                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0250n.06

                                        Nos. 18-5805/5834

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

                                                                                   FILED
 UNITED STATES OF AMERICA,                           )                       May 05, 2020
                                                     )                   DEBORAH S. HUNT, Clerk
        Plaintiff-Appellant/Cross-Appellee,          )
                                                     )
 v.                                                  )
                                                           ON APPEAL FROM THE UNITED
                                                     )
                                                           STATES DISTRICT COURT FOR THE
 MARTAVIUS JENKINS,                                  )
                                                           WESTERN DISTRICT OF TENNESSEE
                                                     )
        Defendant-Appellee/Cross-Appellant.          )
                                                     )


BEFORE: BATCHELDER, GIBBONS, and SUTTON, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. In 2015, Martavius Jenkins pled guilty to being

a felon in possession of a firearm. 18 U.S.C. § 922(g)(1). At the time, Jenkins had four prior

convictions for aggravated burglary in Tennessee.        Under the Armed Career Criminal Act

(“ACCA”), a defendant with three or more predicate “violent felony” convictions is subject to a

mandatory 180-month minimum sentence. 18 U.S.C. § 924(e)(1). The district court determined

that at least three of Jenkins’s prior convictions qualified as violent felonies and sentenced him to

180 months’ imprisonment. Jenkins appealed.

       While his appeal was pending, the Supreme Court decided Mathis v. United States, 136 S.

Ct. 2243 (2016). In response, we vacated Jenkins’s sentence and remanded to the district court for

further consideration in light of Mathis. United States v. Jenkins, No. 15-6292, slip op. at 4 (6th

Cir. Oct. 11, 2016) (order). On remand, the district court relied on our intervening decision in

United States v. Stitt (Stitt I), 860 F.3d 854 (6th Cir. 2017) (en banc), to find that Jenkins’s
Case Nos. 18-5805/5834, United States v. Jenkins


aggravated burglary convictions no longer qualified as violent felonies. It thus imposed a non-

ACCA enhanced sentence of 77 months.

       The government appealed. Jenkins filed a cross-appeal. While both appeals were pending,

however, the Supreme Court reversed our decision in Stitt I, holding that Tennessee aggravated

burglary fits within ACCA’s generic definition of burglary. United States v. Stitt (Stitt II), 139 S.

Ct. 399, 406–08 (2018). And after Stitt II, we clarified that our pre-Stitt I precedent “is once again

the law of this circuit,” meaning that “Tennessee aggravated burglary represents a generic burglary

. . . constituting a violent felony for ACCA purposes.” Brumbach v. United States, 929 F.3d 791,

794 (6th Cir. 2019) (quoting United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007)), cert.

denied, 140 S. Ct. 974 (2020).

       Relying on Stitt II and Brumbach, the government now argues that we should vacate

Jenkins’s 77-month sentence and remand for reinstatement of his original ACCA-enhanced

sentence. This is what we have done in other cases raising the same issue on direct and collateral

review after Stitt II. See, e.g., United States v. Gerding, 776 F. App’x 337, 337–38 (6th Cir. 2019)

(order); Greer v. United States, 780 F. App’x 352, 352–53 (6th Cir. 2019); United States v.

Bateman, 780 F. App’x 355, 355–56 (6th Cir. 2019); United States v. Hamilton, 774 F. App’x 283,

283 (6th Cir. 2019) (per curiam); Bell v. United States, 773 F. App’x 832, 833 (6th Cir. 2019);

Mann v. United States, 773 F. App’x 308, 309 (6th Cir. 2019) (per curiam).

       Jenkins attempts to sidestep Stitt II by raising a new argument for why Tennessee’s version

of aggravated burglary is still broader than ACCA’s generic version. He contends that the way

Tennessee defines “entry” for its aggravated burglary statute includes conduct that would qualify

only as attempted burglary at common law. See Tenn. Code Ann. § 39-14-402(b); State v. Crow,

517 S.W.2d 753, 754–55 (Tenn. 1974). But we rejected that same argument in Brumbach,



                                                -2-
Case Nos. 18-5805/5834, United States v. Jenkins


explaining that “[e]ven if there is merit to [the] argument[] concerning Tennessee’s definition of

entry, a panel of this court cannot overrule Nance.” 929 F.3d at 795; see also Bateman, 780 F.

App’x at 356. We also recently rejected Jenkins’s “entry” argument on the merits. See United

States v. Brown, No. 18-5356, 2020 WL 1966845, at *3–7 (6th Cir. Apr. 24, 2020). Whether based

on Brumbach or Brown, our conclusion is the same: Jenkins is once again subject to ACCA’s

mandatory 180-month minimum sentence.

       That leaves us with Jenkins’s cross-appeal. In his cross-appeal, Jenkins argues that the

district court committed several errors in calculating his Guidelines range. The government has

moved to dismiss the cross-appeal based on an appellate waiver in Jenkins’s plea agreement. The

issues raised in the cross-appeal and motion to dismiss, however, presuppose that Jenkins is still

subject to his 77-month Guidelines sentence, not the 180-month minimum sentence required by

the ACCA. With Jenkins’s original 180-month sentence reinstated, the issues in his cross-appeal

and the government’s motion to dismiss are moot. See United States v. Goldston, 906 F.3d 390,

397 (6th Cir. 2018).

       Accordingly, we vacate Jenkins’s 77-month sentence and remand to the district court for

reinstatement of his original 180-month sentence.




                                              -3-
