United States v. Shannon Ferguson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 17a0191p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ┐
Plaintiff-Appellee, │
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> No. 15-6303
v. │
│
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SHANNON L. FERGUSON, │
Defendant-Appellant. │
┘
Appeal from the United States District Court
for the Eastern District of Tennessee of Chattanooga.
No. 1:14-cr-00061-1—Curtis L. Collier, District Judge.
Decided and Filed: August 22, 2017
Before: BATCHELDER, ROGERS, and WHITE, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE,
Chattanooga, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S
OFFICE, Knoxville, Tennessee, for Appellee.
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OPINION
_________________
ALICE M. BATCHELDER, Circuit Judge. Shannon Ferguson pled guilty to being a
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Before his sentencing, the
district court found that at least three of Ferguson’s previous convictions were violent felonies
that triggered the Armed Career Criminal Act’s (“ACCA”) mandatory minimum sentence of
fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1). The parties’ arguments focus on eight prior
convictions, each of which occurred in Tennessee. Three convictions were for burglary, in
No. 15-6303 United States v. Ferguson Page 2
violation of Tenn. Code Ann. § 39-14-402, and five convictions were for aggravated burglary, in
violation of Tenn. Code Ann. § 39-14-403. On appeal, Ferguson asserts that none of his prior
convictions count as predicate offenses for purposes of the ACCA. Although he is correct that
some of his prior convictions are not predicate offenses, three are. Accordingly, for the
following reasons, we AFFIRM the district court’s judgment.
Ferguson’s prior convictions for aggravated burglary no longer count toward a finding
that he is an armed career criminal. Sitting en banc, our court recently overruled a decade-old
precedent and held that Tennessee’s aggravated burglary statute sweeps more broadly than the
generic definition of burglary and, therefore, may not be counted as a predicate offense. United
States v. Stitt, 860 F.3d 854, 860–61 (6th Cir. 2017) (en banc) (overruling United States v.
Nance, 481 F.3d 882 (6th Cir. 2007)).
Ferguson’s prior convictions for burglary, however, do count toward a finding that he is
an armed career criminal. Our existing precedent compels this holding. See United States v.
Priddy, 808 F.3d 676, 684–85 (6th Cir. 2015). Tennessee’s burglary statute provides that
(a) A person commits burglary who, without the effective consent of the property
owner:
(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;
(3) Enters a building and commits or attempts to commit a felony, theft or
assault; or
(4) Enters any freight or passenger car, automobile, truck, trailer, boat,
airplane or other motor vehicle with intent to commit a felony, theft or
assault or commits or attempts to commit a felony, theft or assault.
...
(c) Burglary under subdivision (a)(1), (2) or (3) is a Class D felony.
(d) Burglary under subdivision (a)(4) is a Class E felony.
Tenn. Code Ann. § 39-14-402. 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). In Priddy, we held that all
No. 15-6303 United States v. Ferguson Page 3
Class D burglary convictions under Tennessee law—that is, convictions under subsections (a)(1),
(a)(2), or (a)(3) of the Tennessee burglary statute—fit within the generic definition of burglary
and are therefore violent felonies for purposes of the ACCA. Priddy, 808 F.3d at 684–85. The
judgments in Ferguson’s burglary convictions indicate that he was thrice convicted of the Class
D variant of Tennessee burglary. Accordingly, Priddy dictates that his three burglary
convictions are violent felonies, and the district court’s finding that he is an armed career
criminal was proper.
Ferguson argues that Priddy incorrectly held that § 39-14-402(a)(3) fits within the
generic definition of burglary because it allows a defendant to be convicted of burglary if he
enters a building and then forms the requisite intent to commit a crime while inside. He builds
this argument on the foundation of a comment made by the district court during the sentencing
hearing. Although the district court expressed some sympathy for Ferguson’s argument, the
hearing occurred shortly before we decided Priddy.
Priddy controls. One panel of this court may not overrule the decision of another panel;
only the en banc court or the United States Supreme Court may overrule the prior panel. See
Salmi v. Sec’y of Health & Human Servs., 774 F.3d 685, 689 (6th Cir. 1985). As it so happens,
the en banc court in Stitt did comment on Priddy, but not in a way that assists Ferguson. In Stitt,
we explicitly overruled Nance. We also indicated that Priddy’s holding concerning aggravated
burglary relied on the binding precedent set by Nance but “did not expand further on Nance’s
reasoning.” See Stitt, 860 F.3d at 861 n.4. Stitt has therefore abrogated Priddy’s holding on
aggravated burglary. Cf. id. at 863 (Boggs, J., concurring) (explaining that the court overruled
Nance but not mentioning Priddy). Nothing in Stitt, however, undermined Priddy’s holding on
burglary. Accordingly, we hold that Priddy’s burglary analysis remains controlling, governs
here, and compels us to find that Ferguson’s prior Tennessee burglary convictions are violent
felonies. Because he has three such convictions, the district court properly sentenced him as an
armed career criminal. We therefore AFFIRM the judgment of the district court.