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United States v. Ferguson

United States Court of Appeals, Sixth Circuit

August 22, 2017

United States of America, Plaintiff-Appellee,
v.
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.

         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.

          Before: BATCHELDER, ROGERS, and WHITE, Circuit Judges.

          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 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) Centers 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 ...


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