                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 19a0355n.06

                                     Case Nos. 17-6420/6422                             FILED
                                                                                   Jul 12, 2019
                          UNITED STATES COURT OF APPEALS                      DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


             17-6420                                )
                                                    )
GERALD EDWIN FARMER,
                                                    )
       Petitioner-Appellee,                         )
                                                    )
v.                                                  )
                                                    )
UNITED STATES OF AMERICA,                           )
       Respondent-Appellant.                        )       ON APPEAL FROM THE UNITED
                                                    )       STATES DISTRICT COURT FOR
                                                    )       THE MIDDLE DISTRICT OF
             17-6422                                )       TENNESSEE
                                                    )
UNITED STATES OF AMERICA,
                                                    )
       Plaintiff-Appellant,                         )
                                                    )
v.                                                  )
                                                    )
GERALD EDWIN FARMER,                                )
       Defendant-Appellee.                          )



       BEFORE: GILMAN, SUTTON, and WHITE, Circuit Judges.

       SUTTON, Circuit Judge. In 2013, Gerald Farmer pleaded guilty to being a felon in

possession of ammunition.      See 18 U.S.C. § 922(g)(1).       Based on three prior Tennessee

convictions, the parties stipulated in the plea agreement that Farmer had three prior violent felony
Case Nos. 17-6420/6422, Farmer v. United States, et al.


convictions and qualified as an armed career criminal. See 18 U.S.C. § 924(e). The district court

accepted the agreement and imposed a 210-month sentence.

       In Johnson v. United States, the Supreme Court held that the residual clause of the Armed

Career Criminal Act violates due process. 135 S. Ct. 2551, 2563 (2015). Relying on Johnson,

Farmer filed this § 2255 motion, arguing that two of his Tennessee convictions, conspiracy to

commit aggravated robbery and aggravated assault, no longer qualify as violent felonies under the

Act and that he should be resentenced. While his petition was pending, this court held that

Tennessee aggravated burglary, Farmer’s third prior conviction, did not qualify as a violent felony

because Tennessee’s statute covers more structures than the Act’s enumerated burglary offense

covers. United States v. Stitt, 860 F.3d 854, 858 (6th Cir. 2017) (en banc). Farmer filed a

supplemental brief asserting entitlement to relief on that additional basis. The government agreed

that Farmer did not qualify for the sentence enhancement but asked the district court to hold the

case in abeyance pending any appeal of Stitt. The district court decided not to hold the case in

abeyance, granted Farmer’s § 2255 motion based on Stitt, and amended his sentence to 120

months.

       The government appealed and asked that we hold the case in abeyance while it sought the

Supreme Court’s review in Stitt. We agreed to do so. Late last year, the Supreme Court reversed

this court’s decision in Stitt, holding that the structures covered by Tennessee’s aggravated

burglary statute fit within the Act’s generic-burglary definition. United States v. Stitt, 139 S. Ct.

399, 406–08 (2018).

       The government now asks us to reverse and have the district court reinstate the original

sentence because the Supreme Court’s decision in Stitt undermines the basis for the district court’s




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Case Nos. 17-6420/6422, Farmer v. United States, et al.


grant of relief. Farmer does not (and cannot) dispute that he is no longer eligible for relief based

on the structures Tennessee’s aggravated-burglary statute covers.

       Farmer nonetheless urges us to affirm for two reasons. First, he says that a conviction for

conspiracy to commit aggravated robbery does not count as a violent felony under the elements

clause because the overt act necessary for a conspiracy need not involve the “use, attempted use,

or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i).

Second, he contends that his aggravated burglary conviction does not qualify as a burglary under

the Act for a reason distinct from the issue in Stitt. Generic burglary requires “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). If the only thing that enters a structure

is an instrument, Farmer says, then the act counts as generic burglary only if the defendant used

the instrument to try to commit the intended felony inside (e.g., sticking a coat hanger through a

window to snag an item). Meanwhile, he adds, Tennessee’s burglary statute requires only that an

instrument enter a structure. In Farmer’s view, that makes the Tennessee statute overbroad.

       Because the district court had no occasion to consider either argument the first time around,

we vacate the district court’s decision granting Farmer’s § 2255 motion and remand for the district

court to consider these arguments.




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