                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0255n.06

                                       Case No. 18-5004

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT
                                                                                FILED
                                                                          May 06, 2020
UNITED STATES OF AMERICA,                          )                  DEBORAH S. HUNT, Clerk
                                                   )
       Plaintiff-Appellant,                        )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE EASTERN DISTRICT OF
TRAVIS O’DELL,                                     )      TENNESSEE
                                                   )
      Defendant-Appellee.
____________________________________/

Before: MERRITT, SUHRHEINRICH, and SUTTON, Circuit Judges.

       MERRITT, Circuit Judge. This case is controlled by the case of United States v. Brown,

decided by the Sixth Circuit on April 24, 2020. The Brown case decides the same questions raised

here. The government appeals the district court’s 2017 judgment granting Petitioner Travis O’Dell

habeas relief under 28 U.S.C. § 2255. The district court granted O’Dell relief under our en banc

decision in United States v. Stitt, 860 F.3d 854 (6th Cir. 2017), which held that an aggravated

burglary in Tennessee did not qualify as a “violent felony” under the Armed Career Criminal Act

(the Act), 18 U.S.C. § 924(e)(1). The Supreme Court overruled that decision in United States v.

Stitt, 139 S. Ct. 399 (2018). Because the legal basis on which the district court granted O’Dell

relief is no longer good law, and because Brown forecloses O’Dell’s arguments, we REVERSE

the district court’s judgment granting him relief and REMAND for the court to reinstate his

original sentence.
Case No. 18-5004, United States v. O’Dell


                                                           I.

         On December 10, 2014, O’Dell pled guilty to violating 18 U.S.C. § 922(g)(1),1 felon in

possession of a firearm and ammunition. The Presentence Investigation Report identified twelve

previous convictions of aggravated burglary in Tennessee. At the time, a Tennessee aggravated

burglary qualified as a “violent crime” for purposes of the Act under United States v. Nance, 481

F.3d 882 (6th Cir. 2007). As such, O’Dell was classified as an armed career criminal and thus

subject to the Act’s mandatory minimum sentence of fifteen years.2

         The district court, on April 16, 2015, sentenced O’Dell to a term of imprisonment of 180

months to run concurrently with any sentence imposed by the Tennessee State Court, and a 3-year

term of supervised release. O’Dell did not file a direct appeal.

         On June 6, 2016, O’Dell filed a 28 U.S.C. § 2255 motion challenging his armed career

criminal status following the Supreme Court’s decision in Johnson v. United States, 135 S. Ct.

2551 (2015), which invalidated the Act’s residual clause as unconstitutionally vague. At the

government’s request, the district court stayed the proceedings until our en banc court decided

United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (Stitt I), which held that a conviction of

Tennessee aggravated burglary did not qualify as a violent felony under the Act. The district court

then granted O’Dell’s petition under Stitt I.

         The Supreme Court, however, soon reversed our en banc decision and held that a

conviction under Tennessee’s aggravated burglary statute indeed qualifies as a violent felony




1
 18 U.S.C. § 922(g)(1) makes it “unlawful for any person . . . who has been convicted in any court of[] a crime
punishable by imprisonment for a term exceeding one year[] . . . to . . . possess in or affecting [interstate] commerce,
any firearm or ammunition[.]”
2
  The Act imposes a mandatory minimum sentence of imprisonment of fifteen years for felons in possession of a
firearm with three or more previous convictions of “violent felonies.” 18 U.S.C. § 924(e)(1).

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Case No. 18-5004, United States v. O’Dell


under the Act. United States v. Stitt, 139 S. Ct. 399 (2018) (Stitt II). Stitt II is the basis of the

government’s appeal.

                                                 II.

       We review de novo a district court’s determination of whether a prior conviction qualifies

as a violent felony under the Act. See Brumbach v. United States, 929 F.3d 791, 794 (6th Cir.

2019) (citing Braden v. United States, 817 F.3d 926, 930 (6th Cir. 2016)).

       The Act mandates a minimum fifteen-year prison sentence for those who violate 18 U.S.C.

§ 922(g) and have three previous convictions for “violent felonies.” 18 U.S.C. § 924(e)(1).

Relevant here, the Act defines “violent felony” as, among other things, “burglary.” 18 U.S.C.

§ 924(e)(2)(B)(ii). “To decide if a defendant’s prior conviction under a state’s burglary statute

qualifies as a conviction for ‘burglary’ under [the Act], the Supreme Court adopted the so-called

‘categorical approach’ in Taylor v. United States, 495 U.S. 575 (1990).” United States v. Brown,

-- F.3d --, No. 18-5356, 2020 WL 1966845, at *1 (6th Cir. Apr. 24, 2020) (citing Stitt II, 139 S.

Ct. at 405). The categorical approach compares a state statute’s elements of burglary to the

elements of the “generic” definition of burglary that the Supreme Court adopted in Taylor. See id.

(citing Stitt II, 139 S. Ct. at 405). The Taylor Court defined “generic burglary” as an “unlawful or

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

crime.” Taylor, 495 U.S. at 598. “If a state burglary statute sweeps in more conduct than this

generic definition of the crime, convictions under the state statute will not qualify as convictions

for ‘burglary’ under the [Act].” Brown, 2020 WL 1966845, at *1 (citing Mathis v. United States,

136 S. Ct. 2243, 2247‒48 (2016)).

       In Tennessee, “aggravated burglary” is a “burglary of a habitation as defined in §§ 39-14-

401 and 39-14-402.” Tenn. Code Ann. § 39-14-403(a). A person commits burglary in Tennessee



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Case No. 18-5004, United States v. O’Dell


if that person, “without the effective consent of the property owner”, (1) “[e]nters 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) “[r]emains concealed, with the intent to commit a felony, theft or assault, in

a building;” (3) “[e]nters a building and commits or attempts to commit a felony, theft or assault;”

or (4) “[e]nters 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.” Id. at § 39-14-402(a)(1)-(4). “Habitation” means “any structure, including

buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the

overnight accommodation of persons[.]” Id. at § 39-14-401(1)(A).3

         In United States v. Nance, 481 F.3d 882 (6th Cir. 2007), “we held that an aggravated-

burglary conviction under Tennessee law categorically counts as a burglary under the Supreme

Court’s generic definition and so falls within [the Act].” Brown, 2020 WL 1966845, at *2 (citing

Nance, 481 F.3d at 888). Ten years later, in Stitt I, our en banc court overruled Nance and held

that “a violation of Tennessee’s aggravated burglary statute is not categorically a violent felony.”

Stitt I, 860 F.3d at 861. And in 2018, the Supreme Court unanimously reversed our en banc

decision. Stitt II, 139 S. Ct. at 403‒04. Nance is thus “once again the law of this circuit.” See

Brown, 2020 WL 1966845, at *3 (quoting Burbach, 929 F.3d at 794).

         O’Dell offers three arguments for why Tennessee’s aggravated burglary statute does not

comport with Taylor’s definition of “generic burglary.” First, he maintains that the “entry”

element of the statute is such that it criminalizes a “mere attempted burglary”, which does not

qualify as generic burglary under the Act. Second, O’Dell contends that a person can violate


3
 Habitation also “[i]ncludes a self-propelled vehicle that is designed or adapted for the overnight accommodation of
persons and is actually occupied at the time of initial entry by the defendant” and a “separately secured or occupied
portion of the structure or vehicle and each structure appurtenant to or connected with the structure or vehicle.” Id.
at § 39-14-401(1)(B)‒(C).

                                                        -4-
Case No. 18-5004, United States v. O’Dell


Tennessee’s aggravated burglary statute with “merely reckless conduct” as opposed to the “intent

to commit a crime” as required by Taylor. Third, and finally, O’Dell says that we are unable to

determine if his previous convictions of violent felonies occurred on different occasions as

required by the Act. We address each argument in turn.

                                                           A.

         O’Dell argues that Tennessee aggravated burglary cannot qualify as a “burglary” under the

Act because the definition of “enter” in Tennessee’s burglary statute4 encompasses more conduct

than “generic burglary” as defined in Taylor, and criminalizes conduct that would be only an

attempted burglary at common law. O’Dell concedes that we rejected the “entry” argument in

Brumbach. Brumbach, 929 F.3d at 795. We did so because “a panel of this court cannot overrule

Nance.” Brumbach, 929 F.3d at 795. And, since Brumbach, we have rejected the argument most

recently in our opinion in Brown. See Brown, 2020 WL 1966845, at *7.5

                                                           B.

         The same goes for O’Dell’s intent argument. O’Dell posits that generic burglary, under

Taylor, requires that a defendant have intent to commit a crime while within the building. Taylor,

495 U.S. at 599. O’Dell states that, specifically, under Tenn. Code Ann. § 39-14-402(a)(3), a

defendant can be convicted for merely reckless conduct.

         The petitioner in Brown lodged the same argument, and as we pointed out there, “it is not

clear under our precedent that we may rely on this new argument to conclude that all Tennessee

aggravated-burglary convictions fall outside the Act.” Brown, 2020 WL 1966845, at *7. This is



4
 “Enter” is defined as “(1) [i]ntrusion of any part of the body; or (2) [i]ntrusion of any object in physical contact
with the body or any object controlled by remote control, electronic or otherwise.” Tenn. Code Ann. § 39-14-
402(b)(1)‒(2).
5
 While we do not discuss the merits of O’Dell’s argument regarding the entry element of the statute, we note that
Brown questioned the merits of this argument. See id. at *5‒13.

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Case No. 18-5004, United States v. O’Dell


because we have “held, broadly, that convictions under subsections (a)(1), (a)(2), and (a)(3) of the

Tennessee burglary statute fit within the generic definition of burglary and are therefore violent

felonies for purposes of the [Act].” Id. (citing Brumbach, 929 F.3d at 794 (quoting United States

v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017) (internal quotation marks omitted)). If “we have

previously rejected other attempts to bring new arguments challenging those prior holdings[,]” it

follows that those cases foreclose O’Dell from raising this “intent” argument. See id. (citing

Brumbach, 929 F.3d at 795).

       Moreover, like the petitioner in Brown, O’Dell was indicted for and convicted of violating

subsection (a)(1), not subsection (a)(3). See id. Although O’Dell’s indictments for aggravated

burglary do not specify under which subsection he was charged, each charged that O’Dell “did . .

. unlawfully and without the effective consent . . . of the owner of a habitation, knowingly enter

such habitation, which was not open to the public, with intent to commit theft, in violation of

T.C.A. Section 39-14-403[.]” Just like in Brown, “[t]hat language mirrors the language of § 39-

14-402(a)(1).” Brown, 2020 WL 1966845, at *13. The “(a)(1) version contains the ‘intent’

requirement that [O’Dell] claims the (a)(3) version lacks: It forbids a person, without the ‘effective

consent of the property owner,’ to ‘enter a habitation (or any portion thereof) not open to the public,

with intent to commit a felony, theft or assault.’” Id. at *14 (quoting Tenn. Code Ann. §§ 39-14-

402(a)(1), 39-14-403) (alterations omitted). It also aligns with “the Supreme Court’s definition of

generic burglary: the ‘unlawful or unprivileged entry into’ ‘a building or other structure, with intent

to commit a crime.’” Id. (quoting Stitt II, 139 S. Ct. at 405‒06). Thus, O’Dell’s aggravated-

burglary convictions qualify as violent felonies under the Act. See id.




                                                 -6-
Case No. 18-5004, United States v. O’Dell


                                                C.

        Finally, O’Dell maintains that we cannot determine if his burglary and aggravated burglary

convictions were committed on different occasions. The Act requires conviction of three violent

felonies that were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).

Specifically, O’Dell contends that under Shepard v. United States, 544 U.S. 13 (2005), courts may

consider only the crimes of conviction and the elements thereof in making this determination, and

dates of the convictions or offenses fall into neither category. As O’Dell concedes, we rejected

this argument in United States v. Hennessee, 932 F.3d 437, 444 (6th Cir. 2019), and we have since

rejected it in Brown, 2020 WL 1966845, at *8. We reject it here, too. O’Dell’s argument also

fails on the merits.

        O’Dell must show by a preponderance of the evidence that his prior violent felonies did

not occur on different occasions. See id. at *8 (citing Packett v. United States, 738 F. App’x 348,

352 (6th Cir. 2018) and Potter v. United States, 887 F.3d 785, 787‒88 (6th Cir. 2018)). We may

look to “charging documents” in deciding if O’Dell committed his prior felonies on different

occasions. See United States v. King, 853 F.3d 267, 276 (6th Cir. 2017). State-court indictments

qualify as such. See Brown, 2020 WL 1966845, at *8 (citing King, 853 F.3d at 275‒76)). There

are three indictments that each charge O’Dell with one count of aggravated burglary on a separate

occasion in 1995, each involving a different victim. Additionally, another indictment charges

O’Dell with five counts of aggravated burglary on four separate occasions in 2003. Thus, the

“charging documents” show that O’Dell committed aggravated burglary on at least seven different

occasions. O’Dell therefore cannot meet his burden.

        For the reasons stated above, we VACATE the district court’s 2017 order granting O’Dell

relief, and REMAND with instructions to reinstate his original sentence.



                                               -7-
