                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0425n.06

                                           No. 18-5418

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                  Aug 15, 2019
 UNITED STATES OF AMERICA,                                                    DEBORAH S. HUNT, Clerk

                Plaintiff-Appellee,
 v.                                                    ON APPEAL FROM THE UNITED
                                                       STATES DISTRICT COURT FOR
 ADRIAN AUSBERRY,                                      THE EASTERN DISTRICT OF
                                                       TENNESSEE
              Defendant-Appellant.


BEFORE:        NORRIS, CLAY, and SUTTON, Circuit Judges.

       CLAY, Circuit Judge. Adrian Ausberry pleaded guilty to being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). The district court increased Ausberry’s Guidelines

range based on its retroactive application of our decision in United States v. Verwiebe, 874 F.3d

258 (6th Cir. 2017), where we held that convictions for offenses with a mens rea of recklessness

can constitute crimes of violence for purposes of the Sentencing Guidelines. Ausberry argues that

the district court violated his due process rights by retroactively applying our decision in Verwiebe

to enhance his Guidelines range. Alternatively, Ausberry contends that Verwiebe and another

published decision from this Court were wrongly decided.

       As explained below, we affirm.

                                       I. BACKGROUND

       On February 8, 2017, the Chattanooga Police Department executed a search warrant on a

residence and found Ausberry, a convicted felon, in possession of a firearm. A federal grand jury

indicted Ausberry for being a felon in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(1). On August 9, 2017, Ausberry pleaded guilty without a written plea agreement.
Case No. 18-5418, United States v. Ausberry


        Under the Sentencing Guidelines, a defendant faces a heightened Base Offense Level if he

possesses a firearm after sustaining “felony convictions of either a crime of violence or a controlled

substance offense.” U.S.S.G. § 2K2.1(a)(4). A felony conviction qualifies as a “crime of violence”

of it “has as an element the use, attempted use, or threatened use of physical force against the

person of another.” U.S.S.G. § 4B1.2(a)(1).

        When Ausberry committed and pleaded guilty to the firearms offense, this Circuit’s

binding precedent provided that a previous conviction for a crime with a mens rea of recklessness

could not qualify as a crime of violence under the Sentencing Guidelines. See United States v.

McFalls, 592 F.3d 707 (6th Cir. 2010). After Ausberry pleaded guilty, but before he was sentenced,

this Court decided Verwiebe, which overturned McFalls and held that an offense with a mens rea

of recklessness can constitute a crime of violence.

        Prior to Ausberry’s sentencing, probation prepared a Presentence Investigation Report

(“PSI”). The PSI calculated Ausberry’s Base Offense Level as 24 because it found that Ausberry

had two prior felony convictions for either a crime of violence or a controlled substance offense.

One of Ausberry’s two prior felony convictions was for reckless aggravated assault under

Tennessee law, which did not qualify as a crime of violence under McFalls but does under

Verwiebe.1 After upwards adjustments for specific offense characteristics and downward

adjustments for acceptance of responsibility, Ausberry’s Total Offense Level was 27. Based on a

Criminal History Category of VI and a Total Offense Level of 27, the PSI calculated Ausberry’s

initial Guidelines range as 130 to 162 months of imprisonment. However, because the statutory

10-year maximum term of imprisonment was lower than the applicable Guidelines range,



        1
         Ausberry did not dispute the PSI’s finding that his second prior felony conviction, for
possession of cocaine for resale, constituted a “controlled substance offense” under U.S.S.G.
§ 2K2.1(a)(4).


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Ausberry’s final Guidelines sentence was 120 months of imprisonment—the maximum term

permitted by statute.

        Ausberry objected to the PSI’s finding that his conviction for reckless aggravated assault

under Tennessee law qualified as a crime of violence. Ausberry argued that applying Verwiebe to

enhance his Guidelines range would violate due process because at the time he committed and

pleaded guilty to his firearms offense, McFalls was binding precedent in this Circuit. Absent the

retroactive enhancement based on Verwiebe, Ausberry’s Total Offense Level (after adjustments)

would have been 23 (instead of 27) and his Guidelines range would have been 92 to 115 months

of imprisonment (instead of 120 months). Ausberry argued that due process required that the

district court sentence him under the less onerous, pre-Verwiebe Guidelines range.

        The district court overruled Ausberry’s objections to the PSI and found that his reckless

aggravated assault conviction qualified as a crime of violence under Verwiebe. The district court

then granted Ausberry’s motion for a downward variance from his Guidelines term of 120 months

of imprisonment and imposed a 115-month sentence.

        This timely appeal followed.

                                              II. DISCUSSION

        A. Due Process Claim

        Ausberry contends that the district court violated his due process rights by subjecting him

to a higher Guidelines range based on its retroactive application of Verwiebe. In response, the

government argues the district court did not violate Ausberry’s due process rights because the

Supreme Court has held that the advisory Guidelines do not implicate fair warning concerns. As

explained below, we hold that the district court did not violate Ausberry’s due process rights.




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Case No. 18-5418, United States v. Ausberry


                 1. Relevant Legal Principles

        The Ex Post Facto Clause of the United States Constitution provides that “[n]o State

shall . . . pass any . . . ex post facto Law.” U.S. Const. art. I, § 10, cl. 1. Over two centuries ago,

the Supreme Court held that “[e]very law that changes the punishment, and inflicts a greater

punishment, than the law annexed to the crime, when committed” fell “within the words and the

intent of the [constitutional] prohibition.” Calder v. Bull, 3 Dall. 386, 390 (1798) (describing ex

post facto laws as “manifestly unjust and oppressive”). However, “the text of the [Ex-Post Facto]

Clause makes clear [that] it ‘is a limitation upon the powers of the Legislature, and does not of its

own force apply to the Judicial Branch of government.’” Rogers v. Tennessee, 532 U.S. 451, 456

(2001) (quoting Marks v. United States, 430 U.S. 188, 191 (1977)). Further, the Supreme Court

has held that challenges to retroactive applications of judicial decisions must proceed under due

process, not the Ex Post Facto Clause. See id. at 460–62.

         “[C]ore due process concepts [include] notice, foreseeability, and, in particular, the right

to fair warning[.]” Id. 459. Using these due process principles, the Supreme Court has held that

retroactive application of judicial decisions that unforeseeably expand the scope of criminal

liability can violate a defendant’s due process rights. See, e.g., Marks v. United States, 430 U.S.

188 (1977); Bouie v. City of Columbia, 378 U.S. 347 (1964). This Court has previously indicated

that due process principles of notice and fair warning could also “protect individuals . . . from ex

post applications of unforeseeable judicial expansions of the punishments that result from a

conviction.” United States v. Beals, 698 F.3d 248, 272 (6th Cir. 2012).

        The Supreme Court has held that the advisory Sentencing Guidelines do not implicate the

fair-warning concerns that due process protects. In Irizarry v. United States, 553 U.S. 708 (2008),

the Supreme Court held that Federal Rule of Criminal Procedure 32(h) does not require that the




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sentencing court notify a criminal defendant that the court plans to vary upwards from the

Guidelines range because “[t]he due process concerns that motivated the Court to require notice

in a world of mandatory Guidelines no longer” pertain. Id. at 714. And more recently, in Beckles

v. United States, 137 S. Ct. 886 (2017), the Supreme Court held that the Sentencing Guidelines are

not subject to a due process void-for-vagueness challenge because “[t]he advisory

Guidelines . . . do not implicate the twin concerns underlying vagueness doctrine—providing

notice and preventing arbitrary enforcement.” Id. at 894. The Supreme Court explained that “even

perfectly clear Guidelines could not provide notice to a person who seeks to regulate his conduct

so as to avoid particular penalties within the statutory range . . . because even if a person behaves

so as to avoid an enhanced sentence under the career-offender guideline, the sentencing court

retains discretion to impose the enhanced sentence.” Id. The Supreme Court concluded that “[a]ll

of the notice required is provided by the applicable statutory range, which establishes the

permissible bounds of the court’s sentencing discretion.” Id.

                 2. Application to the Matter at Hand

        The district court did not violate Ausberry’s due process rights by applying Verwiebe

retroactively to increase Ausberry’s Guidelines range. Due process is concerned with “notice,

foreseeability, and, in particular, the right to fair warning[.]” Rogers, 532 U.S. at 459. The Supreme

Court has held that “[a]ny expectation subject to due process protection . . . that a criminal

defendant would receive a sentence within the presumptively applicable Guidelines range did not

survive [the Supreme Court’s] decision in United States v. Booker, 543 U.S. 220 (2005), which

invalidated the mandatory features of the Guidelines.” Irizarry, 553 U.S. at 713. Further, the

Supreme Court has stated that the advisory Guidelines “do not implicate” fair-warning concerns

and that the statutory range associated with a conviction provides “[a]ll the notice required” under




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the advisory Guidelines. Beckles, 137 S. Ct. at 894. The Supreme Court’s reasoning in Irizarry

and Beckles requires that we hold that the district court did not violate Ausberry’s due process

rights by retroactively applying Verwiebe to enhance his Guidelines range.

        Ausberry relies on Peugh v. United States, 569 U.S. 530 (2013) to argue that retroactive

application of Verwiebe violated due process. In Peugh, the defendant was convicted of bank fraud

arising out of conduct that occurred in 1999 and 2000. Id. at 533. The defendant faced a Guidelines

range of 30 to 37 months under the version of the Guidelines that was in effect when he committed

the offense. Id. at 534. But new Guidelines had taken effect before sentencing, which increased

the defendant’s Guidelines range to 70 to 87 months. Id. The Supreme Court held that the district

court violated the Ex Post Facto Clause by sentencing the defendant under the “more onerous”

Guidelines in effect at the date of his sentencing, rather than under the less punitive Guidelines

that had been in force when he committed the offense. Id. at 538. The Court explained that

“[d]istrict courts must begin their sentencing analysis with the Guidelines in effect at the time of

the offense and use them to calculate the sentencing range correctly” because “those Guidelines

will anchor both the district court’s discretion and the appellate review process . . . .” Id. at 549.

Relying on Peugh, Ausberry argues that just as subjecting a defendant to a higher Guidelines range

by retroactively applying an amendment to the Guidelines violates the Ex Post Facto Clause,

subjecting Ausberry to a higher Guidelines range by retroactively applying this Court’s decision

in Verwiebe violated due process.

        The Court is not unsympathetic to Ausberry’s argument. At first blush, Peugh appears to

support Ausberry’s contention that the district court violated his due process rights. But Peugh was

firmly rooted in the Ex Post Facto Clause, not due process. In fact, Peugh reiterated that “a

defendant does not have an ‘expectation subject to due process protection’ that he will be sentenced




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within the Guidelines range.” Id. at 545 (emphasis added) (quoting Irizarry, 553 U.S at 713–14).

Because the Ex Post Facto Clause does not apply to retroactive applications of judicial decisions,

see Rogers, 532 U.S. 451, and because the Ex Post Facto Clause and the Due Process Clause are

not coextensive, see id. at 458, Peugh does not extend to judicial decisions interpreting the

Sentencing Guidelines that retroactively increase a defendant’s Guidelines range.

        Ausberry emphasizes the Supreme Court’s statement in Rogers that “limitations on ex post

facto judicial decisionmaking are inherent in the notion of due process.” Rogers, 532 U.S. at 456.

But Rogers does not support Ausberry’s argument that the district court violated his due process

rights. In Rogers, the Supreme Court explained that Bouie “was rooted firmly in well-established

notions of due process” such as “notice, foreseeability, and in particular, the right to fair

warning[.]” Id. at 459. And the Supreme Court clarified that challenges to retroactive applications

of judicial decisions must proceed under due process. Id. at 460–62. Because the Supreme Court

has subsequently held that the Sentencing Guidelines do not implicate the fair-warning concerns

that due process protects, see Irizarry and Beckles, Rogers did not prevent the district court from

applying Verwiebe retroactively to increase Ausberry’s Guidelines range.

        B. Under This Circuit’s Binding Precedent, Reckless Aggravated Assault Under
           Tennessee Law Is a Crime of Violence

        Ausberry additionally argues that the district court erred by finding that his prior conviction

for reckless aggravated assault under Tennessee law constitutes a crime of violence for purposes

of the Sentencing Guidelines. Ausberry asserts Tennessee’s reckless aggravated assault, Tenn.

Code Ann. § 39-13-102 (2005)2, may be violated by reckless driving that results in injury; he


        2
          This is the version of Tennessee’s aggravated assault statute that was in force when
Ausberry was convicted for reckless aggravated assault in 2005. The subsequent modifications to
the portions of the statute concerning reckless aggravated assault are immaterial to our analysis.
Compare Tenn. Code Ann. § 39-13-102(a)(1)(B) (2005), with Tenn. Code Ann. § 39-13-102(a)(2)
(2019).


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contends that the Sentencing Commission did not intend to increase the Guidelines range for a

defendant who had committed a reckless driving offense. In response, the government argues that

Ausberry’s argument fails because this Court has repeatedly held that reckless aggravated assault

under Tennessee law qualifies as a crime of violence.

        This Circuit has held, in a published decision, that reckless aggravated assault under

Tennessee law categorically qualifies as a crime of violence. United States v. Harper, 875 F.3d

329, 330 (6th Cir. 2017); see also United States v. Borden, 769 F. App’x 266, 268 (6th Cir. 2019)

(explaining that “Harper remains controlling authority in this circuit and aggravated assault in

Tennessee categorically qualifies as a crime of violence”); see also Lowe v. United States, 920

F.3d 414, 416, n.1 (6th Cir. 2019) (holding that, under this Circuit’s binding precedent, “both

reckless and intentional aggravated assault in Tennessee qualify as violent felonies”). In this

Circuit, “a published prior panel decision ‘remains controlling authority unless an inconsistent

decision of the United States Supreme Court requires modification of the decision or this Court

sitting en banc overrules the prior decision.’” United States v. Elbe, 774 F.3d 885, 891 (6th Cir.

2014) (quoting Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)).

Because there is neither an intervening Supreme Court decision nor a decision from this Court

sitting en banc, Harper is binding on this Court. Thus, Ausberry’s conviction for reckless

aggravated assault in Tennessee qualifies as a crime of violence.

        In his reply brief, Ausberry alternatively contends that Verwiebe was wrongly decided.

Ausberry waived this argument by failing to raise it in his principal brief. See, e.g., Am. Trim,

L.L.C. v. Oracle Corp., 383 F.3d 462, 477 (6th Cir. 2004) (explaining that “this court has

consistently held that we will not consider” arguments presented for the first time in a reply brief).

And even if we were to consider Ausberry’s argument, we would not overturn our decision in




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Verwiebe. Because Verwiebe is a published opinion and there is neither an intervening Supreme

Court decision nor a decision from this Court sitting en banc, Verwiebe remains binding precedent

in this Circuit. See Harper, 875 F.3d at 330 (expressing disagreement with Verwiebe’s holding but

stating that the Court is nonetheless “bound” to follow Verwiebe).

                                              III. CONCLUSION

        For the above-stated reasons, we affirm.




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