United States v. Kenneth Hamilton

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0383n.06
Case Nos. 18-5127/5128
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Jul 29, 2019
18-5127 ) DEBORAH S. HUNT, Clerk
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellant,
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
KENNETH HAMILTON, ) THE MIDDLE DISTRICT OF
Defendant-Appellee. ) TENNESSEE
)
18-5128 )
)
KENNETH HAMILTON,
Petitioner-Appellee, )
)
v. )
UNITED STATES OF AMERICA, )
)
Respondent-Appellant.
BEFORE: MOORE, COOK, and THAPAR, Circuit Judges.
PER CURIAM. Kenneth Hamilton pled guilty to possessing a firearm as a convicted felon.
See 18 U.S.C. § 922(g). Because he already had five prior convictions for Tennessee aggravated
burglary, the district court enhanced Hamilton’s sentence to the fifteen-year minimum under the
Armed Career Criminal Act (ACCA). See id. § 924(e)(1). Several years later, Hamilton
challenged his sentence through a motion for post-conviction relief. See 28 U.S.C. § 2255. While
his § 2255 motion was pending, the en banc Sixth Circuit determined that Tennessee aggravated
burglary was not an ACCA predicate. United States v. Stitt, 860 F.3d 854, 856 (6th Cir. 2017) (en
Case Nos. 18-5127/5128, United States v. Hamilton
banc). Relying on Stitt, the district court reviewing Hamilton’s § 2255 motion determined that he
no longer qualified for an ACCA enhancement and reduced his sentence to ten years. But
Hamilton’s victory was short-lived because the government filed a protective appeal, and a few
months later the Supreme Court reversed Stitt. United States v. Stitt, 139 S. Ct. 399, 406–08
(2018).
The Supreme Court’s reversal means that our circuit returns to its pre-Stitt precedent.
Brumbach v. United States, Nos. 18-5703/5705, 2019 WL 3024727, at *3, __F.3d__ (6th Cir. July
11, 2019). And under that precedent, Tennessee aggravated burglary is an ACCA predicate. Id.(citing United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007)). Thus, although the district
court was right to reduce Hamilton’s sentence, the law has changed during this appeal and made
Hamilton’s original sentence proper again. Therefore, we VACATE and REMAND with
instructions to reinstate the original sentence.
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Case Nos. 18-5127/5128, United States v. Hamilton
KAREN NELSON MOORE, Circuit Judge, concurring in the judgment. Today, the
majority concludes that under Brumbach v. United States, Nos. 18-5703/5705, 2019 WL 3024727,
at *3, __F.3d__ (6th Cir. July 11, 2019), we are once again bound by the more-than-decade-old
decision in United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007). Although I recognize that
we must follow Brumbach’s holding regarding Nance and Tennessee aggravated burglary, I do
not believe that Nance should control our resolution of Hamilton’s appeal.
I start with the applicable law. Hamilton was sentenced to 180 months of imprisonment
pursuant to the Armed Career Criminal Act (“ACCA”), which “imposes a fifteen-year mandatory-
minimum prison sentence on persons who violate 18 U.S.C. § 922(g) . . . and who have three
previous state or federal convictions for ‘violent felon[ies] or serious drug offense[s].’” United
States v. Burris, 912 F.3d 386, 391–92 (6th Cir. 2019) (en banc) (quoting 18 U.S.C. § 924(e)(1)),
petition for cert. docketed May 24, 2019. As applicable to Hamilton’s appeal, the ACCA defines
“violent felony” to include a felony which “is burglary, arson, or extortion, [or] involves use of
explosives.” 18 U.S.C. § 924(e)(2)(B). However, not every “burglary” conviction qualifies as an
ACCA predicate offense; rather, only “generic burglary,” or “an unlawful or unprivileged entry
into, or remaining in, a building or other structure, with intent to commit a crime,” qualifies. Taylor
v. United States, 495 U.S. 575, 598 (1990). Thus, in order for Hamilton’s five convictions for
Tennessee aggravated burglary to constitute predicate offenses under the ACCA, the elements of
Tennessee’s aggravated burglary statute must be “the same as, or narrower than, those of the
generic offense.” Descamps v. United States, 570 U.S. 254, 257 (2013).
“Tennessee defines aggravated burglary as the ‘burglary of a habitation,’ Tenn. Code Ann.
§ 39-14-403, and defines ‘habitation’ as ‘any structure . . . which is designed or adapted for the
overnight accommodation of persons,’ id. § 39-14-401(1)(A).” United States v. Stitt, 860 F.3d
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Case Nos. 18-5127/5128, United States v. Hamilton
854, 857 (6th Cir. 2017) (en banc), reversed by United States v. Stitt, 139 S. Ct. 399 (2018) (“Stitt
II”). In examining certain sections of this statute, we have previously concluded that Tennessee
aggravated burglary corresponds to the generic definition of “burglary” under Taylor. See, e.g.,
Nance, 481 F.3d at 888 (reciting Tennessee’s aggravated burglary statute and concluding that
“aggravated burglary in Tennessee clearly comports with Shepard’s definition of a generic
burglary as ‘committed in a building or enclosed space’”); United States v. Priddy, 808 F.3d 676,
684 (6th Cir. 2015) (following Nance without discussion of particular statutory language); see also
United States v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017) (rejecting the defendant’s argument
that Tennessee burglary is broader “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”).
In his appeal, however, Hamilton points to a separate and distinct segment of Tennessee’s
aggravated burglary statute (the use of the word “entry”) to argue that Tennessee aggravated
burglary is broader than generic burglary. See Appellee Br. at 20–21 (asserting that because
Tennessee aggravated burglary criminalizes entries by instruments, rather than people only, the
statute covers attempted burglary and, therefore, is broader than generic burglary). Nance, Priddy,
and Ferguson did not address this section of the statute and, instead, focused on different language
in the Tennessee code; thus, their conclusory holdings are not “directly on point” and do not
resolve Hamilton’s appeal. Brumbach, 2019 WL 3024727, at *3. Moreover, to the extent the
panels in Nance, Priddy, and Ferguson assumed that the scope of Tennessee’s “entry” definition
was consistent with “generic burglary,” we should not be bound by such silent and unexamined
assumptions. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 63 n.4 (1989) (“[T]his Court
has never considered itself bound [by prior sub silentio holdings] when a subsequent case finally
brings the jurisdictional issue before us.” (quotation marks omitted) (second alteration in
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Case Nos. 18-5127/5128, United States v. Hamilton
original)); accord Staley v. Jones, 239 F.3d 769, 776 (6th Cir. 2001). Rather, “[q]uestions which
merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be
considered as having been so decided as to constitute precedents.” Rinard v. Luoma, 440 F.3d
361, 363 (6th Cir. 2006) (quotation marks omitted) (alteration in original). Indeed, in an
unpublished opinion issued before this court decided Brumbach, we strongly implied that neither
Nance nor Stitt II foreclosed a § 2255 petitioner from raising a novel argument relating to his
Tennessee aggravated burglary convictions. See Lee v. United States, No. 17-6513/6514, 2019
WL 2513795, at *1 (6th Cir. June 18, 2019) (unpublished) (remanding for the district court to
consider whether “generic burglary requires entry by an instrument used to commit the intended
felony inside”).1
I believe our en banc decision in United States v. Mateen, 764 F.3d 627 (6th Cir. 2014) (en
banc), is instructive on this point. Mateen involved the interpretation of a sentencing enhancement
which applied when an individual had previously been convicted of a crime “relating to aggravated
sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” Id. at 628(quoting 18 U.S.C. § 2252(b)(2)). The question before the en banc court was whether the language
“involving a minor or ward” modified only “abusive sexual conduct” or, instead, modified all three
types of sexual abuse described in the enhancement. Id. at 628–29. In a previous case, United
1
True, we have previously explained that “we are bound by the published opinions of previous
panels” despite any “analytical flaws” we may identify in those opinions. Grundy Mining Co. v.
Flynn, 353 F.3d 467, 479 (6th Cir. 2003). However, the parties in Grundy were attempting to
attack the reasoning of an issue that a previous panel had directly decided and considered. Id. at
478–79. In contrast, Hamilton’s appeal rests on a particular issue (the meaning of the word
“entry”) that was neither considered nor decided by Nance, Priddy, or Ferguson. This is not a
case in which Hamilton contends that, in interpreting the “entry” requirement of Tennessee Code
Annotated § 39-14-403, the Nance court’s “analytical flaws” led it to the wrong conclusion.
Rather, Hamilton asserts––correctly––that Nance, Priddy, and Ferguson never even reached the
“entry” issue.
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Case Nos. 18-5127/5128, United States v. Hamilton
States v. Gardner, 649 F.3d 437 (6th Cir. 2011), we appeared to endorse the latter interpretation
of § 2252(b)(2) when we stated that the defendant’s prior conviction triggered the enhancement
because it involved the “sexual abuse” of a “minor or ward,” id. at 442–43. Indeed, the original
Mateen panel believed that it was bound by Gardner’s interpretation of § 2252(b)(2) and,
accordingly, affirmed Mateen’s sentence. United States v. Mateen, 739 F.3d 300, 306 (6th Cir.
2014). The en banc court, however, implicitly concluded otherwise when, without addressing
Gardner or overruling the decision, the en banc court determined that “involving a minor or ward”
modified only “abusive sexual conduct.” Mateen, 764 F.3d at 629. Had the en banc court thought
Gardner’s unexamined discussion of § 2252(b)(2) to be controlling, the en banc court would have
had to overrule Gardner. Instead, to reach the decision it did, the en banc court necessarily
accepted Judge McKeague’s dissent at the panel level, where Judge McKeague noted that because
“[t]he unaddressed issues in the present case were not actually decided or implicitly held[,] . . .
Gardner’s unconsidered application of that understanding is not binding precedent on this point.”
Mateen, 739 F.3d at 309 (McKeague, J., dissenting). I believe the same reasoning applies to
Hamilton’s appeal.
In conclusion, we have never held that––or even considered whether––Tennessee’s
definition of the word “entry” corresponds to generic burglary, despite the fact that, according to
Hamilton, Tennessee’s statute encapsulates both attempts and completed entries. Our precedent
therefore does not foreclose Hamilton’s appeal and, in the absence of the panel’s decision in
Brumbach, I would reach the merits of Hamilton’s argument. Consequently, I concur in the
judgment only.
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