United States v. Samuel Gann ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0557n.06
No. 19-6287
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Sep 29, 2020
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
SAMUEL ALEX GANN, ) COURT FOR THE EASTERN
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
)
Before: SILER, SUTTON, and LARSEN, Circuit Judges.
LARSEN, Circuit Judge. Samuel Alex Gann pleaded guilty to possessing a firearm and
ammunition as a felon. Because he had four previous convictions for Tennessee burglary, he was
sentenced as a career offender under the Armed Career Criminal Act (ACCA). Gann was
sentenced to a within-Guidelines sentence of 180 months’ imprisonment. On appeal, he challenges
his ACCA classification. Because precedent forecloses his arguments, we AFFIRM.
I.
Officers with the Alcoa Police Department in Tennessee responded to a shoplifting
complaint at a Walmart store. When the officers arrived to investigate, they made contact with
Gann and discovered that he had a loaded firearm in his pocket. Gann later pleaded guilty to
possessing a firearm and ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1). He was
classified as an armed career criminal under 18 U.S.C. § 924(e) based on his three prior Tennessee
convictions for aggravated burglary and one prior Tennessee conviction for burglary of a building.
No. 19-6287, United States v. Gann
See Tenn. Code Ann. §§ 39-14-402, 403. That classification resulted in an advisory Guidelines
range of 180 to 210 months’ imprisonment. Gann objected, arguing that his prior burglary
convictions did not qualify as predicate offenses under ACCA and that his Guidelines range should
instead be 30 to 37 months. Specifically, Gann argued that the entry element in each of his
predicate offenses under Tennessee law is broader than the entry element of “generic” burglary
and that his convictions therefore did not qualify as ACCA predicate offenses. Gann next argued
that his three convictions for aggravated burglary are not “generic” because they did not require
proof of intent to commit a crime at the time of his unlawful entry. And finally, he argued that the
evidence of his prior aggravated burglary convictions did not establish that he committed those
crimes on separate occasions.
The district court rejected Gann’s arguments, finding the first two foreclosed by precedent
and the last unsuccessful because the record demonstrated that he had committed his prior
burglaries on separate occasions. The district court also rejected Gann’s reconsideration request
based on a new argument—that the variant of aggravated burglary involved in his convictions did
not have an intent element. After considering the 18 U.S.C. § 3553(a) factors, the court sentenced
Gann to a within‑Guidelines sentence of 180 months’ imprisonment. Gann timely appealed.
II.
Under ACCA, “a person who violates section 922(g) . . . and has three previous
convictions . . . for a violent felony . . . committed on occasions different from one
another . . . shall be . . . imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1). A “violent
felony” is “any crime punishable by imprisonment for a term exceeding one year” that has “as an
element the use, attempted use, or threatened use of physical force against the person of another”
or “is burglary . . . .” Id. § 924(e)(2)(B).
-2-
No. 19-6287, United States v. Gann
To determine whether a defendant’s past convictions under Tennessee law qualify as
“burglary,” courts employ the categorical approach, comparing the elements of the “generic”
crime—“the offense as commonly understood”—to the elements of the statute forming the basis
of a defendant’s conviction. Descamps v. United States, 570 U.S. 254, 257 (2013). A prior
conviction qualifies as a predicate under ACCA if the statute’s elements are “the same as, or
narrower than, those of the generic offense.” Id. The Supreme Court has defined “generic”
burglary as “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).
The Tennessee burglary statute provides that a person commits burglary when, “without
the effective consent of the property owner,” he:
(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; [or]
(3) Enters a building and commits or attempts to commit a felony, theft or assault[.]
Tenn. Code Ann. § 39-14-402(a)(1)–(3). Gann’s prior conviction for burglary of a building falls
under the (a)(1) variant of the offense, and Gann’s three aggravated burglary convictions fall under
the (a)(3) variant of the offense. We review de novo whether a defendant’s prior conviction
qualifies as a “violent felony” for purposes of ACCA. United States v. Buie, 960 F.3d 767, 770
(6th Cir. 2020).
On appeal, Gann offers three reasons why he should not have been sentenced as an armed
career criminal. Precedent forecloses each one.
In United States v. Nance, we held that “an aggravated-burglary conviction under
Tennessee law categorically counts as a burglary under the Supreme Court’s generic definition
and so falls within [ACCA].” United States v. Brown, 957 F.3d 679, 682 (6th Cir. 2020) (citing
-3-
No. 19-6287, United States v. Gann
United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007)). Ten years later, our court, sitting en
banc, overruled Nance, see United States v. Stitt, 860 F.3d 854, 861 (6th Cir. 2017) (Stitt I), but
then the Supreme Court overruled us, see United States v. Stitt, 139 S. Ct. 399, 403–04 (2018)
(Stitt II). Thereafter, we held that Nance is “once again the law of this circuit.” Brumbach v.
United States, 929 F.3d 791, 794 (6th Cir. 2019), cert. denied, 140 S. Ct. 974 (2020); see also
Brown, 957 F.3d at 682.
Since then, we have repeatedly affirmed that “Brumbach closed the book on Tennessee
aggravated burglary by holding, in a published opinion, that Nance once again controls.” United
States v. Tigue, 811 F. App’x 970, 975 (6th Cir. 2020); see also, e.g., Lurry v. United States, No.
17‑5941, 2020 WL 4581249, at *5 (6th Cir. Aug. 10, 2020) (“Simply stated, this court’s precedent
after Stitt II forecloses his arguments that his prior Tennessee convictions do not qualify as violent
felonies under the ACCA.” (citing Brumbach, 929 F.3d at 794)); United States v. Morris, 812 F.
App’x 341, 347 (6th Cir. 2020) (Moore, J., concurring) (“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.”).
Several panels, moreover, have addressed and rejected each of the particular arguments
Gann raises now. Gann argues, for example, that the entry element of Tennessee burglary makes
it broader than the generic offense. But our cases foreclose this claim. See Brown, 957 F.3d at
683–89 (rejecting the entry‑by‑instrument argument, as we did in Brumbach, because a panel of
this court cannot overrule Nance); United States v. Yerkes, No. 19‑5768, 2020 WL 3889056, at *4
(6th Cir. July 10, 2020) (“But even if we are not bound by [Brown], we find Brown’s discussion—
and rejection on the merits—of the entry-by-instrument argument persuasive.”)); see also Buie,
-4-
No. 19-6287, United States v. Gann
960 F.3d at 771 (concluding that the entry-by-instrument argument is both foreclosed by precedent
under Brumbach and meritless under Brown). Gann concedes this point.
Gann also argues that the (a)(3) variant of Tennessee aggravated burglary does not qualify
as generic burglary because it lacks generic burglary’s intent‑to-commit-a-crime element. See
Tenn. Code Ann. §§ 39-14-402(a), 403. But several panels of this court have also treated this
argument as foreclosed by Brumbach. See, e.g., Booker v. United States, 810 F. App’x 443, 445
(6th Cir. 2020) (acknowledging the intent argument but concluding that “Brumbach . . . makes
clear that Nance is good law and leaves no room for raising still more arguments about Tennessee
aggravated burglary”); Lurry, 2020 WL 4581249, at *5; United States v. Schumaker, No. 17-6535,
2020 WL 4013200, at *3 (6th Cir. July 16, 2020). In light of Brumbach, we do the same.
Lastly, Gann argues that the district court violated his Sixth Amendment right to a jury trial
when, relying on Shepard documents, it found that Gann committed his three aggravated burglary
offenses “on occasions different from one another,” a prerequisite for ACCA liability. See
18 U.S.C. § 924(e)(1). Gann concedes, however, that “[t]his question was recently answered in
United States v. Hennessee, 932 F.3d 437 (6th Cir. 2019), and not in [his] favor.” Gann’s candid
concession is correct; Hennessee forecloses this argument. See id. at 444–45.
In light of our caselaw, the district court properly determined that Gann had at least three
prior convictions for violent felonies under ACCA and sentenced him accordingly.
***
We AFFIRM the judgment of the district court.
-5-