United States v. Tyquez Ursery ( 2020 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0681n.06
CASE No. 20-5218
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES of AMERICA, ) FILED
) Dec 03, 2020
Plaintiff-Appellee, ) DEBORAH S. HUNT, Clerk
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
TYQUEZ URSERY, ) COURT FOR THE MIDDLE
) DISTRICT OF TENNESSEE
Defendant-Appellant. )
)
Before: BATCHELDER, CLAY, and BUSH, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. When sentencing Tyquez Ursery as a felon
in possession of a firearm, 18 U.S.C. § 922(g)(1), the district court found that three of his prior
convictions were predicate felonies under the Armed Career Criminal Act, § 924(e)(2)(B),
triggering the mandatory minimum sentence, § 924(e)(1). Those were Tennessee convictions for
aggravated burglary, T.C.A. § 39-14-403, facilitation of especially aggravated robbery, and
facilitation of attempted especially aggravated robbery, T.C.A. §§ 39-11-403, & -13-403.
Under Sixth Circuit precedent, Tennessee aggravated burglary is an ACCA predicate
offense. See Brumbach v. United States, 929 F.3d 791, 794 (6th Cir. 2019). And in United States
v. Gloss, 661 F.3d 317, 320 (6th Cir. 2011), we held that Tennessee “facilitation of aggravated
robbery is a violent felony within the meaning of § 924(e)(2)(B)(i).” Although Ursery’s
convictions were not for facilitation of aggravated robbery, the only difference between
“Tennessee aggravated robbery” and “Tennessee especially aggravated robbery” is that aggravated
robbery includes as an element that the robbery be “[a]ccomplished with a deadly weapon or by
display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly
Case No. 20-5218, United States v. Ursery
weapon,” T.C.A. § 39–13–402, while especially aggravated robbery requires that the robbery be
“[a]ccomplished with a deadly weapon,” T.C.A. § 39–13–403. Therefore, Gloss is directly on
point.
Ursery argues that neither offense should be an ACCA predicate. Even if he were correct,
this panel cannot overrule published circuit precedent. See Brumbach, 929 F.3d at 795.
Ursery also argues that the two facilitation convictions should count as a single predicate
because, even though they were committed on different dates (19 days apart), the date of the
offense(s) was not an element of the crime. But, again, circuit precedent forecloses this argument.
See United States v. Hennessee, 932 F.3d 437, 443-44 (6th Cir. 2019).
We AFFIRM the judgment of the district court.
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