                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 19a0059p.06

                    UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT



 CARLOS CLIFFORD LOWE,                                  ┐
                                Petitioner-Appellant,   │
                                                        │
                                                         >      No. 17-5490
       v.                                               │
                                                        │
                                                        │
 UNITED STATES OF AMERICA,                              │
                               Respondent-Appellee.     │
                                                        ┘

                           Appeal from the United States District Court
                        for the Eastern District of Tennessee at Knoxville.
            Nos. 3:05-cr-00022-1; 3:16-cv-00714—Thomas A. Varlan, District Judge.

                                  Argued: October 3, 2018

                              Decided and Filed: April 4, 2019

              Before: BATCHELDER, DONALD, and THAPAR, Circuit judges.
                               _________________

                                         COUNSEL

ARGUED: Melissa M. Salinas, Garrett T. Fox, UNIVERSITY OF MICHIGAN LAW
SCHOOL, Ann Arbor, Michigan, for Appellant. Luke A. McLaurin, UNITED STATES
ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Melissa M. Salinas,
Garrett T. Fox, UNIVERSITY OF MICHIGAN LAW SCHOOL, Ann Arbor, Michigan, for
Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, Knoxville,
Tennessee, for Appellee.

        DONALD, J., delivered the opinion of the court in which BATCHELDER and THAPAR,
JJ., joined. THAPAR, J. (pg. 10), delivered a separate concurring opinion in which
BATCHELDER, J., joined.
 No. 17-5490                          Lowe v. United States                                 Page 2


                                       _________________

                                            OPINION
                                       _________________

       BERNICE BOUIE DONALD, Circuit Judge. Petitioner-appellant Carlos Lowe appeals
the district court’s denial of his successive pro se motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. § 2255.         For the reasons more fully explained below, we
REVERSE and REMAND the case back to the district court.

                                                  I.

       In 2005, a jury found Lowe guilty of possessing ammunition as a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). Lowe had previously been convicted of four felonies under
Tennessee law. They include: third-degree burglary, aggravated assault, a rape occurring in
1977, and a rape occurring in 1985.

       At his sentencing, the district court determined that at least three of those prior felonies
qualified Lowe as an armed career criminal under the Armed Career Criminal Act (“ACCA”)
and sentenced him to 235 months imprisonment. See 18 U.S.C. § 924(e)(1). Lowe subsequently
appealed his conviction and his sentence, but this court affirmed. United States v. Lowe, No. 06-
5352 (6th Cir. Apr. 27, 2007) (order). Lowe then filed a motion to vacate his sentence under 28
U.S.C. § 2255, which the district court denied.

       After the Supreme Court held that the residual clause of the ACCA is unconstitutionally
vague in Johnson v. United States, 135 S. Ct. 2551 (2015), Lowe filed a motion for an order
authorizing the district court to consider a second or successive motion to vacate, set aside, or
correct his sentence under § 2255. In re Carlos Clifford Lowe, 16-6002 (6th Cir. Nov. 14, 2016)
(order). We granted the motion and transferred the case to the district court. Id.

       Lowe filed his second or successive § 2255 motion in the district court, challenging his
status as an armed career criminal. The district court denied the motion and certified that an
appeal would not be taken in good faith, holding that Lowe’s convictions for third-degree
burglary, aggravated assault, and the 1977 rape still qualify as ACCA predicates. Based on those
 No. 17-5490                                Lowe v. United States                                          Page 3


determinations, the district court did not address Lowe’s 1985 rape, for which he was convicted
under a different statute than for the 1977 rape.

        Lowe timely appealed the district court’s denial of his second § 2255 motion. This court
granted him a certificate of appealability to determine whether his third-degree burglary
conviction qualifies as an ACCA predicate. That question, however, was recently answered in
Cradler v. United States, 891 F.3d 659 (6th Cir. 2018). It does not. See id. at 671.

        Undeterred, the Government now argues that Lowe’s status as an armed career criminal
remains valid because his convictions for aggravated assault and the two rapes qualify as violent
felonies under the ACCA. In response, Lowe asserts that the Government has not met its burden
of establishing that the 1985 rape qualifies.1 We now turn to that conviction.

                                                         II.

        The validity of Lowe’s designation as an Armed Career Criminal hinges entirely on
whether his 1985 rape qualifies as an ACCA predicate offense. The district court declined to
reach this question once it determined that Lowe’s convictions for third-degree burglary,
aggravated assault, and the 1977 rape qualified as violent felonies. Nevertheless, we exercise
our discretion to consider this issue in the first instance. See Singleton v. Wulff, 428 U.S. 106,
121 (1976) (“The matter of what questions may be taken up and resolved for the first time on
appeal is one left primarily to the discretion of the courts of appeals, to be exercised on the facts
of individual cases.”).

        The ACCA imposes a fifteen year mandatory minimum sentence on a defendant who
violates § 922(g) after having been convicted of three prior “violent felonies.” See 18 U.S.C.
§ 924(e).     A violent felony, as pertinent here, is defined as “any crime punishable by
imprisonment for a term exceeding one year, . . . that—(i) has as an element the use, attempted

        1Lowe    also argues that his conviction for aggravated assault cannot be an ACCA predicate because the
Government has not demonstrated that he was convicted for acting intentionally rather than recklessly. Our recent
holding in Davis v. United States, 900 F.3d 733, 736 (6th Cir. 2018), forecloses this argument, as we held that both
reckless and intentional aggravated assault in Tennessee qualify as violent felonies. Accord United States v. Harper,
875 F.3d 329, 330 (6th Cir. 2017) (“[W]e are bound to hold that reckless aggravated assault in violation of Tenn.
Code Ann. § 39-13-102(a)(1)(B) is a crime of violence for purposes of U.S.S.G. § 4B1.2(a).”). Lowe, however,
does not submit argument concerning the 1977 rape; thus, we do not consider it.
 No. 17-5490                        Lowe v. United States                                  Page 4


use, or threatened use of physical force against the person of another[.]” § 924(e)(2)(B), (i).
This clause has come to be known as the “use-of-force” or the “elements” clause, requiring a
finding that an offense involved a level of “force capable of causing physical pain or injury to
another person.” Johnson v. United States, 559 U.S. 133, 140 (2010).

       “To determine whether a conviction offense is a [violent felony], we apply a categorical
approach ‘focus[ing] on the statutory definition of the offense, rather than the manner in which
the offender may have violated the statute in a particular circumstance.’” United States v.
Gooch, 850 F.3d 285, 290 (6th Cir. 2017) (quoting United States v. Rafidi, 829 F.3d 437, 444
(6th Cir. 2016)).     Pursuant to the categorical approach, if an offense’s elements do not
necessarily involve the use, attempted use, or threatened use of physical force against another,
the crime does not qualify as a predicate offense under the ACCA (in the elements-clause
context). See United States v. Harris, 853 F.3d 318, 320 (6th Cir. 2017).

       Where, however, a statute sets out “one or more elements of the offense in the
alternative,” the statute defines multiple crimes and is considered divisible. See Descamps v.
United States, 570 U.S. 254, 257 (2013). In that scenario, we employ a modified categorical
approach, which requires a multi-step inquiry. See id. We first look to the statute as a whole to
determine whether it includes crimes that do not necessarily involve the use of force. If it does,
we determine whether the statute is divisible and whether any crime defined by the statute may
qualify as an ACCA predicate offense. If the answer is yes, we “look[] to a limited class of
documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to
determine what crime, with what elements, a defendant was convicted of.” Mathis v. United
States, 136 S. Ct. 2243, 2249 (2016) (citing Shepard v. United States, 544 U.S. 13, 26 (2005)).
Finally, we determine whether that crime necessarily involved the use, attempted use, or
threatened use of force.

       Under either the categorical or the modified categorical approach, the first step is to look
to the statute under which the defendant was convicted. At the time Lowe committed the 1985
rape, the relevant statute read:
 No. 17-5490                          Lowe v. United States                               Page 5


       (a) Rape is unlawful sexual penetration of another accompanied by any of the
           following circumstances:
           (1) Force or coercion is used to accomplish the act;
           (2) The actor knows or has reason to know that the victim is mentally
               defective, mentally incapacitated, or physically helpless; and
           (3) The actor accomplishes sexual penetration by fraud.
       (b) Rape is a felony punishable by imprisonment in the penitentiary for a
           determinate sentence not less than five (5) years nor more than twenty
           (20) years.

Tenn. Code Ann. § 39-2-604 (1982).

       As we have previously held, a conviction for rape where the victim is “physically
helpless” does not necessarily require the use of force. In re Sargent, 837 F.3d 675, 677-78 (6th
Cir. 2016). Thus, for purposes of the ACCA, this statute is overbroad because it is comprised of
at least one crime that does not require the use, attempted use, or threatened use of force. The
next step is to determine whether the statute is divisible.

       We find that it is because it lists elements in the alternative, thereby defining multiple
crimes. See Mathis, 136 S. Ct. at 2248 (“‘Elements’ are the ‘constituent parts’ of a crime’s legal
definition—the things the ‘prosecution must prove to sustain a conviction.’”) (quoting Black’s
Law Dictionary 634 (10th ed. 2014)). For instance, a jury may find that a defendant committed
rape by force or coercion, as listed in (a)(1), without finding that the defendant committed rape
by fraud, as listed in (a)(3). Therefore, § 39-2-604 defines multiple crimes and is divisible. See
Descamps v. United States, 570 U.S. 254, 257 (2013).

       The next question is whether the statute defines at least one crime that would likely
qualify as a predicate offense under the ACCA. We find that it likely does. Section (a)(1)
criminalizes rape committed by force. Force is defined as “compulsion by the use of physical
power or violence and shall be broadly construed to accomplish the purposes of the Sexual
Offenses Law[.]” Tenn. Code Ann. § 39-2-602(3) (1982). Therefore, rape by force would
almost certainly qualify as a predicate offense under the ACCA.

       Because the statute defines the crime of rape in a way that could, but need not, qualify as
an ACCA predicate, our next step is to consult the Shepard documents to see which offense
 No. 17-5490                         Lowe v. United States                                 Page 6


Lowe committed. In this case, the only Shepard document we have is the indictment. It charged
Lowe with “feloniously engag[ing] in sexual penetration . . . by use of fear and coercion in
violation of TCA 39-2-604.” The parties dispute whether the indictment contains a typo because
it used the terms “fear and coercion” rather than (a)(1)’s “force or coercion” or whether, instead,
Lowe was charged with only rape by coercion. This distinction is immaterial, though, because it
is clear that Lowe was indicted under (a)(1). No other section in the statute criminalizes rape by
coercion, and nowhere in the statute is rape by fear criminalized at all. Therefore, the only
question before us is whether a violation of (a)(1) necessarily involved the use, attempted use, or
threatened use of force.

       As described above, rape by “force” would almost certainly qualify as a predicate offense
under the ACCA; however, it is not immediately clear whether rape by “coercion” would
likewise qualify. Because (a)(1) lists both force and coercion, we must determine whether rape
by coercion would qualify on its own as a predicate offense, and further, whether (a)(1) is
divisible. If the answer to both questions is no (e.g., rape by coercion is not a predicate offense
and (a)(1) is not divisible), then Lowe’s conviction does not qualify as a predicate offense. We
begin with the definition of coercion.

       Tennessee defines “coercion” as a “threat of kidnapping, extortion, force or violence to
be performed immediately or in the future or the use of parental, custodial, or official authority
over a child less than fifteen (15) years of age[.]” Tenn. Code Ann. § 39-2-602(1). The last
clause of this definition, which requires only use of authority over a child, does not satisfy the
use of force clause. Therefore, we must determine whether this definition describes various
factual means by which a defendant may commit a single element—rape by coercion—or
elements in the alternative, thereby listing the constituent parts of four separate crimes. See
Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). If it is the former (means), then rape by
coercion is not a predicate offense because it can be committed without the use, attempted use, or
threatened use of force; but if it is the latter (elements), we continue down the modified-
categorical-approach pathway. To make the means versus elements determination, we first look
to state court decisions addressing the issue. See Mathis, 136 S. Ct. at 2256 (opining that the
means versus elements question be made easy where “a state court decision definitively answers
 No. 17-5490                           Lowe v. United States                                     Page 7


the question”); see also United States v. Ritchey, 840 F.3d 310, 318 (6th Cir. 2106) (“In
determining whether statutory alternatives constitute elements or means, the Court clarified that
sentencing courts should look first to state law, including judicial interpretations of the criminal
statute by state courts.”); Smith v. Sowders, 848 F.2d 735, 738 (6th Cir. 1988) (“State courts
interpret state criminal statutes, and their interpretations are binding on federal courts.”).

        In this instance, Tennessee courts have determined that rape by force or coercion, as
listed in (a)(1), is an indivisible crime. Therefore, the definition of coercion simply lists means
by which that crime may be committed. Numerous opinions issued by Tennessee appellate
courts support this conclusion.     State v. Sontay, No. M2012-01579-CCA-R3-CD, 2013 Tenn.
Crim. App. LEXIS 643, at *29-*30 (Tenn. Crim. App. July 31, 2013); State v. Way, No. E2002-
00251-CCA-R3-CD, 2004 Tenn. Crim. App. LEXIS 120, at *28-*29 (Tenn. Crim. App. Feb. 9,
2004); State v. Hilton, C.C.A. No. 278, 1991 Tenn. Crim. App. LEXIS 738 (Tenn. Crim. App.
Sep. 4, 1991); State v. Watkins, 754 S.W.2d 95, 98-99 (Tenn. Crim. App. 1988); State v. Halton,
C.C.A. NO. 23, 1988 Tenn. Crim. App. LEXIS 619, at *5 (Tenn. Crim. App. Oct. 12, 1988).

        The most illustrative state-court case is State v. Goff, No. E2002-691, 2003 WL
21788914, at *8-*11 (Tenn. Crim. App. Aug. 5, 2003). There, a jury convicted Goff of, among
other things, multiple counts of rape by force or coercion. See id. at *2-*3. On appeal, Goff
challenged the sufficiency of the evidence of those rape convictions. Id. at *18-*19.

        The Tennessee Court of Appeals began its analysis by considering how many crimes the
rape statute listed. It stated, “Many of our proscriptive statutes set forth alternative modes for
committing crimes. Code section 39-13-503 specifies four different modes of committing rape.”
Id. at *21.

        The statute at issue in Goff was Tennessee Code Annotated § 39-13-503, not § 39-2-604,
the statute at issue here. However, § 39-13-503 is the successor to § 39-2-604, and (a)(1) in both
statutes criminalizes rape by the use of “[f]orce or coercion,” and the correlative definitions of
coercion are identical. Compare Tenn. Code Ann. §§ 39-13-501(1), 503(a)(1), with Tenn. Code
Ann. §§ 39-2-602(1), 604(a)(1) (1982). The only meaningful difference between the two statutes
for purposes of this case is that § 39-13-503(a) contains four subsections whereas § 39-2-604(a)
 No. 17-5490                          Lowe v. United States                                 Page 8


contains only three, which is why the Goff court found that § 39-13-503 lists four separate
crimes, instead of three. According to the Tennessee Court of Appeals, then, the definition of
coercion does not list additional crimes. Rather, it lists means of committing the single crime of
rape by coercion.

       Delving further into the court’s opinion, we find more support for this determination. In
analyzing whether the evidence was sufficient to convict Goff of rape by force or coercion, the
court began by defining force and coercion. It then opined that “the evidence strikes us as an
effort to persuade that the element of coercion was supplied via the ‘parental authority language.
. . .” Id. at *22 (emphasis added). The court found that there was no evidence in the record that
the victim was under fifteen years of age at the time the alleged rapes occurred; thus, there was
insufficient evidence to convict Goff of rape by coercion “through the use of parental . . .
authority over a child less than fifteen (15) years of age.” Id. at *22-*26.

       Notably—and dispositive to the question at hand—the court did not stop its analysis
there. It continued, stating that

       there are two other avenues by which the sufficiency of the rape convictions
       might be upheld. Section 39-13-503(1) supplies an alternative definition of
       coercion as the “threat of kidnapping, extortion, force of violence to be performed
       immediately or in the future.” Also, the rape statute provides that either “force”
       or “coercion” will suffice.

Id. at *26 (internal citations omitted). The court first found that the record could not support a
conviction for rape by force. Id. at *26-*29. It then went on to analyze each remaining
provision in the definition of coercion, finding that there was insufficient evidence to support a
finding that Goff committed rape by “threat of kidnapping, extortion, force or violence to be
performed immediately or in the future. . . .” Id. at *26-*32; see also § 39-2-604(a)(1).

       What is clear from the court’s opinion is that it would have upheld the jury’s conviction
for rape by force or coercion if a single definitional provision of force or coercion had been
established in the record. This means two things: (1) rape by force or coercion, as enumerated in
(a)(1), is an indivisible crime, and (2) the definition of coercion is not a list of elements that
defines four separate crimes. See Mathis, 136 S. Ct. at 2248 (opining that elements are what
must be proven by “the prosecution to sustain a conviction[]”).         As the Tennessee appellate
 No. 17-5490                       Lowe v. United States                               Page 9


court’s analysis makes clear, the jury could have chosen any definitional provision upon which
to convict Goff, and its verdict would have been upheld. It necessarily follows, then, that the
government did not have to prove the existence of any one specific definitional provision.
Therefore, § 39-2-604(a)(1) defines one crime, that being rape by force or coercion. Because
rape by coercion can be committed by the use of parental authority—e.g., without any force—the
statute is overbroad for purposes of the ACCA.

                                                 III

       Lowe’s previous convictions for third degree burglary and the 1985 rape do not qualify
as ACCA predicates.     Therefore, his sentence as an armed career criminal cannot stand.
Accordingly, we REVERSE and REMAND the case for resentencing.
 No. 17-5490                         Lowe v. United States                              Page 10


                                      _________________

                                       CONCURRENCE
                                      _________________

       THAPAR, Circuit Judge, concurring. Rape is always violent. Whether a rapist coerces a
victim, tricks them, or drugs them, the act of “unlawful sexual penetration” involves violent
force. And then there is this case, where Carlos Lowe dragged his victim across a car seat and
raped her. No one questions that his act was unlawful, forceful, and violent.

       Yet, in the categorical-approach world, we cannot call rape what it is.         Instead of
analyzing the facts underlying Lowe’s crime to determine if it was violent, we must engage in a
hypothetical exercise to determine whether the crime’s elements could be committed in a non-
violent fashion. So, although rape is always violent as a matter of fact, the majority correctly
applies our precedent to conclude that Lowe’s rape was not violent as a matter of law. But this
case demonstrates, once again, that it is time for Congress to revisit the categorical approach so
we do not have to live in a fictional world where we call a violent rape non-violent. See United
States v. Burris, 912 F.3d 386, 407–10 (6th Cir. 2019) (en banc) (Thapar, J., concurring); Ovalles
v. United States, 905 F.3d 1231, 1257–62 (11th Cir. 2018) (en banc) (W. Pryor, J., concurring)
(suggesting that Congress adopt a fact-based approach for the Armed Career Criminal Act); see
also U.S. Sentencing Comm’n, Sentencing Guidelines for United States Courts, 83 Fed. Reg.
65400, 65408 (proposed Dec. 20, 2018) (similar proposal for sentencing guidelines). Since
Congress has not yet eliminated the categorical approach, I regrettably concur.
