United States v. Al Dorsey ( 2024 )

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 24a0014p.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. 23-5082
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v. │
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AL DORSEY, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee at Chattanooga.
No. 1:21-cr-00077-1—Charles Edward Atchley, Jr., District Judge.
Decided and Filed: January 23, 2024
Before: McKEAGUE, LARSEN, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN
TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED
STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee.
_________________
OPINION
_________________
MURPHY, Circuit Judge. The U.S. Sentencing Guidelines repeatedly instruct district
courts to increase a defendant’s sentence if the defendant has one or more prior convictions for a
“crime of violence.” See, e.g., U.S.S.G. §§ 2K2.1; 4B1.1. They define “crime of violence” to
mean, as relevant here, an offense that “has as an element the use, attempted use, or threatened
use of physical force against the person of another[.]” Id. § 4B1.2(a). In United States v. Gloss,
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661 F.3d 317 (6th Cir. 2011), we interpreted language identical to this so-called “elements
clause” to cover the Tennessee crime of facilitating aggravated robbery. Id. at 318–20.
Viewing itself bound by Gloss, the district court in this case treated Al Dorsey’s prior
convictions for facilitating aggravated robbery as “crimes of violence.” Dorsey now offers two
reasons why we need not follow Gloss. He first asserts that Gloss conflicts with an earlier
decision holding that facilitation offenses (unlike aiding-and-abetting offenses) do not require
defendants to harbor an intent to commit the crime that their conduct facilitated. See United
States v. Vanhook, 640 F.3d 706, 713–14 (6th Cir. 2011). He next asserts that Gloss conflicts
with a later Supreme Court decision holding that the elements clause does not reach reckless uses
of force. See Borden v. United States, 593 U.S. 420, 429 (2021) (plurality opinion); id. at 445–
46 (Thomas, J., concurring in the judgment). Dorsey is wrong on both counts. Because we must
follow Gloss, we affirm.
I
After midnight on January 1, 2021, Dorsey brought in the new year with a group of
friends in Chattanooga, Tennessee. The group decided to shoot guns into the air as part of their
celebration. Nearby livestream cameras recorded this dangerous activity. Chattanooga police
who were monitoring the cameras from an intelligence center dispatched officers to the scene.
The officers found shell casings on the ground near the group. They detained Dorsey and
discovered a pistol on him. Their later review of the video confirmed that Dorsey had fired some
of the shots.
Dorsey’s prior felony convictions meant that he could not possess the pistol. The federal
government thus charged him with possessing a firearm as a felon in violation of 18 U.S.C.
§ 922(g)(1). He pleaded guilty.
When determining Dorsey’s guidelines range, a probation officer calculated his base
offense level as 24 because he had at least two prior convictions for a “crime of violence.”
U.S.S.G. § 2K2.1(a)(2). Specifically, Dorsey had two prior Tennessee convictions for
facilitating aggravated robbery and one prior Tennessee conviction for robbery. In addition, the
probation officer relied on these prior crimes of violence to add a point to Dorsey’s criminal
No. 23-5082 United States v. Dorsey Page 3
history score. See id. § 4A1.1(d) (previously codified under subsection (e)). These calculations
produced a guidelines range of 84 to 105 months’ imprisonment.
At sentencing, Dorsey objected to the probation officer’s decision to treat his two
facilitation offenses as “crimes of violence.” If these offenses did not qualify, he argued, his
guidelines range would fall to 46 to 57 months’ imprisonment. The district court disagreed. Our
prior decision in Gloss, the court reasoned, required it to treat Dorsey’s Tennessee convictions
for facilitating aggravated robbery as crimes of violence. That said, the court noted that it would
“welcome” additional guidance from us on this topic. Sent. Tr., R.56, PageID 418. Ultimately,
it varied below Dorsey’s guidelines range by imposing a 72-month sentence.
Dorsey appeals the decision to treat his two facilitation offenses as “crimes of violence.”
We review the decision de novo. See United States v. Hawkins, 554 F.3d 615, 616 (6th Cir.
2009).
II
The applicable guideline defines “crime of violence” in part as follows: “The term ‘crime
of violence’ means any offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that—(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another[.]” U.S.S.G. § 4B1.2(a); see id. § 2K2.1 cmt. n.1.
Some other statutes—including, most notably, the Armed Career Criminal Act (or “ACCA” for
short)—contain an identically worded “elements clause.” See 18 U.S.C. § 924(e)(2)(B)(i). And
courts often rely on caselaw that interprets the ACCA’s elements clause when deciding which
offenses qualify as “crimes of violence” under the Sentencing Guidelines (or other similarly
worded laws). See United States v. Burris, 912 F.3d 386, 392 (6th Cir. 2019) (en banc); see also
United States v. Harrison, 54 F.4th 884, 890 (6th Cir. 2022).
To decide whether an offense falls within the “elements clause” under this caselaw,
courts apply the ubiquitous “categorical approach.” United States v. Taylor, 596 U.S. 845, 850
(2022). This approach turns on an offense’s general elements, not a defendant’s specific
conduct. See id. Put another way, a criminal law “has as an element the use, attempted use, or
threatened use of physical force against the person of another” only if every set of facts that
No. 23-5082 United States v. Dorsey Page 4
could violate the law would include the use, attempted use, or threatened use of that force. See
Nicholson v. United States, 78 F.4th 870, 877 (6th Cir. 2023). So we need not consider how
Dorsey committed his two facilitation offenses in this case. See Taylor, 596 U.S. at 850. Rather,
we must ask whether the least violent way that a defendant could commit this offense would
include the required force. See id. If not, the offense does not qualify as a “crime of violence”
under this clause. See id.
We thus start with the elements of Dorsey’s two facilitation offenses. Tennessee law
defines the generic crime of “facilitation” as follows: “A person is criminally responsible for the
facilitation of a felony, if, knowing that another intends to commit a specific felony, but without
the intent required for criminal responsibility under [a separate aiding-and-abetting statute], the
person knowingly furnishes substantial assistance in the commission of the felony.” Tenn. Code
Ann. § 39-11-403(a). As this language suggests, a facilitator has less culpability than an aider
and abettor under Tennessee law. The facilitator must only know that the primary culprit intends
to commit the underlying crime; the aider and abettor must intend for that culprit to commit the
crime. See United States v. Woodruff, 735 F.3d 445, 450 (6th Cir. 2013); Gloss, 661 F.3d at 318.
The crime of aggravated robbery undergirded Dorsey’s two facilitation offenses.
Tennessee defines an ordinary 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(a).
The robbery becomes “aggravated” when either the defendant commits this crime “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 weapon” or “the victim suffers serious bodily injury.” Id. § 39-13-402(a)(1)–(2).
In Gloss, we held that the mix of statutory elements across the facilitation and
aggravated-robbery statutes satisfied the elements clause’s requirements. 661 F.3d at 318–20.
Breaking this facilitation offense down into its component parts, Gloss began by examining the
underlying crime of aggravated robbery (a robbery that uses a “real or disguised deadly weapon”
or that results in a “serious bodily injury”). Id. at 319. We reasoned that this crime falls within
the elements clause because it will always entail “the use, attempted use, or threatened use of
physical force against the person of another.” Id. (citation omitted). Indeed, we have also held
that an ordinary robbery in Tennessee falls within the clause. See United States v. Hubbard,
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2023 WL 319604, at *2–3 (6th Cir. Jan. 19, 2023); United States v. Belcher, 40 F.4th 430, 431–
32 (6th Cir. 2022). A robber who knowingly uses “violence” or knowingly puts a victim in
“fear” of violence necessarily “use[s]” “physical force against” the victim or at least
“threaten[s]” the use of that force within the meaning of the crime-of-violence definition. Tenn.
Code Ann. § 39-13-401(a); U.S.S.G. § 4B1.2(a); Belcher, 40 F.4th at 431; see also Stokeling v.
United States, 139 S. Ct. 544, 554–55 (2019).
The question then becomes whether a conviction for facilitation of aggravated robbery
always will involve the “use” or “threatened use” of force within the meaning of the elements
clause. Gloss answered yes. To begin with, a facilitation offense always requires the
prosecution to prove that an aggravated robbery (that is, a crime of violence) has occurred. See
Gloss, 661 F.3d at 319. This fact distinguishes facilitation from “inchoate” offenses like attempt
or solicitation because one can commit those offenses without completing the underlying crime.
See, e.g., Taylor, 596 U.S. at 850–51; United States v. Benton, 639 F.3d 723, 731 (6th Cir. 2011).
In contrast, a defendant does not “facilitate” a crime unless the primary culprit successfully
completes it. See, e.g., State v. Kiser, 2019 WL 2402962, at *11 (Tenn. Crim. App. June 6,
2019); State v. Dych, 227 S.W.3d 21, 40 (Tenn. Crim. App. 2006). Gloss held that this proof—
that “someone” used or threatened to use force and that the defendant “knowingly provided
substantial assistance to that person”—satisfied the elements clause. 661 F.3d at 318–19.
One can read Gloss broadly or narrowly. Broadly, one might read Gloss as holding that
the robber (the main culprit) needs to be the only person who knowingly engages in the “use” or
“threatened use” of force. So even if a facilitating defendant were convicted under a
hypothetical statute penalizing those who recklessly (not knowingly) assist in a robbery, the
facilitation offense might still satisfy the elements clause. That clause requires only that a crime
have “as an element the use, attempted use, or threatened use” of the required force. U.S.S.G.
§ 4B1.2(a)(1). This text need not be interpreted to require defendants themselves to knowingly
use or threaten force as long as “someone” does so. Gloss, 661 F.3d at 319. Narrowly, one
might read Gloss as attributing the robber’s “use” or “threatened use” of force to the facilitator.
After all, Gloss also noted that Tennessee’s facilitation offense requires the facilitator to know
that the robber “intended” to commit the robbery and to “knowingly” give “substantial
No. 23-5082 United States v. Dorsey Page 6
assistance” to that crime. Id. at 318–19 (emphasis added). And just as an armed assailant who
shoots a victim knowingly uses the “force it takes for the bullet to injure the victim’s body,” see
Harrison, 54 F.4th at 889, one might say that the facilitator knowingly uses the force (or
threatened force) that the robber wields (or threatens to wield), see Gloss, 661 F.3d at 319.
We need not choose between these readings. Either way, the district court correctly held
that Gloss required it to treat Dorsey’s facilitation convictions as crimes of violence. True, Gloss
was interpreting the ACCA’s identical elements clause when it held that facilitating aggravated
robbery satisfied the clause. See id. at 318 (citing 18 U.S.C. § 924(e)(2)(B)(i)). But Dorsey
makes no attempt to distinguish Gloss on this (or any other) ground. He instead offers two
theories why Gloss was wrongly decided and does not bind us. Neither theory has merit.
Theory One: Dorsey argues that Gloss conflicts with our months-earlier decision in
Vanhook. When finding that a facilitation offense fell outside the definition of “violent felony”
in the ACCA, Vanhook rested on the fact that facilitation does not require an intent to commit the
crime that the defendant facilitated (here, aggravated robbery). See Vanhook, 640 F.3d at 713–
15; see also Woodruff, 735 F.3d at 449–50. And because a later panel cannot adopt a legal rule
that conflicts with an earlier published decision, Dorsey claims, we must ignore Gloss and follow
Vanhook. See, e.g., White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 241 (6th Cir. 2005).
The conflict that he perceives is an illusion. Vanhook held that facilitating the burglary
of a building did not qualify as a “violent felony” under the ACCA. See 640 F.3d at 708. But
the case did not even interpret the elements clause because the parties agreed that burglary of a
building did not require the use (or attempted or threatened use) of force. Id. at 710. Rather,
Vanhook concerned the ACCA’s “residual clause,” a separate provision that the Supreme Court
has since found void for vagueness. Id.; see Johnson v. United States, 576 U.S. 591, 593–606
(2015). That clause treated as a “violent felony” any offense that “otherwise involves conduct
that presents a serious potential risk of physical injury to another[.]” 18 U.S.C.
§ 924(e)(2)(B)(ii). For years, the Supreme Court had struggled to interpret the residual clause’s
language. See Johnson, 576 U.S. at 598–602. Near the time of Vanhook, the Court had
suggested that the clause covered only offenses that were “purposeful, violent, and aggressive.”
Vanhook, 640 F.3d at 712 (quoting Begay v. United States, 553 U.S. 137, 144–45 (2008)).
No. 23-5082 United States v. Dorsey Page 7
Vanhook concluded that Tennessee’s facilitation statute criminalized behavior that was not
“sufficiently purposeful” to satisfy the residual clause. Id. at 713. We reasoned that the
facilitation offense covered only defendants who knowingly assist the primary perpetrator. Id. at
713–14. Defendants who purposefully assisted would qualify as aiders and abettors subject to
harsher punishments. Id.
Vanhook’s logic does not reach the elements clause. Unlike the text of the (now-invalid)
residual clause, the text of the elements clause cannot be read to cover only offenses undertaken
purposefully. See United States v. Farrow, 574 F. App’x 723, 733 (6th Cir. 2014); United States
v. Elliott, 757 F.3d 492, 496 (6th Cir. 2014). That is, even if a criminal offense does not require
a defendant to intend a harmful result, the offense can still have “as an element the use,
attempted use, or threatened use of physical force against the person of another[.]” U.S.S.G.
§ 4B1.2(a)(1). Consider an example from the Supreme Court. A “getaway driver” who
knowingly runs over a pedestrian along the escape path uses the car’s “force” against the victim
even if the driver would have preferred a “clear road” and so did not purposely run over the
pedestrian. Borden, 593 U.S. at 432 (plurality opinion). And here, the facilitation offense
requires a facilitator to know that the aggravated robber will use or threaten force against the
victim. Gloss, 661 F.3d at 318–19.
Dorsey’s reliance on Woodruff fares no better. Woodruff asked whether a Tennessee
conviction for facilitating a cocaine sale qualified as a “controlled substance offense” under
U.S.S.G. § 4B1.2(b). 735 F.3d at 448–51. That guideline defines the phrase “controlled
substance offense” in relevant part to cover any offense that “prohibits the manufacture, import,
export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled
substance . . . with intent to manufacture, import, export, distribute, or dispense[.]” U.S.S.G.
§ 4B1.2(b)(1). At the time of Woodruff, the guideline’s commentary also suggested that the
phrase covered “the offenses of aiding and abetting, conspiring, and attempting to commit” those
drug offenses. Id. § 4B1.2 cmt. n.1 (2013). Woodruff held that the district court had wrongly
treated facilitation of the sale of cocaine as a controlled substance offense but that this error was
not “plain” for purposes of plain-error review. 735 F.3d at 448–51. In doing so, we did not
expressly consider whether an offense that bars the knowing facilitation of a cocaine sale
No. 23-5082 United States v. Dorsey Page 8
qualified as an offense that “prohibits the . . . distribution” of cocaine under the guideline’s text.
U.S.S.G. § 4B1.2(b). Rather, we jumped to the guideline’s commentary, explaining that
facilitation does not require defendants to intend for a drug sale to occur (unlike aiding-and-
abetting, conspiracy, and attempt offenses). 735 F.3d at 449–50. Because facilitation required
only knowing conduct, we held that it was not “substantially equivalent to” these other crimes.
Id. at 450.
Yet much has happened since Woodruff. Sitting en banc, we held that § 4B1.2(b)’s
commentary (the commentary on which Woodruff relied) unlawfully enlarged the guideline’s
scope by including “attempt” crimes within the meaning of “controlled substance offense.”
United States v. Havis, 927 F.3d 382, 386–87 (6th Cir. 2019) (en banc). And the Sentencing
Commission responded to Havis by adding language to the guideline similar to the
commentary’s prior text. Sentencing Guidelines for United States Courts, 88 Fed. Reg. 28,254,
28,275–76 (May 3, 2023). The guideline itself now covers “the offenses of aiding and abetting,
attempting to commit, or conspiring to commit” any controlled substance offense or crime of
violence. U.S.S.G. § 4B1.2(d).
All of this said, this case does not require us to consider how these changes affect
Woodruff (if at all). That case does Dorsey no good even if it has continued vitality. If we
assume that Woodruff remains good law, we can assume that facilitating the distribution of drugs
does not count as distributing drugs under § 4B1.2(b). And we can assume that facilitating the
distribution of drugs does not count as aiding and abetting that distribution under the newly
minted § 4B1.2(d). See Woodruff, 735 F.3d at 449–50. Still, Woodruff and these assumptions
say nothing about whether the distinct crime of facilitating an aggravated robbery “has as an
element the use, attempted use, or threatened use of physical force against the person of
another[.]” U.S.S.G. § 4B1.2(a)(1). Woodruff thus does not conflict with Gloss’s holding that it
does. Gloss, 661 F.3d at 319; see Farrow, 574 F. App’x at 733.
Theory Two: Even if Gloss does not conflict with our own precedent, Dorsey next argues,
it at least conflicts with the Supreme Court’s later decision in Borden. He is again mistaken.
Borden held that the ACCA’s elements clause does not cover offenses that require only a
“reckless” state of mind. 593 U.S. at 423 (plurality opinion); id. at 445–46 (Thomas, J.,
No. 23-5082 United States v. Dorsey Page 9
concurring in the judgment). The plurality in Borden reasoned that defendants have not used
force “against” a victim unless the victim was the “conscious object” of that force. Id. at 430–31
(plurality opinion). But when a defendant’s reckless act harms a victim, the defendant has not
consciously directed the force against the victim. Id. at 427. Rather, the defendant has only
“consciously disregard[ed]” the risk that the force might reach the victim. Id. (quoting Model
Penal Code § 2.02(2)(c) (Am. L. Inst. 1985)); see id. at 432; id. at 445–46 (Thomas, J.,
concurring in the judgment).
This holding does not affect Gloss’s conclusion that facilitating aggravated robbery
satisfies the elements clause. To begin with, Borden’s plurality opinion expressly disclaimed
that it was addressing “accessory liability” crimes like Tennessee’s facilitation offense. Id. at
426 n.3 (plurality opinion). Regardless, to convict a defendant of facilitation, the prosecution
must prove more than that the defendant acted recklessly. A facilitator of aggravated robbery
must knowingly assist the robber while also knowing of the robber’s plan to commit the crime
(and thus of the planned use or threatened use of force). Gloss, 661 F.3d at 318. So facilitation
requires the defendant to harbor a knowing state of mind, not just a reckless one. And the
Borden plurality made clear that the elements clause covers “knowing acts” in addition to
“purposeful” ones. 593 U.S. at 432 (plurality opinion). Indeed, we have since held that the
elements clause reaches crimes committed wantonly—a state of mind less than knowing but
more than reckless. See Harrison, 54 F.4th at 890. In short, Dorsey’s facilitation offenses
required proof of his knowledge. An offense with that state of mind still meets the elements
clause after Borden.
That leaves Dorsey’s reliance on a recent remand order. See United States v. Page, 2022
U.S. App. LEXIS 2476, at *3 (6th Cir. Jan. 26, 2022) (order). There, the government
successfully obtained a remand for the district court to consider whether facilitation of felony
murder in Tennessee satisfied the elements clause after Borden. See id. at *2–3. Yet felony
murder only requires a “killing” to have occurred during the course of one of several crimes,
including “burglary,” “theft,” or “aggravated child neglect[.]” Tenn. Code Ann. § 39-13-
202(a)(2). The current version of this statute holds the defendant “strictly” liable for such a
killing. State v. Kimbrough, 924 S.W.2d 888, 890 & n.2 (Tenn. 1996). The state courts have
No. 23-5082 United States v. Dorsey Page 10
thus held that defendants can facilitate felony murder even if they lack knowledge of the murder.
State v. Lewis, 919 S.W.2d 62, 68 (Tenn. Crim. App. 1995), overruled on other grounds by State
v. Williams, 977 S.W.2d 101 (Tenn. 1998). Defendants need only know of (and assist in) the
felony that led to the death, and the list of qualifying felonies do not all require the use (or
threatened use) of force. See State v. Robinson, 2023 WL 2669906, at *12–13 (Tenn. Crim.
App. Mar. 29, 2023); see also State v. Ely, 48 S.W.3d 710, 719–20 (Tenn. 2001). Gloss and this
case, by comparison, concern facilitation of aggravated robbery—not felony murder. So our
remand order in Page in no way calls Gloss into doubt or raises any concerns about the proper
outcome of this case.
We affirm.