               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 16a0434n.06

                                          No. 15-5657

                          UNITED STATES COURT OF APPEALS                              FILED
                               FOR THE SIXTH CIRCUIT                             Jul 29, 2016
                                                                            DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                              )
                                                       )
       Plaintiff-Appellee,                             )
                                                       )   ON APPEAL FROM THE UNITED
v.                                                     )   STATES DISTRICT COURT FOR
                                                       )   THE WESTERN DISTRICT OF
KENDALL JOY,                                           )   TENNESSEE
                                                       )
       Defendant-Appellant.                            )
                                                       )
                                                       )


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


       PER CURIAM. Kendall Joy, following his conditional guilty plea, appeals the denial of

his motion to suppress. In a supplemental brief, Joy challenges his sentencing under the Armed

Career Criminal Act (ACCA), 18 U.S.C. § 924(e). We affirm.

       On December 27, 2012, officers with the Millington Police Department received a report

of an aggravated assault at an apartment complex. The first officer to arrive found three

employees of a repossession company who were there to repossess a vehicle. One of the

repossession employees reported that, while he was hooking the vehicle to his tow truck, Joy and

his girlfriend came out of the apartment building and argued with them. Joy told his girlfriend to

get a gun, and she went inside the apartment and returned with a large semiautomatic pistol. Joy

pointed the firearm at the tow truck driver’s head and threatened to kill the driver if he did not
No. 15-5657, United States v. Joy

release the vehicle from the tow truck. When the vehicle was released, Joy retreated to the

apartment, and his girlfriend drove off in the vehicle.

       After speaking with the repossession employees and a neighbor, the officers knocked and

announced their presence at both the front and back doors of the apartment; they received no

response. The apartment complex’s maintenance supervisor unlocked the apartment’s back door

for the officers, who entered and found Joy in the living room. The officers placed Joy under

arrest, handcuffed him, and patted him down but did not find any firearms on him. The officers

conducted a sweep of the apartment, looking inside bedrooms and opening closets, and saw

firearms in plain view. Three young children were located in a bedroom and were asked if there

were firearms in the apartment; they responded that there were. The officers then obtained a

warrant to search the apartment. Upon executing the warrant, the officers found and seized five

firearms, magazines, and ammunition.

       A federal grand jury subsequently returned an indictment charging Joy with five counts

of possession of a firearm by a felon in violation of 18 U.S.C. § 922(g). Joy filed a motion to

suppress.    After an evidentiary hearing and supplemental briefing, a magistrate judge

recommended that Joy’s motion to suppress be denied. In light of Joy’s objections to the

magistrate judge’s report and recommendation, the district court conducted another evidentiary

hearing. The district court adopted the magistrate judge’s report and recommendation and

denied Joy’s motion to suppress.

       On the third day of trial, Joy pleaded guilty to all five counts of the indictment, reserving

his right to appeal the denial of his motion to suppress. Joy’s presentence report classified him

as an armed career criminal based on the following Tennessee convictions:              (1) a 1988

conviction for first-degree burglary, (2) two 1994 convictions for aggravated assault, and (3) a

2007 conviction for unlawful possession of a controlled substance with intent to sell. Joy

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No. 15-5657, United States v. Joy

challenged the use of his aggravated assault convictions as predicate offenses under the ACCA.

At sentencing, the district court overruled Joy’s objection and determined that he qualified as an

armed career criminal. Varying downward from a guidelines range of 262 to 327 months, the

district court sentenced Joy to 200 months of imprisonment.

       This timely appeal followed. Counsel briefed the denial of Joy’s motion to suppress. In

light of Joy’s pro se filings, this court ordered counsel to file supplemental briefs addressing

whether the district court erred in sentencing Joy under the ACCA and whether he waived

appellate review of this issue in his plea agreement.

       In denying Joy’s motion to suppress, the district court held that the officers’ “entry into

[Joy’s] apartment, the warrantless arrest, and the overbroad protective sweep violated the Fourth

Amendment” but that the government had “shown that the police would have inevitably obtained

[a] search warrant and discovered [Joy’s] firearms, despite the constitutional violations.” (RE

64, Page ID # 359). On appeal, Joy challenges (1) the warrantless entry, asserting that there

were no exigent circumstances, and (2) the protective sweep, asserting that there were no

articulable facts to support a reasonable belief that the apartment harbored another individual

posing a danger to those on the scene. But Joy fails to address the district court’s reason for

denying his motion to suppress—that “the search pursuant to warrant was in fact a genuinely

independent source” of the firearms at issue. Murray v. United States, 487 U.S. 533, 542 (1988).

By failing to address the district court’s holding, Joy has waived appellate review of the denial of

his motion to suppress. See United States v. Thornton, 609 F.3d 373, 380 (6th Cir. 2010). Joy

filed a pro se motion to “remand to [the] district court to establish ineffective assistance of

counsel on the record,” mentioning counsel’s failure to raise the independent-source issue in his

appellate brief. A 28 U.S.C. § 2255 motion asserting ineffective-assistance-of-counsel claims

may be brought by Joy in the district court. See United States v. Kincaide, 145 F.3d 771, 785

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No. 15-5657, United States v. Joy

(6th Cir. 1998) (“Ineffective assistance of counsel claims are best brought by a defendant in a

post-conviction proceeding under 28 U.S.C. § 2255 so that the parties can develop an adequate

record on the issue.” (quoting United States v. Seymour, 38 F.3d 261, 263 (6th Cir. 1994))).

       Joy also challenges his sentencing under the ACCA.            In his plea agreement, Joy

“waive[d] his right to appeal the sentence imposed by the Court and the manner in which the

sentence is determined.” (RE 124, Page ID # 460). While “we have held that appeal waivers do

not bar defendants from appealing a sentence above the statutory maximum for the underlying

offense,” we have not “settle[d] whether a district court’s error in determining a defendant to be

an armed career criminal results in a supramaximal sentence, thereby barring an appeal waiver.”

United States v. Amos, 604 F. App’x 418, 422 (6th Cir. 2015) (citing United States v. Caruthers,

458 F.3d 459, 471-72 (6th Cir. 2006)), cert. denied, 136 S. Ct. 114 (2015). We need not address

that issue here because the district court properly sentenced Joy as an armed career criminal.

       The ACCA requires a 15-year mandatory minimum sentence for a defendant convicted

under 18 U.S.C. § 922(g) who has three previous convictions for a violent felony or a serious

drug offense. 18 U.S.C. § 924(e)(1). Joy objects to the use of his 1994 Tennessee convictions

for aggravated assault as predicate offenses under the ACCA. This court has held that the

version of Tennessee’s aggravated assault statute in effect at the time of Joy’s convictions is not

categorically a violent felony under the ACCA because the statute encompasses reckless as well

as intentional conduct. United States v. McMurray, 653 F.3d 367, 377 (6th Cir. 2011). Because

Tennessee’s aggravated assault statute is divisible, we may consider the state court documents

identified in Shepard v. United States, 544 U.S. 13, 26 (2005), to determine which subsection of

the statute Joy was convicted of violating. See Braden v. United States, 817 F.3d 926, 933 (6th

Cir. 2016); United States v. Cooper, 739 F.3d 873, 880 n.2 (6th Cir. 2014). Citing Descamps v.

United States, 133 S. Ct. 2276, 2283 (2013), Joy argues that the district court erred in applying

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No. 15-5657, United States v. Joy

the modified categorical approach; however, Descamps involved an indivisible statute. See

Cooper, 739 F.3d at 880 n.2. Although Joy entered a best-interest plea under North Carolina v.

Alford, 400 U.S. 25 (1970), his convictions can be predicate offenses for purposes of the ACCA

if “the Shepard documents demonstrate with certainty that [he] pleaded guilty to a narrowed

charge that would qualify as a ‘violent felony.’” McMurray, 653 F.3d at 381. The state court

indictments charged that Joy “did unlawfully and intentionally by use of a deadly weapon, to-

wit: a pistol, cause [the victims] to reasonably fear imminent bodily injury.” Joy’s aggravated

assault convictions therefore constitute violent felonies under the ACCA’s use-of-force clause.

See Braden, 817 F.3d at 933.

       For the foregoing reasons, we AFFIRM the district court’s judgment.




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