Appeal from the United States District Court for the Eastern District of Tennessee of Chattanooga. No. 1:12-cr-00127-1--Curtis L. Collier, District Judge.
Laura E. Davis, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant.
Gregg L. Sullivan, UNITED STATES ATTORNEY'S OFFICE, Chattanooga, Tennessee, for Appellee.
Before: SILER, GRIFFIN, and WHITE, Circuit Judges.
SILER, Circuit Judge.
Carlos Fallins pleaded guilty to possession of a firearm by a felon. The district court found that Fallins qualified for an enhanced sentence under the Armed Career Criminal Act (" ACCA" ), 18 U.S.C. § 924(e)(1). Fallins challenges his sentence on the theories that attempted aggravated arson under Tennessee law is not a " violent felony" under the ACCA's residual clause and that the ACCA's residual clause is unconstitutionally vague. For the following reasons, we AFFIRM the judgment and sentence.
In 2013, Fallins pleaded guilty to possession of a firearm by a felon, in violation of 18 U.S.C. § 922(g)(1). He had multiple prior Tennessee convictions, including: (1) a 1995 robbery conviction; (2) a 1998 attempted aggravated arson conviction; and (3) a 2007 possession of crack cocaine for resale conviction. Based on these three prior convictions, the presentence report (" PSR" ) concluded that Fallins qualified for an enhanced sentence under 18 U.S.C. § 924(e)--the ACCA. Applying the ACCA enhancement, the PSR calculated a guidelines range of 180 to 210 months.
Fallins objected to the ACCA enhancement and filed a motion for downward departure or, in the alternative, a downward variance pursuant to 18 U.S.C. § 3553(a). Because " arson" is an " enumerated" offense under 18 U.S.C. § 924(e)(2)(B)(ii) and " attempted aggravated arson" is not, Fallins asserted that his attempted aggravated arson conviction was not a qualifying offense under the residual clause of the ACCA. He argued that his attempted aggravated arson conviction was not a " violent felony" because it did not involve conduct that " presents a serious potential risk of physical injury to another."
Fallins argued that the district court could not rely on the Government's proffered factual basis in the plea transcript for the attempted aggravated arson conviction because Fallins did not assent to the factual summary. The court agreed with Fallins that it could not rely upon facts that were proffered by the Government during the plea colloquy but not admitted by Fallins. Nonetheless, the court found that Fallins's attempted aggravated arson conviction was a " violent felony" under the ACCA's residual clause and also found that Fallins's crack-cocaine conviction and his robbery conviction qualified as predicate offenses under the ACCA. Based on Fallins's ACCA designation and after considering the 18 U.S.C. § 3553(a) factors, the district court sentenced him to 195 months of incarceration.
" We generally review de novo a district court's determination that a prior conviction qualifies as a 'violent felony' under the ACCA." United States v. Anderson, 695 F.3d 390, 399 (6th Cir. 2012) (citing United States v. Benton, 639 F.3d 723, 729 (6th Cir. 2011)).
Fallins claims that his sentence enhancement was unwarranted because the district court erred when it found that his attempted
aggravated arson conviction qualified as a " violent felony." Under § 924(e)(1) of the ACCA, when a defendant is convicted of being a felon in possession of a firearm and has " three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another," the defendant " shall be . . . imprisoned not less than fifteen years . . . ." The ACCA defines " violent felony" in § 924(e)(2):
(B) the term " violent felony" means any crime punishable by imprisonment for a term exceeding one year . . . that--
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential ...