                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0413n.06

                                           No. 19-5814


                          UNITED STATES COURT OF APPEALS
                                                                                        FILED
                                                                                   Jul 17, 2020
                               FOR THE SIXTH CIRCUIT
                                                                              DEBORAH S. HUNT, Clerk
 CHARLES CARTER,
        Petitioner-Appellant,
                                                       ON APPEAL FROM THE UNITED
 v.                                                    STATES DISTRICT COURT FOR
                                                       THE MIDDLE DISTRICT OF
 UNITED STATES OF AMERICA,                             TENNESSEE
        Respondent-Appellee.


Before: CLAY, COOK, and WHITE, Circuit Judges.

       CLAY, Circuit Judge. Petitioner Charles Carter appeals from the district court’s order

denying his motion to vacate, set aside, or correct his sentence, filed pursuant to 28 U.S.C. § 2255.

He asserts that the sentencing court erroneously classified him as a career offender under the

Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1). For the reasons set forth below,

we AFFIRM the district court’s order.

                                         BACKGROUND

       In August 2007, Charles Carter pleaded guilty to possession of a firearm as a felon, in

violation of 18 U.S.C. § 922(g)(1). At sentencing, the district court calculated a guidelines range

of 180 to 188 months. The range was based in part on the district court’s finding that Carter was a

career offender because he had three predicate convictions that qualified as either a “serious drug

offense” or a “violent felony” under the ACCA. 18 U.S.C. § 924(e)(1). In particular, the court

found that Carter had the following predicate convictions: (1) a 1989 Tennessee state conviction

for second-degree burglary, (2) a 1993 Tennessee state conviction for aggravated assault, and (3) a
No. 19-5814, Carter v. United States


1997 federal conviction for conspiracy to distribute cocaine. The court then imposed a sentence of

180 months’ imprisonment—the mandatory minimum under the ACCA for career offenders guilty

of § 922(g) violations. 18 U.S.C. § 924(e)(1).

       In 2016, Carter filed a § 2255 motion arguing that his classification as a career offender

was unconstitutional under the Due Process Clause, because his burglary and assault convictions

could no longer qualify as predicate offenses under the residual clause of the ACCA, see Johnson

v. United States, 135 S. Ct. 2551, 2563 (2015), and they were not otherwise predicate offenses.

The district court denied the motion. It held that Tennessee second-degree burglary qualifies as a

generic burglary under the enumerated-offenses clause of the ACCA, 18 U.S.C. § 924(e)(2)(B)(i),

and thus remains an ACCA predicate offense post-Johnson. The court also held that Carter’s

assault conviction is a predicate offense under the ACCA’s force clause. The court declined to

issue a certificate of appealability (“COA”).

       Carter timely appealed and we certified the issue of whether his burglary conviction

constitutes a predicate offense under the enumerated-offenses clause. Carter v. United States, No.

19-5814 (6th Cir. Oct. 4, 2019) (order). In his appellate brief on that issue, Carter also asks this

Court to expand his COA to include his claim that his aggravated assault conviction is not a

predicate offense.

                                          DISCUSSION

                                       Standard of Review

       We review de novo the denial of Carter’s § 2255 motion, Pough v. United States, 442 F.3d

959, 964 (6th Cir. 2006), as well as the district court’s determination that his prior conviction is a

“violent felony” under the ACCA, see Braden v. United States, 817 F.3d 926, 930 (6th Cir. 2016)

(quoting United States v. Kemmerling, 612 F. App’x 373, 375 (6th Cir. 2015)).



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       I. Tennessee Second-Degree Burglary

       The ACCA mandates a minimum sentence of fifteen years’ imprisonment for offenders

who violate 18 U.S.C. § 922(g) and have three prior convictions for “a violent felony or a serious

drug offense, or both.” 18 U.S.C. § 924(e)(1). The term “violent felony” encompasses, in relevant

part, any felony that “[1] has as an element the use, attempted use, or threatened use of physical

force against the person of another; or [2] is burglary, arson, or extortion, involves use of

explosives, or [3] otherwise involves conduct that presents a serious potential risk of physical

injury to another.” Id. § 924(e)(2)(B)(i–ii). The first clause is often referred to as the force clause;

the second clause is the enumerated-offenses clause; and the third clause is the residual clause.

       The Supreme Court invalidated the residual clause in Johnson, 135 S. Ct. at 2563.

Therefore, Carter is correct in asserting that if his conviction for second-degree burglary does not

satisfy either the force clause or the enumerated-offenses clause, then it is not a predicate offense

under the ACCA.

       The force clause, as noted, provides that a prior conviction constitutes a predicate “violent

felony” if the offense “has as an element the use, attempted use, or threatened use of physical force

against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Because burglary can be committed

without the use or threatened use of force against the “person of another,” burglary convictions do

not constitute predicate offenses under the force clause. See United States v. Prater, 766 F.3d 501,

509 (6th Cir. 2014) (interpreting a similarly worded New York burglary statute). The United States

does not contest this point on appeal and has therefore forfeited any argument to the contrary.

       Instead, the government relies on the enumerated-offenses clause to justify Carter’s

classification as a career offender. The clause plainly enumerates “burglary.” 18 U.S.C.

§ 924(e)(2)(B)(ii). However, to determine whether Carter’s specific state burglary conviction



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satisfies this provision, we must apply the categorical approach. That is, we must assess whether

the elements that make up Tennessee second-degree burglary are “the same as, or narrower than”

the elements of “the offense as commonly understood [i.e., generic burglary].” Descamps v. United

States, 570 U.S. 254, 257 (2013). If the elements of the state crime of conviction are broader than

those of the generic crime, then the state conviction does not qualify as a predicate offense. Carter

claims that his state conviction for second-degree burglary cannot constitute an enumerated

offense because Tennessee defines burglary more broadly than generic burglary.

       The Tennessee burglary statute in effect at the time Carter was convicted defined second-

degree burglary as “the breaking and entering into a dwelling house or any other house, building,

room or rooms therein used and occupied by any person or persons as a dwelling place or lodging

either permanently or temporarily and whether as owner, renter, tenant, lessee or paying guest, by

day, with the intent to commit a felony.” Tenn. Code Ann. § 39-3-403(a) (1982). Carter focuses

on the meaning of the phrase “entering . . . with the intent to commit a felony” and under what

circumstances entry can be completed. He contends that it was well established at the time of his

conviction that Tennessee law allowed for burglary convictions when an instrument was used only

to gain entry to a building, even where the defendant himself neither physically entered the

building nor committed any felony therein. He terms this the “any-instrument” rule and contrasts

it with the narrower “instrument-for-crime” rule that requires the instrument also be used to

commit a felony therein after entry. Appellant’s Br. at 14–15. For instance, if an individual uses a

coat hanger to reach through an open window and steal an expensive piece of jewelry while

remaining outside the building, then she has committed an entry under the “instrument-for-crime”

rule. If instead she uses the coat hanger only to pry open a door, but neither enters the building nor

steals anything, then she has committed an entry only under the broader “any-instrument” rule.



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No. 19-5814, Carter v. United States


       Carter contends that the “instrument-for-crime” rule was the majority rule at the time of

his conviction, and so it should be part of the definition for generic burglary. He further argues

that at the time of his conviction Tennessee allowed for second-degree burglary convictions under

the broader “any-instrument” rule. Therefore, Carter concludes, the Tennessee statute under which

he was convicted is broader than generic burglary and his burglary conviction is not a valid

predicate offense under the ACCA.

       The Supreme Court has 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 v. United

States, 495 U.S. 575, 598 (1990). We have already decided that Tennessee second-degree burglary

constitutes an enumerated offense under the generic definition provided in Taylor. In United States

v. Jones, 673 F.3d 497, 505 (6th Cir. 2012), we held that Tennessee’s pre-1989 second-degree

burglary statute—Carter’s statute of conviction—was “a generic burglary statute” and a conviction

under it constitutes a “violent felony” pursuant to the ACCA’s enumerated-offenses clause.

Although we only expressly considered whether Tennessee’s definition was broader than the

generic definition with respect to the location of the burglary, in Brumbach v. United States, 929

F.3d 791, 795 (6th Cir. 2019), we rejected Carter’s argument related to the meaning of “entry.”

There the petitioner argued, like Carter, that because Tennessee law allegedly follows the “any-

instrument” rule the definition of “entry” in Tennessee’s aggravated-burglary statute was

necessarily broader than the generic definition. Brief for Appellee at 15–16, Brumbach, 929 F.3d

791 (Nos. 18-5703/5705). We observed that “[e]ven if there is merit to Brumbach’s arguments

concerning Tennessee’s definition of entry,” prior precedent controls and his convictions for

aggravated burglary are predicate offenses. Brumbach, 929 F.3d at 795. By rejecting this

argument, Brumbach prevents us from ignoring our earlier, unqualified holding in Jones that a



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conviction for Tennessee second-degree burglary is a predicate offense under the ACCA’s

enumerated-offenses clause.

         We have also had occasion in recent months to address this issue and have repeatedly

reaffirmed Brumbach. In United States v. Brown, 957 F.3d 679, 683 (6th Cir. 2020), we found that

Brumbach rejected the argument that “Tennessee’s version of burglary is still broader than the

Supreme Court’s generic version . . . because Tennessee’s definition of ‘enter’ for its burglary

statute covers conduct that would qualify only as attempted burglary at common law.” Therefore,

Brown’s argument to the contrary should be directed “to our en banc court or the Supreme Court.”

Id. at 684. We nevertheless evaluated Brown’s argument on the merits—albeit in dicta—and

concluded that generic burglary includes the broader “entry-by-instrument” rule and therefore,

Tennessee aggravated burglary is categorically a crime of violence. Id. at 684–89; see also United

States v. Buie, 960 F.3d 767, 771 (6th Cir. 2020) (finding that defendant’s argument that

aggravated burglary is broader than generic burglary because the definition for Tennessee burglary

includes the any-instrument rule is “foreclosed by precedent” (citing Brumbach, 929 F.3d at 795),

and is “meritless” (citing Brown, 957 F.3d at 683–89)); Booker v. United States, 810 F. App’x 443,

443 (6th Cir. 2020) (same).1


         1
           After briefing closed in this case, Carter filed a letter pursuant to Federal Rule of Appellate Procedure 28(j),
citing our recent decisions in Cradler v. United States, 891 F.3d 659 (6th Cir. 2018), and Kitts v. United States, No.
17-6544, --- F. App’x ---, 2020 WL 2211775 (6th Cir. May 7, 2020). In Cradler, we held that Tennessee third-degree
burglary is not an ACCA predicate offense because it encompasses “more conduct than generic burglary”—namely,
“conduct undertaken when someone is lawfully inside a building.” 891 F.3d at 671. In Kitts, we reversed the district
court’s order reducing the defendant’s sentence and remanded the case for the district court to determine if Tennessee
second-degree burglary was broader than generic burglary for the same reasons third-degree burglary was held to be
overbroad in Cradler. 2020 WL 2211775, at *3–4. We rejected the argument that Jones controlled the outcome,
because Jones “d[id] not touch upon” Kitts’ argument. Id. at *4 (finding that the Jones court “assumed that Tennessee
defined its first element, breaking and entering, in conformance with generic burglary” and “[a]ssumptions are not
holdings that bind future panels”).
          Rule 28(j) letters may not raise new arguments or issues that could have been raised previously, see, e.g., In
re Lewis, 398 F.3d 735, 748 n.9 (6th Cir. 2005); Gionis v. Javitch, Block, Rathbone, LLP, 238 F. App’x 24, 27 n.1
(6th Cir. 2007), and the argument in Kitts was based upon Cradler—which was available before briefing closed in
this case. That said, we may correct plain errors made by the district court, even when not raised on appeal, United
States v. Trammel, 404 F.3d 397, 401 (6th Cir. 2005), and forfeiting an argument does not extinguish a plain error,

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No. 19-5814, Carter v. United States


         For these reasons we find that the district court did not err in classifying Carter as a career

offender under the ACCA and sentencing him accordingly.

         II. Tennessee Aggravated Assault

         Carter requests that this Court expand the certificate of appealability in his case to include

his claim that a mens rea of recklessness does not satisfy the force clause of the ACCA. If his

claim is correct, then Carter’s conviction for aggravated assault—which, according to his state

court indictment, could have been premised on a mens rea of recklessness—would not satisfy the

force clause. That in turn would mean his assault conviction would not be a predicate offense under

the ACCA because assault is not an enumerated offense. See 18 U.S.C. § 924(e)(2)(B)(ii). But

because this Court already declined to issue a COA on this issue, Carter v. United States, No. 19-

5814 (6th Cir. Oct. 4, 2019) (order), we construe Carter’s argument on appeal as a motion for panel

rehearing. It is admittedly not presented as such and so we could dismiss his request for failure to

comply with the relevant appellate rule. See Fed. R. App. P. 40(a)(2), (b).

         Even assuming this issue were properly before us, this Court did not err in previously

denying a COA on this issue. See Bell v. Jones, 561 F.3d 655, 656 (6th Cir. 2009) (mem.) (denying

petition for rehearing because “the original deciding judge did not misapprehend or overlook any

point of law or fact when he issued his order”). Binding circuit precedent holds that Tennessee

reckless aggravated assault qualifies as a crime of violence under the ACCA’s force clause. Davis

v. United States, 900 F.3d 733, 736 (6th Cir. 2018). Additionally, in United States v. Harper, 875

F.3d 329, 330 (6th Cir. 2017), this Court held that “reckless aggravated assault” in Tennessee “is


see United States v. Olano, 507 U.S. 725, 733–34 (1993); Wagner v. United States, 805 F. App’x 354, 360 (6th Cir.
2020) (“Despite this forfeiture, we could still review the district court’s conduct in a § 2255 proceeding on the basis
of plain error.” (citing United States v. Frady, 456 U.S. 152, 166 n.15 (1982))). However, we cannot conclude that the
district court committed plain error. Although our decision in Kitts suggests that the district court in the present case
may have erred in finding second-degree burglary to be a predicate offense under the ACCA, it is only a suggestion.
Unless and until this Court revisits its holding in Jones, the district court in the present case correctly relied on Jones
to find that Tennessee second-degree burglary is a predicate offense under the ACCA.

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No. 19-5814, Carter v. United States


a crime of violence” under the sentencing guideline that uses the same language as the ACCA’s

force clause—U.S.S.G. § 4B1.2(a). And “[w]e analyze whether a conviction is a violent felony

under the ACCA in the same way as whether a conviction is a crime of violence under U.S.S.G.

§ 4B1.2(a).” Jones, 673 F.3d at 504 n.1.

                                           CONCLUSION

       For the reasons stated above, the judgment of the district court is AFFIRMED.




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