                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 15a0538n.06

                                          No. 15-5092
                                                                                  FILED
                                                                               Jul 30, 2015
                           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 COURT FOR
v.                                              )         THE WESTERN DISTRICT OF
                                                )         TENNESSEE
JOSEPH KEMMERLING,                              )
                                                )
                                                                     OPINION
           Defendant-Appellant.                 )
                                                )


BEFORE: BOGGS and MOORE, Circuit Judges, and REEVES, District Judge.

       DANNY C. REEVES, District Judge. Joseph Kemmerling pleaded guilty to one count

of being a felon in possession of a firearm. He subsequently was sentenced to a term of

imprisonment of 180 months under the Armed Career Criminal Act (“ACCA”). 18 U.S.C.

§ 924(e). On appeal, Kemmerling challenges the district court’s determination that his prior

robbery conviction under Tenn. Code Ann. § 39-13-401 qualifies as a violent felony under the

ACCA. For the reasons discussed below, we AFFIRM the judgment of the district court.

                                     I.     BACKGROUND

       On August 6, 2014, Joseph Kemmerling pleaded guilty to being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). [R. 20, Page ID # 21] A Presentence Investigation


       
       The Honorable Danny C. Reeves, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 15-5092, United States v. Kemmerling



Report (“PSR”) was prepared in connection with his sentencing hearing. The PSR classified

Kemmerling as an armed career criminal based on his prior convictions for three “violent

felonies,” which included a 1999 conviction for robbery under Tenn. Code Ann. § 39-13-401 and

two 2005 convictions for aggravated burglary under Tenn. Code Ann. § 39-14-403. [PSR, pp. 9,

11–12] During the sentencing hearing, the district court determined that Kemmerling had a

Total Offense Level of 30 and a Criminal History Category of VI, resulting in a non-binding

guideline range for imprisonment of 168 to 210 months. [R. 32, Page ID # 82] However, his

classification as an armed career criminal subjected Kemmerling to a mandatory-minimum term

of imprisonment of 180 months under 18 U.S.C. § 924(e)(1), creating a restricted guideline range

of 180 to 210 months. [Id.]

       This court has previously determined that convictions under Tenn. Code Ann. § 39-14-

403 qualify under the ACCA’s “enumerated offenses” clause in 18 U.S.C. § 924(e)(2)(B)(ii).

United States v. Nance, 481 F.3d 882, 887–88 (6th Cir. 2007). As a result, Kemmerling did not

object to the designation of his two 2005 aggravated-burglary convictions as predicate offenses

under the ACCA. However, he challenged his classification as an armed career criminal,

arguing that his 1999 robbery conviction did not qualify as a “violent felony.” [R. 27, Page ID #

36; R. 32, Page ID # 55–57] The district court disagreed and sentenced Kemmerling to the

mandatory-minimum term of imprisonment of 180 months. [R. 31, Page ID # 45–46; R. 32,

Page ID # 71, 84]




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No. 15-5092, United States v. Kemmerling



                                 II.     STANDARD OF REVIEW

       This court reviews de novo a district court’s determination regarding whether a prior

conviction constitutes a “violent felony” under the ACCA. United States v. Hockenberry, 730

F.3d 645, 663 (6th Cir. 2013).

                                       III.   DISCUSSION

       A defendant is classified as an armed career criminal if he violates 18 U.S.C. § 922(g)

and has three previous convictions for serious drug offenses or violent felonies committed on

different occasions. 18 U.S.C. § 924(e)(1). The ACCA defines a “violent felony” as:

       any crime punishable by imprisonment for a term exceeding one year, or any act
       of juvenile delinquency involving the use or carrying of a firearm, knife, or
       destructive device that would be punishable by imprisonment for such term if
       committed by an adult, 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[.]

18 U.S.C. § 924(e)(2)(B). This statutory section has been interpreted to create three separate

avenues of liability: the “use of physical 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. Mitchell, 743 F.3d 1054, 1058

(6th Cir. 2014). A defendant sentenced as an armed career criminal is subject to a mandatory-

minimum sentence of fifteen years of imprisonment. 18 U.S.C. § 924(e)(1).

        In Mitchell, this court concluded that robbery as defined by the Tennessee statute

qualifies as a violent felony.   743 F.3d at 1057.   Under Tennessee law, “[r]obbery is the

intentional or knowing theft of property from the person of another by violence or putting the
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No. 15-5092, United States v. Kemmerling



person in fear.” Tenn. Code Ann. § 39-13-401(a). Mitchell first determined that the statute

satisfied the “use of physical force” clause. The court explained that “violence,” as determined

by the Tennessee Supreme Court, means “‘physical force unlawfully exercised so as to injure,

damage or abuse.’” Mitchell, 743 F.3d at 1059 (quoting State v. Fitz, 19 S.W.3d 213, 214 (Tenn.

2000)). As a result, the robbery statute’s element of violence “satisfie[d] § 924(e)(2)(B)(i)’s

requirement of the ‘use, attempted use, or threatened use of physical force.’” Id. Additionally,

Mitchell determined that the element of “fear” also satisfied § 924(e)(2)(B)(i).          There, we

recognized that the Tennessee Supreme Court has held that the “‘fear constituting an element of

robbery is a fear of bodily injury and of present personal peril from violence offered or

impending.’” Id. (quoting State v. Taylor, 771 S.W.2d 387, 398 (Tenn. 1989)). Applying the

definition of violence as determined by the Tennessee Supreme Court in Fitz, we explained in

Mitchell that “the commission of a robbery through fear, which in Tennessee reduces to the fear

of bodily injury from physical force offered or impending, directly corresponds to

§ 924(e)(2)(B)(i)’s ‘use . . . or threatened use of force.’” Id. Thus, “robbery in violation of . . .

Tenn. Code Ann. § 39-13-401 is categorically a ‘violent felony’ under § 924(e)(2)(B)(i) of the

ACCA.” Id. at 1060.

       Mitchell did not stop there. We also determined that, under the categorical approach,

robbery as defined by the Tennessee statute qualified as a violent felony under the residual

clause as well. Id. at 1060–63 (holding that a conviction under Tenn. Code Ann. § 39-13-401

“categorically qualif[ies] as [a] ‘violent felon[y]’ under the residual clause of the ACCA”).

       In his brief on appeal, Kemmerling asserted that a case pending before the Supreme

Court at the time, Johnson v. United States, No. 13–7120, — U.S. —, 134 S. Ct. 1871 (U.S.


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No. 15-5092, United States v. Kemmerling



2014), may have called Mitchell’s holding into question. He argued that the issues presented

could have resulted in the Supreme Court finding the ACCA unconstitutionally vague.

[Appellant Brief, p. 7] Notwithstanding Kemmerling’s assertions, the entirety of the ACCA was

not at risk in Johnson. The Supreme Court directed the parties to file supplemental briefs

addressing only: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18

U.S.C. § 924(e)(B)(ii), is unconstitutionally vague.” Johnson v. United States No. 13–7120, —

U.S. —, 135 S. Ct. 939 (U.S. 2015) (internal quotation marks omitted).

       While the Supreme Court’s recent decision in Johnson held the residual clause of the

ACCA to be unconstitutionally vague in violation of “the Constitution’s guarantee of due

process,” it did not affect the “use of physical force” clause. Johnson v. United States, No. 13–

7120, — U.S. —, 135 S. Ct. 2551, 2563 (U.S. 2015) (“Today’s decision does not call into

question application of the [ACCA] to the four enumerated offenses, or the remainder of the

Act’s definition of a violent felony.”) Thus, Mitchell’s holding that Tenn. Code Ann. § 39-13-

401 qualifies as an ACCA predicate offense under the “use of physical force” clause is not

affected by Johnson, and this court remains bound by that determination. See Salmi v. Sec’y of

Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985) (finding that a panel of this court

may not overturn binding precedent because a published prior 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”).

                                     IV.     CONCLUSION

       We AFFIRM the judgment of the district court.




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