United States v. McMurray

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0202p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-5806
v.
,
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Defendant-Appellant. -
TYRONE MCMURRAY,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 06-00237-001—Aleta Arthur Trauger, District Judge.
Argued: January 18, 2011
Decided and Filed: August 4, 2011
Before: MOORE, GIBBONS, and McKEAGUE, Circuit Judges.

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COUNSEL
ARGUED: David L. Cooper, THE LAW OFFICE OF DAVID L. COOPER, P.C.,
Nashville, Tennessee, for Appellant. Brooklyn D. Sawyers, ASSISTANT UNITED
STATES ATTORNEY, Nashville, Tennessee, for Appellee. ON BRIEF: David L.
Cooper, THE LAW OFFICE OF DAVID L. COOPER, P.C., Nashville, Tennessee, for
Appellant. Brent A. Hannafan, ASSISTANT UNITED STATES ATTORNEY,
Nashville, Tennessee, for Appellee.
MOORE, J., delivered the opinion of the court, in which GIBBONS, J., joined.
McKEAGUE, J. (pp. 21–30), delivered a separate dissenting opinion.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Defendant Tyrone McMurray was
convicted at a bench trial of violating the federal felon-in-possession-of-a-firearm
statute. He now appeals his 180-month sentence of imprisonment—the statutorily

1
No. 09-5806 United States v. McMurray Page 2

mandated minimum as a result of the district court’s determination that McMurray
qualifies to be sentenced under the Armed Career Criminal Act (“ACCA”). McMurray
argues that (1) the predicate felony convictions for the ACCA must be included in the
indictment and proven beyond a reasonable doubt, and (2) his 1993 felony conviction
for aggravated assault is not a “violent felony” under the ACCA. Because Tennessee’s
aggravated-assault statute is not categorically a “violent felony” and because the
available Shepard documents do not establish the nature of McMurray’s conviction, we
VACATE the judgment of the district court and REMAND for resentencing consistent
with this opinion.

I. BACKGROUND & PROCEDURE

On December 20, 2006, McMurray was indicted on one charge of violating the
federal felon-in-possession-of-a-firearm statute, 18 U.S.C. § 922(g)(1). After McMurray
waived his right to a jury trial, the district court conducted a bench trial and found
McMurray guilty. Prior to sentencing, U.S. Probation Services prepared a Presentence
Investigation Report (“PSR”), which concluded that McMurray had been convicted of
three prior violent felonies and therefore qualified for a sentence enhancement under the
ACCA, 18 U.S.C. § 924(e). Specifically, the PSR concluded that McMurray qualified
as an armed career criminal based on the following Tennessee convictions:
(1) aggravated assault in 1986, (2) armed robbery in 1987, and (3) aggravated assault in
1993.

McMurray challenged the application of the ACCA for the two reasons that he
now asserts on appeal. At a sentencing hearing held on June 17, 2009, however, the
district court rejected McMurray’s arguments that he did not qualify for an enhancement
under the ACCA. On June 19, 2009, the district court entered its judgment, sentencing
McMurray to 180 months of imprisonment, the statutorily mandated minimum under the
ACCA.
No. 09-5806 United States v. McMurray Page 3

II. ANALYSIS

A. Armed Career Criminal Act

McMurray faced a maximum prison term of ten years for violating 18 U.S.C.
§ 922(g), the felon-in-possession-of-a-firearm statute. 18 U.S.C. § 924(a)(2). Pursuant
to the ACCA, however, a defendant convicted under § 922(g) who “has three previous
convictions . . . for a violent felony or a serious drug offense, or both,” must be
sentenced to “not less than15 years” of imprisonment. Id. § 924(e)(1). A “violent
felony” is “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 risk of physical injury to
another.” Id. § 924(e)(2)(B).

B. Constitutional Challenges

McMurray first argues that violating the ACCA is “a separate criminal offense,”
and, therefore, pursuant to the Due Process Clause, the predicate felony convictions must
be included in the indictment and proven beyond a reasonable doubt. Appellant Br. at
11. He argues that his “conviction for being an armed career criminal felon should be
vacated.” Id.

We review de novo challenges to the sufficiency of an indictment. United States
v. Gatewood, 173 F.3d 983, 986 (6th Cir. 1999). We have rejected the argument that the
ACCA sentencing provision is a separate offense and that the government must plead
in the indictment and prove beyond a reasonable doubt the predicate felonies. United
States v. Wolak, 923 F.2d 1193, 1199 (6th Cir.), cert. denied, 501 U.S. 1217 (1991);
United States v. Brewer, 853 F.2d 1319, 1322 (6th Cir. 1988) (on reh’g) (analyzing
antecedent statute to the ACCA), cert. denied, 488 U.S. 946 (1988), 489 U.S. 1021
(1989). That the ACCA is a sentence enhancement rather than a separate offense is well
established. See, e.g., Custis v. United States, 511 U.S. 485, 490 (1994) (“The ACCA
provides an enhanced sentence . . . .”); Taylor v. United States, 495 U.S. 575, 577 (1990)
No. 09-5806 United States v. McMurray Page 4

(“[The ACCA] provides a sentence enhancement . . . .”). Thus, McMurray’s due-process
challenge to the ACCA may be more appropriately construed as a constitutional
challenge to his sentence—which we also review de novo. United States v. Martin, 526
F.3d 926, 941 (6th Cir.), cert. denied, 129 S. Ct. 305 (2008). We have observed that due
process does not require the government to provide prior notice of its intention to seek
a sentence enhancement under the ACCA. United States v. Mauldin, 109 F.3d 1159,
1163 (6th Cir. 1997); United States v. Miller, 371 F. App’x 646, 649–50 (6th Cir. 2010)
(unpublished decision); accord United States v. Mack, 229 F.3d 226, 231 (3d Cir. 2000)
(collecting cases holding the same), cert. denied, 532 U.S. 1045 (2001).

The Supreme Court, in Almendarez-Torres v. United States, 523 U.S. 224,
226–27 (1998), held that when a statute constitutes a penalty provision, rather than a
separate crime, the government need not include the provision in the indictment. “[T]he
Supreme Court has uniformly excepted ‘the fact of a prior conviction’ from its general
rule that sentence-enhancing facts must be found by a jury and proved beyond a
reasonable doubt.” Martin, 526 F.3d at 941 (citing United States v. Booker, 543 U.S.
220, 244 (2005); Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). McMurray
challenges the continuing validity of Almendarez-Torres, but, in Martin, 526 F.3d at
941–42, we concluded that this court remains bound by Almendarez-Torres despite
statements in Shepard v. United States, 544 U.S. 13 (2005), suggesting that it is no
longer good law. Counsel for McMurray acknowledged at oral argument that we remain
bound by Martin. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th
Cir. 1985) (“A panel of this Court cannot overrule the decision of another panel.”).

We therefore reject McMurray’s constitutional challenges to the enhancement
of his sentence under the ACCA.

C. Whether Tennessee Crime of Aggravated Assault Is a “Violent Felony”
Under the ACCA
McMurray also challenges the district court’s determination that his 1993
Tennessee conviction for aggravated assault, TENN. CODE ANN. § 39-13-102 (1991),
qualifies as a “violent felony” under the ACCA because the Tennessee statute
No. 09-5806 United States v. McMurray Page 5

encompasses reckless conduct. We review de novo the district court’s determination that
a prior conviction qualifies as a “violent felony” under the ACCA. United States v.
Gross, 624 F.3d 309, 322 (6th Cir. 2010). The two-step analysis for determining
whether a prior conviction qualifies as a “violent felony” is well established1:

In determining the nature of a prior conviction, we are to apply
a “categorical” approach, looking to the statutory definition of the
offense and not the particular facts underlying the conviction. Taylor v.
United States, 495 U.S. 575, 600 (1990). If it is possible to violate the
statute in a way that would constitute a [“violent felony”] and in a way
that would not, the court may consider the indictment, guilty plea, or
similar documents to determine whether they necessarily establish the
nature of the prior conviction. Shepard v. United States, 544 U.S. 13, 26
(2005).

United States v. Gibbs, 626 F.3d 344, 352 (6th Cir. 2010).

1. Taylor Categorical Analysis of Tennessee’s Aggravated-Assault Statute

McMurray pleaded guilty to aggravated assault on April 29, 1993. At that time,
the Tennessee statute for aggravated assault was as follows:

(a) A person commits aggravated assault who:

(1) Commits an assault as defined in § 39-13-101 and:

(A) Causes serious bodily injury to another; or

(B) Uses or displays a deadly weapon; or

(2) Being the parent or custodian of a child or the custodian of an
adult, intentionally or knowingly fails or refuses to protect such
child or adult from an aggravated assault described in
subsection (a); or
(3) After having been enjoined or restrained by an order, diversion
or probation agreement of a court of competent jurisdiction
from in any way causing or attempting to cause bodily injury

1
Whether a conviction is a “violent felony” under the ACCA is analyzed in the same way as
whether a conviction is a “crime of violence” under the United States Sentencing Guidelines (“U.S.S.G.”)
§ 4B1.2(a). United States v. Gibbs, 626 F.3d 344, 352 n.6 (6th Cir. 2010).
No. 09-5806 United States v. McMurray Page 6

or in any way committing or attempting to commit an assault
against an individual or individuals, attempts to cause or causes
bodily injury or commits or attempts to commit an assault
against such individual or individuals.
(b) Aggravated assault is a Class C felony. . . .

TENN. CODE ANN. § 39-13-102 (1991).2 Tennessee’s assault statute at that time, TENN.
CODE ANN. § 39-13-101 (1991), provided in relevant part:

(a) A person commits assault who:

(1) Intentionally, knowingly or recklessly causes bodily injury to
another;
(2) Intentionally or knowingly causes another to reasonably fear
imminent bodily injury; or
(3) Intentionally or knowingly causes physical contact with
another and a reasonable person would regard the contact as
extremely offensive or provocative.

Tennessee’s aggravated-assault statute, both the version effective at the time of
McMurray’s conviction and the current version, encompasses a wide range of conduct,
such as hitting and choking the victim while threatening her with a gun, State v.
Hammonds, 30 S.W.3d 294, 297 (Tenn. 2000), and reckless driving resulting in a
collision that causes serious bodily injury to another, State v. Gillon, 15 S.W.3d 492,
496–97 (Tenn. Crim. App. 1997).

McMurrary argues that because the aggravated-assault statute encompasses
reckless conduct, his conviction does not qualify as a “violent felony.” First, we note
that this court concluded, in the analogous context of a “crime of violence” under

2
Effective May 12, 1993, Tennessee deleted § 39-13-102 in its entirety and replaced it with a new
section. 1993 Tenn. Legis. Serv. 306 (West). Most significantly, the new section reordered the
subsections to break out reckless aggravated assault, § 39-13-102(a)(2) (2010), from intentional and
knowing aggravated assault, § 39-13-102(a)(1) (2010), and reclassified reckless aggravated assault as a
Class D felony, § 39-13-102(e)(1). Substantively, however, the new section encompasses essentially the
same conduct as the section effective at the time of McMurray’s conviction.
No. 09-5806 United States v. McMurray Page 7

18 U.S.C. § 16,3 that reckless aggravated assault under the use-or-display-of-a-deadly-
weapon prong nevertheless requires intentional conduct. United States v. Mendoza-
Mendoza, 239 F. App’x 216, 219–21 (6th Cir. 2007) (unpublished decision), cert.
denied, 552 U.S. 1121 (2008). We assume, without deciding, that the analysis of
Mendoza-Mendoza extends to the ACCA, and therefore consider, for purposes of this
analysis, reckless aggravated assault under the serious-bodily-injury prong, § 39-13-
102(a)(1)(A) (1991). Because aggravated assault is not an enumerated crime,4 we
analyze whether recklessly causing serious bodily injury to another meets either the “use
of physical force” clause, 18 U.S.C. § 924(e)(2)(B)(i), or the “otherwise” clause, id.
§ 924(e)(2)(B)(ii), of the ACCA’s definition of a “violent felony.” See United States v.
Sanders, 470 F.3d 616, 621 n.4 (6th Cir. 2006) (emphasizing that a crime can be a
“violent felony” under either clause).

a. “Use of Physical Force” Clause

We first consider whether recklessly causing serious bodily injury to another,
§ 39-13-102(a)(1)(A) (1991), “has as an element the use, attempted use, or threatened
use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). We
find the decisions in Leocal v. Ashcroft, 543 U.S. 1 (2004), and United States v. Portela,
469 F.3d 496 (6th Cir. 2006), instructive.

In Leocal, the Supreme Court considered whether a Florida conviction for
driving under the influence (“DUI”) and causing serious bodily injury qualifies as a

3
A “crime of violence” under 18 U.S.C. § 16 is defined as
(a) an offense that has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(b) any other offense that is a felony and that, by its nature, involves a substantial risk
that physical force against the person or property of another may be used in the
course of committing the offense.
4
Because aggravated assault is not an enumerated crime under the ACCA, the analysis of the
generic definition of aggravated assault in other contexts in which it is an enumerated crime is not directly
relevant. Compare Mendoza-Mendoza, 239 F. App’x at 222 (adopting reasoning of United States v.
Mungia-Portillo, 484 F.3d 813, 817 (5th Cir. 2007), cert. denied, 552 U.S. 931 (2007), which concluded
that Tennessee’s aggravated-assault statute falls within the generic aggravated-assault crime enumerated
in U.S.S.G. § 2L1.2’s definition of “crime of violence”), with United States v. Esparza-Herrera, 557 F.3d
1019, 1025 (9th Cir. 2009) (concluding that Arizona’s aggravated-assault statute does not fall within the
generic aggravated-assault crime enumerated in U.S.S.G. § 2L1.2’s definition of “crime of violence”).
No. 09-5806 United States v. McMurray Page 8

“crime of violence” under 18 U.S.C. § 16. 543 U.S. at 3. In its analysis of the statute’s
“use of force” clause, § 16(a), which is in relevant part identical to the “use of force”
clause of the ACCA, § 924(e)(2)(B)(i), the Court relied on its decision in Bailey v.
United States, 516 U.S. 137 (1995), to conclude that “‘use’ requires active employment”
and “most naturally suggests a higher degree of intent than negligent or merely
accidental conduct.” Leocal, 543 U.S. at 9. The Court reasoned that “[w]hile one may,
in theory, actively employ something in an accidental manner, it is much less natural to
say that a person actively employs physical force against another person by accident.”
Id. Because Florida’s DUI statute did not require proof of a particular mental state, the
Court concluded that the defendant’s DUI conviction was not a “crime of violence”
under the “use of force” prong of § 16. Id. at 7, 10. The Court, however, expressly
indicated that it was not deciding whether a statute that encompasses reckless conduct
qualifies as a “crime of violence.” Id. at 13.

In Portela, we answered the question left open by Leocal when considering
whether a Tennessee conviction for vehicular assault, TENN. CODE ANN. § 39-13-106,
qualified as a “crime of violence” under U.S.S.G. § 2L1.2(b)(1)(A)(ii).5 469 F.3d at
498–99. Under the Tennessee statute, “[a] person commits vehicular assault who, as the
proximate result of the person’s intoxication . . . recklessly causes serious bodily injury
to another person by the operation of a motor vehicle.” TENN. CODE ANN. § 39-13-
106(a) (emphasis added). We relied on the analysis in Oyebanji v. Gonzales, 418 F.3d
260 (3d Cir. 2005) (Alito, J.), and Bejarano-Urrutia v. Gonzales, 413 F.3d 444 (4th Cir.
2005), which applied Leocal’s reasoning to convictions involving reckless conduct, and
we concluded that the defendant’s conviction for vehicular assault was not a “crime of
violence” under § 2L1.2(b)(1)(A)(ii). Portela, 469 F.3d at 499. In the context of § 16,
the extension of Leocal’s reasoning to conclude that reckless conduct does not constitute
a “crime of violence” has found overwhelming support in our sister circuits. See United
States v. Zuniga-Soto, 527 F.3d 1110, 1124 (10th Cir. 2008) (listing cases). We find the

5
The commentary to § 2L1.2 defines “crime of violence” by enumerating a number of crimes and
including a catch-all “use of force” clause: “any other offense under federal, state, or local law that has as
an element the use, attempted use, or threatened use of physical force against the person of another.”
U.S.S.G. § 2L1.2 cmt. n.1(B)(iii).
No. 09-5806 United States v. McMurray Page 9

reasoning of Portela and the cases on which it relies equally persuasive in the context
of the ACCA.

We further note that the Supreme Court has applied the reasoning in Leocal to
the context of interpreting the ACCA’s “use of force” clause. See Johnson v. United
States, --- U.S. ---, 130 S. Ct. 1265, 1271 (2010). In Johnson, the Court quoted and
applied Leocal’s analysis that “‘[t]he ordinary meaning of [the term “crime of
violence”], combined with § 16’s emphasis on the use of physical force against another
person (or the risk of having to use such force in committing a crime), suggests a
category of violent, active crimes.’” Johnson, 130 S. Ct. at 1271 (quoting Leocal, 543
U.S. at 11). Whereas the Court in Johnson focused on the question of the degree of
physical force required to qualify as a “violent felony”—the “violent” aspect of the
Leocal Court’s “violent, active crimes” characterization—we focus on the “active”
aspect of the Leocal Court’s characterization.6 Thus, pursuant to Leocal and Portela,
we conclude that the “use of physical force” clause of the ACCA, § 924(e)(2)(B)(i),
requires more than reckless conduct.

6
Although our decision rests on the Tennessee statute’s inclusion of reckless conduct, we also
question whether the aggravated-assault statute’s requirement that a person “cause[] serious bodily injury,”
§ 39-13-102(a)(1)(A) (1991), necessarily requires the “use of physical force,” § 924(e)(2)(B)(i). Except
in cross-reference to “intentionally or knowingly caus[ing] physical contact with another [that] a
reasonable person would regard . . . as extremely offensive or provocative,” § 39-13-101(a)(3) (1991),
aggravated assault under § 39-13-102(a)(1)(A) (1991) does not require any degree of contact or use of
force. Compare United States v. Mansur, 375 F. App’x 458, 463–64 (6th Cir. 2010) (unpublished opinion)
(concluding that Ohio statute for robbery, which states that “‘[n]o person in attempting or committing a
theft offense . . . shall use or threaten the immediate use of force against another,’” was a “violent felony”
under the “use of force” clause (quoting OHIO REV. CODE ANN. § 2911.02)), cert. denied, 130 S. Ct. 3377
(2010). Rather, one commits aggravated assault under § 39-13-102(a)(1)(A) by causing serious bodily
injury, “no matter how slight” the defendant’s use of force. Johnson, 130 S. Ct. at 1270 (internal quotation
marks omitted). Although we might expect that someone who causes serious bodily injury to another did
so with a strong physical force, the statute does not require it. Cf. State v. Baggett, 836 S.W.2d 593,
595–96 (Tenn. Crim. App. 1992) (affirming defendant’s conviction for aggravated assault when the
defendant placed the unconscious victim in the middle of the road and a passing car ran him over, causing
serious bodily injury). Tennessee also does not define “serious bodily injury” to require any particular
degree of contact. See State v. Parker, No. M2009-02448-CCA-R3-CD, 2011 WL 51734, at *17 (Tenn.
Crim. App. Jan. 6, 2011) (unpublished decision) (defining “serious bodily injury”). Compare United
States v. Flores-Gallo, 625 F.3d 819, 822–24 (5th Cir. 2010) (concluding that Kansas’s aggravated-battery
statute, which requires that the defendant intentionally cause bodily harm, has as an element the threatened
use of physical force in part because the Kansas common law defines “bodily harm” as contact “with
physical force, in an intentional hostile and aggravated manner” (internal quotation marks omitted)). Thus,
we question whether the Tennessee statute’s requirement that a person “cause[] serious bodily injury,”
§ 39-13-102(a)(1)(A) (1991), necessarily has as an element the “use of physical force,” § 924(e)(2)(B)(i).
But see United States v. Vinton, 631 F.3d 476, 485–86 (8th Cir. 2011) (concluding that Missouri’s second-
degree-assault statute, which “requires a showing that the defendant attempted to cause, or knowingly
caused, physical injury to another person,” has as an element the use or attempted use of physical force).
No. 09-5806 United States v. McMurray Page 10

Finally, in United States v. Benton, 639 F.3d 723 (6th Cir. 2011), this court
recently analyzed the question whether the Tennessee crime of solicitation to commit
aggravated assault is a “violent felony” under the ACCA. The court also stated that “[i]t
has already been established that the crime of aggravated assault has as an element the
use or threat of force, and therefore qualifies as a ‘violent felony’ for ACCA purposes.”
Id. at 730 & n.3 (citing United States v. Matthews, 278 F.3d 560, 563 (6th Cir.), cert.
denied, 535 U.S. 1087 (2002)). As discussed below in Part II.C.1.b, we read the holding
of Matthews to rest on the “otherwise” clause of the “violent felony” definition.
Nevertheless, even if considered under the “use of physical force” clause, our decision
in Matthews is equally inconsistent with the Supreme Court’s subsequent decision in
Leocal as it is under the “otherwise” clause with respect to Begay v. United States, 553
U.S. 137 (2008). Because the statement in Benton with respect to aggravated
assault—made within its analysis of the distinct crime of solicitation to commit
aggravated assault—“was not necessary to the outcome” in that case,7 it is dicta that is
not binding. See United States v. Turner, 602 F.3d 778, 786 (6th Cir. 2010) (internal
quotation marks omitted); accord BDT Prods., Inc. v. Lexmark Int’l, Inc., 602 F.3d 742,
750 (6th Cir. 2010) (“One panel of the Sixth Circuit is not bound by dicta in a previously
published panel opinion.” (alterations omitted) (internal quotation marks omitted)); PDV
Midwest Refining, L.L.C. v. Armada Oil & Gas Co., 305 F.3d 498, 510 (6th Cir. 2002)
(“‘Strictly speaking an obiter dictum is a remark made or opinion expressed by a judge,
in his decision upon a cause, by the way—that is, incidentally or collaterally, and not
directly upon the question before the court . . . .’” (quoting Black’s Law Dictionary 1100
(7th ed. 1999) (alteration in original))), cert. denied, 537 U.S. 1111 (2003).

We conclude that the Tennessee crime of aggravated assault is not a “violent
felony” under the “use of physical force” clause of the ACCA.

7
The Benton panel explicitly recognized that whether the distinct crime of “aggravated assault
constitutes a ‘violent felony[]’ . . . does not automatically mean that solicitation constitutes the same.”
639 F.3d at 731. Rather, Benton’s holding that the solicitation crime does not constitute a “violent felony”
under the “use of physical force” clause rested on “a plain reading of the statutory definition of solicitation
to commit aggravated assault.” Id.
No. 09-5806 United States v. McMurray Page 11

b. “Otherwise” Clause

We next consider whether recklessly causing serious bodily injury to another,
§ 39-13-102(a)(1)(A) (1991), “otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). A number of
years ago, applying then-prevailing law, we concluded that a conviction for reckless
aggravated assault in Tennessee is a “violent felony” under the “otherwise clause.”8
Matthews, 278 F.3d at 563 (“Reckless aggravated assault certainly ‘presents’ a serious
risk of injury to its victim.”). In Begay, 553 U.S. 137, however, the Supreme Court held
that the “otherwise” clause of the “violent felony” definition, 18 U.S.C.
§ 924(e)(2)(B)(ii), includes only those crimes similar to the enumerated
crimes—burglary, arson, extortion, and crimes involving explosives—“rather than every
crime that ‘presents a serious potential risk of physical injury to another.’” Begay, 553
U.S. at 142. Thus, to qualify as a “violent felony” under the “otherwise” clause, the
crime must “involve purposeful, violent, and aggressive conduct.”9 Id. at 144–45
(internal quotation marks omitted); accord United States v. Baker, 559 F.3d 443, 453
(6th Cir. 2009) (vacating sentence and remanding to the district court for resentencing
on the issue of whether the defendant’s prior Tennessee conviction for reckless
endangerment qualifies as a “crime of violence” in light of Begay); cf. Benton, 639 F.3d
at 732 (concluding that the Tennessee crime of solicitation to commit aggravated assault
is a “violent felony” under the ACCA because solicitation “involves purposeful conduct,
requiring as an element that the perpetrator act ‘with the intent that the criminal offense
be committed’” (quoting TENN. CODE ANN. § 39-12-102)). Accordingly, after Begay,

8
In United States v. Stanback, 166 F. App’x 190, 192 (6th Cir. 2006) (unpublished decision), we
also concluded that a prior conviction under Tennessee’s aggravated-assault statute “clearly constitutes
a ‘crime of violence’” under the Sentencing Guidelines but did not explain under which clause we based
that conclusion.
9
In its recent decision in Sykes v. United States,--- U.S. ---, 131 S. Ct. 2267, 2275–76 (2011), the
Supreme Court retreated to some degree from Begay’s “purposeful, violent, and aggressive” standard.
Nevertheless, the Court indicated that the Begay standard remains applicable when the felony is a strict
liability, negligence, or recklessness crime. Id. at 2276; see also id. at 2277 (Thomas, J., concurring in the
judgment) (“[T]he majority errs by implying that the ‘purposeful, violent, and aggressive’ test may still
apply to offenses ‘akin to strict liability, negligence, and recklessness crimes.’”); id. at 2285 (Scalia, J.,
dissenting) (“[T]he Court now suggests [that the Begay test] applies only ‘to strict liability, negligence,
and recklessness crimes.”).
No. 09-5806 United States v. McMurray Page 12

reckless aggravated assault no longer qualifies as a “violent felony” under the
“otherwise” clause of § 924(e)(2)(B)(ii).

Because recklessly causing serious bodily injury to another does not qualify as
a “violent felony” under either the “use of force” clause or the “otherwise” clause,
Tennessee’s aggravated-assault statute, § 39-13-102 (1991), is not categorically a
“violent felony.” Cf. United States v. McFalls, 592 F.3d 707, 716 (6th Cir. 2010)
(concluding that a South Carolina statute is “not categorically a crime of violence”
because it “applies not only to intentional conduct, but also to reckless conduct”).

2. Shepard Documents Under the Modified-Categorical Approach

After determining that the statute does not categorically constitute a “violent
felony,” we “may consider the indictment, guilty plea, or similar documents to determine
whether they necessarily establish the nature of the prior conviction.” Gibbs, 626 F.3d
at 352. After reviewing the record, however, we conclude that the documents supporting
McMurray’s state conviction do not establish that McMurray necessarily pleaded guilty
to a section of the aggravated-assault statute that constitutes a “violent felony.”

In Taylor, when setting forth the categorical approach for evaluating whether a
defendant’s prior conviction qualifies as a predicate conviction for sentence
enhancement, the Supreme Court also recognized that “[t]his categorical approach
. . . may permit the sentencing court to go beyond the mere fact of conviction in a narrow
range of cases where a jury was actually required to find all the elements of [a qualifying
crime].” 495 U.S. at 602. Therefore, the Court held that a prior conviction can
constitute a predicate conviction if “the charging paper and jury instructions actually
required the jury to find all the elements of [a qualifying crime] in order to convict the
defendant.” Id. In Shepard, the Court addressed the question of how to apply this
modified-categorical approach when the defendant’s prior conviction was the result of
a guilty plea. In a pleaded case, the documents must demonstrate that “the plea . . .
‘necessarily’ rested on the fact identifying the [crime as a qualifying offense].” Shepard,
544 U.S. at 21 (quoting Taylor, 495 U.S. at 602). Thus we have held that “the question
is whether the court documents establish that the defendant ‘necessarily admitted’ the
No. 09-5806 United States v. McMurray Page 13

elements of a predicate offense through his plea.” United States v. Medina-Almaguer,
559 F.3d 420, 423 (6th Cir. 2009) (quoting Shepard, 544 U.S. at 16).

We emphasize that our inquiry is limited to “facts [the] defendant ‘necessarily
admitted’ in entering a guilty plea.” Id. at 424. In other words, we may rely only on
facts “inherent in the fact of a prior conviction or admitted by the defendant.” United
States v. Alston, 611 F.3d 219, 226 (4th Cir. 2010). When, as here, the statute of
conviction is not categorically a “violent felony,” we may examine whether the
underlying documents establish that the defendant pleaded guilty to a narrowed charge
that would qualify as a “violent felony.” See Shepard, 544 U.S. at 25 (plurality) (“The
state statute requires no finding of [a qualifying crime], and without a charging
document that narrows the charge to the [qualifying] limits, the only certainty of a
[qualifying] finding lies in jury instructions, or bench-trial findings and rulings, or (in
a pleaded case) in the defendant’s own admissions or accepted findings of fact
confirming the factual basis for a valid plea.”); United States v. Savage, 542 F.3d 959,
966 (2d Cir. 2008) (“The Shepard Court identified two types of proof, relevant here, that
might suffice to establish that a plea ‘necessarily’ rested on the elements of a predicate
offense: (i) proof that the defendant admitted to predicate conduct when confirming the
factual basis for a valid plea; (ii) proof that the charge was narrowed to include only
predicate conduct.” (quoting Shepard, 544 U.S. at 21–22)).

We conclude that the available documents do not demonstrate that McMurray
pleaded guilty to a narrowed charge, or that McMurray admitted to facts that establish
that he necessarily pleaded guilty to a section of Tennessee’s aggravated-assault statute
that constitutes a “violent felony.” The record does not include the charging documents,
and the documents provided—the plea petition, plea colloquy, and judgment—do not
indicate expressly to which section of the aggravated-assault statute McMurray pleaded.
In particular, during the plea colloquy, the parties and the trial judge referred to the
charge as simply “aggravated assault.” R.181-3 (Plea Colloquy at 1–2, 6–7). The trial
judge asked McMurray, “Are you entering a best interest plea of guilty on that one
charge of aggravated assault,” to which McMurray responded, “Yes, sir.” Id. at 7. The
No. 09-5806 United States v. McMurray Page 14

government argues that the plea petition and judgment, which state that McMurray
pleaded guilty to the category of aggravated assault that is a Class C felony, R. 181-1
(Plea Pet. at 1–2); R. 185-1 (Judgment), establish that he pleaded guilty to knowing or
intentional aggravated assault. Under the current version of the Tennessee statute, this
may be true. TENN. CODE ANN. § 39-13-102(e)(1) (2010) (providing that reckless
aggravated assault, § 39-13-102(a)(2) (2010), is a Class D felony). McMurray, however,
entered his plea and the state court entered judgment on April 29, 1993, R. 181-1 (Plea
Pet. at 2); R. 185-1 (Judgment), and under Tennessee’s aggravated-assault statute in
effect at that time, all aggravated-assault convictions under § 39-13-102 were Class C
felonies. TENN. CODE ANN. § 39-13-102(b) (1991) (“Aggravated assault is a Class C
felony.”). Therefore, the fact that McMurray pleaded guilty to a Class C felony does not
establish whether he pleaded guilty to intentional, knowing, or reckless aggravated
assault.

The government also asks us to consider the state’s proffer of the factual basis
for the plea during the plea colloquy to conclude that McMurray acted intentionally or
knowingly when he committed the aggravated assault. See R.181-3 (Plea Colloquy at
5–6) (government’s factual proffer). The plea colloquy is a document that we can
consider under Shepard. 544 U.S. at 16 (stating that the district court “is generally
limited to examining the statutory definition, charging document, written plea
agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge
to which the defendant assented”). However, McMurray entered a best-interest plea
under North Carolina v. Alford, 400 U.S. 25 (1970), which Tennessee allows when “a
defendant . . . wishes to enter a plea but does not wish to acknowledge guilt.” Yant v.
State, No. M2007-01936-CCA-R3-PC, 2008 WL 5330459, at *7 (Tenn. Crim. App. Dec.
22, 2008) (unpublished decision) (citing Alford, 400 U.S. 25; Hicks v. State, 983 S.W.2d
240 (Tenn. Crim. App. 1998)).

We have not considered whether the prosecutor’s proffer of the factual basis for
a plea, when the defendant enters an Alford-type plea, “establish[es] that the defendant
‘necessarily admitted’ the elements of [a section of the statute that constitutes a “violent
No. 09-5806 United States v. McMurray Page 15

felony”] through his plea.” Medina-Almaguer, 559 F.3d at 423 (quoting Shepard, 544
U.S. at 16); see United States v. Sawyers, 223 F. App’x 475, 477 n.2 (6th Cir. 2007)
(unpublished decision) (noting the issue but expressing no opinion because it was
abandoned on appeal), abrogated on other grounds by Begay, 553 U.S. 137. Applying
Shepard, the Fourth Circuit has held that “the prosecutor’s proffer of the factual basis
for an Alford plea may not later be used by a sentencing court to identify the resulting
conviction as an ACCA predicate.” Alston, 611 F.3d at 227. The District of Columbia
Circuit and Second Circuit, in similar contexts, have concluded that the prosecutor’s
proffer of the factual basis underlying an Alford-type plea does not demonstrate that the
defendant’s plea necessarily rested on those facts if the defendant has not assented to
the prosecutor’s factual proffer. United States v. Ventura, 565 F.3d 870, 878–79 (D.C.
Cir. 2009); Savage, 542 F.3d at 966–67.

We recently “declined to differentiate between an Alford plea and a
straightforward guilty plea” when reviewing an immigration judge’s (“IJ”) decision that
an alien had been convicted of “a particularly serious crime” under the Immigration and
Nationality Act, § 241(b)(3)(B)(ii), 8 U.S.C. § 1231(b)(3)(B)(ii). Ikharo v. Holder, 614
F.3d 622, 633–34 (6th Cir. 2010). The alien argued that “the IJ impermissibly relied on
facts contained in the indictment and plea agreement as well as during the plea hearing.”
Id. at 633. In rejecting the alien’s argument, the Ikharo court relied on a Ninth Circuit
case in which the court was analyzing whether a crime was a “crime of violence” under
the Sentencing Guidelines and “held that the key question under the Guidelines was
‘whether a defendant has a conviction for a crime of violence, not whether the defendant
has admitted to being guilty of such a crime.’” Id. (quoting United States v. Guerrero-
Velasquez, 434 F.3d 1193, 1197 (9th Cir. 2006)). The Ninth Circuit, however, has since
held that the transcript of a plea hearing for a West plea—“the California equivalent of
an Alford plea,” Doe v. Woodford, 508 F.3d 563, 566 n.2 (9th Cir. 2007)—does not
establish the factual predicate for a sentence enhancement unless the defendant admitted
to the facts. United States v. Vidal, 504 F.3d 1072, 1089 (9th Cir. 2007) (en banc) (“By
entering a West plea a defendant does not admit the specific details about his conduct on
the counts to which he pled guilty. As a result, unless the record of the plea proceeding
No. 09-5806 United States v. McMurray Page 16

reflects that the defendant admitted to facts, a West plea, without more, does not
establish the requisite factual predicate to support a sentence enhancement.” (alterations
omitted) (citations omitted) (internal quotation marks omitted)). Although we agree with
Ikharo that an Alford-type plea does not undermine the fact of a defendant’s prior
conviction, we are persuaded by the reasoning of the Second, Fourth, Ninth, and District
of Columbia Circuits that an Alford-type plea may impact our analysis of whether a
defendant necessarily admitted the elements of a predicate offense through his plea.10
We thus decline to extend Ikharo to the context of the ACCA.

Declining to consider the unadmitted factual basis proffered by the state to
support an Alford-type plea to establish the nature of a prior conviction is, moreover, in
line with other earlier decisions of this court interpreting Shepard. We have noted that
Shepard does not limit “the distinct, antecedent inquiry” of “establish[ing] the fact of the
prior convictions and the resulting sentences imposed”; rather, Shepard limits what may
be used “to establish the nature of the convictions or the specific offense conduct.”
United States v. Jimenez, 605 F.3d 415, 421 (6th Cir. 2010). We have also declined to
rely on a transcript from a preliminary examination to determine the nature of a prior
conviction because the defendant “did not admit [to] that conduct during the
examination.” Medina-Almaguer, 559 F.3d at 423. We concluded that Shepard
“requires a judicial record that identifies the facts a defendant ‘necessarily admitted’ in
entering a guilty plea.” Id. at 424.

Nor does the state trial court’s finding of a factual basis for the charge establish
that the defendant necessarily admitted the facts proffered by the prosecutor. In a trial

10
Although all of the categories of Shepard documents can be considered when evaluating an
Alford-type guilty plea, not every available Shepard document that can be considered will “establish that
the defendant ‘necessarily admitted’ the elements of a predicate offense through his plea.” Medina-
Almaguer, 559 F.3d at 423. This is true in any case, not just those involving Alford-type pleas, as the
particularities of the Shepard documents will be different in every case. Where we differ from the dissent
is in its belief that “an Alford admission” to, or “Alford acceptance” of, facts in the Shepard documents
establishes that the defendant “necessarily” admitted those facts. Dissent at 28. As explained below, a
defendant who enters an Alford-type guilty plea has “necessarily” admitted to the elements of the charge
but not the underlying factual basis. Thus, by entering a best interest plea, McMurray pleaded guilty to
the elements of aggravated assault but not the factual basis proffered by the prosecution. The plea
agreement, plea colloquy, or other Shepard documents may demonstrate that a defendant otherwise did
admit to the factual basis underlying the plea, but the Shepard documents available in McMurray’s case
do not establish that he necessarily admitted the underlying facts during the plea process.
No. 09-5806 United States v. McMurray Page 17

context, we must determine that the decisionmaker—jury or trial judge—was “actually
required . . . to find all the elements of [a qualifying crime] in order to convict the
defendant.” Taylor, 495 U.S. at 602. Thus we look to documents like charging papers,
jury instructions, and a bench-trial’s formal rulings of law and findings of fact. Id.;
Shepard, 544 U.S. at 20. In contrast, in a pleaded case, the defendant—not the trial
judge—is the relevant decisionmaker. When pleading guilty, the defendant is waiving
his right to trial and consenting to the imposition of punishment. Alford, 400 U.S. at
37–38. We must determine what the defendant was actually required to admit when
pleading guilty; thus, we look to “a transcript of plea colloquy or . . . written plea
agreement presented to the court, or . . . a record of comparable findings of fact adopted
by the defendant upon entering the plea.” Shepard, 544 U.S. at 20 (emphasis added).
The state trial court was not required to determine the truth of the state’s proffered facts
relating how the crime was committed before accepting McMurray’s best-interest plea
of guilty. The factual-basis requirement in Federal Rule of Criminal Procedure 11 and
the equivalent state criminal-procedure rules, including Tennessee, is designed to help
the trial judge evaluate the voluntariness of the defendant’s plea. See McCarthy v.
United States, 394 U.S. 459, 465 (1969); United States v. Tunning, 69 F.3d 107, 111 (6th
Cir. 1995); Yant, 2008 WL 5330459, at *8. “Thus, although a court presented with an
Alford plea must make a careful inquiry into the factual basis for the plea before
accepting it, the distinguishing feature of an Alford plea is that the defendant does not
confirm that factual basis.” Alston, 611 F.3d at 227 (alteration omitted) (citation
omitted) (internal quotation marks omitted). In other words, the defendant is not
necessarily convicted of those facts. Shepard similarly explained that the transcript of
a jury trial or a police report may reveal facts underlying a defendant’s conviction but
they do not establish that the defendant was convicted of those facts. 544 U.S. at 22.
For a conviction resulting from an Alford-type guilty plea, the defendant has
“necessarily” admitted to the elements of the charge but not necessarily the underlying
factual basis. See Alston, 611 F.3d at 226–27; Savage, 542 F.3d at 966–67; Tunning, 69
F.3d at 111 (stating that “a defendant who pleads guilty . . . admits to acts constituting
the crime,” whereas “a defendant who pleads guilty [under an Alford-type plea] either
No. 09-5806 United States v. McMurray Page 18

1) affirmatively protests his innocence or 2) refuses to admit to acts constituting the
crime”).

It makes no difference that everyone understood McMurray’s plea as relating to
the facts alleged by the state at the plea hearing. See Savage, 542 F.3d at 967. The
Court in Shepard rejected the argument that a defendant’s plea necessarily rested on
particular facts because those facts are the only ones in the record underlying the charges
and the defendant never explicitly disputed them. See Shepard, 544 U.S. at 19, 21–22;
Medina-Almaguer, 559 F.3d at 425 (stating, in explaining Shepard, that “[w]hat mattered
was not how likely it was that Shepard had pleaded guilty to burglarizing buildings (or
how unlikely it was that he had pleaded guilty to burglarizing ‘ship[s], vessel[s] or
vehicle[s]’), but whether the government could produce evidence showing that Shepard
‘necessarily admitted’ to breaking into buildings when he entered his pleas). We must
consider only the facts necessarily admitted by the defendant in pleading guilty even if
we are forced “to feign agnosticism about clearly knowable facts.” Shepard, 544 U.S.
at 34–35 (O’Connor, J., dissenting). Moreover, permitting the district court to rely on
the state’s proffer of facts underlying the conviction, when the facts are not inherent in
the crime of conviction or admitted to by the defendant, implicates the Shepard
plurality’s Sixth Amendment concerns. Id. at 24–26 (plurality); Alston, 611 F.3d at
225–26.

Finally, the fact that a plea is an Alford-type plea does not prevent the resulting
conviction from ever serving as a predicate conviction for sentence enhancement.
Convictions based on Alford-type pleas can be predicate convictions under the ACCA
if the qualifying crime is inherent in the fact of the prior conviction—i.e., if the statute
of conviction is categorically a “violent felony” or the Shepard documents demonstrate
with certainty that the defendant pleaded guilty to a narrowed charge that would qualify
as a “violent felony.” Cf. United States v. Vinton, 631 F.3d 476, 487 (8th Cir. 2011)
(concluding that a “precisely drawn charging document, which narrowed the charge to
a crime that qualifies as” a “crime of violence” under § 4B1.2(a), “is one of the
conclusive judicial records that can establish the basis for a defendant’s conviction under
No. 09-5806 United States v. McMurray Page 19

an overinclusive statute,” even if the defendant enters an Alford plea (internal quotation
marks omitted)). Additionally, any facts reflected in the Shepard documents to which
the defendant did admit in the course of his Alford-type plea can be considered. See,
e.g., United States v. Escalera, 401 F. App’x 571, 573 (2d Cir. 2010) (unpublished
decision) (affirming the district court’s “determination that the offense fell within the
narrowed federal definition of burglary” because the defendant, although entering an
Alford plea, “‘confirmed’ the ‘factual basis for the plea’” when he responded “yes” to
the district court’s question whether the factual allegations proffered by the prosecution
were accurate (quoting Shepard, 544 U.S. at 26)); United States v. Smith, 390 F.3d 661,
666 (9th Cir. 2004) (relying on defense counsel’s express admission at the plea hearing
that the defendant entered a home to conclude that the defendant’s conviction by nolo
contendere plea encompassed the elements of generic burglary), cert. denied, 546 U.S.
905 (2005). Nevertheless, the Court in Shepard contemplated that some convictions, as
here, may not serve as predicate crimes for sentence enhancement because of “the
happenstance of state court record-keeping practices and the vagaries of state
prosecutors’ charging practices.” 544 U.S. at 22 (internal quotation marks omitted).

Accordingly, we conclude that the state’s proffer of the factual basis for
McMurray’s best-interest plea does not demonstrate that McMurray’s plea necessarily
rested on facts identifying his aggravated-assault conviction as a “violent felony.” There
is no indication in the plea transcript that McMurray admitted to the government’s
proffer of the facts supporting the charge when he entered a best-interest plea. See
R.181-3 (Plea Colloquy). Nor do the documents demonstrate that he pleaded to a more
narrowed charge than “aggravated assault.” Because the documents do not establish that
McMurray necessarily pleaded guilty to a section of the Tennessee aggravated-assault
statute qualifying as a “violent felony,” McMurray’s conviction does not qualify as a
predicate conviction under the ACCA.
No. 09-5806 United States v. McMurray Page 20

III. CONCLUSION

For the reasons explained above, we conclude that the Tennessee aggravated-
assault statute in effect at the time of McMurray’s conviction is not categorically a
“violent felony” and that we cannot determine from the available Shepard documents
the nature of McMurray’s conviction. Accordingly, McMurray’s 1993 aggravated-
assault conviction does not qualify as a “violent felony” under the ACCA. We
VACATE the judgment of the district court and REMAND for resentencing consistent
with this opinion.
No. 09-5806 United States v. McMurray Page 21

_________________

DISSENT
_________________

McKEAGUE, Circuit Judge, dissenting. The majority plainly asserts that a
conviction under Tennessee’s aggravated assault statute is not a categorically violent
felony. However, because binding, and indeed recent, published authority from this
Circuit has explicitly held otherwise, I must dissent. I further note that even if the
majority were free to correctly proceed to a modified-categorical analysis under
Shepard, it fails to recognize that all of the sources approved by Shepard for
consideration in a guilty plea case can be used in evaluation of an Alford plea to the
same extent as a guilty plea..

I.

First, the majority plainly ignores binding precedent from within our Circuit.
United States v. Matthews, 278 F.3d 560, 563 (6th Cir. 2002), cert. denied, 535 U.S.
1087 (2002), clearly held that aggravated assault in Tennessee constitutes a violent
felony under the ACCA. (“Reckless aggravated assault certainly ‘presents’ a serious
risk of injury to its victim.”). The majority here reasons, however, that this precedent
is no longer valid in light of Begay v. United States, 553 U.S. 137 (2008). Had Matthews
been the last decision on the subject from this Circuit, the majority might have been
correct to reconsider that precedent, because in some instances a published opinion is no
longer binding when a subsequent “inconsistent decision of the United States Supreme
Court . . . requires modification of the decision.” Golden v. Kelsey-Hayes Co., 73 F.3d
648, 654 (6th Cir. 1996) (internal citation omitted).
No. 09-5806 United States v. McMurray Page 22

However, Begay did not directly overrule Matthews,1 and since that time, this
Court has again determined that Tennessee aggravated assault remains a categorically
violent felony. United States v. Benton, 639 F.3d 723 (6th Cir. 2011), is a published
decision from this Circuit. Decided after Begay, it explicitly states that “[t]he crime of
aggravated assault [in Tennessee] . . . qualifies as a ‘violent felony’ for ACCA
purposes.” Id. at 730. The majority concludes that this statement was merely
“dicta”—“not necessary to the outcome” of the case. Majority at 10. I respectfully
disagree. Benton’s pronouncement that Tennessee aggravated assault is an aggravated
felony was necessary to the Court’s ultimate conclusion that solicitation “create[s] a
heightened and serious potential risk of the occurrence of physical injury.” Benton,
639 F.3d at 732. The Court did not have to engage in a separate inquiry as to whether
the solicited conduct was serious enough to make the solicitation itself “present[] a
serious potential risk of physical injury,” precisely because it relied upon the conclusion
that the underlying conduct itself would be a “violent felony.” Benton determined that
because solicitation requires intent that the underlying force or threat of force occur, “it
also meets the criteria of ‘violent and aggressive conduct.’” Id.

The majority’s decision today directly conflicts with Benton. That is contrary
to our most fundamental principle of stare decisis: “This court has long adhered to the
‘venerable principle’ that a prior published decision remains controlling unless
overturned by an inconsistent decision of the United States Supreme Court or by this
court itself sitting en banc.” Brown v. United States, 462 F.3d 609, 620 (6th Cir. 2006)
(Graham, J., dissenting) (citing Schoenberger v. Russell, 290 F.3d 831, 841 (6th Cir.
2002); United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996); 6 CIR. R. 206(c)

1
In fact, the Supreme Court’s recent opinion in Sykes makes it less clear whether Begay would
require today’s result at all. Sykes reiterated that the ACCA is intended to target crimes that “show an
increased likelihood that the offender is the kind of person who might deliberately point the gun and pull
the trigger.” Sykes, 131 S.Ct. at 2275 (quoting Begay, 553 U.S. at 146). Sykes stated that “[t]he phrase
‘purposeful, violent, and aggressive’ has no precise textual link to the residual clause”; that the “risk”
assessment in the text of the ACCA is what generally “divide[s] crimes that qualify from those that do
not”; and that such an assessment will sometimes render the “purposeful, violent, and aggressive inquiry”
“redundant.” Id. Ultimately, Sykes stated that “[a]s between the two inquiries, risk levels provide a
categorical and manageable standard that suffices to resolve the case before us.” Id. at 2275-76. It is
unclear from the majority opinion in Sykes whether conduct must be “purposeful” under the residual clause
in order to qualify as a “violent felony.”
No. 09-5806 United States v. McMurray Page 23

(“Reported panel opinions are binding on subsequent panels. . . . Court en banc
consideration is required to overrule a published opinion of the court.”); see also United
States v. Hunt, 278 F. App’x 491 (6th Cir. 2008) (“Unless and until overturned by the
Sixth Circuit en banc or by the Supreme Court, [published decisions from this Circuit]
are binding and must be followed.”); Solomon v. United States, 467 F.3d 928, 935 n.1
(6th Cir. 2006) (Griffin, J., dissenting) (“[B]ecause [a prior case] has been followed in
subsequent published decisions of our court [after intervening Supreme Court precedent]
. . . I consider it precedentially binding until such time as it is overruled by the Supreme
Court or by this court en banc.”).

Put simply, we are “bound to follow [a Circuit precedent’s] mandate unless and
until a contrary rule is developed by this court en banc or by the Supreme Court.” United
States v. Merkosky, 135 F. App’x 828, 837 n.2 (6th Cir. 2005) (noting disagreement
with binding precedent but acknowledging the duty to follow it nonetheless);
Schoenberger, 290 F.3d at 842 (Moore, J., concurring) (acknowledging that questionable
precedent controls, but stating that the Court may wish to reconsider it en banc). While
Benton may very well be incorrect in light of Begay and Leocal—and I express no
opinion on that possibility—it is the law of this Circuit. “[O]ne panel of this Court
cannot overturn a decision of another panel; only the Court sitting en banc may do so.”
Schoenberger, 290 F.3d at 841 (Keith, J., concurring); Geiger v. Tower Auto., 579 F.3d
614, 622 (6th Cir. 2009) (Gibbons, J., authoring) (“[W]e are without authority to
overrule prior published decisions of our court absent an inconsistent decision of the
Supreme Court or an en banc reversal.”); Bonner v. Perry, 564 F.3d 424, 431 (6th Cir.
2009) (Moore, J., authoring) (“Bonner argues that Collard should be overruled.
However, Bonner does not cite any intervening Supreme Court decision that would
allow us to reconsider the issue, nor are we sitting en banc. Therefore, we do not have
the power . . .”).

I also note that “when a later decision of this court conflicts with one of our prior
published decisions, we are still bound by the holding of the earlier case.” Darrah v. City
No. 09-5806 United States v. McMurray Page 24

of Oak Park, 255 F.3d 301, 310 (6th Cir. 2001). Unless and until Benton is
overruled—by the whole Court and not just two members of it—it remains controlling.

II.

Moreover, even if the majority were free to proceed to a modified-categorical
analysis, its analysis does not comport with Shepard. I agree with the majority that, in
this particular case, an application of the modified-categorical approach would fail to
establish that McMurray “necessarily” pleaded guilty to a violent felony; however, I
disagree with the majority’s analysis of the issue. The majority agrees that the statute
itself or a narrowed indictment can be considered in evaluating an Alford plea. It further
purports to agree that the other Shepard documents—plea agreements, plea colloquies,
and factual bases at the plea hearing—can be considered, but then creates an important
limitation: these can only be relied upon, the majority concludes, if the defendant
actually admits guilt to the facts constituting a violent felony. I would instead hold that
all of the categories of documents approved by Shepard for evaluating guilty pleas can
be relied upon—to the same extent—when the defendant instead enters an Alford plea.

It is clearly established that several types of documents can demonstrate that an
underlying guilty-plea conviction is a violent felony: “the statutory definition, charging
document, written plea agreement, transcript of plea colloquy, and any explicit factual
finding by the trial judge to which the defendant assented.’” United States v. Wells, 473
F.3d 640, 647 (6th Cir. 2007) (quoting Shepard, 544 U.S. at 16). The majority
recognizes that an Alford conviction does serve as a predicate offense when the
conviction was categorically a violent felony, and when the charging document narrows
the charge to either a factual basis or statutory section that is a violent felony. Majority
at 19; see also, e.g., United States v. Savage, 542 F.3d 959, 964 (2nd Cir. 2008); United
States v. Cruz-Serrano, 135 F. App’x 26, at *1 (9th Cir. 2005) (citing United States v.
Smith, 390 F.3d 661, 665 (9th Cir. 2004) (holding that in a modified categorical analysis,
“the fact that Cruz-Serrano entered a nolo contendere plea is of no consequence in
assessing whether the conviction may be counted as a predicate offense”); United States
v. Ortkiese, 208 F. App’x 436 (6th Cir. 2006) (holding that a nolo contendere plea did
No. 09-5806 United States v. McMurray Page 25

not preclude the sentencing court from relying on the charging document to establish the
conviction was a “violent felony”); Vinton, 631 F.3d at 487 (concluding that a “precisely
drawn charging document, which narrowed the charge to a crime that qualified as” a
“crime of violence” can establish predicate offense when Alford plea entered); United
States v. Mackins, 218 F.3d 263, 268 (3d Cir. 2000).

Unfortunately, the majority then departs from Shepard’s list of approved
documents. It recognizes that Shepard approved reliance upon plea agreements, plea
colloquies, and factual bases at the plea colloquy, but then immediately states that it is
“persuaded” by other circuit decisions that have refused to allow the proffer of the
factual basis for an Alford plea to be used to identify the resulting conviction as an
ACCA predicate. Majority at 16. This is, however, contrary to this Court’s holding in
Ikharo v. Holder, 614 F.3d 622 (6th Cir. 2010).

Ikharo involved a review of an immigration judge’s decision that an alien had
been convicted of “a particularly serious crime.” The defendant argued that the court
could not rely on a particular underlying conviction because it was entered pursuant to
an Alford plea. However, this Court reiterated that “[a]n Alford-type guilty plea is a
guilty plea in all material respects,” and held that it is permissible to rely upon “facts
contained in the indictment and plea agreement as well as during the plea hearing.” Id.
at 633 (emphasis added). The majority states that it “decline[s] to extend” Ikharo,
majority at 16, but no extension is needed. Ikharo rejected the argument that facts in the
indictment, plea agreement, and plea hearing could not be considered due to an Alford
plea—the issue is not whether Ikharo should be extended, but simply that it should be
followed.

The majority states that by entering a best interest plea, McMurray pleaded guilty
to the elements of aggravated assault but not the factual basis proffered by the
prosecution. Majority at 16 n.10. This is inaccurate. First, a defendant pleading guilty
could attempt the same argument—that he simply admitted guilt to the elements of the
crime, but not to the additional facts contained in the plea agreement, discussed in the
plea colloquy, or accepted as the factual basis for the convictioSn. But Shepard
No. 09-5806 United States v. McMurray Page 26

demonstrates that such an argument fails: an individual pleading guilty to an offense
pleads guilty to—and can be held responsible for—the elements in the statutory offense
and facts in these additional documents when they necessarily demonstrate the violent
nature of the act. The same is true for an Alford plea. Second, a defendant entering an
Alford plea does not admit guilt at all—to the facts or the elements of the offense—but
he can likewise be held responsible for both.2

I believe that all of the sources approved by Shepard for consideration in a guilty
plea case can be used in the same manner in evaluation of an Alford plea, in appropriate
circumstances. Shepard held that such documents enable a court to make the necessary
determinations, and thus this information “would do in any sort of case.” Shepard, 544
U.S. at 20-21. The difference between a plea of guilty and an Alford plea is of “no
constitutional significance.” Alford, 400 U.S. at 37. We are bound by this Court’s
determination that a “plea of nolo contendere ‘has a similar legal effect as pleading
guilty.’” United States v. Arnold, 58 F.3d 1117, 1124 n.5 (6th Cir. 1995) (citing BLACK’S
LAW DICTIONARY 1049 (6th ed. 1990)). An Alford plea to a categorically violent felony
supports ACCA enhancement in exactly the same way that a guilty plea would do so;
there is no principled reason to say that the same is not true for analysis of the facts in
the underlying Shepard documents.3

Because the ACCA “refers to predicate offenses in terms not of prior conduct but
of prior ‘convictions’ and the ‘element[s]’ of crimes,” Shepard, 544 U.S. at 19, we must

2
Additionally, the majority’s concession regarding plea colloquies and factual bases is quite
illusory; very few defendants—if any—will bother entering an Alford plea only to then actually admit guilt
to the facts. Analyzing an identical plea colloquy differently depending on whether the plea is a guilty or
Alford one violates clearly established precedent. See Alford, 400 U.S. at 37 (noting the difference
between the two is of “no constitutional significance.”).
3
Indeed, the majority’s distinction, in practical terms, will mean that ACCA enhancement in
Alford cases will now turn on the happen-stance choice of words used by the judge and defendant in the
plea colloquy or provision of factual basis. If the judge asks the defendant, “The government alleges that
you brandished a firearm and waived it at police officers. Do you admit to this factual basis?,” an answer
of “Yes” will support ACCA enhancement under the majority’s analysis. But if the judge—in the same
case—instead says, “The government alleges that you brandished a firearm and waived it at police officers.
Do you acknowledge this factual basis?,” it cannot be used. This is a nonsensical distinction, especially
since the second question can still support ACCA enhancement in a guilty plea case. See Shepard, 544
U.S. at 25 (determining that “the defendant’s own admissions or accepted findings of fact” provide the type
of certainty sufficient for ACCA enhancement).
No. 09-5806 United States v. McMurray Page 27

“analyz[e] whether [a defendant] ha[s] been convicted of a particularly serious crime, not
whether he ha[s] admitted his guilt.” Ikharo, 614 F.3d at 633-34 (6th Cir. 2010)
(emphasis in original). Therefore, the documents explicitly approved by Shepard are
equally appropriate to consider in an Alford-plea setting—this includes the same analysis
of not only the statutory definition and charging document (as the majority
acknowledges), but also the same analysis of the “statement of factual basis for the
charge . . . shown by a transcript of plea colloquy or by written plea agreement presented
to the court,” or by a “record of comparable findings of fact adopted by the defendant
upon entering the plea.” Shepard, 544 U.S. at 20. This result is supported by ample case
law from multiple circuits. See Savage, 542 F.3d at 964; Cruz-Serrano, 135 F. App’x 26,
at *1 (9th Cir. 2005) (citing United States v. Smith, 390 F.3d 661, 665 (9th Cir. 2004)
(holding that in a modified categorical analysis, “the fact that Cruz-Serrano entered a
nolo contendere plea is of no consequence in assessing whether the conviction may be
counted as a predicate offense); Mackins, 218 F.3d at 268 (“[W]e conclude that an
Alford plea is, without doubt, an adjudication of guilt and is no different than any other
guilty plea for purposes of § 4A1.1 [of the Guidelines].”); United States v. Salean, 583
F.3d 1059, 1061 n.3 (8th Cir. 2009); United States v. Delgado-Lucio, No. 05-2201, 2006
WL 1644721, at *3 (10th Cir. June 15, 2006) (“[A]n Alford plea is a guilty plea and
properly considered as a prior criminal conviction for purposes of the Sentencing
Guidelines.”]; Abimbola v. Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (noting that “an
Alford plea is a guilty plea,” and that the relevant question is whether there was a
conviction, “as opposed to an admission of guilt”) (emphasis in original); see Ikharo,
614 F.3d at 633-34 (using Alford plea as predicate offense in the immigration context);
see also United States v. Wesley, 895 F.2d 1415 (6th Cir. 1990) (holding that Alford plea
was sufficient for finding of “crime of violence,” despite defendant’s explicit denials of
the “violent” conduct at sentencing).

In this particular case, a modified-categorical analysis would reveal that the state
has failed to establish that McMurray “necessarily” pleaded guilty to a violent
felony—but that is because none of the Shepard-approved circumstances are present in
this case. The indictment is not contained in the record. The plea agreement does not
No. 09-5806 United States v. McMurray Page 28

contain facts demonstrating a violent felony. And while a factual basis was read at the
plea colloquy, the sentencing judge never asked the defendant to confirm or accept—by
Alford plea or otherwise—that factual basis. The court merely had the factual basis read,
and then later asked, “Are you entering a best interest plea of guilty on that one charge
of aggravated assault?” to which McMurray replied “Yes, sir.” Therefore, the state failed
to establish that McMurray “necessarily” pleaded guilty to a violent felony—but that is
not the required result in every similar case.

Instead, an Alford guilty plea can serve as a predicate offense where: (1) the
statutory definition demonstrates that the conviction is categorically a violent felony;
(2) the charging document narrows the charge to either a factual basis or statutory
section that is a violent felony; (3) the plea agreement contains facts demonstrating the
violent felony; (4) the plea colloquy reveals an Alford admission to facts constituting a
violent felony; or (5) the sentencing court requires the defendant to confirm—through
an Alford acceptance— a factual basis constituting a violent felony. The majority fails
to recognize the latter three in this list, instead adding a requirement that the facts be
explicitly admitted.

There are consequences to second-guessing the Supreme Court’s determination
that these documents should be considered: any defendant pleading to a crime that is not
categorically a violent felony can avoid ACCA enhancement if the indictment does not
narrow the offense, simply by entering an Alford plea—even if the plea agreement states
predicate conduct, or the defendant himself acknowledges to the court that the factual
basis presented by the state would demonstrate predicate conduct at trial.

Because an Alford plea and a guilty plea are legally the same, requiring Alford
assent to requisite facts—either in writing in the plea agreement, or by verbal
acknowledgment at a hearing—means that the conviction “necessarily” involved
predicate conduct to the same extent as it would in a guilty plea case. Shepard, 544 U.S.
at 25 (holding that “written plea agreement[s],” “accepted” findings of fact, or
statements “confirming the factual basis for a valid plea” will suffice). The Ninth Circuit
case cited by the majority, United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007), agrees
No. 09-5806 United States v. McMurray Page 29

with this conclusion. It states that all five categories of documents can be considered,
see id. at 1086. It further explains that a West plea agreement can provide a basis for
determining the qualifying nature of the underlying conviction, see id. at 1089, but that
in that particular case, no qualifying facts were contained in the “facts” section of the
agreement. Id. Vidal indicates that if the court possessed a “memorialization of the
terms of the plea bargain,” that document could have been considered in determining
whether the conviction was for generic theft. Id. That decision also states that where
a defendant admits in a plea colloquy—in the context of a nolo contendere plea—to
entering a dwelling, the offense constitutes generic burglary. Id. (citing United States
v. Smith, 390 F.3d 661, 666 (9th Cir. 2004)). Similarly, Smith held that in a nolo
contendere case, “the district court may rely on the undisputed factual basis as stated at
the plea hearing to support the ACCA enhancement.” Smith, 390 F.3d at 665-66; see id.
(“The legal effect of [a nolo contendere] plea . . . shall be the same as that of a plea of
guilty for all purposes.”) (citing Cal. Penal Code § 1016).

The Second Circuit has also explicitly agreed with this approach. In United
States v. Palmer, 68 F.3d 52 (2nd Cir. 1995), the defendant had entered a nolo
contendere plea in his underlying conviction, and the information document in the case
did not specify qualifying conduct. However, at the plea colloquy, the court “inquired
whether Palmer had ‘heard the [foregoing] facts that were read by the prosecutor’ and
agreed that he was entering his plea of nolo contendere thereto, and Palmer answered
affirmatively.” Id. at 54. The court held that where a defendant enters a nolo contendere
plea, but the “plea proceeding includes a lucid description of the conduct for which [the
defendant] was convicted,” and the defendant’s “on-the-record-agreement to the
description of his conduct proffered by the prosecuting attorney,” it results in “the
functional equivalent of a plea agreement with respect to that conduct,” and sentence
enhancement based on that conviction was appropriate. Id. at 59.

I would join these circuits in holding that Shepard meant what it said: all of these
documents should be equally relied upon “in any sort of case.” Shepard, 544 U.S. at 20-
21.
No. 09-5806 United States v. McMurray Page 30

III.

Because Matthews and Benton are binding and controlling, I am bound to object
to the majority’s contrary holding that McMurray’s aggravated assault conviction is not
categorically a violent felony. I also would hold that if a modified-categorical analysis
is reached, a defendant’s Alford plea does not prohibit a court from looking to the
statutory definition, charging document, plea agreement, plea colloquy, or factual
findings in determining whether a crime qualifies as a “violent felony” under the ACCA.
Therefore, I dissent.