                                                                                        FILED
                                                                                  Nov 30, 2017
                         NOT RECOMMENDED FOR PUBLICATION                      DEBORAH S. HUNT, Clerk
                                File Name: 17a0667n.06

                                           No. 17-5230


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA                                 )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )      ON APPEAL FROM THE
                                                         )      UNITED STATES DISTRICT
STEPHEN D. LESTER                                        )      COURT FOR THE EASTERN
                                                         )      DISTRICT OF TENNESSEE
       Defendant-Appellant.                              )
                                                         )
                                                         )



BEFORE:        GUY, MOORE, and ROGERS, Circuit Judges.

       ROGERS, Circuit Judge. While in pretrial detention in Tennessee jail for murder and

other crimes, Stephen Lester was federally indicted for a felony-firearm offense and placed in

federal custody pursuant to a federal detainer. He pled guilty to the federal crime, and while

waiting for a sentencing hearing he remained in federal custody. During that time, he stood trial

for the Tennessee crimes and was sentenced for them. He argues that his transfers from federal

custody to Tennessee custody for state trial, before his federal proceedings were completed,

required dismissal of the federal indictment under the anti-shuttling provision of the Interstate

Agreement on Detainers (IAD), 18 U.S.C. App. 2, § 2, art. IV(e). There was no violation,

however, because the anti-shuttling provision of the IAD does not apply to confinement in

temporary facilities prior to assignment to imprisonment in a state correctional facility. Lester’s

other argument, regarding his federal sentence under the Armed Career Criminal Act, is also
No. 17-5230, United States v. Lester


without merit. His prior state convictions—for Tennessee aggravated robbery and attempted

aggravated robbery—qualified as “crimes of violence” under binding precedents of this court.

       Stephen Lester robbed, shot, and killed a man in 2013.            A Tennessee grand jury

subsequently charged Lester with first-degree and felony murder, especially aggravated robbery,

and conspiracy to commit aggravated robbery. After Lester failed to appear in court, the state

issued a warrant for his arrest. Chattanooga police offers arrested Lester as authorized by that

warrant and placed him in the Hamilton County Jail. In a search incident to that arrest, officers

found a loaded pistol on Lester’s person. A federal grand jury subsequently indicted Lester for

possessing that firearm as a felon, in violation of 18 U.S.C. § 922(g)(1).

       The United States filed a detainer against Lester with the Hamilton County Sheriff’s

Office. Shortly thereafter, Tennessee transferred Lester into federal custody in accordance with

a writ of habeas corpus ad prosequendum. After his arraignment, Lester remained in federal

custody at the Hamilton County Jail. Lester pleaded guilty to the federal firearm charge.

       Lester was then taken back to state court to stand trial for the first-degree felony murder

and especially aggravated robbery charges, where a jury found him guilty of both. At the close

of those proceedings, the court sentenced Lester to a mandatory life sentence for the felony-

murder conviction, but continued the case for a sentencing hearing on the robbery count and to

dispose of remaining charges. After trial, Lester remained in federal custody at the Hamilton

County Jail.

       Some time later, while awaiting his federal sentencing on the firearm charge and his state

sentencing on the robbery charge, Lester moved to dismiss the federal indictment, claiming that

the federal government had violated the anti-shuttling provision of the IAD when it transferred

him into state custody to stand trial for the murder and robbery. The district court denied the



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motion, concluding that, even though Lester had been “shuttled” between federal and state court

while his federal charge remained pending, the IAD did not apply to him because he had not

“entered upon a term of imprisonment” as the IAD requires to prohibit shuttling. The court

relied on United States v. Taylor, 173 F.3d 538, 540 (6th Cir. 1999), and Jenkins v. United

States, 394 F.3d 407, 413 (6th Cir. 2005), to rule that the anti-shuttling provision of the IAD

applies only to individuals who have entered upon a term of imprisonment at “the state facility to

which [they are] ultimately assigned, not the local facility in which [they] sit[] awaiting transfer.”

The court reasoned that Lester had only been detained at various county jails and had not yet

been transferred to the facility where he is “ultimately assigned” to serve his sentence.

       Lester’s federal case proceeded to sentencing. The presentence report found that, based

on two prior convictions for Tennessee aggravated robbery and one for attempted aggravated

robbery, Lester was an armed career criminal under the ACCA. Lester objected, arguing that

Tennessee robbery does not qualify as a violent felony because it can be committed without the

use of violent physical force. Lester also argued that Tennessee robbery could be committed

recklessly, which would also prevent its being a predicate offense under the ACCA. The district

rejected both arguments, on the grounds that our decision in United States v. Mitchell, 743 F.3d

1054 (6th Cir. 2014), held that Tennessee robbery categorically requires the use of violent

physical force, and that the text of Tennessee’s aggravated robbery statute plainly does not cover

reckless conduct.    The district court sentenced Lester to 180 months’ imprisonment, the

minimum under the ACCA.

       Lester now appeals, arguing that the district court erred when it denied his motion to

dismiss based on the IAD and when it sentenced him under the ACCA. These contentions are

without merit.



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       First, the district court correctly denied Lester’s motion to dismiss based on the IAD.

That compact—an agreement between 48 states (including Tennessee), the federal government,

and the District of Columbia designed to “minimize . . . interruption of the prisoner’s ongoing

prison term[,]” Alabama v. Bozeman, 533 U.S. 146, 148 (2001)—contains an “anti-shuttling”

provision, which provides:

       If trial is not had on any indictment, information, or complaint contemplated
       hereby prior to the prisoner’s being returned to the original place of imprisonment
       pursuant to article V(e) hereof, such indictment, information, or complaint shall
       not be of any further force or effect, and the court shall enter an order dismissing
       the same with prejudice.

18 U.S.C. App. 2, § 2, art. IV(e). Lester claims that he was “shuttled” in violation of the IAD

when the federal government, after having received him from state custody, returned Lester back

to state custody for trial on his murder and robbery charges before his federal case had

concluded.    But the IAD applies only to individuals who have “entered upon a term of

imprisonment.” United States v. Taylor, 173 F.3d 538, 540 (6th Cir. 1999). Lester has not.

Here Lester was returned to state custody before he was tried or sentenced on any state charges.

In Jenkins v. United States, 394 F.3d 407 (6th Cir. 2005), we explained that “a prisoner has not

entered a term of imprisonment, and therefore the IAD is not triggered, until he has been

transferred to the state facility to which he is ultimately assigned, not the local facility in which

he sits awaiting transfer to that facility.” Id. at 413 (internal quotation marks and brackets

omitted). When the alleged violation occurred, Lester was not housed in a correctional facility to

which he was “ultimately assigned.” Therefore, the district court correctly recognized that the

federal government did not violate the IAD because its detainer against Lester was not subject to

the requirements of that agreement.




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No. 17-5230, United States v. Lester


       Lester’s argument to the contrary fails entirely to address the binding Taylor and Jenkins

holdings relied upon by the district court. To be sure, other courts have held that rights under

Article IV of the IAD attach even though a prisoner is serving his sentence at a temporary

facility, see, e.g., United States v. Small, 209 F. Supp. 2d 1114, 1121 (D. Colo. 2002), but we

have explicitly rejected that position. In Taylor, we noted that there was “sharp disagreement

among courts as to whether the IAD is triggered when a detainer is lodged against a convicted

and sentenced prisoner who is being held in temporary custody pending a transfer to his

permanent incarceration.” 173 F.3d at 541. After examining cases on each side of the split, we

held that the anti-shuttling provision of the IAD is triggered only by a prisoner’s reaching his

ultimately assigned destination. Id. We reasoned that that rule better comports with the purpose

of the IAD: minimizing the interruption of correctional programs, which typically do not occur at

temporary facilities. Id. Lester would have us disagree with that decision, but “[o]ne panel of

this court may not overrule the decision of another panel.” United States v. Ferguson, 868 F.3d

514, 515 (6th Cir. 2017) (citing Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689

(6th Cir. 1985)). Binding circuit precedent therefore forecloses Lester’s argument.

       Second, the district court appropriately enhanced Lester’s sentence under the ACCA

because Tennessee aggravated robbery cannot be committed in a nonviolent way. The ACCA

prescribes a 15-year mandatory-minimum sentence for any defendant who violates 18 U.S.C.

§ 922(g) and has three prior “violent felony” or “serious drug” convictions. See 18 U.S.C. §

924(e). Violent felonies include short a list of enumerated crimes (which are not at issue here)

and any other felony that “has as an element the use, attempted use, or threatened use of physical

force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). In Johnson v. United States,

559 U.S. 133 (2010), the Supreme Court held that “the phrase ‘physical force’ means violent



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No. 17-5230, United States v. Lester


force—that is, force capable of causing physical pain or injury to another person.” Id. at 140.

Lester’s predicate offenses—aggravated robbery and attempt of it—both necessarily involved the

use of violent physical force. In United States v. Mitchell, 743 F.3d 1054 (6th Cir. 2014), we

held that any violation of Tennessee’s robbery statute, which criminalizes “the intentional or

knowing theft of property from the person of another by violence or putting the person in fear,”

Tenn. Code Ann. § 39-13-401, categorically required the use, attempted use, or threatened use of

violent physical force and is therefore a predicate offense under the ACCA. 743 F.3d at 1058–

60. Tennessee’s aggravated robbery statute, at issue here, incorporates those same elements but

requires either that the robbery be “[a]ccomplished with a deadly weapon” (or the appearance of

one) or that “the victim suffer[] serious bodily injury.” Tenn. Code Ann. § 39-13-402(a). If, as

we held in Mitchell, a mine-run robbery under Tennessee law always involves violent physical

force, 743 F.3d at 1058–60, then its aggravated counterpart—the same crime, but committed

with a deadly weapon or resulting in serious bodily injury—must also involve violent physical

force. Tennessee aggravated robbery is therefore a “violent felony” under the use-of-force

clause of the ACCA, and Lester appropriately received an enhanced sentence under that statute.

       Lester argues that Mitchell is wrongly decided in light of the Supreme Court’s decision in

Mathis v. United States, 136 S. Ct. 2243 (2016), and various Tennessee state-court decisions, but

that is incorrect. In Mathis, the Supreme Court, in holding that Iowa’s burglary statute was not a

predicate offense under the enumerated-crimes clause, discussed the distinctions between

indivisible and divisible statutes and between “elements” of a crime and enumerated factual

“means” of committing a crime. Id. at 2248–51, 2256–57. But that is all beside the point:

whether or not Tennessee’s robbery statutes are indivisible, as Lester argues, does not affect

Mitchell’s holding that both variants of Tennessee robbery—either using violence or putting a



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No. 17-5230, United States v. Lester


person in fear of violence—meet the violent-physical-force requirement of the ACCA’s use-of-

force clause as interpreted by Johnson. See 559 U.S. at 140; Mitchell, 743 F.3d at 1059.

Lester’s state-law arguments also fail: he has pointed to no post-Mitchell Tennessee state-court

decision holding that Tennessee robbery can be committed without the use, attempted use, or

threatened use of violent physical force. Mitchell therefore continues to govern.

       Lester’s final argument—that Tennessee aggravated robbery is not a predicate offense

under the ACCA because it can be committed recklessly—is squarely foreclosed by the statutory

text. Tenn. Code Ann. § 39-13-402 defines aggravated robbery as “robbery [as] defined in § 39-

13-401,” which in turn defines robbery as “the intentional or knowing theft of property from the

person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401

(emphasis added). Based on a plain reading of that statute, a mens rea of recklessness is clearly

insufficient to commit robbery in Tennessee. Lester points to United States v. McMurray,

653 F.3d 367 (6th Cir. 2011), but that case is readily distinguishable. McMurray dealt with

Tennessee’s aggravated assault statute, which criminalizes conduct that “[i]ntentionally,

knowingly, or recklessly causes bodily injury to another[.]” Id. at 372 (emphasis added). Unlike

the aggravated assault statute at issue here, that statute explicitly covers reckless conduct. There

is simply no room for a similar argument that aggravated robbery can be committed recklessly,

so Lester’s enhanced sentence under the ACAA stands.

       The judgment of the district court is affirmed.




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