United States v. Randy Belcher ( 2022 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 22a0151p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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UNITED STATES OF AMERICA,
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Plaintiff-Appellee, │
> No. 21-5414
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v. │
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RANDY BELCHER, │
Defendant-Appellant. │
┘
Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga;
No. 1:19-cr-00161-1—Curtis L. Collier, District Judge.
Argued: May 4, 2022
Decided and Filed: July 12, 2022
Before: KETHLEDGE, STRANCH, and NALBANDIAN, Circuit Judges.
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COUNSEL
ARGUED: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,
INC., Chattanooga, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES
ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Erin P. Rust,
FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga,
Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE,
Knoxville, Tennessee, for Appellee.
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OPINION
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KETHLEDGE, Circuit Judge. In United States v. Mitchell, 743 F.3d 1054, 1059 (6th Cir.
2014), we held that robbery as defined under Tennessee law is a “violent felony” as defined by
the Armed Career Criminal Act (“ACCA” or “the Act”). 18 U.S.C. § 924(e)(2)(B). Here, based
No. 21-5414 United States v. Belcher Page 2
in part on that holding, the district court sentenced Randy Belcher to a 15-year mandatory-
minimum sentence under the Act. Belcher now argues that two somewhat recent Supreme Court
decisions—Elonis v. United States, 575 U.S. 723 (2015), and Borden v. United States, 141 S. Ct.
1817 (2021)—undermine our holding in Mitchell. We disagree and affirm the district court.
In 2020, Belcher pled guilty to being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1). The ACCA mandates a minimum sentence of 15 years for any defendant
who is convicted of a firearms offense under § 922(g) after being convicted of at least three
violent felonies “committed on occasions different from one another[.]” 18 U.S.C. § 924(e)(1).
As relevant here, the Act defines “violent felony” as any offense, punishable by a term of
imprisonment exceeding one year, that “has as an element the use, attempted use, or threatened
use of physical force against the person of another[.]” Id. § 924(e)(2)(B). When Belcher pled
guilty to violating § 922(g), he had six prior convictions under Tennessee law: one for
aggravated burglary and five for robbery. The latter are violent felonies under Mitchell; the
district court therefore imposed the mandatory-minimum sentence of 15 years under the Act.
Belcher now argues that Mitchell is no longer good law. Specifically, he says that, in
Elonis and Borden, the Supreme Court made clear that the ACCA’s definition of violent felony
excludes offenses where the defendant’s use or threatened use of force can be reckless or
negligent (as opposed to intentional). And Belcher contends that robbery under Tennessee law is
such an offense, because—he asserts—a defendant can be convicted of that offense by
threatening force negligently rather than intentionally.
But Tennessee law provides no support for that assertion. As relevant here, Tennessee
defines robbery as “the intentional or knowing theft of property from the person of another by
violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401. The Tennessee Supreme
Court has held that the “fear constituting an element of robbery is a fear of bodily injury and of
present personal peril from violence offered or impending.” State v. Taylor, 771 S.W.2d 387,
398 (Tenn. 1989). For violence to be “offered” in this context, the defendant must do the
offering, meaning he must intend to threaten force. Belcher’s argument, rather, is that the
Tennessee Court’s use of the word “impending” leaves room for cases where the defendant did
not intend to cause fear, but where the victim actually did experience (or reasonably could have
No. 21-5414 United States v. Belcher Page 3
experienced) fear nonetheless. Thus, Belcher asserts, a defendant satisfies the fear element of
Tennessee robbery when he negligently causes his victim to experience fear.
In the long history of the Tennessee robbery statute, however, not once has a Tennessee
court construed the fear element that way. And in the very case from which Belcher tries to infer
that proposition, the court upheld the defendant’s conviction only after concluding (among other
things) that “the defendant’s intention was to ‘intimidate and frighten the victim into docile
nonresistance and meek compliance[.]’” State v. Witherspoon, 648 S.W.2d 279, 281 (Tenn.
Crim. App. 1983) (quoting Sloan v. State, 491 S.W.2d 858, 861 (Tenn. Crim. App. 1972)).
There is no basis, then, to conclude that Mitchell misapprehends Tennessee law. We therefore
adhere to our earlier holding that robbery as defined by Tennessee law is a violent felony under
the ACCA.
Separately, Belcher argues that a jury, rather than (as here) the district court, must
determine whether a defendant’s prior offenses were “committed on occasions different from one
another” for purposes of the Act. 18 U.S.C. § 924(e)(1); see generally Apprendi v. New Jersey,
530 U.S. 466, 490 (2000). But we have already held the contrary. See United States v. Johnson,
440 F.3d 832, 848 (6th Cir. 2006) (holding that “the date of commission” of an offense is “so
basic as to be implicit in the fact of a prior conviction”) (internal quotation marks omitted). Nor
was the district court’s finding on this point incorrect: Belcher himself admits that three of his
prior offenses (in 1994, 2000, and 2007) each came at least six years apart, meaning that they
were “separated by substantial gaps in time” and did not “share a common scheme or purpose.”
Wooden v. United States, 142 S. Ct. 1063, 1071 (2022). The district court did not err in any
respect.
The district court’s judgment is affirmed.