Gann v. United States

Cite as: 595 U. S. ____ (2021) 1
Statement of SOTOMAYOR, J.
SUPREME COURT OF THE UNITED STATES
SAMUEL ALEX GANN v. UNITED STATES
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 20–7701. Decided October 4, 2021
The petition for a writ of certiorari is denied.
Statement of JUSTICE SOTOMAYOR respecting the denial
of certiorari.
The Armed Career Criminal Act (ACCA) mandates a
minimum 15-year prison sentence for an individual con-
victed of being a felon in possession of a firearm who has at
least three prior “violent felony” convictions. 18 U. S. C.
§924(e). Section 924(e) defines “violent felony” to include
generic “burglary,” defined as “unlawful or unprivileged en-
try into, or remaining in, a building or structure, with in-
tent to commit a crime.” Taylor v. United States, 495 U. S.
575, 599 (1990). To determine whether a prior conviction
qualifies as generic burglary, courts apply the categorical
approach: “They focus solely on whether the elements of the
crime of conviction sufficiently match the elements of ge-
neric burglary, while ignoring the particular facts of the
case.” Mathis v. United States, 579 U. S. 500, 504 (2016).
When petitioner Samuel Gann was convicted of being a
felon in possession of a firearm, he had three prior convic-
tions for aggravated burglary under Tennessee law. See
Tenn. Code Ann. §39–14–402(a)(3) (2018) (“A person com-
mits burglary who, without the effective consent of the
property owner . . . [e]nters a building and commits or at-
tempts to commit a felony, theft or assault”). Gann argued
that his Tennessee convictions did not qualify as generic
burglary under the ACCA because they lacked the element
of “intent to commit a crime.” Taylor, 495 U. S., at 599. Ac-
cording to Gann, his crime of conviction could be committed
2 GANN v. UNITED STATES
Statement of SOTOMAYOR, J.
by an unlawful entry into a building followed by commis-
sion of a reckless crime, without ever developing the intent
to commit a crime. The District Court rejected Gann’s ar-
gument and sentenced him to the ACCA’s 15-year manda-
tory minimum.
Gann appealed and reprised his argument that his Ten-
nessee aggravated burglary convictions lacked the element
of intent to commit a crime, rendering the ACCA enhance-
ment inapplicable. The Sixth Circuit rejected Gann’s argu-
ment, citing United States v. Nance, 481 F. 3d 882 (CA6
2007), and Brumbach v. United States, 929 F. 3d 791 (CA6
2019) (reaffirming Nance as the law of the Circuit), deci-
sions in which it had rejected different arguments for why
different elements of Tennessee’s aggravated burglary did
not match the elements of generic burglary. The Sixth Cir-
cuit reasoned that these decisions “le[ft] no room for raising
still more arguments about Tennessee aggravated bur-
glary.” 827 Fed. Appx. 566, 569 (2020) (internal quotation
marks omitted).
However, “[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 con-
stitute precedents.” Webster v. Fall, 266 U. S. 507, 511
(1925); accord, e.g., United States v. L. A. Tucker Truck
Lines, Inc., 344 U. S. 33, 38 (1952) (where an issue was nei-
ther “raised in briefs or argument nor discussed in the opin-
ion of the [c]ourt,” there is no “binding precedent on th[e]
point”). In Nance, for example, the Sixth Circuit held that
Tennessee aggravated burglary “comports with [the] defini-
tion of a generic burglary as committed in a building or en-
closed space.” 481 F. 3d, at 888 (internal quotation marks
omitted). But the parties in Nance and Brumbach did not
address in their briefs, and the Sixth Circuit neither dis-
cussed nor decided, whether Tennessee aggravated bur-
glary also comports with the requirement that generic bur-
glary include the intent to commit a crime.
Cite as: 595 U. S. ____ (2021) 3
Statement of SOTOMAYOR, J.
Gann’s argument has not been addressed by the Sixth
Circuit, which leaves this Court without a reasoned deci-
sion to review. I nevertheless agree with the decision to
deny certiorari because further consideration by the lower
courts would assist this Court’s analysis of this new argu-
ment. To that end, I would expect the Sixth Circuit to give
the argument full and fair consideration in a future case.