                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 19a0362n.06

                                           No. 14-6158                                  FILED
                                                                                   Jul 15, 2019
                           UNITED STATES COURT OF APPEALS                     DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                          )
                                                   )
           Plaintiff–Appellee,                     )       ON APPEAL FROM THE
                                                   )       UNITED STATES DISTRICT
v.                                                 )       COURT FOR THE EASTERN
                                                   )       DISTRICT OF TENNESSEE
VICTOR J. STITT, II,                               )
                                                   )
                                                                    OPINION
           Defendant–Appellant.                    )
                                                   )


Before: MOORE and COOK, Circuit Judges; PEARSON, District Judge.*

        MOORE, J., delivered the opinion of the court in which PEARSON, D.J., joined.
                          COOK, J., concurs in the judgment only.

       KAREN NELSON MOORE, Circuit Judge. This case returns to us following the United

States Supreme Court’s decision in United States v. Stitt, 139 S. Ct. 399 (2018). In our original

disposition of this case, we affirmed Defendant-Appellant Victor J. Stitt’s sentence under the

Armed Career Criminal Act (“ACCA”) after his conviction for being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g). United States v. Stitt, 637 F. App’x 927, 928 (6th Cir.

2016). Stitt’s sentence was based on six convictions for Tennessee aggravated burglary. Id. at

931–32. We also affirmed the district court’s denial of Stitt’s motion to suppress and rejected

Stitt’s challenge to the district court’s venue. Id. at 929–30. Sitting en banc we subsequently

vacated our decision and judgment, see 646 F. App’x 454 (6th Cir. 2016), and then reversed as to

       *
         The Honorable Benita Y. Pearson, United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 14-6158, United States v. Stitt


Stitt’s ACCA designation, United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc). We

concluded that because Tennessee’s aggravated burglary statute covered burglary of tents, cars, or

“self-propelled vehicle[s],” it was broader than generic burglary1 and thus could not serve as a

predicate offense. Stitt, 860 F.3d at 860–61. The Supreme Court then reversed the en banc

decision, concluding that the generic definition of “burglary” under the ACCA included “burglary

of a structure or vehicle that has been adapted or is customarily used for overnight

accommodation.” Stitt, 139 S. Ct. at 403–04. On remand, we once again consider Stitt’s ACCA

designation. For the reasons set forth below, we affirm Stitt’s sentence under the ACCA.

Additionally, because neither the en banc decision nor the Supreme Court’s decision in Stitt calls

into question this panel’s original resolution of Stitt’s venue or suppression claims, we reissue

those sections (Parts II and III) of our panel decision in full. See Stitt, 637 F. App’x at 929–30;

see also Stitt, 139 S. Ct. at 403–04 (considering the scope of “generic burglary” under the ACCA);

Stitt, 860 F.3d at 856–57 (explaining that Stitt’s petition for rehearing en banc was granted to

resolve Stitt’s claim under the ACCA).

                                I. FACTUAL BACKGROUND

       In 2011, Stitt was indicted on one count of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g). R. 1 (Indictment) (Page ID #1). Following a jury trial, Stitt was

found guilty of the charged offense.      R. 92 (Verdict) (Page ID #395).       The pre-sentence



       1
        The Supreme Court has defined generic burglary under the ACCA as being “an unlawful
or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a
crime.” Taylor v. United States, 495 U.S. 575, 598 (1990).


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investigation report (“PSR”) noted that, among other convictions, Stitt had six convictions for

Tennessee aggravated burglary. R. 100 (PSR ¶¶ 24, 28) (Page ID #429–30, 432). The PSR

identified those convictions as predicate offenses under the ACCA, thus triggering the ACCA’s

fifteen-year minimum sentence requirement.         Compare 18 U.S.C. § 924(e)(1) (mandating a

fifteen-year sentence for individuals with three or more predicate offenses under the ACCA), with

id. § 924(a)(2) (mandating a ten-year statutory maximum for felon-in-possession convictions). At

sentencing, the district court overruled Stitt’s objections to his ACCA designation and imposed a

290-month sentence. R. 113 (Judgment at 2) (Page ID #504). Stitt appealed.

                                         II. DISCUSSION

       Throughout the proceedings of this case, Stitt has argued that Tennessee’s aggravated

burglary statute is broader than generic burglary for three distinct reasons. First, in his opening

brief before the original panel, Stitt asserted that because a person may be convicted of aggravated

burglary by passively, as opposed to affirmatively, deceiving the owner of the property to gain

entrance into a habitation, and generic burglary requires, at a minimum, some “affirmative” act,

Tennessee aggravated burglary is not a predicate offense. See Appellant Br. at 34–42. Second,

Stitt contended that Tennessee’s definition of “habitation” under Tennessee Code Annotated § 39-

14-401 was broader than generic burglary because it covered burglaries of cars, tents, or other

movable structures. Reply Br. at 8. Finally, in his reply brief before the en banc court, Stitt argued

that because Tennessee aggravated burglary may be committed “recklessly,” as opposed to just

“knowingly” or “intentionally,” Tennessee aggravated burglary could not form the basis of Stitt’s

ACCA enhancement. Appellant En Banc Reply Br. at 6–7.


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No. 14-6158, United States v. Stitt


        The Supreme Court’s decision in United States v. Stitt clearly forecloses Stitt’s second

argument regarding Tennessee’s “habitation” definition. Stitt, 139 S. Ct. at 403–04. As for Stitt’s

third (mens rea) argument, Stitt did not raise this claim in his original briefing before this panel

and, indeed, articulated it for the first time in a reply brief before the en banc court. Stitt’s argument

did not rely on any new law or statute that was unavailable to him in his original petition and Stitt

has not provided any explanation for his failure to raise this issue either before the original panel

or in his initial en banc brief. Consequently, Stitt has forfeited this claim, and we need not address

it. United States v. Abboud, 438 F.3d 554, 589 (6th Cir. 2006) (refusing to address the merits of

an argument raised for the first time in a reply brief). This leaves Stitt’s claim that because a

defendant can commit aggravated burglary by entering or remaining in a habitation either by

affirmative or passive acts, it is broader than generic burglary and therefore cannot form the basis

of his ACCA designation. Although this argument is not necessarily prohibited by the Supreme

Court’s resolution of Stitt’s appeal,2 we nonetheless conclude it is meritless.

        “We review de novo a district court’s determination that a defendant should be sentenced

as an armed career criminal.” United States v. Vanhook, 640 F.3d 706, 709 (6th Cir. 2011). In


        2
         After all, the Supreme Court examined only the “relevant language” of Tennessee’s
definition of “habitation” and did not consider the scope of other aspects of Tennessee’s aggravated
burglary or burglary statutes. See Stitt, 139 S. Ct. at 406. True, we have also recently held in
United States v. Ferguson, 868 F.3d 514, 515–16 (6th Cir. 2017), that, per United States v. Priddy,
808 F.3d 676 (6th Cir. 2015), Tennessee burglary constitutes generic burglary under Taylor.
However, Ferguson did not consider the question raised by Stitt in this appeal: whether
Tennessee’s definition of “consent” renders burglary (and therefore aggravated burglary) broader
than generic burglary, see Ferguson, 868 F.3d at 515 (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”).


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No. 14-6158, United States v. Stitt


support of his argument, Stitt primarily relies upon the plain language of Tennessee’s burglary

statute and a relatively recent decision by the Tennessee Supreme Court, State v. Pope, 427 S.W.

3d 363 (Tenn. 2013), in which the court interpreted the requirements of aggravated burglary.

Under Tennessee law, “[a]ggravated burglary is burglary of a habitation as defined in §§ 39-14-

401 [defining ‘habitation’] and 39-14-402 [defining ‘burglary’].” Tenn. Code Ann. § 39-14-403.

When §§ 39-14-402 and 39-14-401 are combined, therefore, an individual commits aggravated

burglary in Tennessee if, “without the effective consent of the property owner,” he does any of the

following: (1) enters a habitation with intent to commit a felony, theft, or assault; (2) remains

concealed in a habitation with intent to commit a felony, theft, or assault; or (3) enters a habitation

and commits or attempts to commit a felony, theft, or assault. See Tenn. Code Ann. § 39-14-

402(a)(1)–(a)(3).3 Stitt’s claim on appeal focuses on the “without the effective consent of the

property owner” language, which is applicable to all subsections.

       “Effective consent” refers to “assent in fact, whether express or apparent,” but not if

“[i]nduced by deception or coercion.” Tenn. Code Ann. § 39-11-106(a)(9)(A). “Deception”

includes: (1) “[c]reat[ing] or reinforc[ing] a false impression by words or conduct, including false

impressions of fact, law, value or intention or other state of mind that the person does not believe



       3
         Section 39-14-402(a)(4) also prohibits someone from entering “any freight or passenger
car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony,
theft or assault or commits or attempts to commit a felony, theft or assault.” However, because
aggravated burglary applies only to burglaries of habitations and not to general structures that are
not adapted for overnight use, Stitt, 139 S. Ct. at 406, “burglary of a habitation” does not
encapsulate § 39-14-402(a)(4)’s prohibition on entering these other, non-adapted, structures.
Consequently, we limit our discussion to the provisions of § 39-14-402(a)(1)–(a)(3).


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No. 14-6158, United States v. Stitt


to be true”; (2) “[p]revent[ing] another from acquiring information which would likely affect the

other’s judgment in the transaction”; and (3) “[f]ailing to correct a false impression of law or fact

the person knows to be false” and the person either created the falsity or knows the falsity is likely

to influence another person. Id. § 39-11-106(a)(6)(A)(i)–(iii). The Tennessee Supreme Court has

further explained that because an individual may commit aggravated burglary by either “creating

or reinforcing” a victim’s misconception or “failing to correct a false impression of law or fact,”

Tennessee law criminalizes aggravated burglary by both affirmative and passive acts of deception,

respectively. Pope, 427 S.W. 3d at 370–71 (internal quotation marks omitted); see also Appellee

En Banc Br. at 19–20 (agreeing with this general statement of law).

       Importantly, the Pope court later qualified its holding, explaining that although passive

deception may suffice for aggravated burglary, a defendant does not commit burglary if he merely

fails to correct a victim’s false impression concerning the defendant’s intent. See Pope, 427 S.W.

3d at 374 (“[E]ven if the victim could have formed a false impression that the Defendant intended

to enter his residence for the purpose of purchasing a drink, our statute does not allow for a

conviction based upon the Defendant’s failure to correct the victim’s false impression of his

intention.”). “To hold otherwise would mean that in order to obtain ‘effective consent’ from a

property owner, a defendant would have to announce his or her criminal intent prior to obtaining

the owner’s permission to enter a habitation.” Id.

       Based on this definition of “deception” vis à vis Tennessee’s requirement that burglary

(and aggravated burglary) be committed “without the effective consent of the property owner,”

Stitt asserts that Tennessee aggravated burglary is broader than generic burglary because generic


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No. 14-6158, United States v. Stitt


burglary requires an “affirmative” act, i.e., “breaking and entering.” Appellant Br. at 35–36

(explaining that the “unlawful entry” requirement in generic burglary means “entry along the lines

of breaking and entering” (internal citation omitted)). For support, Stitt relies almost entirely on

the Supreme Court’s discussion of the categorical and modified categorical approaches in

Descamps v. United States, 570 U.S. 254 (2013). However, the Court in Descamps did not

comprehensively define generic burglary; rather, the Court merely concluded that California’s

burglary statute, which did not require any unlawful or unprivileged entry (either by affirmative

or passive acts of deception), did not constitute generic burglary. See id. at 258–59; Cal. Penal

Code Ann. § 459 (providing that a “person who enters” certain locations “with intent to commit

grand or petit larceny or any felony is guilty of burglary”). Because California’s statute did not

require any “unlawful or unprivileged entry into, or remaining in, a building or structure,” the

Court concluded that it was broader than generic burglary. Descamps, 570 U.S. at 261, 264–65.

       Nonetheless, Stitt points to the Court’s various statements in Descamps to the effect that

the California statute is unlike generic burglary because generic burglary “generally demand[s]

breaking and entering or similar conduct,” suggesting that this proves generic burglary and

“unlawful entry” must be committed with some affirmative act. Appellant Br. at 35 (quoting

Descamps, 570 U.S. at 259). Although the Supreme Court in Descamps did discuss “unlawful

entry” in general terms of “breaking and entering,” we are unconvinced by Stitt’s argument. As

noted above, the Supreme Court was not presented with––and therefore did not provide any

holding regarding––the fine distinctions between “unlawful entry” and “breaking and entering or

similar conduct” or between passive and affirmative acts of deception. See Descamps, 570 U.S.


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No. 14-6158, United States v. Stitt


at 259. Rather, because the California statute did not require any unlawful or unprivileged entry

and therefore applied to shoplifters who were undoubtedly permitted and privileged to enter and

remain in the establishments where they were, a conviction under California’s statute was not an

ACCA predicate offense. Id.

       Similarly, although “breaking and entering” plausibly corresponds to “affirmative” acts,

such as active deception, nothing in Descamps necessarily suggests that “affirmative” acts are the

only way a person may “break” into, unlawfully enter, or remain in a habitation. See id. (noting

that “unlawful entry” generally includes “breaking and entering or similar conduct” (emphasis

added)). If that were so, the Taylor Court presumably would have adopted the common-law

definition of burglary, which was limited to “breaking and entering.” See Taylor, 495 U.S. at 592–

93. Of course, the Court expressly declined to do that. Id. at 593 (explaining that over the years,

“[m]ost other States have expanded this definition to include entry without a ‘breaking’”).

Moreover, unlawfully “remaining in” a building with the intent to commit a felony, undoubtedly

an ACCA-predicate “burglary,” is itself largely passive.

       Additionally, the very reason Congress included “burglary” as an enumerated felony––to

punish thefts that are more likely to lead to violent confrontations––is readily applicable to

situations where an individual uses “passive” acts of deception to unlawfully enter or remain in a

building. See Taylor, 495 U.S. at 588. Indeed, because such actions will often require the

defendant to interact with the owner of a habitation, any subsequent burglary could certainly lead

to a “violent confrontation” when the owner realizes the defendant’s true intent. Stitt, 139 S. Ct.

at 406.   And regardless of the method of entry, the offender’s awareness of a potential


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No. 14-6158, United States v. Stitt


confrontation suggests that “he is prepared to use violence if necessary to carry out his plans or to

escape.” Taylor, 495 U.S. at 588. No part of Descamps’s holding regarding California’s burglary

statute leads us to conclude that an individual who utilizes a victim’s confusion about his identity

to burglarize the victim’s habitation is any less a “violent felon” than someone who, for instance,

picks the lock.

       Furthermore, on its face, Tennessee’s definition of “deception” and “without consent”

necessarily encompasses acts that are either “unprivileged” or “unlawful,” thus bringing them

within the generic definition of burglary. As the Tennessee Supreme Court has explained, if an

individual fails to correct a victim’s incorrect assumption about the defendant’s identity and the

victim subsequently allows the defendant into his home, the defendant has entered “without

effective consent”; such an “entry” would be both “unlawful” and “unprivileged.” Pope, 427 S.W.

3d at 373. Similarly, even if a defendant enters a residence after realizing that the owner

mistakenly believes him to be another person and then forms the intent to burglarize the house, the

defendant would necessarily be “remaining in” the house in an “unlawful” or “unprivileged” way

with “intent” to commit a felony. See State v. Wesemann, No. 03C01-9407-CR-00260, 1995 WL

605442, at *2 (Tenn. Ct. Crim. App. Oct. 16, 1995) (“Criminal intent does not have to occur either

prior to or simultaneously with the entry.”); see also Quarles v. United States, 139 S. Ct. 1872,

1879 (2019) (“[W]e interpret remaining-in burglary under § 924(e) to occur when the defendant

forms the intent to commit a crime at any time while unlawfully present in a building or

structure.”). And as the Supreme Court reminded us in Quarles, when interpreting state statutes,

we should not “seiz[e] on modest state-law deviations from the generic definition of burglary.”


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No. 14-6158, United States v. Stitt


Quarles, 139 S. Ct. at 1880.        Rather, “so long as the state law in question ‘substantially

corresponds’ to (or is narrower than) generic burglary, the conviction qualifies under § 924(e).”

Id. (quoting Taylor, 495 U.S. at 602). Such is the case here.

       Finally, although other Circuits have not dealt with the particular nuances of “affirmative”

versus “passive” acts of deception, they have generally concluded that when someone enters a

building “without consent” and with the intent to commit a burglary, they have necessarily entered

the building “unlawfully” pursuant to generic burglary. See United States v. McArthur, 850 F.3d

925, 938 (8th Cir. 2017) (determining that a Minnesota statute which forbids “entering a building

without consent and with intent to . . . commit any felony or gross misdemeanor” qualified as

generic burglary); United States v. Mungro, 754 F.3d 267, 270 (4th Cir. 2014) (concluding that

because North Carolina’s statute prohibited breaking or entering without the consent of the owner,

it constituted generic burglary, even post-Descamps); United States v. Ramirez-Flores, 743 F.3d

816, 822 & n.5 (11th Cir. 2014) (interpreting the Sentencing Guidelines and equating entry

“without consent” to generic burglary depending on the definition of “dwelling”); United States v.

Bonilla, 687 F.3d 188, 192–93 (4th Cir. 2012) (concluding that a person has committed generic

burglary when he or she “enters a building or habitation and commits or attempts to commit a

felony, theft, or an assault . . . without the effective consent of the owner” (internal quotation marks

omitted)).

       For all the reasons set forth above, we therefore conclude that, despite Tennessee burglary’s

inclusion of both “passive” and “affirmative” acts of deception within its statutory framework,

Tennessee aggravated burglary categorically constitutes generic burglary. Consequently, Stitt was


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No. 14-6158, United States v. Stitt


correctly designated as a career offender under the ACCA, and we once again affirm his conviction

and sentence.

                                        III. CONCLUSION

       For the reasons set forth above, we AFFIRM Stitt’s conviction and sentence. We reissue

Parts II and III of our panel decision affirming the denial of Stitt’s motion to suppress and rejecting

his venue claim, and affirm his 290-month sentence. See Stitt, 637 F. App’x at 929–30.




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