                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 20a0260n.06

                                      Case Nos. 18-5183/5197

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT                                 FILED
                                                                                May 08, 2020
                                                                            DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellant,                              )     ON APPEAL FROM THE
                                                         )     UNITED STATES DISTRICT
v.                                                       )     COURT FOR THE EASTERN
                                                         )     DISTRICT OF TENNESSEE
JUAN MORRIS,                                             )
                                                         )
       Defendant-Appellee.                               )
                                                                                   OPINION

BEFORE: MOORE, McKEAGUE, and READLER, Circuit Judges.

       McKeague, Circuit Judge. Juan Morris pled guilty to violating federal drug and firearm

laws. When he entered his plea, he had prior convictions under Tennessee law, including one for

aggravated burglary. Because of these prior convictions, Mr. Morris got a higher federal sentence

under the Armed Career Criminal Act (ACCA).

       This court, sitting en banc, later held that Tennessee aggravated burglary was too broad to

qualify as a predicate offense for ACCA enhancements. Based on this en banc decision, the district

court subsequently reduced Morris’s sentence. But our en banc decision was later reversed by the

Supreme Court. So now, the government wants Morris’s old, ACCA-enhanced sentence reinstated.

Morris, for his part, offers some new reasons for keeping the reduced sentence. We are not

persuaded by his new reasons, so we VACATE the judgment of the district court and REMAND

for the court to reinstate Morris’s original sentence.
Case Nos. 18-5183/5197, United States v. Morris


                            I.      Background and Procedural History

        In 2009, Juan Morris pled guilty to one count of conspiring to distribute at least 500 grams

of cocaine, in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(B), and one count of

possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). At the time of the guilty plea,

Morris had one Tennessee conviction for aggravated burglary and two Tennessee convictions for

robbery. Based on those prior convictions, Morris was eligible for a sentence enhancement under

the Armed Career Criminal Act, 18 U.S.C. § 924(e). Applying the ACCA enhancement, the district

court sentenced Morris to two concurrent terms of 235 months’ imprisonment.

        Then in 2016, Morris filed a motion to vacate, set aside, or correct his sentence under

28 U.S.C. § 2255. He alleged that, among other things, he was no longer eligible for an ACCA

enhancement after Johnson v. United States invalidated ACCA’s residual clause. 135 S. Ct. 2551,

2563 (2015). Specifically, he claimed that Tennessee aggravated burglary was not generic

“burglary” under ACCA because its definition of “habitation” was too broad. The district court

stayed the proceedings related to Morris’s § 2255 motion, pending this court’s resolution of this

exact issue in Stitt.

        In United States v. Stitt, this court, in a divided en banc decision, held that Tennessee

aggravated burglary did not categorically constitute “burglary” for ACCA purposes. 860 F.3d 854,

858 (6th Cir. 2017) (en banc) (Stitt I). Drawing on Supreme Court precedents on ACCA burglary,

the court concluded that the Tennessee statute was too broad because it defined “habitation” to

include mobile homes, trailers, tents, and self-propelled vehicles that were “designed or adapted

for the overnight accommodation of persons.” Id. (quoting Tenn. Code Ann. § 39-14-401(1)).

        After our court’s decision in Stitt I, the district court granted Morris’s § 2255 motion and

reduced his sentence to 115 months. The government acknowledged that Morris was eligible for



                                                 -2-
Case Nos. 18-5183/5197, United States v. Morris


relief under Stitt I, but it maintained that Stitt I was wrongly decided and was continuing to litigate

the issue. The government noted its objection in order to preserve it for appellate review, in the

event that the Supreme Court reversed the Sixth Circuit decision in Stitt.

       It did. The Supreme Court unanimously held that the relevant provision of the Tennessee

aggravated burglary statute—the definition of “habitation”—fell within the scope of generic

burglary under ACCA. United States v. Stitt, 139 S. Ct. 399, 406 (2018) (Stitt II). Thus, the Court

vacated the en banc decision that formed the entire basis for the district court’s granting of Morris’s

§ 2255 motion. The government had appealed Morris’s modified sentence—again anticipating a

possible Stitt reversal. Unsurprisingly, the government now requests that Morris’s original

sentence be reinstated. Morris concedes that Stitt no longer provides him relief, but he provides

several alternative grounds for affirming the reduced sentence.

                                      II.     Standard of Review

       The district court granted Morris’s motion under 28 U.S.C. § 2255(a), which allows a

sentencing court to “vacate, set aside or correct the sentence” if, among other things, “the sentence

was in excess of the maximum authorized by law.” When presented with a district court’s grant of

a § 2255 motion, we review the district court’s factual determinations for clear error and its legal

conclusions de novo. Davis v. United States, 900 F.3d 733, 735 (6th Cir. 2018). Whether a prior

conviction qualifies as an ACCA predicate offense is just such a legal conclusion. Id.

                                            III.    Discussion

       Morris provides several alternative grounds for affirming his reduced sentence, citing our

authority to affirm for other reasons supported by the record. Loftis v. United Parcel Serv., Inc.,

342 F.3d 509, 514 (6th Cir. 2003). First, he claims the “invited error” doctrine hamstrings the

government’s Stitt argument. Second, he offers two non-Stitt reasons why Tennessee aggravated



                                                   -3-
Case Nos. 18-5183/5197, United States v. Morris


burglary is broader than ACCA generic burglary. Finally, he argues that there is insufficient

evidence that his ACCA predicate offenses occurred on different occasions. Each argument fails.

                                   A. The “Invited Error” Doctrine

       Morris first claims that the “invited error” doctrine should preclude the government from

relying on the Supreme Court’s decision in Stitt. Under the invited-error doctrine, a party generally

cannot “complain on appeal of errors that he himself invited or provoked the court or the opposite

party to commit.” United States v. Howard, 947 F.3d 936, 945 (6th Cir. 2020) (quoting United

States v. Sharpe, 996 F.2d 125, 129 (6th Cir. 1993)). Put differently, you can’t complain about a

result you caused. 21 Kenneth W. Graham, Jr., Federal Rules of Evidence: Federal Practice &

Procedure § 5039.2 (2d ed. Apr. 2020 update). According to Morris, because the government

represented to the district court that Tennessee aggravated burglary was not a violent felony under

ACCA, it cannot now come to the appellate court and argue the opposite.

       The problem here is there was no error to invite. When the government said that Tennessee

aggravated burglary was not a violent felony under ACCA, it was merely pointing out that binding

precedent controlled the outcome of Morris’s case. And at the time, that was true. Our court’s

decision in Stitt I did control the case and establish Morris’s right to relief. But there has been an

intervening change in the law in the form of Stitt II. Morris cites no authority for the proposition

that a party “invites error” when he tells the court to apply then-binding precedent, especially

where he nevertheless contends the precedent is wrongly decided and declares his intention to

continue litigating the issue. Nor does Morris cite any authority for the proposition that we now

have to ignore an intervening change in the law. Thus, his invited-error argument fails.




                                                -4-
Case Nos. 18-5183/5197, United States v. Morris


                  B. Tennessee Aggravated Burglary and ACCA Generic Burglary

       Putting Stitt to the side, Morris provides several alternative reasons why Tennessee

aggravated burglary is not an ACCA predicate offense. He first argues that Tennessee’s definition

of “entry” in its aggravated burglary statute makes the offense broader than generic burglary under

ACCA. He then argues that Tennessee burglary is too broad to constitute generic ACCA burglary

because it covers merely reckless conduct. Our precedent forecloses both arguments.

       We begin with the basic framework for these types of challenges. Under ACCA, certain

defendants can have their sentences enhanced if they have three prior convictions for a “violent

felony.” 18 U.S.C. § 924(e). The statute enumerates some offenses that count as violent felonies:

“burglary, arson, [and] extortion.” Id. § 924(e)(2)(B)(ii). This is often called the “enumerated

offense clause.” To determine whether a prior conviction counts as an ACCA predicate under the

enumerated offense clause, we use the “categorical approach.” Descamps v. United States, 570

U.S. 254, 257 (2013). That means we “compare the elements of the statute forming the basis of

the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly

understood.” Id. So, for Tennessee aggravated burglary, we would compare the elements of the

Tennessee statute to the elements of “generic” burglary, which the Supreme Court has defined as

“unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit

a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990). A conviction for Tennessee

aggravated burglary “qualifies as an ACCA predicate only if the statute’s elements are the same

as, or narrower than, those of” generic burglary under Taylor. Descamps, 570 U.S. at 257.

       Definition of “Entry.” First, Morris argues that Tennessee aggravated burglary is broader

than generic burglary under ACCA because its definition of “entry” is so broad that even some

attempted burglaries are criminalized under it. But that exact argument was presented to and



                                                -5-
Case Nos. 18-5183/5197, United States v. Morris


rejected by this court in Brumbach v. United States, 929 F.3d 791, 795 (6th Cir. 2019), cert. denied

140 S. Ct. 974 (2020). Morris even admits this. Brumbach reaffirmed that Tennessee aggravated

burglary qualifies as generic burglary under ACCA. Id. And we as a panel cannot overturn that

decision. See, e.g., United States v. Brown, --- F.3d ---, No. 18-5356, 2020 WL 1966845, at *3 (6th

Cir. Apr. 24, 2020); Ogle v. Ohio Civil Serv. Emps. Ass’n, 951 F.3d 794, 796 (6th Cir. 2020) (per

curiam).

       Mens Rea for Tennessee Burglary. Next, Morris argues that Tennessee’s definition of

burglary is broader than ACCA generic burglary because it can cover merely reckless conduct.

This would be a problem, according to Morris, because the individual would never form the

“intent” to commit a crime, as is required under Taylor. The argument refers to Tennessee’s

generic burglary statute:

       (a) A person commits burglary who, without the effective consent of the property
       owner:
            (1) Enters a building other than a habitation (or any portion thereof) not open
            to the public, with intent to commit a felony, theft or assault;
            (2) Remains concealed, with the intent to commit a felony, theft or assault, in
            a building;
            (3) Enters a building and commits or attempts to commit a felony, theft or
            assault; or
            (4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane
            or other motor vehicle with intent to commit a felony, theft or assault or
            commits or attempts to commit a felony, theft or assault.

Tenn. Code Ann. § 39-14-402(a). Granted, Morris was convicted of aggravated burglary. But

Tennessee aggravated burglary incorporates the generic burglary statute: “Aggravated burglary is

burglary of a habitation as defined in [Tenn. Code Ann.] §§ 39-14-401 and 39-14-402.” Tenn.

Code Ann. § 39-14-403(a).

       Morris directs his argument at subsections (a)(1), (a)(2), and (a)(3). Once again, he runs

headlong into binding precedent. We have already examined that exact statutory language and


                                                -6-
Case Nos. 18-5183/5197, United States v. Morris


concluded that all three variants count as ACCA burglary under Taylor. United States v. Priddy,

808 F.3d 676, 684–85 (6th Cir. 2015) (“We find that the first three variants of Tennessee burglary,

i.e., Tenn. Code Ann. § 39–14–402(a)(1), (a)(2), and (a)(3), qualify as generic burglary . . . .”).

And we have reaffirmed this holding after Stitt II. Brumbach, 929 F.3d at 794–95. So that argument

fails, too.

                                            C. Different Occasions

        Morris’s last argument is that there is insufficient evidence to conclude that the three

convictions forming the basis of his ACCA enhancement occurred on separate occasions. The

government argues that this argument is untimely. But even if it were timely, it’s meritless.

        ACCA requires that the three predicate convictions be “committed on occasions different

from one another.” 18 U.S.C. § 924(e)(1). Under Sixth Circuit precedent, we can examine certain

state court documents, including charging documents, to determine whether ACCA predicate

offenses occurred on different occasions. Brown, 2020 WL 1966845, at *8; United States v. King,

853 F.3d 267, 273 (6th Cir. 2017); see also Shepard v. United States, 544 U.S. 13, 26 (2005). And

based on the charging documents, Morris did commit the aggravated burglary and two robberies

on three different occasions. The aggravated burglary occurred on October 31, 1995. The two

robberies occurred on July 2, 2001 and July 14, 2001.1

        Morris does not claim the dates on these charging documents are inaccurate. Instead, he

argues that we are required to ignore the dates. According to this view, we can examine things like

charging documents only to determine “elemental facts”—that is, the facts that the state court

necessarily found as elements of the conviction. And because the date of the offense is not an




1
 These state court records were not before the district court, but it is proper for us to take judicial notice
of them. See United States v. Ferguson, 681 F.3d 826, 834–35 (6th Cir. 2012).
                                                     -7-
Case Nos. 18-5183/5197, United States v. Morris


element of aggravated burglary under Tennessee law, according to Morris, the court cannot rely

on the dates listed on the documents to enhance his sentence under ACCA.

       Yet again, binding precedent controls this issue. Confronted with this exact question, we

held in United States v. Hennessee that “a district court may consider both elemental and non-

elemental facts contained in Shepard-approved documents to determine whether prior felonies

were committed on occasions different from one another for purposes of the ACCA.” 932 F.3d

437, 444 (6th Cir. 2019), cert. denied 140 S. Ct. 896 (2020). Again, Morris recognizes this.

Considering the facts in the charging documents, as is allowed under Hennessee, we conclude that

Morris’s offenses were committed on different occasions.

                                        IV.    Conclusion

       After Stitt II, Mr. Morris is again eligible for a sentencing enhancement under the Armed

Career Criminal Act. For the reasons outlined above, we VACATE the judgment of the district

court and REMAND for the court to reimpose the original sentence.




                                              -8-
Case Nos. 18-5183/5197, United States v. Morris


           KAREN NELSON MOORE, Circuit Judge, concurring. I recognize that we are bound

by Brumbach v. United States, 929 F.3d 791 (6th Cir. 2019), cert. denied, 140 S. Ct. 974 (2020),

which resuscitated the sweeping holding in United States v. Nance, 481 F.3d 882 (6th Cir. 2007),

that Tennessee aggravated burglary is within the definition of generic burglary—even if a

defendant raises arguments that we have never considered. See Brumbach, 929 F.3d at 794.

Indeed, panels of this court have wielded Brumbach to parry such arguments, asserting that

Brumbach forecloses their consideration. See e.g., United States v. Burrus, --- F. App’x ---,

No. 19-6090, 2020 WL 1862308, at *2 (6th Cir. Apr. 14, 2020). This court recently offered its

own riposte to the onslaught of post-Stitt1 appeals, invoking Brumbach to rebuff the defendant’s

arguments, identical to those raised by Defendant-Appellee Juan Morris, but then proceeding in

dicta to evaluate those arguments on the merits. See United States v. Brown, --- F.3d ---, No.

18-5356, 2020 WL 1966845, at *3 (6th Cir. Apr. 24, 2020). I maintain that Brumbach was wrong

the day it was decided, warranting en banc review. But as long as Brumbach is the law of the

circuit, we must consistently apply it.

           Powerful constitutional principles and jurisprudential considerations establish that we are

bound only by holdings, not dicta. See Wright v. Spaulding, 939 F.3d 695, 700–01 (6th Cir. 2019).

As I have stated before, Nance lacked binding force over the entry issue until Brumbach

reinvigorated Nance because this issue and any other novel arguments were at best “questions

which merely lurk in the record, neither brought to the attention of the court nor ruled upon.”

United States v. Bawgus, 782 F. App’x 408, 412 (6th Cir. 2019) (Moore, J., concurring in

judgment) (quoting Rinard v. Luoma, 440 F.3d 361, 363 (6th Cir. 2006)); United States v.

Hamilton, 774 F. App’x 283, 285 (6th Cir. 2019) (Moore, J., concurring in judgment) (same).



1
    United States v. Stitt, 139 S. Ct. 399 (2018).

                                                     -9-
Case Nos. 18-5183/5197, United States v. Morris


In Wright, the panel recently reaffirmed this rule, 939 F.3d at 702 (quoting Rinard, 440 F.3d at

363), to the extent that a rule so well-established needs reaffirmance, see Cohens v. Virginia,

19 U.S (6 Wheat.) 264, 399–400 (1821) (explaining that if statements “go beyond the case, they

may be respected, but ought not to control the judgment of a subsequent suit when the very point

is presented for decision”). Yet in Brumbach we concluded that we are bound by Nance’s

overbroad announcement of its holding without considering what issues were actually decided in

Nance.

         Nevertheless, Brumbach binds us and thus requires us to reject outright previously

unconsidered arguments that aggravated burglary in Tennessee is not a generic burglary.

In Brown, the panel appeared to apply Brumbach to reject the same entry argument that we found

to be foreclosed by Nance in Brumbach. Brown, 2020 WL 1966845, at *2. But the panel

continued, stating that the presented arguments were “weighty enough to warrant a response from

this court on the merits too.” Id. at *3. The fact that the defendant in Brown pointed to the

Tennessee aggravated-burglary statute was all that was required to reject his appeal pursuant to

Brumbach. Cf. Wright, 939 F.3d at 701 (distinguishing between cases “in which a court decides

one issue and merely opines about another”). Indeed, we do no more in this case. Until this court

grants en banc review, we must follow Brumbach, no matter how “weighty” the underlying

substantive issues or how thoughtfully the issues are addressed.




                                              - 10 -
