Consistent with the parties’

agreement, the court observed that Tigue’s burglary convictions could not be used as enumerated

predicate offenses due to Stitt, and they could not be swept in under the residual clause due to




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Johnson. It therefore granted the motion, vacated the judgment, and began the process of

resentencing.

         Three months later, the probation department prepared a revised presentence report and

only then did the government raise an objection to giving Tigue relief. A footnote in the

government’s sentencing memorandum stated, “Post-Stitt, defendant is no longer an armed career

criminal. However, the United States contends that Stitt was wrongly decided and thus preserves

that issue for possible future review.” But the memo gave no indication of why Stitt was wrongly

decided and, by then, Tigue’s motion had already been granted on the basis of Stitt—the only

question was how to resentence him.2

         The district court held a resentencing hearing soon thereafter. At the beginning of the

hearing, the court gave the parties an opportunity to object to the presentence report, and the

government asked to “preserve [its] post-Stitt objections to the aggravated burglaries as crimes of

violence.” Nothing more was said on the matter. The court ultimately gave Tigue a Guidelines

sentence of time served, plus a term of supervised release.

         The government appealed but asked us to hold the appeal in abeyance because the petition

for certiorari in Stitt was pending. We did so, and a year later the Supreme Court reversed the en

banc decision in Stitt. United States v. Stitt, 139 S. Ct. 399 (2018). Briefing then commenced in

the instant appeal. The question now before us is whether Tigue’s time-served sentence should

stand and, if not, what should be done on remand.




2
 At the time the memorandum was filed, the government had already filed its petition for a writ of certiorari in Stitt,
but the government did not mention it in the memorandum. See Petition for Writ of Certiorari, United States v. Stitt,
139 S. Ct. 399 (2018) (No. 17-765). Tigue’s response, however, did mention it.

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                                               II.

       At the outset, the parties disagree about our standard of review. The government urges us

to review the district court’s legal conclusions de novo. Tigue says, “at best, plain error review

applies,” but he goes one step further and asserts that we should not reach the government’s

arguments at all. According to Tigue, the government invited any error that occurred—plain or

otherwise—and its footnote objection in the sentencing memorandum is the perfunctory sort we

should ignore. The government rejoins that it preserved the arguments it now raises, but “even if

the Court reviewed only for plain error,” the plainness of an error is reviewed at the time of

appellate review, and subsequent cases “prove that it was plainly erroneous to conclude that

Tigue’s prior Tennessee aggravated burglary convictions are not ACCA predicates.” Accord

Henderson v. United States, 568 U.S. 266, 269 (2013) (recognizing “as long as the error was plain

[at] the time of appellate review[,] the error is ‘plain’” for the purposes of Federal Rule of Criminal

Procedure 52(b)).

       Under the doctrine of invited error, we typically hold parties—including the government—

to consequences that stem from their own requests. See, e.g., United States v. Sharpe, 996 F.2d

125, 128 (6th Cir. 1993) (“Not even the plain error doctrine permits reversal on the ground that

the trial court granted a defendant’s request to charge.”) (alteration adopted, citation omitted); see

also United States v. Jallad, 468 F. App’x 600, 607–08 (6th Cir. 2012) (discussing the “invited

error” doctrine in the context of sentencing); United States v. Finley, 8 F. App’x 557, 558 (6th Cir.

2001) (same). We have discretion to overlook invited error, but we do so only when the error

would result in manifest injustice. United States v. Demmler, 655 F.3d 451, 458 (6th Cir. 2011).

       Invited error is an odd fit here. To begin, we are not just reviewing the court’s grant of the

motion, but also the sentence imposed in consequence of the motion. And the sentence was always



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a point of contention. The government wanted the court to vary upward while Tigue asked for a

much lower Guidelines-range sentence. Prior to the hearing, the government’s footnote about Stitt

raised the issue, and during the hearing the government asked to preserve the Stitt objection. So

at the very least, we may properly review Tigue’s current sentence because even if the government

invited the error of vacating Tigue’s original sentence, it timely objected to giving him a non-

ACCA sentence in its place.

        Even so, Tigue suggests that if we decide to vacate the current judgment, we should still

leave the order that vacated the original sentence in place because the government invited that

error. But it was not error to grant the motion at the time. To the contrary, the district court was

bound to grant the motion based on the then-applicable en banc decision in Stitt. That was so

regardless of the government’s position in the status report.3 Consequently, this “error” is not the

type precluded by an equitable doctrine meant to “prevent a party from inducing an erroneous

ruling and later seeking to profit from the legal consequences of having the ruling set aside.”

Demmler, 655 F.3d at 458–59.

        Ultimately, Tigue’s primary concern seems to be losing the opportunity to raise certain

arguments before the district court. But we fail to see the lost opportunity. Recall that Tigue

originally attacked his sentence on the basis of the enumerated-offenses clause—the same clause

he focuses on now. At that time, Nance was binding precedent, but Tigue nonetheless fulsomely

argued why Tennessee aggravated burglary should not be considered an enumerated offense.


3
  We do note, however, that in many other cases the government asserted its disagreement with Stitt at the outset,
explained why, and did not agree that granting the motion was appropriate. See, e.g., Response to Petition, United
States v. Brumbach, No. 3:16-cv-00776 (M.D. Tenn. Dec. 14, 2017), ECF No. 17; Response to Motion, United States
v. White, No. 1:16-cv-01094 (W.D. Tenn. Aug. 14, 2017), ECF No. 15; Response to Motion, United States v. Sesson,
No. 1:16-cv-01163 (W.D. Tenn. Aug. 1, 2017), ECF No. 9.; Answer, United States v. Barnett, No. 2:17-cv-02548
(W.D. Tenn. Aug. 17, 2017), ECF No. 8.; Answer, United States v. Bearden, No. 2:16-cv-02472 (W.D. Tenn. July
24, 2017), ECF No. 13; but see Joint Status Report, United States v. Greer, No. 2:13-cv-00073 (E.D. Tenn. July 24,
2017), ECF No. 83; Joint Status Report, United States v. Bateman, No. 3:11-cr-00042 (E.D. Tenn. July 27, 2017),
ECF No. 31.

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When Tigue later supplemented his motion post-Johnson, Nance was still binding precedent. See

Priddy, 808 F.3d at 684. Although he asked the court to stay his case until Stitt was resolved, he

still thoroughly explained why aggravated burglary should not count as an enumerated offense.

All that Tigue missed was the opportunity to argue to the district court why his arguments still had

force after the Supreme Court’s decision in Stitt. As we will explain, there is no need to give him

that opportunity.

                                               III.

       After the Supreme Court’s decision in Stitt, we decided Brumbach v. United States, 929

F.3d 791 (6th Cir. 2019). That case followed a similar path as Tigue’s: the defendant filed a § 2255

motion, received relief based on our en banc decision in Stitt, and waited in this court while the

Supreme Court took up Stitt. See id. at 792–93. After the Supreme Court’s decision, we held that

Nance “is once again the law of this circuit,” and “Tennessee aggravated burglary represents a

generic burglary capable of constituting a violent felony for ACCA purposes.” Id. at 794. This

was so even though the defendant raised arguments not addressed in either Stitt or Nance. Id. at

794–95. We therefore vacated the district court’s judgment and remanded the case so that the

district court could reinstate the original sentence. Id. at 795. And days after Tigue filed his brief

before us, the Supreme Court denied a writ of certiorari in Brumbach. 140 S. Ct. 974 (2020).

       Brumbach requires Tigue’s current sentence to be vacated. Under Brumbach, Nance

controls, which means “Tennessee aggravated burglary represents a generic burglary capable of

constituting a violent felony for ACCA purposes.” Brumbach, 929 F.3d at 792–93 (quoting Nance,

481 F.3d at 888). That forecloses Tigue’s current arguments about Tennessee aggravated burglary,

as he concedes in his brief. Tigue does offer an additional argument that his burglaries were not

actually committed on separate occasions, so they do not add up to three. But at the original



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sentencing, the district court found that Tigue committed three aggravated burglaries, thus

qualifying him for the ACCA enhancement. Tigue has never questioned that finding until now

and nothing has disturbed the finding, so there is no reason for us to consider this argument.

In sum, it was error, and indeed plain error, to sentence Tigue below the mandatory minimum of

15 years, so his sentence must be vacated.

       Brumbach also compels us to direct the district court to enter the original sentence, rather

than issue a general remand. In the brief period between the Supreme Court’s decision in Stitt and

our decision in Brumbach, there was reason to remand a case like Tigue’s for further argument.

See, e.g., Farmer v. United States, 773 F. App’x 302, 303 (6th Cir. 2019) (“Because the district

court had no occasion to consider either argument the first time around, we vacate the district

court’s decision granting [the defendant’s] § 2255 motion and remand for the district court to

consider these arguments.”). But Brumbach closed the book on Tennessee aggravated burglary

by holding, in a published opinion, that Nance once again controls. See Salmi v. Sec’y of Health

& Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (recognizing that one panel cannot, on its own,

overrule another). We have therefore consistently remanded subsequent cases for reinstatement

of the original sentence. See, e.g., United States v. Crutchfield, 785 F. App’x 321, 322 (6th Cir.

2019); United States v. Bawgus, 782 F. App’x 408, 409–10 (6th Cir. 2019); see also United States

v. Hamilton, 774 F. App’x 283, 283–86 (6th Cir. 2019) (Moore, J., concurring) (disagreeing that

Nance should control but yielding to Brumbach).

                                             * * *

       We therefore VACATE the judgment of the district court and REMAND with instructions

to reinstate the original sentence.




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