                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0450n.06

                                          Nos. 17-6358/6360


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                    FILED
                                                                                  Aug 26, 2019
UNITED STATES OF AMERICA,                                                     DEBORAH S. HUNT, Clerk

       Plaintiff-Appellant,

v.                                                   ON APPEAL FROM THE UNITED
                                                     STATES DISTRICT COURT FOR THE
DALTON CRUTCHFIELD,                                  WESTERN DISTRICT OF TENNESSEE

       Defendant-Appellee.



BEFORE:        CLAY, LARSEN, and READLER, Circuit Judges.

       CLAY, Circuit Judge. The government appeals the district court’s order granting Dalton

Crutchfield’s petition for habeas corpus under 28 U.S.C. § 2255, and the district court’s subsequent

resentencing of Crutchfield to time served. The district court resentenced Crutchfield based on this

Court’s determination that Tennessee aggravated burglary, Tenn. Code Ann. § 39–14–403(a)

(1997), does not qualify as a predicate offense under the Armed Career Criminal Act (“ACCA”).

See United States v. Stitt, 860 F.3d 854, 864–65 (6th Cir. 2017) (en banc) (“Stitt I”). But the

Supreme Court reversed Stitt I. See Stitt v. United States, 139 S. Ct. 399, 407–08 (2018) (“Stitt

II”). And a recent panel of this Court, in a published decision, affirmed this Court’s pre-Stitt I

decisions holding that aggravated burglary in Tennessee categorically qualifies as an ACCA

predicate. See Brumbach v. United States, 929 F.3d 791, 794–95 (6th Cir. 2019). Therefore, we

REVERSE the district court’s order granting Crutchfield habeas relief and REMAND for the

reinstatement of his original sentence.
                                        Nos. 17-6358/6360


                                        BACKGROUND

       On February 22, 2011, a grand jury indicted Crutchfield of being a felon in possession of

a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(a), (e). Crutchfield pleaded guilty pursuant

to a written plea agreement. Upon receiving the presentence investigation report (“PSR”),

Crutchfield filed a sentencing position statement noting that he had no objections to the PSR. At

the sentencing hearing, Crutchfield acknowledged that he qualified as an armed career criminal

based on his four prior convictions for Tennessee aggravated burglary and requested to be

sentenced to the statutory minimum term of 180 months of incarceration. On September 14, 2011,

the district court sentenced Crutchfield to 180 months of incarceration out of a guidelines range

maximum of 210 months of incarceration.

       On June 17, 2016, Crutchfield filed a 28 U.S.C. § 2255 motion to vacate his sentence based

on the Supreme Court’s decision striking down the ACCA’s residual clause. See Johnson v. United

States, 135 S. Ct. 2551 (2015). While his § 2255 motion was pending, the en banc Sixth Circuit

decided Stitt I. In Stitt I, the original panel had held that this Court’s prior decisions in United

States v. Priddy, 808 F.3d 676 (6th Cir. 2015) and United States v. Nance, 481 F.3d 882 (6th Cir.

2007) foreclosed the argument that Tennessee aggravated burglary did not qualify as a violent

felony. See United States v. Stitt, 637 F. App’x 927, 930–32 (6th Cir. 2016). On June 27, 2017,

this Court, sitting en banc, reversed the original Stitt panel, overruled Nance and Priddy, and held

that Tennessee aggravated burglary was not generic burglary because it included burglary of

vehicles adapted for overnight accommodation. Stitt I, 860 F. 3d at 857–63.

       In light of our decision in Stitt I, the government conceded with hesitation that Crutchfield’s

prior convictions for Tennessee aggravated burglary were no longer predicate offenses that

subjected him to the mandatory minimum sentence he received. The district court granted



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Crutchfield’s § 2255 motion and resentenced him to time served and three years of supervised

release. However, the government maintained that Stitt I was incorrectly decided. It appealed the

district court’s granting of Crutchfield’s § 2255 motion and the district court’s amended judgment,

and this Court stayed the consolidated appeals pending the Supreme Court’s decision in Stitt II. In

Stitt II, the Supreme Court explicitly overruled our en banc decision in Stitt I, holding that burglary

of a vehicle adapted for overnight accommodation constitutes a generic burglary under Taylor. See

Stitt II, 139 S. Ct. at 407.

        In a recent published decision, Brumbach v. United States, 929 F.3d 791, (6th Cir. 2019),

this Court considered, for the first time, whether a conviction under Tennessee’s aggravated

burglary statute qualifies as a violent felony under the ACCA in light of the Supreme Court’s

reversal of Stitt I in Stitt II. In Brumbach, this Court held that because of Stitt II’s reversal of Stitt I,

Nance and Priddy once again constitute binding Sixth Circuit precedent and that, therefore,

Tennessee aggravated burglary describes generic burglary and qualifies as a violent felony under

the ACCA. Id. at 794 (reversing the district court’s order granting the petitioner’s habeas petition

and remanding for reinstatement of the petitioner’s original sentence).

                                             DISCUSSION

  I.    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.” Brumbach, 929 F.3d at 794 (quoting

Braden v. United States, 817 F.3d 926, 930 (6th Cir. 2016)).

 II.    Analysis

        The government’s primary argument on appeal is that in light of the Supreme Court’s

decision in Stitt II, we have returned to the time when this Circuit treated Tennessee aggravated



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burglary categorically as a violent felony under the ACCA. On that account, the government

asserts that Crutchfield’s prior convictions place him back in ACCA mandatory minimum sentence

territory, and therefore we should reverse the district court’s granting of Crutchfield’s § 2255

motion and reinstate his original sentence.

       Crutchfield pleaded guilty to being a felon in possession of a firearm under 18 U.S.C.

§ 922(g). He has four prior convictions for Tennessee aggravated burglary. The ACCA provides

that a person who violates 922(g) and also has three prior convictions for a “violent felony” shall

be subjected to a fifteen-year mandatory minimum sentence of imprisonment. See 18 U.S.C.

§ 924(e)(1). Relevant to our analysis, the ACCA defines a “violent felony” as “any crime

punishable by imprisonment for a term exceeding one year . . . that is burglary, arson, or extortion,

[or] involves use of explosives[.]” Id. at § 924(e)(2)(B)(ii). At issue in this appeal is whether

Tennessee’s aggravated burglary statute falls within the ACCA’s generic definition of burglary.

Binding precedent in our Circuit holds that it does. See Brumbach, 929 F.3d at 794; see also Mann

v. United States, No. 17-6486, 773 F. App’x 308, 309 (6th Cir. 2019) (citing Brumbach, 929 F.3d

at 794–95) (explaining that, due to the Supreme Court’s reversal of Stitt I, “Tennessee aggravated

burglary is an ACCA predicate”). Crutchfield’s case is one of many that contain the very issue that

this Court decided in Brumbach.

       Brumbach considered whether, following Stitt II, this Court’s decisions in Nance and

Priddy were once again good law. 929 F.3d at 794–95. In Brumbach, this Court held that because

the Supreme Court “reverse[d] the rationale by which we overruled Nance[,] . . . it necessarily

follows that Nance’s holding . . . is once again the law of this circuit.” Id. at 794. Concluding that

Stitt II had reinstated this Court’s pre-Stitt I decisions in Nance and Priddy, Brumbach then held

that these decisions foreclosed new arguments that Tennessee aggravated burglary is not generic



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burglary. Id. at 795. Brumbach’s holding regarding the preclusive force of Nance and Priddy

controls this case. Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985)

(explaining that a panel of this Court cannot overrule a prior panel decision absent an inconsistent

decision of the Supreme Court or this Court sitting en banc).

       Crutchfield raises two new issues on appeal that he did not raise in the district court. He

separately challenges both the “entry” and “intent” elements of Tennessee’s burglary statute. First,

he argues that “[b]ecause Tennessee law endorses such a broad concept of ‘entry,’ no Tennessee

burglary conviction after 1974 can count as a generic burglary, or consequently, as an ACCA

predicate.” (Appellee Br. at 7.) Crutchfield’s argument regarding entry is forfeited, as he did not

assert this argument in his § 2255 motion in the district court. Frazier v. Jenkins, 770 F.3d 485,

497 (6th Cir. 2014) (“Generally, we will not address arguments raised for the first time on appeal,

. . . [and] we decline to do so here.”) And even if Crutchfield had not forfeited this argument, it

would still fail because Brumbach advanced an identical argument, and the Court dismissed it as

precluded by controlling Sixth Circuit precedent. Brumbach, 929 F.3d at 795 (“Even if there is

merit to Brumbach’s arguments concerning Tennessee’s definition of entry, a panel of this court

cannot overrule Nance.”).

       Crutchfield’s second new argument on appeal, which focuses on the “intent” element of

Tennessee’s burglary statute, likewise fails. Crutchfield challenges “whether § 39-14-402(a)(3)

fits within the generic definition of burglary because it allows a defendant to be convicted of

burglary if he enters a building and then forms the requisite intent to commit a crime while inside.”

(Appellee Br. at 28) (emphasis in original). Crutchfield forfeited this argument by failing to raise

it below. See Frazier, 770 F.3d at 497. The argument also fails on the merits; this argument

concerning the “intent” element of burglary has already been addressed and dismissed by the



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Supreme Court. See Quarles v. United States, 139 S. Ct. 1872, 1880 (2019) (decided during the

pendency of Crutchfield’s case and concluding “that generic remaining-in burglary occurs when

the defendant forms the intent to commit a crime at any time while unlawfully remaining in a

building or structure”).

                                       CONCLUSION

       Crutchfield’s main issue on appeal—whether his convictions for Tennessee aggravated

burglary qualify as violent felonies under the ACCA—has been addressed by this Court’s recent

published decision in Brumbach. Therefore, even if Crutchfield had not forfeited his new

arguments by failing to raise them in the district court, both new arguments are foreclosed by

existing precedent of this Court and the Supreme Court. Based on the foregoing, we REVERSE

the district court’s order granting Crutchfield habeas relief under § 2255 and REMAND for the

reinstatement of his original 180-month sentence.




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