               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0383n.06

                                    Case Nos. 18-5127/5128

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                FILED
                                                                            Jul 29, 2019
       18-5127                                     )                   DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                          )
                                                   )
       Plaintiff-Appellant,
                                                   )      ON APPEAL FROM THE UNITED
       v.                                          )      STATES DISTRICT COURT FOR
KENNETH HAMILTON,                                  )      THE MIDDLE DISTRICT OF
       Defendant-Appellee.                         )      TENNESSEE
                                                   )
       18-5128                                     )
                                                   )
KENNETH HAMILTON,
    Petitioner-Appellee,                           )
                                                   )
       v.                                          )
UNITED STATES OF AMERICA,                          )
                                                   )
       Respondent-Appellant.


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

       PER CURIAM. Kenneth Hamilton pled guilty to possessing a firearm as a convicted felon.

See 18 U.S.C. § 922(g). Because he already had five prior convictions for Tennessee aggravated

burglary, the district court enhanced Hamilton’s sentence to the fifteen-year minimum under the

Armed Career Criminal Act (ACCA).         See id. § 924(e)(1).    Several years later, Hamilton

challenged his sentence through a motion for post-conviction relief. See 28 U.S.C. § 2255. While

his § 2255 motion was pending, the en banc Sixth Circuit determined that Tennessee aggravated

burglary was not an ACCA predicate. United States v. Stitt, 860 F.3d 854, 856 (6th Cir. 2017) (en
Case Nos. 18-5127/5128, United States v. Hamilton


banc). Relying on Stitt, the district court reviewing Hamilton’s § 2255 motion determined that he

no longer qualified for an ACCA enhancement and reduced his sentence to ten years. But

Hamilton’s victory was short-lived because the government filed a protective appeal, and a few

months later the Supreme Court reversed Stitt. United States v. Stitt, 139 S. Ct. 399, 406–08

(2018).

          The Supreme Court’s reversal means that our circuit returns to its pre-Stitt precedent.

Brumbach v. United States, Nos. 18-5703/5705, 2019 WL 3024727, at *3, __F.3d__ (6th Cir. July

11, 2019). And under that precedent, Tennessee aggravated burglary is an ACCA predicate. Id.

(citing United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007)). Thus, although the district

court was right to reduce Hamilton’s sentence, the law has changed during this appeal and made

Hamilton’s original sentence proper again.          Therefore, we VACATE and REMAND with

instructions to reinstate the original sentence.




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Case Nos. 18-5127/5128, United States v. Hamilton


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

majority concludes that under Brumbach v. United States, Nos. 18-5703/5705, 2019 WL 3024727,

at *3, __F.3d__ (6th Cir. July 11, 2019), we are once again bound by the more-than-decade-old

decision in United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007). Although I recognize that

we must follow Brumbach’s holding regarding Nance and Tennessee aggravated burglary, I do

not believe that Nance should control our resolution of Hamilton’s appeal.

       I start with the applicable law. Hamilton was sentenced to 180 months of imprisonment

pursuant to the Armed Career Criminal Act (“ACCA”), which “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 Hamilton’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 Hamilton’s five 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



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Case Nos. 18-5127/5128, United States v. Hamilton


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.,

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, however, Hamilton 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 20–21 (asserting that because

Tennessee aggravated burglary criminalizes entries by instruments, rather than people only, the

statute covers attempted burglary and, therefore, is broader than generic burglary). 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 do not

resolve Hamilton’s appeal. 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 itself bound [by prior sub silentio holdings] when a subsequent case finally

brings the jurisdictional issue before us.” (quotation marks omitted) (second alteration in



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Case Nos. 18-5127/5128, United States v. Hamilton


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”).1

       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

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




1
 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, Hamilton’s appeal 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 Hamilton 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, Hamilton asserts––correctly––that Nance, Priddy, and Ferguson never even reached the
“entry” issue.
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Case Nos. 18-5127/5128, United States v. Hamilton


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 applies to

Hamilton’s appeal.

       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

Hamilton, Tennessee’s statute encapsulates both attempts and completed entries. Our precedent

therefore does not foreclose Hamilton’s appeal and, in the absence of the panel’s decision in

Brumbach, I would reach the merits of Hamilton’s argument. Consequently, I concur in the

judgment only.




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