                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0310n.06

                                     Case Nos. 17-6513/6514

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

THOMAS EDWARD LEE,                                   )                              FILED
       Petitioner-Appellee,                          )                        Jun 18, 2019
                                                     )                    DEBORAH S. HUNT, Clerk
       v.                                            )
                                                     )
UNITED STATES OF AMERICA,                            )
                                                     )       ON APPEAL FROM THE UNITED
       Respondent-Appellant.
                                                     )       STATES DISTRICT COURT FOR
                                                     )       THE MIDDLE DISTRICT OF
UNITED STATES OF AMERICA,                            )       TENNESSEE
       Plaintiff-Appellant,                          )
                                                     )
       v.                                            )
                                                     )
THOMAS EDWARD LEE,                                   )
       Defendant-Appellee.                           )



       BEFORE: SUTTON, GRIFFIN, and READLER, Circuit Judges.

       SUTTON, Circuit Judge.        In 2010, Thomas Lee pleaded guilty to being a felon in

possession, in violation of 18 U.S.C. § 922(g)(1). Based on three prior Tennessee aggravated

burglary convictions, the parties noted in the plea agreement that Lee had three prior violent felony

convictions and, as an armed career criminal under 18 U.S.C. § 924(e), should be sentenced to

188 months in prison. The district court accepted the agreement and imposed the 188-month

sentence.
Case Nos. 17-6513/6514, Lee v. United States/United States v. Lee


       In Johnson v. United States, the Supreme Court held that the residual clause of the Armed

Career Criminal Act violates due process. 135 S. Ct. 2551, 2563 (2015). Relying on Johnson,

Lee filed this § 2255 motion, arguing that his aggravated burglary convictions no longer qualified

as violent felonies under the Act and that he should be resentenced. While Lee’s petition was

pending, this court held that Tennessee aggravated burglary did not qualify as a violent felony

because Tennessee’s statute covers more structures than the Act’s enumerated burglary offense

covers. United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc). The government then agreed

that Lee did not qualify for the career-offender enhancement. The district court granted Lee’s

§ 2255 motion and amended his sentence to time served.

       The government appealed and asked that we hold the case in abeyance while it sought the

Supreme Court’s review in Stitt. We agreed to do so. Late last year, the Supreme Court reversed

this court’s decision in Stitt, holding that the structures covered by the Tennessee statute fit within

the Act’s generic burglary definition. United States v. Stitt, 139 S. Ct. 399, 406–08 (2018).

       The government asks us to reverse the sentence because the Supreme Court’s decision in

Stitt undermines the basis for the district court’s grant of relief. Lee does not—he cannot—dispute

that he no longer is eligible for relief based on the structures the Tennessee aggravated burglary

statute covers.

       Instead, Lee says that those state convictions do not qualify as burglaries under the Act for

a different reason, one distinct from the issue in Stitt. Lee argues that generic burglary requires

entry by an instrument used to commit the intended felony inside. Meanwhile, he adds, Tennessee

burglary requires only entry by an instrument used to attempt to break in, making the Tennessee

statute overbroad. The district court did not have a chance to consider that argument the first time

around, which is the typical (and usually the better) course.



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Case Nos. 17-6513/6514, Lee v. United States/United States v. Lee


       We vacate the district court’s decision granting Lee’s § 2255 motion and remand for the

district court to reconsider the motion.




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