                          NOT RECOMMENDED FOR PUBLICATION
                                  File Name: 19a0184n.06

                                                No. 17-5760

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT                                          FILED
                                                                                           Apr 11, 2019
    UNITED STATES OF AMERICA,                                   )                     DEBORAH S. HUNT, Clerk
                                                                )
         Plaintiff-Appellee,                                    )
                                                                )       ON APPEAL FROM THE
                  v.                                            )       UNITED STATES
                                                                )       DISTRICT COURT FOR
    IRVIN JUNIOR PHILLIPS,                                      )       THE EASTERN DISTRICT
                                                                )       OF TENNESSEE
         Defendant-Appellant.                                   )
                                                                )
                                                                )

BEFORE: GRIFFIN and DONALD, Circuit Judges; and BERTELSMAN, District Judge.*

        PER CURIAM.

        Defendant-Appellant Irvin Phillips appeals his sentencing enhancement that was entered

pursuant to the Armed Career Criminal Act (“ACCA”). Prior to entering a guilty plea for being a

felon in possession of a firearm, Phillips had three prior convictions for aggravated or attempted

aggravated assault. The district court found that these were predicate offenses that qualified for an

enhanced sentence under the ACCA. Phillips has appealed only the district court’s decision

regarding his 2009 aggravated-assault conviction. He also challenges the continuing validity of the

Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998).

        For the reasons stated below, we AFFIRM.




*
  The Honorable William O. Bertelsman, United States District Court Judge for the Eastern District of Kentucky,
sitting by designation.
Case No. 17-5760, United States v. Phillips


                                                            I.

           In July of 2015, Phillips was charged with being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(b)(1). (R. 1, ID 1). He pleaded guilty in the Eastern District of

Tennessee. (R. 44, ID 1027). The United States Probation office prepared a Presentence Report

(“PSR”) for Phillips’s sentencing determination. (R. 35, ID 277). It found that Phillips had three

prior convictions that qualified as predicate offenses under the ACCA: (1) a 2006 aggravated-

assault conviction; (2) a 2008 attempted-aggravated-assault conviction; and (3) a 2009 aggravated-

assault conviction. (PSR ¶¶ 29, 34, 37). Each conviction was based on Tennessee’s aggravated

assault statute, § 39-13-102,1 and Phillips pleaded guilty in each instance. (Id.) Phillips’s minimum

imprisonment term was increased from its original guideline range of 168 to 210 months to 15

years due to the ACCA enhancement. (Id. at ¶¶ 80-81).

           While Phillips objected to the use of each conviction at his sentencing, he has only appealed

the determination that his 2009 aggravated-assault conviction qualified as a predicate offense.

(Appellant’s Br. at 14). At sentencing, Phillips’s primary argument centered on the mens rea


1
    At the time of Phillips’s 2009 conviction, § 39-13-102 read:
“(a) A person commits aggravated assault who:
                    (1) Intentionally or knowingly commits an assault as defined in § 39-13-101 and:
                        (A) Causes serious bodily injury to another; or
                        (B) Uses or displays a deadly weapon; or
                    (2) Recklessly commits an assault as defined in § 39-13-101(a)(1), and:
                        (A) Causes serious bodily injury to another; or
                        (B) Uses or displays a deadly weapon.
           (b) A person commits aggravated assault who, being the parent or custodian of a child or the custodian of an
           adult, intentionally or knowingly fails or refuses to protect the child or adult from an aggravated assault as
           defined in subdivision (a)(1) or aggravated child abuse as defined in § 39-15-402.
           (c) A person commits aggravated assault who, after having been enjoined or restrained by an order, diversion,
           or probation agreement of a court of competent jurisdiction from in any way causing or attempting to cause
           bodily injury or in any way committing or attempting to commit an assault against an individual or
           individuals, intentionally or knowingly attempts to cause or causes bodily injury or commits or attempts to
           commit an assault against the individual or individuals.”
Tenn. Code Ann. § 39-13-102(a)-(c) (2008).

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Case No. 17-5760, United States v. Phillips


elements in Tennessee’s aggravated assault statute: a person can commit aggravated assault either

intentionally or knowingly under § 39-13-102(a)(1) or recklessly under § 102(a)(2). Tenn. Code

Ann. § 39-13-102(a). An intentional or knowing aggravated assault is a Class C felony, while a

reckless aggravated assault is a Class D felony. Tenn. Code Ann. § 39-13-102(d)(1). Phillips

argued that the state court was not clear as to which mental state formed the basis of his conviction

since the state court included intentional, knowing, and reckless elements when discussing

Phillips’s convictions in the plea colloquy. (R. 45, ID 1042-43, 1046). At the time of Phillips’s

sentencing, this distinction mattered because this Circuit had not yet held that recklessness was a

sufficient mental state for purposes of the ACCA. (See id. at 1076-78). Therefore, Phillips argued

that because the state court did not clearly establish that Phillips had been convicted of a knowing

or intentional aggravated assault, his conviction did not qualify for the ACCA. (See, e.g., id. at

1073-74). Phillips further argued that he was convicted pursuant to an Alford plea and thus did

not admit the factual basis of his conviction. (Id. at 1042). He also argued that the state-court

judgment was not a valid Shepard document. (Id. at 1044-45).

       The district court decided to use the modified categorical approach for Phillips’s sentencing

in an “overabundance of caution” since it was not satisfied that recklessness was an appropriate

mental state for the ACCA. (Id. at 1086). The court looked to the indictment, plea colloquy, and

judgment. (Id. at 1091-93). It found that Phillips’s conviction must have been under § 102(a)(1)(A)

or (B) since the state-court judgment specified that his conviction was a Class C felony, and it

therefore could not be a reckless aggravated assault because that is a Class D felony. (Id. at 1092-

93). The court then held that Phillips’s conviction was a violent felony under the ACCA and that

Phillips should be sentenced as an armed career criminal (Id. at 1093, 1097).




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Case No. 17-5760, United States v. Phillips


                                                            II.

          Under the ACCA, a felon who unlawfully possesses a handgun can have his sentence

enhanced if he has three previous convictions for violent felonies. 18 U.S.C. § 924(e)(1). A violent

felony is defined in two ways: it can either involve the use, attempted use, or threatened use of

physical force against the person of another (the “use-of-force clause”), or it can be one of several

enumerated offenses. 18 U.S.C. § 924(e)(2)(B).2 Assault is not an enumerated offense, so Phillips’s

aggravated-assault conviction would only qualify for the ACCA if it satisfies the use-of-force

clause.

          To decide if a conviction satisfies the ACCA, the Supreme Court has developed a

categorical approach that consists of comparing elements of the “generic” crime as it is commonly

understood with the elements of the conviction. If the statute’s elements are identical to or

narrower than the generic crime, then a conviction under that statute is a violent felony under the

ACCA. Descamps v. United States, 570 U.S. 254, 257 (2013).

          If, however, the statute is divisible—meaning that it “sets out one or more elements of the

offense in the alternative”—then whether a defendant is convicted of a violent felony depends

entirely upon which elements served as the basis of his conviction. Id. In these instances, courts

are allowed to use the “modified categorical approach” to determine which set of elements

provided the basis for the defendant’s conviction. Id. Once the elements of the conviction are

determined, the court then compares that offense to the generic crime again to determine if the

ACCA is satisfied. Id.


2
  Specifically, the ACCA defines a violent felony as, “any crime punishable by imprisonment for a term exceeding
one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife or destructive device that
would be punishable by imprisonment for such term if committed by an adult, 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, or extortion,
involves the 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).

                                                            4
Case No. 17-5760, United States v. Phillips


       Under the modified categorical approach, courts may look to certain documents to narrow

a defendant’s conviction to a particular set of elements. In United States v. Shepard, the Supreme

Court identified records that are appropriate to determine the character of a conviction: “a later

court [may look to] the statutory definition, charging document, written plea agreement, transcript

of plea colloquy, and any explicit factual finding by the trial judge to which the defendant

assented.” 544 U.S. 13, 16 (2005).

       That Tennessee’s aggravated assault statute, § 39-13-102, is a divisible statute is not

contested. Braden v. United States, 817 F.3d 926, 933 (6th Cir. 2016); Appellant’s Br. at 26 n.7.

Thus, the district court properly used the modified categorical approach. “We review

determinations as to whether a conviction qualifies as a ‘violent felony’ under the ACCA de novo.”

United States v. Hockenberry, 730 F.3d 645, 663 (6th Cir. 2013).

                                                 A.

       The state-court plea colloquy reveals which elements provided the basis for Phillips’s

conviction. Phillips faults the district court’s review of the colloquy, however, and argues that

Shepard allows us only to review any factual basis admitted by him rather than the entire plea

colloquy. (Appellant’s Br. at 25). He also argues that because he entered an Alford plea and did

not admit the factual basis of his conviction, there is nothing for us to review in the colloquy. See

Shepard, 544 U.S. at 26.

       Phillips reads Shepard too narrowly. In adopting the modified categorical approach, the

Supreme Court has repeatedly emphasized that courts should only look for the elements of a

conviction and not the underlying facts. See Descamps, 570 U.S. at 263 (“[The modified approach]

retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of

a crime.”).



                                                  5
Case No. 17-5760, United States v. Phillips


       And, the Court recently defined precisely what an element is for the ACCA: “[e]lements

are the ‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution must prove to

sustain a conviction.’ At a trial, they are what the jury must find beyond a reasonable doubt to

convict the defendant, and at a plea hearing, they are what the defendant necessarily admits when

he pleads guilty.” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016) (internal citations

omitted).

       Here, although Phillips was permitted to enter an Alford plea and therefore did not admit

the factual basis of his conviction, the state court explained the elements of his convicted offense

in the plea colloquy by noting what the prosecution would have to prove:

       Do you understand in order to convict of you this offense, the State of Tennessee would
       have to prove beyond a reasonable doubt that you did unlawfully, intentionally, and
       knowingly and recklessly cause fear or bodily injury to another while displaying a deadly
       weapon and if the state couldn’t prove that you would not be found guilty. Do you
       understand that?

(R. 31-3, ID 245-46).

Phillips said that he understood. (Id. at 246). Under Mathis, then, these are the elements of

Phillips’s conviction because this is what the State would have had to prove in order to convict

him. Mathis, 136 S. Ct. at 2248.

       At the time of his conviction, Tennessee defined aggravated assault as follows:

       (a) A person commits aggravated assault who:
           (1) Intentionally or knowingly commits an assault as defined in § 39-13-101 and:
                (A) Causes serious bodily injury to another; or
                (B) Uses or displays a deadly weapon; or
           (2) Recklessly commits an assault as defined in § 39-13-101(a)(1), and:
                (A) Causes serious bodily injury to another; or
                (B) Uses or displays a deadly weapon.

Tenn. Code Ann. § 39-13-102(a) (emphasis added).




                                                 6
Case No. 17-5760, United States v. Phillips


A person who commits aggravated assault under § 102(a) must have committed an underlying

assault, which was defined in § 39-13-101:

       (a) A person commits assault who:
           (1) Intentionally, knowingly or recklessly causes bodily injury to another;
           (2) Intentionally or knowingly causes another to reasonably fear imminent bodily
               injury; or
           (3) Intentionally or knowingly causes physical contact with another and a reasonable
               person would regard the contact as extremely offensive or provocative.

Tenn. Code Ann. § 39-13-101(a) (emphasis added).

       Looking at these two statutes, it is clear where the state court found the language it used

when describing his offense to Phillips. The only aggravated assault provision that includes the

three mental states mentioned by the state court—intentionally, knowingly, or recklessly—is

§ 102(a). The other forms of aggravated assault can only be committed intentionally or knowingly.

See Tenn. Code Ann. § 39-13-102(b)-(c). The state court also explicitly mentioned a deadly

weapon, which is an element found in both (a)(1)(B) and (a)(2)(B). It is not included elsewhere in

§ 102. Lastly, § 102(a) requires an assault which can involve causing actual or fear of bodily

injury—the state court incorporated both options in its colloquy with Phillips. Thus, as the state

court explained, these are the elements of his conviction. They correspond with only §102(a).

Further, it is undisputed that a conviction under § 102(a) is an ACCA violent felony.

       We have previously held that Shepard allows us to examine plea colloquies even when the

admitted factual basis is absent. United States v. McMurray, 653 F.3d 367, 378 (6th Cir. 2011),

abrogated on other grounds, 136 S. Ct. 2272 (2016). The above exchange in Phillips’s plea

colloquy “demonstrate[s] with certainty that the defendant pleaded guilty to a narrowed charge

that would qualify as a ‘violent felony.’” Id. at 381.

       Further, the Supreme Court has held that valid pleas of nolo contendere and Alford pleas

are not different in any material aspects. North Carolina v. Alford, 400 U.S. 25, 37 (1970). It also


                                                 7
Case No. 17-5760, United States v. Phillips


has held that a defendant who enters a plea of nolo contendere admits every essential element of

the offense. Lott v. United States, 367 U.S. 421, 426 (1961). Cf. Pearce v. U.S. Dep’t of Justice,

D.E.A., 867 F.2d 253, 255 (6th Cir. 1988). We have explicitly extended this principle to Alford

pleas: “[f]or a conviction resulting from an Alford-type guilty, the defendant has ‘necessarily’

admitted to the elements of the charge but not necessarily the underlying factual basis.” McMurray,

653 F.3d at 381. We have thus “distinguished reliance on the factual basis of the plea provided by

the prosecutor from reliance on the elements of the charge” simply because the elements are

admitted and the facts are not. United States v. Ferguson, 681 F.3d 826, 836 (6th Cir. 2012).

       Because it is clear from the plea colloquy that Phillips’s conviction was based on the

elements of the deadly weapon variant found in § 39-13-102(a), we need not consider the

indictment or the judgment.

                                                 B.

       Once the Shepard documents have narrowed the convicted offense, we must then

determine if the conviction qualifies as a violent felony. Because aggravated assault is not an

enumerated offense in the ACCA, it must have “as an element the use, attempted use, or threatened

use of force against the person of another” to qualify. 18 U.S.C. § 924(e)(2)(B)(i). Phillips’s

conviction under Tenn. Code Ann. § 39-13-102(a) satisfies this requirement.

        For the ACCA, force is “violent force—that is, force capable of causing physical pain or

injury to another person.” Johnson v. United States¸ 559 U.S. 133, 140 (2010). We previously held

that convictions under § 39-13-102(a)(1)(B)—knowing or intentional assaults involving the use or

display of a weapon—were violent felonies under the force clause of the ACCA. Braden, 817 F.3d

at 933. We thereafter held that reckless aggravated assaults involving the use or display of a deadly

weapon are also crimes of violence. United States v. Harper, 875 F.3d 329, 330 (6th Cir. 2017);



                                                 8
Case No. 17-5760, United States v. Phillips


see also Davis v. United States, 900 F.3d 733, 736 (6th Cir. 2018) (applying Harper’s holding

regarding the recklessness mens rea to the ACCA). Thus, Phillips’s conviction would qualify for

the ACCA regardless of whether he was convicted for a knowing or intentional aggravated assault

or a reckless one.

         However, Phillips now argues that § 102(a) cannot categorically be a crime of violence

because a knowing or intentional aggravated assault requires an assault as defined under § 39-13-

101, which can consist of extremely offensive or provocative contact. Tenn. Code Ann. § 39-13-

101(a)(3). We reject this argument.

         We recently noted that § 39-13-102(a)(1)(B) is categorically a crime of violence under the

Guidelines—even if conducted through offensive contact. Hollom v. United States, 736 F. App’x

96, 101 (6th Cir. 2018).3 “Regardless of whether the deadly weapon itself touches the victim’s

body, we cannot imagine one using or displaying a deadly weapon in the course of an offensive

touching without threatening the use of violent force.” Id. (quoting U.S. v. Perez-Silvan, 861 F.3d

935, 943 (9th Cir. 2017) (internal alterations omitted). We find that reasoning persuasive here.

         Because Phillips’s conviction clearly rested on the use or display of a deadly weapon, it

falls under § 39-13-102(a). Since an assault which is based on extremely offensive contact would

suffice for the force clause of the ACCA, whichever combination of elements Phillips’s conviction

rested upon would make it a predicate offense. The sentencing enhancement was therefore correct.

                                                         III.

         Phillips has also asked us to review the continuing validity of Almendarez-Torres.

(Appellant’s Br. at 34-35). However, whether Almendarez-Torres is still good law is not for us to


3
  Hollom found that aggravated assault convictions that involve offensive contact assaults are crimes of violence under
the Sentencing Guidelines. Id. at 942-43. Its analysis is relevant for violent felonies under the ACCA because “[w]e
determine a ‘crime of violence’ under the Guidelines in the same way as a ‘violent felony’ under the [ACCA] because
both share essentially the same definitions.” United States v. Gibbs, 626 F.3d 344, 352 n.6 (6th Cir. 2010).

                                                          9
Case No. 17-5760, United States v. Phillips


decide. “Unless and until the Supreme Court takes the next step, this Court is bound to follow its

current statement of the law on this subject.” United States v. Martin, 526 F.3d 926, 942 (6th Cir.

2008) (quoting United States v. Beasley, 442 F.3d 386, 392 n.3 (6th Cir. 2006)) (internal alterations

omitted). Until the Supreme Court tells us otherwise, we will continue to apply Almendarez-

Torres.

                                                IV.

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




                                                 10
