                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0592n.06

                                          Case No. 16-6098

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                FILED
JASON CURTIS,                                      )                       Oct 26, 2017
                                                   )                  DEBORAH S. HUNT, Clerk
           Petitioner-Appellant,                   )
                                                   )         ON APPEAL FROM THE UNITED
v.                                                 )         STATES DISTRICT COURT FOR
                                                   )         THE EASTERN DISTRICT OF
UNITED STATES OF AMERICA,                          )         TENNESSEE
                                                   )
           Respondent-Appellee.                    )
                                                   )
                                                   )


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

          PER CURIAM. In 2012, Jason Curtis pleaded guilty to possessing a firearm as a felon in

violation of 18 U.S.C. § 922(g). As part of his plea agreement, Curtis waived the right “to file

any motions or pleadings pursuant to 28 U.S.C. § 2255 or to collaterally attack” his conviction or

sentence, except for claims of ineffective assistance of counsel or prosecutorial misconduct.1


1
    The Plea Agreement also stated:
         1. b) The punishment for this offense is as follows. . . .
                 If defendant is not determined to be an Armed Career Criminal,
         imprisonment for up to ten (10) years; fine of up to $250,000; supervised release
         for up to three (3) years; any lawful restitution; and a $100 special assessment.
                 If defendant is determined to be an Armed Career Criminal, a term of
         imprisonment of not less than fifteen (15) years and up to life; fine of up to
         $250,000; supervised release for up to five (5) years; any lawful restitution; and a
         $100 special assessment.
         ....
         6. The parties agree that the appropriate disposition of this case would be the
         following as to each count:
No. 16-6098
Curtis v. United States


Based on two prior Tennessee burglary convictions and two prior Tennessee aggravated-burglary

convictions, the district court determined Curtis to be an armed career criminal subject to the

Armed Career Criminal Act’s (“ACCA”) 15-year mandatory minimum, then sentenced him to

188 months of incarceration and five years of supervised release. Curtis did not appeal.

          In 2015, after the United States Supreme Court invalidated the residual clause in the

ACCA’s definition of “violent felony” in Johnson v. United States, 135 S. Ct. 2551 (2015),

Curtis moved under § 2255 to vacate, set aside, or correct his sentence. The government

opposed the motion, arguing that it was meritless and barred by the collateral-attack waiver in

Curtis’s plea agreement. Expressly declining to reach the waiver argument, the district court

denied Curtis’s § 2255 motion on the merits, reasoning that all four of the convictions used to

support his ACCA enhancement qualified as predicate offenses.2 Since then, however, this court


                  a) The Court may impose any lawful term(s) of imprisonment, any lawful
          fine(s), and any lawful term(s) of supervised release up to the statutory
          maximum(s).
2
    The district court explained:
          The government attempts to rely on the waiver provision of Petitioner’s plea
          agreement as an alternative, independent basis for denying relief. While the Court
          recognizes that Petitioner “knowingly and voluntarily waive[d] the right to file
          any motions or pleadings pursuant to 28 U.S.C. § 2255 or to collaterally attack the
          [his] conviction and/or resulting sentence” except in cases that involve
          “ineffective assistance of counsel or prosecutorial misconduct,” it is far from clear
          that this waiver can be enforced to bar him from challenging a sentence in excess
          of the maximum authorized by law. See e.g., United States v. Thompson, No.
          3:06-cr-56, 2008 U.S. Dist. LEXIS 109305, at *37–39 (W.D. Ky. Nov. 7, 2008)
          (explaining knowing and voluntary waivers are enforceable so long as they do not
          result in a miscarriage of justice and that a miscarriage of justice arises where “the
          sentence imposed exceed[s] the statutory maximum permissible”). The Court


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No. 16-6098
Curtis v. United States


sitting en banc decided that convictions under Tennessee’s aggravated-burglary statute, Tenn.

Code Ann. § 39-14-403, do not qualify as violent felonies under the ACCA. United States v.

Stitt, 860 F.3d 854, 856 (6th Cir. 2017) (en banc).

        The parties have neither briefed Stitt nor filed a notice of supplemental authority

acknowledging the pertinent change Stitt wrought––eliminating Curtis’s two prior aggravated-

burglary convictions from serving as ACCA predicates.

       The government renews its waiver argument on appeal, and Curtis argues both that his

188-month sentence is illegal and that the district court should decide the waiver issue in the first

instance. Because Curtis’s 188-month sentence exceeds the statutory maximum without the

ACCA enhancement, see United States v. Caruthers, 458 F.3d 459, 471–72 (6th Cir. 2006), we

remand his § 2255 motion to the district court for reconsideration in light of Stitt.




       finds that it need not resolve this dispute here, however, because Petitioner has
       failed to show that his sentence was imposed in violation of the laws of the United
       States.
Curtis v. United States, Nos. 1:15-CV-283-HSM, 1:12-CR-41-HSM-WBC-1, 2016 WL
3014669, at *2 n.1 (E.D. Tenn. May 24, 2016) (record citations omitted).



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