                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0358n.06

                                        Case No. 18-5531

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                     FILED
                                                                                   Jun 18, 2020
                                                                               DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellant,                         )
                                                    )       ON APPEAL FROM THE UNITED
v.                                                  )       STATES DISTRICT COURT FOR
                                                    )       THE EASTERN DISTRICT OF
DENNIS PLEMONS,                                     )       TENNESSEE
     Defendant-Appellee.                            )
                                                    )




BEFORE: SILER, MOORE, and NALBANDIAN, Circuit Judges.

       SILER, Circuit Judge. Dennis Plemons was convicted of being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g)(1). He was originally sentenced under the Armed

Career Criminal Act (“ACCA”) based on his prior Tennessee convictions, including two

aggravated assaults and one aggravated burglary. However, the sentence was vacated after this

court ruled en banc in United States v. Stitt that Tennessee aggravated burglary does not qualify as

a violent felony for purposes of the ACCA. Plemons was then resentenced without an ACCA

enhancement. The government appealed and while the appeal was pending the U.S. Supreme Court

overturned Stitt. The Sixth Circuit has interpreted the Supreme Court’s decision as reinstating pre-

Stitt Sixth Circuit case law, which recognizes Tennessee aggravated burglary as a violent felony

under the ACCA. Therefore, we REVERSE and REMAND for resentencing under the ACCA.
Case No. 18-5531, United States v. Plemons


                                                   I.

          In 2014, Plemons pled guilty to possessing a firearm as a felon in violation of 18 U.S.C.

§ 922(g)(1). He had several prior Tennessee convictions, including two aggravated assault

convictions and one aggravated burglary conviction and was sentenced to 188 months’

imprisonment as an armed career criminal under 18 U.S.C. § 924(e)(1), which mandates a

minimum of 180 months’ imprisonment.

          Plemons appealed his sentence. While the appeal was pending we decided that Tennessee’s

aggravated burglary statute is broader than generic burglary, such that “Tennessee aggravated

burglary is not a violent felony for purposes of the ACCA.” United States v. Stitt, 860 F.3d 854,

856 (6th Cir. 2017) (en banc), rev’d, United States v. Stitt, 139 S. Ct. 399 (2018). This court vacated

Plemons’s sentence and remanded the case because his armed-career-criminal classification

depended in part upon his prior Tennessee aggravated burglary conviction.

          On remand the district court recalculated Plemons’s guideline range without the ACCA

enhancement and sentenced him to 90 months’ imprisonment. At the sentencing hearing the

government noted that it had petitioned the Supreme Court for certiorari to review Stitt and sought

to preserve review of Plemons’s sentence if the Supreme Court did in fact overturn Stitt. In 2018

the Supreme Court unanimously reversed Stitt. See United States v. Stitt, 139 S. Ct. 399, 403–08

(2018).

                                                  II.

          We review de novo the district court’s interpretation and application of the ACCA. See

United States v. Stafford, 721 F.3d 380, 395–96 (6th Cir. 2013). Plemons argues that plain error

review should apply because “the government presented no argument in support of its brief

statement that Stitt could one day be overturned.” However, the government raised the issue to the



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Case No. 18-5531, United States v. Plemons


district court several times, adequately preserving the issue for review. See, e.g., United States v.

Brown, No. 18-5356, 2020 U.S. App. LEXIS 13269, at *6 (6th Cir. Apr. 24, 2020). Accordingly,

we review de novo.

                                                 III.

       The ACCA provides enhanced penalties, including a fifteen-year mandatory-minimum

prison sentence, for a felon who possesses a firearm if the defendant has three or more prior

convictions “for a violent felony or a serious drug offense, or both, committed on occasions

different from one another.” 18 U.S.C. § 924(e)(1). “Violent felony” is defined as:

       any crime punishable by imprisonment for a term exceeding one year . . . 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 use of explosives, or otherwise
       involves conduct that presents a serious potential risk of physical injury to another.1

Id. § 924(e)(2)(B). Courts interpret “this section to create three different grounds for liability: the

‘use-of-force’ clause in § 924(e)(2)(B)(i); the ‘enumerated-offenses’ clause in § 924(e)(2)(B)(ii);

and the ‘residual clause’ immediately following the enumerated-offenses in § 924(e)(2)(B)(ii).”

See United States v. Priddy, 808 F.3d 676, 683 (6th Cir. 2015).

       The statute explicitly lists burglary as a violent felony in the enumerated-offense clause.

However, a burglary conviction does not qualify as a violent felony under this clause if “the

elements of [the relevant state burglary statute] are broader than those of generic burglary.” Mathis

v. United States, 136 S. Ct. 2243, 2257 (2016). Courts use “a categorical approach” to determine

if a state burglary statute is broader than generic burglary by “compar[ing] the elements of the


       1
         The residual clause, “or otherwise involves conduct that presents a serious potential risk
of physical injury to another,” has been invalidated and deemed unconstitutionally vague. See
Johnson v. United States, 135 S. Ct. 2551, 2557, 2563 (2015).
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Case No. 18-5531, United States v. Plemons


statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—

i.e., the offense as commonly understood.” See Priddy, 808 F.3d at 683 (quoting Descamps v.

United States, 570 U.S. 254, 257 (2013)). Therefore, a prior conviction qualifies as a violent felony

under the ACCA “only if the statute’s elements are the same as, or narrower than, those of the

generic offense.” Descamps, 570 U.S. at 257. “[M]odest . . . deviations from the generic definition”

are acceptable “so long as the state law in question ‘substantially corresponds’ to (or is narrower

than) generic burglary.” Quarles v. United States, 139 S. Ct. 1872, 1880 (2019) (quoting Taylor v.

United States, 495 U.S. 575, 602 (1990)).

       Generic burglary is “any crime, regardless of its exact definition or label, having the basic

elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent

to commit a crime.” Taylor, 495 U.S. at 599. In Tennessee “[a]ggravated burglary is burglary of a

habitation.” Tenn. Code Ann. § 39-14-403(a). “Habitation” means “any structure, including

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

overnight accommodation of persons.” Tenn. Code Ann. § 39-14-401(1)(A). This also includes “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.” Tenn. Code Ann. § 39-14-

401(1)(B).

       In Stitt, we held that Tennessee’s aggravated burglary statute criminalized more conduct

than generic burglary and therefore cannot qualify as a violent felony under the ACCA. See Stitt,

860 F.3d at 857, 862. However, the Supreme Court held that burglary of a structure adapted for

overnight accommodation qualifies as a violent felony under the ACCA. See Stitt, 139 S. Ct. at

405–07.




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Case No. 18-5531, United States v. Plemons


       Here, Plemons was originally sentenced as an armed career criminal based on his prior

Tennessee convictions for two aggravated assaults and one aggravated burglary. This sentence was

vacated because of the Sixth Circuit’s decision in Stitt, which has now been overturned. With this

line of argument now foreclosed by Supreme Court precedent, Plemons makes two additional

arguments for why his case should not be remanded for resentencing under the ACCA:

(1) Tennessee burglary’s entry element is broader than generic burglary’s entry element; and

(2) his prior offenses did not occur on separate occasions. Both arguments are foreclosed by

precedent.

                                                A.

       First, Plemons argues that Tennessee aggravated burglary’s entry element is broader than

generic burglary’s entry element. Plemons focuses on the entry-by-instrument form of burglary.

This occurs when an instrument, such as a screwdriver or coat hanger, crosses a structure’s

threshold but no part of the person crosses it. Plemons argues that under generic burglary this is

an entry only if the person also used or intended to use the instrument to commit a further felony

inside. Under this definition if the instrument is only used to make entry, then no “entry” was made

and the individual committed attempted burglary instead of burglary.

       Plemons contends that Tennessee’s aggravated burglary statute is broader because the use

of an instrument to cross the threshold of a structure is enough to commit burglary in Tennessee.

A defendant made the same argument in Brumbach v. United States, 929 F.3d 791, 795 (6th Cir.

2019), cert. denied, 2020 U.S. LEXIS 747 (Jan. 27, 2020). The court held that even if there was

merit to the argument, such an argument is foreclosed by Sixth Circuit precedent, specifically the

court’s decision in United States v. Nance, 481 F.3d 882 (6th Cir. 2007). See Brumbach, 929 F.3d

at 794 (“Nance’s holding, which is directly on point, is once again the law of this circuit.”). In



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Case No. 18-5531, United States v. Plemons


Nance, the court considered the “statutory elements of Tennessee’s aggravated burglary statute”

and held “Tennessee aggravated burglary represents a generic burglary capable of constituting a

violent felony for ACCA purposes.” 481 F.3d at 888.

       Accordingly, this court has consistently rejected this entry argument. See, e.g., United

States v. Bailey, Nos. 18-6131/6147, 2020 U.S. App. LEXIS 5883, at *6–7 (6th Cir. Feb. 26, 2020)

(“‘Brumbach is now precedential’ . . . and it dictates the result here: [the defendant’s] Tennessee

aggravated-burglary conviction qualifies as an ACCA predicate offense under the enumerated-

offense clause, and his original ACCA sentence was proper.” (quoting Greer v. United States, 780

F. App’x 352, 353 (6th Cir. 2019))); United States v. Crutchfield, 785 F. App’x 321, 323 (6th Cir.

2019) (“Brumbach then held that [Nance and Priddy] foreclosed new arguments that Tennessee

aggravated burglary is not generic burglary.”). Most recently, in Brown this circuit considered the

merits of this entry argument and again rejected the argument. See 2020 U.S. App. LEXIS 13269,

at *6–20. Therefore, this argument is foreclosed by precedent.

                                                B.

       Second, Plemons argues that the records of his convictions cannot establish that he

committed the offenses on separate occasions. In order for the ACCA enhancement to apply, the

defendant must have committed three violent felonies “on occasions different from one another.”

§ 924(e)(1).

       We rejected this argument in Brown, 2020 U.S. App. LEXIS 13269, at *23–24, and in

United States v. Hennessee, 932 F.3d 437, 439 (6th Cir. 2019), cert. denied, 2020 U.S. LEXIS 347

(Jan. 13, 2020). In Hennessee, the court held that “a sentencing court may consider non-elemental

facts such as times, locations, and victims in Shepard documents when conducting the different-

occasions analysis.” 932 F.3d at 439.



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Case No. 18-5531, United States v. Plemons


       Here, the Shepard documents show that Plemons committed violent felonies on three

different occasions. Based on the facts contained within the Shepard documents, Plemons

committed his offenses on “occasions different from one another.” § 924(e)(1). Accordingly, we

also reject this argument.

                                             IV.

       We GRANT Plemons’s motion to take judicial notice and we REVERSE and REMAND

for resentencing under the ACCA.




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Case No. 18-5531, United States v. Plemons


       KAREN NELSON MOORE, concurring in the judgment. I recognize that we are

bound by Brumbach v. United States, 929 F.3d 791 (6th Cir. 2019), cert. denied, 140 S. Ct. 974

(2020), to reject Defendant-Appellee Dennis Plemons’s arguments that his conviction for

aggravated burglary in Tennessee is not a predicate offense under the Armed Career Criminal Act

(“ACCA”). However, I maintain that Brumbach was wrongly decided and warrants en banc

review. But so long as Brumbach remains the law of this circuit, it requires us simply to reject

Plemons’s arguments. See Brumbach, 929 F.3d at 795. Accordingly, we should not rely on dicta

from United States v. Brown, which evaluates the merits of such arguments. See 957 F.3d 679,

683–89 (6th Cir. 2020). Because it is sufficient to rely on Brumbach alone to reject Plemons’s

arguments that his Tennessee conviction is not an ACCA predicate, I concur in the judgment.




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