               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 20a0263n.06

                                       Case No. 18-5050

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                      FILED
                                                                                May 11, 2020
                                                                            DEBORAH S. HUNT, Clerk
PHILLIP L. GILLIAM,                                  )
                                                     )
       Petitioner-Appellee,                          )        ON APPEAL FROM THE
                                                     )        UNITED STATES DISTRICT
v.                                                   )        COURT FOR THE EASTERN
                                                     )        DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,                            )
                                                     )
       Respondent-Appellant.                         )                             OPINION
                                                     )




BEFORE:        COLE, Chief Judge; CLAY and NALBANDIAN, Circuit Judges.

       COLE, Chief Judge. In 2012, Phillip Gilliam pleaded guilty to one count of possessing a

firearm as a convicted felon in violation of 18 U.S.C. § 922(g). Based on five prior convictions

for aggravated burglary under Tennessee law, the district court deemed Gilliam an armed career

criminal under the Armed Career Criminal Act (“ACCA”). This finding relied on then-existing

Sixth Circuit precedent, United States v. Nance, 481 F.3d 882, 887–88 (6th Cir. 2007), which held

that Tennessee aggravated burglary fits the definition of generic burglary, and therefore

categorically qualifies as an enumerated “violent felony” under the ACCA. The district court

sentenced Gilliam to the mandatory minimum of 15 years’ imprisonment.            See 18 U.S.C.

§ 924(e)(1).
Case No. 18-5050, Gilliam v. United States


         Subsequently, in United States v. Stitt (Stitt I), 860 F.3d 854, 858–62 (6th Cir. 2017) (en

banc), our court, sitting en banc, overruled Nance, deciding that Tennessee’s aggravated-burglary

statute is indivisible and sweeps more broadly than generic burglary because it includes burglary

of vehicles used for overnight accommodation. Our holding in Stitt I meant that Gilliam’s

convictions for aggravated burglary under Tennessee law no longer qualified as predicate offenses

for purposes of the ACCA. See id. at 862. Accordingly, the district court granted Gilliam’s motion

under 28 U.S.C. § 2255 and vacated his 15-year sentence. On December 15, 2017, the district

court resentenced Gilliam to time served and issued an amended judgment. The government filed

a timely notice of appeal on January 16, 2018. See Fed. R. App. P. 26(a). We then held the appeal

in abeyance pending a decision by the Supreme Court on the government’s petition for certiorari

in Stitt I.

         The Supreme Court granted certiorari and reversed our decision in Stitt I, holding that

burglary of vehicles used for overnight accommodation falls within the scope of generic burglary.

United States v. Stitt (Stitt II), 139 S. Ct. 399, 406–08 (2018). Following Stitt II, a panel of our

court decided that because the Supreme Court reversed the rationale by which we overruled Nance,

Nance’s holding “is once again the law of this circuit.” Brumbach v. United States, 929 F.3d 791,

794 (6th Cir. 2019), cert. denied, 140 S. Ct. 974 (2020). Under Nance, Gilliam’s prior convictions

for aggravated burglary under Tennessee law are predicate offenses, and he once again qualifies

as an armed career criminal under the ACCA. See Nance, 481 F.3d at 888. In recent cases raising

the same issue, we have consistently instructed the district court to reinstate the original sentence.

E.g., Brumbach, 929 F.3d at 795; United States v. Bateman, 780 F. App’x 355, 357 (6th Cir. 2019);

Greer v. United States, 780 F. App’x 352, 353 (6th Cir. 2019); United States v. Crutchfield, 785

F. App’x 321, 324 (6th Cir. 2019); United States v. Bawgus, 782 F. App’x 408, 410 (6th Cir. 2019);



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Case No. 18-5050, Gilliam v. United States


United States v. Hamilton, 774 F. App’x 283, 283 (6th Cir. 2019) (per curiam); Bell v. United

States, 773 F. App’x 832, 833 (6th Cir. 2019); Mann v. United States, 773 F. App’x 308, 309 (6th

Cir. 2019) (per curiam).

       Gilliam argues that we nevertheless should affirm his amended sentence—or at minimum

remand for further consideration—based on grounds the district court did not have occasion to

consider.   Even Gilliam acknowledges, however, that binding precedent forecloses these

alternative arguments.

       First, Gilliam raises an alternative reason as to why aggravated burglary under Tennessee

law is broader than generic burglary: the definition of “entry” under Tennessee’s aggravated-

burglary statute, he argues, is broader than a generic “entry,” such that a mere attempted burglary

may be treated as a burglary under the Tennessee statute. In Brumbach, however, we rejected an

identical argument as foreclosed by Nance. 929 F.3d at 795. And we have consistently rejected

the argument in similar cases since Brumbach. E.g., United States v. Brown, —F.3d—, No. 18-

5356, 2020 WL 1966845, at *3–7 (6th Cir. Apr. 24, 2020) (providing an extended discussion of

the entry argument raised here and rejecting it on the merits); White v. United States, No. 17-

5967/5969, 2020 WL 773056, at *2 (6th Cir. Jan. 21, 2020) (order); Bearden v. United States, No.

17-5927, 2019 WL 7882516, at *2 (6th Cir. Nov. 6, 2019) (order); Bateman, 780 F. App’x at 356;

Crutchfield, 785 F. App’x at 324; Bawgus, 782 F. App’x at 409. Gilliam provides no reason to

conclude that precedent does not bind us here.

       Second, Gilliam argues that the government cannot establish that his predicate offenses for

ACCA purposes were “committed on occasions different from one another.” See 18 U.S.C.

§ 924(e)(1). Specifically, Gilliam contends that a court may not consider non-elemental facts

when conducting a different-occasions analysis, and time and location are not elements of



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Case No. 18-5050, Gilliam v. United States


aggravated burglary in Tennessee. This argument is foreclosed by our decision in United States

v. Hennessee, 932 F.3d 437 (6th Cir. 2019), cert. denied, 140 S. Ct. 896 (2020). In Hennessee, we

held that there is no elemental-facts-only limitation in the different-occasions analysis, and

therefore, “a district court may consider both elemental and non-elemental facts contained in

Shepard-approved documents” when conducting a different-occasions analysis. Id. at 444. The

Shepard-approved documents here show that Gilliam committed at least three burglaries on three

separate occasions.1

        We therefore vacate Gilliam’s amended sentence and remand with instructions for the

district court to reinstate his original sentence.




1
  Gilliam filed a motion to take judicial notice of certain state court documents and pattern jury
instructions. Federal Rule of Evidence 201 allows us to take judicial notice of facts that are “not
subject to reasonable dispute,” including facts contained within Shepard documents. See Fed. R.
Evid. 201(b); see also United States v. Ferguson, 681 F.3d 826, 834 (6th Cir. 2012). We grant in
part Gilliam’s motion to take judicial notice, taking notice of the Shepard documents’ description
of dates on which Gilliam committed his prior offenses. We otherwise deny the motion.
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