United States v. Marcus Mann ( 2019 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0371n.06
Case Nos. 17-6486/6487
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 18, 2019
17-6486 ) DEBORAH S. HUNT, Clerk
)
MARCUS MANN, )
Petitioner-Appellee, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
v. ) THE MIDDLE DISTRICT OF
) TENNESSEE
UNITED STATES OF AMERICA, )
)
Respondent-Appellant.
)
)
17-6487
)
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellant, )
)
v. )
)
MARCUS MANN, )
Defendant-Appellee. )
BEFORE: GUY, THAPAR, and NALBANDIAN, Circuit Judges.
PER CURIAM. Marcus Mann pled guilty to possessing a firearm as a convicted felon.
See 18 U.S.C. § 922(g). Because he already had several prior convictions under Tennessee law
(two for aggravated burglary, one for simple burglary, and one for aggravated assault), the district
court enhanced Mann’s sentence to the fifteen-year minimum under the Armed Career Criminal
Case Nos. 17-6486/6487, Mann v. United States
Act (ACCA). See id. § 924(e)(1). Several years later, Mann challenged his sentence through a
motion for post-conviction relief. See 28 U.S.C. § 2255. While his § 2255 motion was pending,
the en banc Sixth Circuit determined that Tennessee aggravated burglary was not an ACCA
predicate. United States v. Stitt, 860 F.3d 854, 856 (6th Cir. 2017) (en banc). Relying on Stitt, the
district court reviewing Mann’s § 2255 motion determined that he no longer qualified for an ACCA
enhancement and reduced his sentence to ten years. But Mann’s victory was short-lived because
the government filed a protective appeal, and a few months later the Supreme Court reversed Stitt.
United States v. Stitt, 139 S. Ct. 399, 406–08 (2018).
The Supreme Court’s reversal means that our circuit returns to its pre-Stitt precedent.
Brumbach v. United States, Nos. 18-5703/5705, 2019 WL 3024727, at *3, __F.3d__ (6th Cir. July
11, 2019). And under that precedent, Tennessee aggravated burglary is an ACCA predicate. Id.
(citing United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007)). Thus, although the district
court was right to reduce Mann’s sentence, the law has changed during this appeal and made
Mann’s original sentence proper again. Therefore, we VACATE and REMAND with instructions
to reinstate the original sentence.
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