               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0545n.06

                                          No. 18-5517

                          UNITED STATES COURT OF APPEALS                              FILED
                               FOR THE SIXTH CIRCUIT                             Oct 25, 2019
                                                                            DEBORAH S. HUNT, Clerk
 FRANKLIN ROOSEVELT MCGEE,                              )
                                                        )
        Petitioner-Appellant,                           )
                                                        )      ON APPEAL FROM THE
 v.                                                     )      UNITED STATES DISTRICT
                                                        )      COURT FOR THE WESTERN
 UNITED STATES OF AMERICA,                              )      DISTRICT OF TENNESSEE
                                                        )
        Respondent-Appellee.                            )
                                                        )

BEFORE: SILER, GIBBONS, and DONALD, Circuit Judges.

       JULIA SMITH GIBBONS, Circuit Judge. Franklin Roosevelt McGee pled guilty to being
a felon in possession of a firearm, and the district court sentenced McGee to 180 months’
imprisonment. In doing so, the district court applied the Armed Career Criminal Act’s (“ACCA”)
sentencing enhancement for a defendant who has three prior convictions for violent felonies. In
his second motion for habeas relief under 28 U.S.C. § 2255, McGee argued, in part, that his prior
convictions for Tennessee aggravated assault did not qualify as predicate crimes under the ACCA
because the convictions allowed reckless mental states. The district court denied McGee’s motion
but certified for appealability the question of whether Tennessee reckless aggravated assault is a
violent felony under the ACCA. Binding precedent holds that a Tennessee conviction for reckless
aggravated assault is a violent felony under the ACCA. See United States v. Harper, 875 F.3d
329, 330 (6th Cir. 2017); accord Lowe v. United States, 920 F.3d 414, 416 n.1 (6th Cir. 2019);
Davis v. United States, 900 F.3d 733, 736 (6th Cir. 2018); United States v. Verwiebe, 874 F.3d
258, 264 (6th Cir. 2017). Accordingly, we affirm the district court’s denial of McGee’s second
motion for habeas relief under § 2255.
No. 18-5517, McGee v. United States


                                                         I.

          In February 2008, McGee pled guilty to being a felon in possession of a firearm in violation
of 18 U.S.C. § 922(g). In May 2008, the district court sentenced McGee to 180 months’
imprisonment and three years of supervised release. The district court applied the ACCA, which
subjects a defendant convicted under § 922(g) to a sentence enhancement if the defendant has three
previous convictions for violent crimes, or “violent felonies.” See 18 U.S.C. § 924(e). The district
court relied on five of McGee’s previous convictions: (1) Tennessee aggravated assault in 1986;
(2) Tennessee aggravated robbery in 1995; (3) felony escape in 1995; (4) Tennessee aggravated
assault in 1995; and (5) Tennessee reckless aggravated assault in 2003.

          Following the Supreme Court’s ruling in Begay v. United States, 553 U.S. 137 (2008), and
this court’s ruling in United States v. Baker, 559 F.3d 443, 453 (6th Cir. 2009) (applying Begay
and holding that when “on its face the statute criminalizes only reckless conduct,” it is not a crime
of violence under the ACCA), McGee and the government jointly moved for resentencing. This
court granted the parties’ motion. Accordingly, the district court resentenced McGee in April
2011, again applying the ACCA’s sentencing enhancement. Under Begay, the district court found
that the 1986 and 2003 aggravated assaults did not qualify as violent felonies because they could
have been committed with recklessness, but that the remaining three prior crimes still qualified as
violent felonies under the ACCA.

          Then, following Johnson v. United States, 135 S. Ct. 2551 (2015) (finding the ACCA’s
residual clause unconstitutional), McGee filed a § 2255 motion for habeas relief in May 2016. He
argued that, post-Johnson, none of his prior convictions, except the Tennessee aggravated robbery,
qualified as predicate offenses under the ACCA. Conversely, the government argued that all of
the prior convictions, except the felony escape, still qualified under the ACCA’s use of force
clause.

          In May 2018, the district court denied McGee’s motion. The district court applied this
circuit’s recent decision in Verwiebe, which reversed our precedent and held that crimes committed
with a mental state of recklessness are predicate crimes of violence under the ACCA.1 874 F.3d


1
 For further discussion of the legal developments on this issue see Dillard v. United States, 768 F. App’x 480, 484–
86 (6th Cir. 2019).

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No. 18-5517, McGee v. United States


at 264. The district court therefore found that McGee’s prior aggravated assault offenses—which
may have been committed with recklessness—plus the 1995 aggravated robbery, subjected McGee
to the ACCA’s sentencing enhancement. But because a petition for writ of certiorari was pending
in Harper, 875 F.3d at 330 (applying Verwiebe but calling it “mistaken”), the district court granted
a certificate of appealability on the issue of “whether a Tennessee conviction for reckless
aggravated assault is a crime of violence under the ACCA.” DE 18, Order, Page ID 82. 2 McGee
timely appealed.

                                                          II.

            When reviewing a district court’s denial of habeas under § 2255, this court “appl[ies] a
clearly erroneous standard to its factual findings and review[s] its conclusions of law de novo.”
Braden v. United States, 817 F.3d 926, 929 (6th Cir. 2016) (quoting Hyatt v. United States, 207
F.3d 831, 832 (6th Cir. 2000)). Whether a predicate crime qualifies as a violent felony under the
ACCA is a legal question and reviewed de novo. Id. at 930.

                                                          III.

            The ACCA imposes a sentencing enhancement on defendants who violate § 922(g) when
they have previously been convicted of at least three violent felonies. 18 U.S.C. § 924(e); Lowe,
920 F.3d at 416. To qualify as a violent felony, each prior conviction must be for a “crime
punishable by imprisonment for a term exceeding one year” that (1) “has as an element the use,
attempted use, or threatened use of physical force against the person of another” (the “use of force”
clause); (2) “is burglary, arson, or extortion, [or] involves use of explosives” (the “enumerated”
clause); or (3) “otherwise involves conduct that presents a serious potential risk of physical injury
to another” (the “residual” clause). 18 U.S.C. § 924(e)(2)(B)(i)–(ii). The Supreme Court declared
the “residual” clause unconstitutionally vague in Johnson, 135 S. Ct. at 2557. See Welch v. United
States, 136 S. Ct. 1257, 1265 (2016) (making Johnson retroactively applicable on collateral




2
    The Supreme Court has since denied the petition in Harper. Harper, 139 S. Ct. 53 (2018) (denying cert.).

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No. 18-5517, McGee v. United States


review). Because the enumerated clause is inapplicable, McGee’s Tennessee aggravated assault
convictions can only be ACCA predicates if they qualify under the use of force clause.

           On appeal, McGee challenges the district court’s characterization of two previous
aggravated assault convictions—1986 and 2003—as predicate offenses under the use of force
clause. Both parties agree that the 1986 and 2003 Tennessee aggravated assault statutes allow for
reckless conduct.3 The only question on appeal is whether a reckless mental state is sufficient to
constitute a predicate violent felony under the ACCA’s use of force clause.

           Prior to Verwiebe, the law in the Sixth Circuit was that “the ‘use of physical force’ clause
of the ACCA . . . requires more than reckless conduct.” United States v. McMurray, 653 F.3d 367,
375 (6th Cir. 2011), abrogated by Verwiebe, 874 F.3d at 262–64. Following the Supreme Court’s
decision in Voisine v. United States, 136 S. Ct. 2272, 2280 (2016), which overturned this court’s
precedent, we held that that offenses requiring only recklessness can be violent felonies. Verwiebe,
874 F.3d at 264. This court has repeatedly affirmed that this holding applies to Tennessee
aggravated assault. See Lowe, 920 F.3d at 416 n.1 (concluding that the argument that a conviction
for Tennessee reckless aggravated assault could not be an ACCA predicate was “foreclose[d]” by
precedent “[holding] that both reckless and intentional aggravated assault in Tennessee qualify as
violent felonies”); Davis, 900 F.3d at 736 (noting that this court has ruled “that a mental state of
recklessness is sufficient to qualify a conviction as a crime of violence under the use-of-force
clause following the intervening Supreme Court decision in Voisine” and that “§ 39-13-101(a)(1)
is categorically a crime of violence”); Harper, 875 F.3d at 330 (“[W]e are bound to hold that
reckless aggravated assault in violation of Tenn. Code Ann. § 39-13-102(a)(I)(B) is a crime of
violence . . . .”).

           Absent an intervening decision by the Supreme Court, a decision from this court sitting en
banc, or a relevant change to the Guidelines, we are bound by our precedent. Verwiebe, 874 F.3d
at 262; 6th Cir. R. 32.1(b). Therefore, we conclude that reckless aggravated assault under

3
    Nonetheless, the relevant statutory texts, the 1986 and 2003 versions, respectively, are reproduced below.
In 1986, the Tennessee aggravated assault statute provided that “[a] person is guilty of the offense of aggravated
assault . . . if such person . . . [a]ssaults another while displaying a deadly weapon or while the victim knows such
person has a deadly weapon in his possession . . ..” Tenn. Code Ann. § 39-2-101(b) (Supp. 1984).
In 2003, the statute provided that “[a] person commits aggravated assault who . . . recklessly commits an assault
defined in 39-13-101(a)(1), and the assault (i) [r]esults in serious bodily injury to another; (ii) [r]esults in the death of
another; or (iii) [i]nvolved the use or display of a deadly weapon.” Tenn. Code Ann. § 39-13-102(a)(1) (2003).

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No. 18-5517, McGee v. United States


Tennessee law qualifies as a violent felony under the ACCA. We agree with the district court that
McGee’s prior aggravated assault offenses, plus the 1995 aggravated robbery, subjected him to the
ACCA’s sentencing enhancement for previous violent felonies.

                                                IV.

       For the reasons stated, we affirm the district court’s denial of habeas relief under § 2255.




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