                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0204n.06

                                            No. 12-5357                                   FILED
                                                                                      Feb 26, 2013
                           UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE MIDDLE
v.                                                        )        DISTRICT OF TENNESSEE
                                                          )
JOSEPH DONNELL BROWN,                                     )                           OPINION
                                                          )
       Defendant-Appellant.                               )
                                                          )

BEFORE: CLAY, GILMAN, AND McKEAGUE, Circuit Judges.

       McKeague, Circuit Judge. Defendant-appellant, Joseph Donnell Brown, pleaded guilty to

being a felon in possession of a firearm and a felon in possession of ammunition. The district court

found that Brown is an armed career criminal and sentenced him to the statutory mandatory-

minimum, fifteen year sentence. Brown appeals the district court’s determination that he is an armed

career criminal. For the reasons set forth below, we affirm.

                                                 I.

       Joseph Donnell Brown pleaded guilty to a two-count indictment, which charged him with

being a felon in possession of a firearm and a felon in possession of ammunition, in violation of 18

U.S.C. §§ 922(g)(1), 924. The government argued at sentencing that Brown had three convictions

that qualify as predicate offenses for purposes of punishment enhancement under the Armed Career

Criminal Act (“ACCA”): (1) felony of evading arrest – risk of death or injury; (2) burglary – other

than habitation; and (3) possession of less than 0.5 grams of cocaine for resale (multiple offender).
No. 12-5357
United States v. Brown

       The district court reviewed the judgment form from the evading-arrest conviction, which

indicated that Brown pleaded guilty to violating Tennessee Code section 39-16-603, a class D felony.

Tennessee Code section 39-16-603 reads:

                (b)(1) It is unlawful for any person, while operating a motor vehicle on any
       street, road, alley or highway in this state, to intentionally flee or attempt to elude any
       law enforcement officer, after having received any signal from the officer to bring the
       vehicle to a stop.
       ...
                (3) A violation of subsection (b) is a Class E felony unless the flight or
       attempt to elude creates a risk of death or injury to innocent bystanders or other third
       parties, in which case a violation of subsection (b) is a Class D felony.

The district court found that Brown’s evading-arrest conviction qualified as an ACCA predicate

offense because he pleaded guilty to the elements under (b)(3).

       Looking at the judgment form from the burglary conviction, the court concluded that Brown

was convicted of Class D felony burglary under Tennessee Code section 39-14-402, which reads:

       (a) A person commits burglary who, without the effective consent of the property owner:
               (1) Enters a building other than a habitation (or any portion thereof) not open
       to the public, with intent to commit a felony, theft or assault;
               (2) Remains concealed, with the intent to commit a felony, theft or assault,
       in a building; [or]
               (3) Enters a building and commits or attempts to commit a felony, theft or
       assault . . . .
       ...
       (c) Burglary under subdivision (a)(1), (2) or (3) is a Class D felony.

The court concluded that subsections (a)(1)–(3) constituted generic burglary and, as a result, found

that Brown’s burglary conviction qualified as an ACCA predicate offense.

       Finally, the district court considered the judgment form from Brown’s conviction for

possession of cocaine with intent to resell. According to the judgment form, Brown pleaded guilty


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United States v. Brown

to possession of less than 0.5 grams of cocaine for resale, a class C felony under Tennessee Code

section 39-17-417. Because the state sentencing court classified Brown as a multiple offender, the

district court determined that Brown had been subject to a sentence of not less than six years nor

more than ten years of imprisonment. Because Brown was subject to a maximum term of

imprisonment of ten years, the district court found that Brown’s cocaine conviction qualified as an

ACCA predicate offense.

        Based upon the above three convictions, the district court concluded that Brown qualified

as an armed career criminal for purposes of punishment enhancement. The district court then

imposed the statutory mandatory-minimum, fifteen year sentence.

        The defendant now appeals the district court’s classifying him as an armed career criminal.

He argues that none of his prior convictions qualify as predicate offenses; that the ACCA does not

apply to him due to the plain wording of the statute, the Supreme Court’s precedent from Begay v.

United States, 553 U.S. 137 (2008), and the specific facts of this case; and that the ACCA is

unconstitutional both facially and as-applied. For the reasons set forth below, we affirm the decision

of the district court.

                                                 II.

        The ACCA, codified at 18 U.S.C. § 924(e), imposes a mandatory minimum sentence against

any person convicted of violating 18 U.S.C. § 922(g) who has three prior convictions “for a violent

felony or a serious drug offense, or both, committed on occasions different from one another.” As

relevant here, the statute defines “serious drug offense” as “an offense under State law, involving

manufacture, distributing, or possessing with intent to manufacture or distribute, a controlled

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No. 12-5357
United States v. Brown

substance . . ., for which a maximum term of imprisonment of ten years or more is prescribed by

law.” 18 U.S.C. § 924(e)(2)(A)(ii).

        The statute defines “violent felony” as “any crime punishable by imprisonment for a term

exceeding one year . . . that (i) has as an element the use, attempted use, or threatened use of physical

force against the person of another; or (ii) is burglary, arson, extortion, involves use of explosives,

or otherwise involves conduct that presents a serious potential risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B). The Supreme Court has held that only “generic burglaries”—defined as

“unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit

a crime”—qualify under the ACCA’s enumerated burglary offense. Taylor v. United States, 495

U.S. 575, 599 (1990). Better known as the residual clause, the final clause of § 924(e)(2)(B)(ii),

beginning with “otherwise involves conduct,” covers those “crimes that are roughly similar, in kind

as well as in degree of risk posed, to the [enumerated offenses].” Begay, 553 U.S. at 143–45.

Crimes are similar in kind if they require “purposeful, violent, and aggressive” conduct. Id. at 145.

        We employ one of two approaches when determining whether a prior conviction qualifies

as a predicate offense under the ACCA. Under the categorical approach, we look to the statutory

elements of the offense to see if the crime qualifies as a predicate offense. Taylor, 495 U.S. at 602.

When the statute of conviction is not categorically an ACCA predicate offense, we may employ the

modified-categorical approach to determine if the defendant pleaded guilty to a narrowed charge that

would qualify as a violent felony. Under this approach, we may examine the indictment and jury

instructions, id., a plea agreement, statements made by the defendant at a plea colloquy, and

“comparable judicial records,” Shepard v. United States, 544 U.S. 13, 26 (2005). A judgment form

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No. 12-5357
United States v. Brown

qualifies as a comparable judicial record. United States v. Beasley, 442 F.3d 386, 393–94 (6th Cir.

2006) (dicta); see also United States v. Armstead, 467 F.3d 943, 948 (6th Cir. 2006) (applying

Shepard to U.S.S.G. § 4B1.2). “The court may use these additional materials only to determine

which crime within a statute the defendant committed, not how he committed the crime.” United

States v. Soto–Sanchez, 623 F.3d 317, 320 (6th Cir. 2010) (internal quotation marks omitted). With

this background in mind, we turn to Brown’s specific arguments.

                                                 A.

       Brown initially contends that none of his prior convictions should have counted as predicate

offenses. Because he objected to the application of the ACCA in the court below, we employ de

novo review. United States v. Doyle, 678 F.3d 429, 431 (6th Cir. 2012).

1. Evading Arrest

       Turning to Brown’s evading-arrest conviction, after the district court sentenced Brown, we

held in Doyle that the lesser-included version of Tennessee Code section 39-16-603(b) qualifies as

a violent felony for purposes of punishment enhancement under the ACCA. 678 F.3d at 432–33;

accord United States v. Rogers, 481 F. App’x 250 (6th Cir. 2012). If the lesser-serious Class E

felony qualifies as a violent felony, then the Class D felony version—which includes as an element

that the “flight or attempt to elude creates a risk of death or injury to innocent bystanders or other

third parties”—necessarily does as well. Brown’s evading-arrest conviction therefore qualifies as

a violent felony for purposes of punishment enhancement under the ACCA.

2. Burglary



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No. 12-5357
United States v. Brown

        Brown’s burglary conviction likewise qualifies as a violent felony. It is undisputed that

Brown’s burglary conviction was punishable by a term of imprisonment greater than one year.

Looking to the judgment form and employing a modified-categorical approach, Brown entered a

best-interest plea to burglary under Tennessee Code section 39-14-402(a)(3) for entering a building

and committing or attempting to commit a theft.

        Citing to cases interpreting the residual clause, Brown contends that his burglary conviction

does not qualify as a violent felony. He also contends that his conviction for non-residential burglary

cannot qualify as a “violent felony” under the ACCA because it would not qualify as a “crime of

violence” under the Sentencing Guidelines. The government contends that the Tennessee burglary

statute qualifies as a generic burglary statute.1


        1
         The government contends that United States v. Nance, 481 F.3d 882, 887–88 (6th Cir.
2007), effectively held that Tennessee Code sections 39-14-402(a)(1)–(3) qualify as a generic
burglary statute. See 481 F.3d at 887-88. Aggravated burglary under Tennessee law incorporates
section 39-14-402’s elements, the only difference being that aggravated burglary requires that the
burglar enter into a habitation as opposed to any building. Compare Tenn. Code Ann. § 39-14-
402(a)(1)–(3), with id. § 39-14-403. The Nance court held that Tennessee’s aggravated-burglary
statute qualifies as generic burglary. 481 F.3d at 887-88. The government argues that because the
only difference between sections 402 and 403 is section 403’s heightened requirement that the
burglary occur in a habitation and because the Supreme Court’s definition of generic burglary
includes “a building,” the Nance decision requires us to hold that section 402(a)(1)–(3) qualifies as
a generic burglary statute.
        It is unclear to us, however, whether the Nance court held that aggravated burglaries
committed under any subsection of section 39-14-402 qualify as generic burglary or whether the
Nance court limited its holding to aggravated burglaries committed under section 39-14-402(a)(1).
See United States v. Herrera-Montes, 490 F.3d 390, 392 (5th Cir. 2007). Though the Nance court
categorically stated that “aggravated burglary represents a generic burglary” and failed to state to
which subsection of section 402 the defendant entered his plea, the court held that Tennessee
aggravated burglary qualifies as generic burglary after quoting language from section 402(a)(1).
Nance, 481 F.3d 888. Because the parties did not develop the issue in their briefs and because we
believe the residual clause provides an adequate basis to affirm, we refrain from analyzing the

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No. 12-5357
United States v. Brown

       Even assuming that the Tennessee statute does not qualify as a generic burglary statute,

Brown’s first argument fails because his burglary conviction qualifies as a violent felony under the

residual clause. The Tennessee burglary statute at issue is similar to generic burglary in the degree

of risk posed in that there is “the possibility of a face-to-face confrontation between the burglar and

a third party . . . who comes to investigate.” James v. United States, 550 U.S. 192, 203 (2007).

“[T]he conduct encompassed by the elements of the offense, in the ordinary case, presents a serious

potential risk of injury to another.” Id. at 208. We see no valid reason to distinguish the risk

presented by the Tennessee burglary statute from that presented by generic burglary.

       Further, the crime is similar in kind to an enumerated offense. Indeed, the Fourth Circuit has

held that a nearly indistinguishable statute qualifies as a generic burglary statute. United States v.

Bonilla, 687 F.3d 188, 193 (4th Cir. 2012). Where, as here, the defendant is charged under section

402(a)(3) for committing or attempting to commit theft, the crime necessarily entails purposeful

conduct because theft requires purposefulness. Further, a burglary conviction under section

402(a)(3) for committing or attempting to commit theft is violent and aggressive because it is “aimed

at other persons or property where persons might be located and thereby injured.” United States v.

Vanhook, 640 F.3d 706, 714 (6th Cir. 2011). Thus, Brown’s burglary conviction qualifies under the

residual clause as a violent felony for purposes of punishment enhancement.

       Brown’s second argument relates to the definition of generic burglary under the ACCA and

the Sentencing Guidelines. However, because we have decided that Brown’s burglary conviction



specific import of the Nance decision.

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No. 12-5357
United States v. Brown

qualifies as a violent felony under the residual clause, it is beside the point whether our cases

interpreting the Guidelines burglary definition would require us to hold that non-residential burglary

cannot qualify as a violent felony for purposes of punishment enhancement under the ACCA.

3. Cocaine Possession with Intent to Resell

       Brown’s final argument regarding his predicate offenses— that there is insufficient proof that

his conviction for possession of less than 0.5 grams of cocaine with intent to resell was subject to

a maximum term of imprisonment of ten years or more—is of a kind with his other arguments.

Tennessee sentencing courts must (1) determine the felony class of the crime of conviction (e.g.,

Class C), (2) determine what sentencing range applies (i.e., Range I, II, or III) under Tennessee Code

sections 40-35-105–108, and (3) apply these findings to the sentencing provisions of Tennessee Code

section 40-35-112. The judgment form for Brown’s cocaine conviction indicates that Brown was

a multiple offender, which made him a Range II offender. See id. § 40-35-106. For a Range II

offender who committed a class C felony, such as Brown, the maximum term of imprisonment is ten

years. Id. § 40-35-112. The district court, in the current case, was permitted to determine whether

Brown was sentenced as a Range II offender. See United States v. Rodriquez, 553 U.S. 377, 389

(2008). Therefore, Brown pleaded guilty to a state drug offense subject to “a maximum term of

imprisonment of ten years or more.” In sum, Brown had three prior convictions that qualify as

predicate offenses under the ACCA.

                                                 B.

       Brown next argues that the intent and wording of the ACCA, the holding in Begay, and the

facts of this case establish that the ACCA does not apply to him. Specifically, Brown argues that

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United States v. Brown

he lacks the “‘characteristic[s] of the armed career criminal, the eponym of the statute,’” Appellant

Br. at 45 (quoting Begay, 553 U.S. at 143–44), because he is not the purposeful, violent, or

aggressive offender discussed in Begay and his crimes were not purposeful, violent, or aggressive.

       Despite Brown’s arguments to the contrary, however, Begay and the language of the statute

do not require a different result. The district court properly concluded that Brown is an armed career

criminal for purposes of punishment enhancement and we know of no exception that would allow

a court—despite a defendant having been convicted of three qualifying predicate offenses—to forgo

application of the ACCA because a defendant allegedly lacks the characteristics of the armed career

criminal.

                                                 C.

       Moving to Brown’s final set of unavailing arguments, he challenges the constitutionality of

the ACCA on three grounds. First, he argues that the ACCA is unconstitutional as applied to him

because his sentence violates the Eighth Amendment’s proportionality principle. Second, he alleges

that the ACCA is facially unconstitutionally vague. Third, he contends that the statute is

unconstitutionally vague as applied to this case. We review Brown’s constitutional challenges de

novo. United States v. Beavers, 206 F.3d 706, 708 (6th Cir. 2000).

1. Proportionality

       Though the Eighth Amendment recognizes a narrow proportionality principle, Harmelin v.

Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J. concurring), when previously presented with the

specific issue raised by Brown—whether a mandatory minimum sentence under the ACCA is grossly

disproportionate—we have held that the sentence does not violate the Eighth Amendment, as have

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United States v. Brown

the other courts to consider the issue. United States v. Moore, 643 F.3d 451, 456 (6th Cir. 2011);

United States v. Warren, 973 F.2d 1304, 1311 (6th Cir. 1992); see, e.g., United States v. Reynolds,

215 F.3d 1210, 1214 (11th Cir. 2000); United States v. Cardoza, 129 F.3d 6, 18 (1st Cir. 1997);

United States v. Presley, 52 F.3d 64, 68 (4th Cir. 1995); United States v. Hayes, 919 F.2d 1262, 1266

(7th Cir. 1990); United States v. Baker, 850 F.2d 1365, 1372 (9th Cir. 1988). Brown has failed to

cite to any decision that has found a mandatory-minimum sentence under the ACCA violates the

Eighth Amendment’s proportionality principle, and the facts of this case do not convince us that we

should diverge from our prior decisions, especially in light of Brown’s twenty-four prior

convictions.2

2. Facial Vagueness Challenge

       Moving to Brown’s facial vagueness challenge, he argues that the ACCA is

unconstitutionally vague because (1) the residual clause does not “‘give a person of ordinary

intelligence fair notice that his contemplated conduct is forbidden by the statute,’” and (2) because

the residual clause “‘encourages arbitrary and erratic arrests and convictions.’” Appellant Br. at

34–35 (quoting Colautti v. Franklin, 439 U.S. 379, 390 (1979)). More specifically, he argues that

the residual clause is unconstitutionally vague because different courts have come to different



       2
        Brown also argues that Graham v. Florida, 130 S. Ct. 2011 (2010), and Atkins v. Virginia,
536 U.S. 304 (2002), should dictate a different result. However, these cases are inapposite. Atkins
and Graham involved a death sentence and a life sentence without the possibility of parole. Moore,
643 F.3d at 455–56, 457. Death sentences and life sentences without the possibility of parole are
unique in their severity and, therefore, require a higher degree of scrutiny. Id. The present case does
not involve either of these especially severe sentences. Thus, neither Atkins nor Graham provide us
with a valid basis to employ a more demanding standard of review.

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No. 12-5357
United States v. Brown

conclusions about which crimes qualify as predicates under the residual clause and because the

interpretation of the ACCA has changed and evolved over time on an “ad hoc” basis.

         The Supreme Court, however, has held that the statute is not unconstitutionally vague as

recently as 2011, Sykes, 131 S. Ct. at 2277; see also James v. United States, 550 U.S. at 228 n.6, and

this court has held the same, United States v. Campbell, 482 F. App’x 997 (2012) (per curiam);

United States v. Fowler, 457 F. App’x 533 (6th Cir. 2012) (per curiam). Therefore, Brown’s

argument lacks merit.

3. As-Applied Vagueness Challenge

         Brown’s final argument—that a person of ordinary intelligence would not have known that

Brown was subject to increased penalties under the ACCA—succumbs to the same fate as his other

arguments. Brown’s predicate offenses include two offenses specifically enumerated in the ACCA:

a serious drug offense under state law and a burglary.3 He was also convicted of evading arrest under

a statute that included as an offense element that he “create[] a risk of death or injury to innocent

bystanders or other third parties,” language that clearly demands more than the residual clause’s

requirement of “present[ing] a serious potential risk of physical injury to another.” 18 U.S.C. §

924(e)(2)(B)(ii) (emphasis added). Brown’s three convictions would be understood by a person of

ordinary intelligence as ACCA predicate offenses, and as a result, Brown’s as-applied challenge

fails.



         3
        Regardless of whether it qualifies as “generic burglary,” a person of ordinary intelligence
would think that a conviction for “burglary” under Tennessee law would qualify as “burglary” under
the ACCA.

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No. 12-5357
United States v. Brown

                                             III.

       For the foregoing reasons, we AFFIRM the decision of the district court.




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