NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0420n.06
No. 14-6072
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Jun 08, 2015
) DEBORAH S. HUNT, Clerk
Plaintiff-Appellee, )
)
ON APPEAL FROM THE UNITED
v. )
STATES DISTRICT COURT FOR THE
)
EASTERN DISTRICT OF KENTUCKY
RICHARD BRUMBACK, )
)
OPINION
Defendant-Appellant. )
)
)
BEFORE: KEITH, CLAY and STRANCH, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Richard Brumback appeals his sentence of
180 months of imprisonment imposed after the district court determined that his three previous
convictions for third-degree burglary under Kentucky law qualified as violent felony crimes
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). Because the record is
insufficient to determine whether the ACCA was properly applied, we REVERSE Brumback’s
sentence and REMAND for resentencing.
I. BACKGROUND
Brumback was charged in two counts of an indictment with knowingly possessing a
firearm after having been previously convicted of a felony offense, in violation of 18 U.S.C.
§ 922(g)(1). The indictment also sought forfeiture of a .45 caliber semi-automatic pistol and
associated ammunition.
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United States v. Brumback
The government filed written notice of its intent to seek enhanced sentencing under the
ACCA due to Brumback’s previous violent felony convictions. 18 U.S.C. § 924(e). The notice
listed three convictions for third-degree burglary, one for second-degree arson, and one for
second-degree escape, all of which were adjudicated in Kentucky courts.
Brumback entered into a written plea agreement with the government under Federal Rule
of Criminal Procedure 11(c)(1)(B). He agreed to plead guilty to Count 1 and forfeit the firearm
and ammunition to the government. The factual basis statement provided that, on November 23,
2012, Brumback “was captured on a video recording carrying a pistol on his hip in a holster in
The Sportsman’s Warehouse” in Lexington, Kentucky “as he was in the process of shoplifting a
9mm magazine from the business.” R. 32, Page ID 86. The factual basis statement further
provided that, on February 24, 2013, Brumback “was again captured on a video recording at The
Sportsman’s Warehouse with a handgun on his hip and carrying a rifle.” Id. Lexington police
arrested Brumback at The Sportsman’s Warehouse on April 6, 2013. At that time, he possessed
a .45 caliber, semi-automatic pistol and twenty-three rounds of .45 caliber ammunition. The
factual basis statement established that Brumback is a convicted felon and that the pistol was
manufactured in another state and transported to Kentucky through interstate commerce.
The written plea agreement informed Brumback that his guilty plea to Count 1 would
require a statutory term of incarceration “for not less than 15 years, nor more than life
imprisonment” under the ACCA. Id. Brumback admitted that he “has at least three previous
violent crime convictions as set forth in [the] notice filed by the United States pursuant to
18 U.S.C. § 924(e),” all of which were brought in different indictments. Id. He also conceded
“that he is subject to the . . . enhanced statutory punishment as set forth” in the plea agreement.
Id. at 87.
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In paragraph 5(b) of the plea agreement, Brumback agreed that his base offense level
should be 24 under USSG § 2K2.1(a)(2) because of his “three felony convictions for violent
crime offenses.” Id. In paragraph 5(c), he agreed that his base offense level would increase to
33 under USSG § 4B1.4(a) & (b)(3)(B) because of his status as an armed career criminal under
§ 924(e). Id. The parties acknowledged that Brumback should receive a three-level reduction
for acceptance of responsibility. Paragraph 6 provided that “[n]o agreement exists about the
Defendant’s criminal history category pursuant to U.S.S.G. Chapter 4 except as set forth above.”
Id. Brumback promised not to seek a reduction in his offense level based on mitigating role. He
also waived “the right to appeal the guilty plea, conviction and sentence,” but he retained “the
right to appeal the determination of a designation as an armed career offender.” Id. at 88. Thus,
the plea agreement was internally contradictory. Brumback admitted his status as an armed
career criminal, yet he also signaled he would challenge a sentence imposed under the ACCA.
At the guilty plea hearing before the district court, the government summarized each
paragraph of the plea agreement. Brumback admitted the conduct attributed to him in the factual
basis statement. He expressed understanding when the court told him that the sentence “will
have to be at least fifteen years” and “under the law I will be obligated to sentence you to at least
fifteen years in prison.” R. 42, Page ID at 160–61. The court informed Brumback, however, that
if he successfully challenged the armed career criminal designation on direct appeal, the court
would resentence him as though he were not an armed career criminal. Consequently, the plea
colloquy did not clear up the confusion generated by the plea agreement. The court accepted
Brumback’s guilty plea to Count 1, finding that he was competent to enter a plea, that the plea of
guilty was knowingly and voluntarily entered, and that the plea was supported by an independent
basis in fact covering all elements of the offense.
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The presentence report (PSR) determined that Brumback qualified for sentencing as an
armed career criminal and set the offense level at 33. PSR ¶ 22 (applying USSG
§ 4B1.4(b)(3)(B)). With a three-level reduction for acceptance of responsibility, the total
adjusted offense level dropped to 30. PSR ¶ 24. Brumback’s three prior convictions for third-
degree burglary were listed in the criminal history, although two of them did not earn criminal
history points due to the age of the convictions. PSR ¶¶ 33, 35, 37. Combining total offense
level 30 and criminal history category V, Brumback faced an advisory guideline range of 151 to
188 months of imprisonment. PSR ¶¶ 42, 71. The ACCA’s mandatory minimum sentence of
15 years, however, raised the bottom of the guideline range to 180 months under USSG
§ 5G1.1(c)(2). PSR ¶ 71. Neither Brumback nor the government filed any objections to the
PSR.
At the sentencing hearing, defense counsel objected to the court’s reliance on the three
third-degree burglary convictions listed in paragraphs 33, 35, and 37 of the PSR to sentence
Brumback to a mandatory 15-year sentence of imprisonment under the ACCA. Counsel
indicated that he was making a “technical objection” because this court’s opinion in United
States v. Coleman, 655 F.3d 480, 483 (6th Cir. 2011) resolved the ACCA issue against
Brumback.1 Counsel stated that he raised the objection because Brumback asked him to do so.
He asked the court to make an explicit finding on the issue. The government agreed that
Coleman controlled, and without further discussion, the district court “concur[red] with the
analysis provided by the attorneys.” R. 41, Page ID 137. It stated that it would “note the
1
That case held that conviction under Ohio’s third-degree burglary statute qualifies as a
violent felony under the ACCA’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii). Coleman,
655 F.3d at 483.
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objection for the record so that it can be raised on appeal.” Id. The court then adopted the
unchallenged PSR, observing that the applicable guideline range was 180 to 188 months.
During allocution, Brumback asked the court to consider that the third-degree burglary
convictions were “one step above a misdemeanor” under state law, that no one was inside the
buildings when the crimes were committed, that no weapons were involved, and that there were
no threats or attempts to employ force. Id. at 139–40. He characterized the mandatory 15-year
sentence as “extremely harsh.” Id. at 140.
Defense counsel requested a sentence of 180 months in prison with a recommendation for
intensive mental health treatment. The government asked the court to apply the § 3553(a) factors
in imposing sentence. The court, after noting its sensitivity to the comments made by Brumback
and his counsel, imposed the mandatory sentence of 180 months of imprisonment after it
considered the § 3553(a) factors and added a recommendation for mental health evaluation and
treatment during incarceration.
Brumback filed a timely notice of appeal, granting this court appellate jurisdiction under
18 U.S.C. § 3742(a). The government asserts that, although Brumback arguably waived his
ACCA claim by admitting in the plea agreement that he “has at least three previous violent crime
convictions” and by recommending an offense level based on his “status as an Armed Career
Criminal,” Brumback’s reservation of the right to appeal a sentence imposed under the ACCA
created an ambiguity in the plea agreement that must be construed against the government.
Because the government declines to argue that Brumback waived his right to challenge his
sentencing under the ACCA, we turn to the merits.
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II. ANALYSIS
We review de novo the district court’s legal conclusion that Brumback qualified for
mandatory minimum sentencing as an armed career criminal under § 924(e) and USSG § 4B1.4.
United States v. Prater, 766 F.3d 501, 507 (6th Cir. 2014). Brumback’s counsel argues on
appeal, contrary to the stance he took below, that Brumback’s three prior convictions for third-
degree burglary under Kentucky law do not qualify as predicate violent felonies to warrant
enhanced sentencing under the ACCA. Counsel contends that the district court erred by
applying Coleman to hold that Brumback’s convictions qualify as predicate offenses and by
failing to employ the modified categorical approach adopted in Shepard v. United States,
544 U.S. 13 (2005).
A prior conviction can qualify as a predicate offense under the ACCA if it “is burglary,
arson or extortion, involves use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). To determine
whether third-degree burglary under Kentucky law matches the generic burglary offense
enumerated in § 924(e)(2)(B)(ii), we use the categorical approach of “compar[ing] the elements
of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’
crime—i.e., the offense as commonly understood.” Descamps v. United States, 133 S. Ct. 2276,
2281 (2013). If the elements of Kentucky’s third-degree burglary statute “are the same as, or
narrower than, those of the generic offense,” id., Brumback’s prior convictions categorically
qualify as ACCA predicate offenses. If, however, the third-degree burglary statute is a “divisible
statute”—one that “sets out one or more elements of the offense in the alternative”—we apply
the modified categorical approach and “consult a limited class of documents . . . to determine
which alternative formed the basis of the defendant’s prior conviction.” Id.; Shepard, 544 U.S.
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at 16, 26 (holding inquiry under the ACCA is limited to statutory elements, charging document,
written plea agreement, transcript of plea colloquy, jury instructions, and any explicit factual
finding by the trial judge to which the defendant assented).
A person is convicted of generic burglary for the purpose of enhanced sentencing under
the ACCA “if he is convicted of any crime, regardless of its exact definition or label, having the
basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure,
with intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 599 (1990). Under
Kentucky law, “[a] person is guilty of burglary in the third degree when, with the intent to
commit a crime, he knowingly enters or remains unlawfully in a building.” Ky. Rev. Stat. Ann.
§ 511.040 (West 2015). The term “building,” however, is given a broad meaning. Besides the
ordinary meaning of “building,” the term “means any structure, vehicle, watercraft or aircraft:
(a) [w]here any person lives; or (b) [w]here people assemble for purposes of business,
government, education, religion, entertainment or public transportation.”2 Ky. Rev. Stat. Ann.
§ 511.010 (West 2015).
We have held twice before that these Kentucky statutes define a burglary offense broader
than generic burglary because the statutes cover break-ins of buildings, vehicles, watercraft, and
aircraft. United States v. Walker, 599 F. App’x 582, 583 (6th Cir. 2015); United States v.
McGovney, 270 F. App’x 386, 388–39 (6th Cir. 2008). The government points out that
Kentucky’s definition of third-degree burglary is close to generic burglary because the statute
limits the buildings, vehicles, watercraft, and aircraft to those that are used as residences or
places where people assemble for particular purposes. Ky. Rev. Stat. § 511.010. We recognized
the appeal of a similar argument in McGovney, but we ultimately rejected it. McGovney, 270 F.
2
These same statutes were in effect when Brumback was convicted of third-degree
burglary in 1983, 1985, and 2003.
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App’x at 389. A vehicle or boat might be “adapted for accommodation” and qualify as a
“building” in some circumstances, but we were reluctant to conclude that all vehicles, boats, and
aircraft categorically qualify as “buildings.” Id. (quoting United States v. Grisel, 488 F.3d 844,
851, n.5 (9th Cir. 2007)). We agree with the reasoning in McGovney and likewise conclude in
this case that Kentucky’s third-degree burglary statute does not categorically qualify as generic
burglary enumerated in the ACCA. See id.; Walker, 599 F. App’x at 583.
Since the Supreme Court issued Descamps, we have held that Kentucky’s third-degree
burglary statute is divisible. Walker, 599 F. App’x at 583–84. See also Prater, 766 F.3d at 510
(construing similar New York third-degree burglary statute as divisible). Because the statute is
divisible, we employ the modified categorical approach to determine if the offense qualifies as a
violent felony under the ACCA. See Descamps, 133 S. Ct. at 2281. At this point, our analysis
strikes a roadblock because the record does not include any of the documents Shepard permits us
to review.
It does not surprise us that the record is undeveloped because Brumback admitted in the
plea agreement that he “has at least three previous violent crime convictions”; he also joined the
government in recommending an offense level based on his status as an armed career criminal;
and he subsequently filed no objections to the PSR that recommended sentencing him as an
armed career criminal. Because Brumback did not challenge his armed career criminal status
prior to the sentencing hearing except to reserve a right to appeal, the government apparently did
not prepare to introduce Shepard documents at the sentencing hearing for the district court’s
consideration. Moreover, during the sentencing hearing, Brumback’s counsel invited the district
court to rely on Coleman, a case construing Ohio statutory law, that was decided in favor of the
government and supported sentencing Brumback as an armed career criminal. Although the
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Coleman case offers insight into the application of the ACCA, it does not control this case
because Kentucky’s third-degree burglary statute differs from Ohio’s.
We do not have access to Shepard documents to pinpoint which of the alternatives under
the Kentucky third-degree burglary statute formed the basis of Brumback’s three separate
convictions. See Descamps, 133 S. Ct. at 2281. Like the written plea agreement, the plea
colloquy between Brumback and the district judge is ambiguous concerning whether Brumback
admitted that he committed three prior violent felonies qualifying him for sentencing as an armed
career criminal. The PSR indicates that all three burglary convictions involved breaking and
entering into buildings (a concrete business and two fire department station houses), PSR ¶¶ 33,
35, 37, but we decline to rely on the PSR as a Shepard document. It is not clear that Brumback
assented to the factual statements in the PSR, considering that he objected to being sentenced
under the ACCA at the sentencing hearing. See Prater, 766 F.3d at 512. During allocution,
Brumback told the court that “[t]here was no one in the buildings at the time,” R. 41, Page ID
139, essentially corroborating the PSR’s statements that each burglary involved a building. In
McGovney, we used a similar admission by the defendant to find no plain error, thereby avoiding
remand for introduction of Shepard documents. 270 F. App’x at 389. We affirmed “[u]nder the
unique circumstances” of that case. Id. Here, where there is no suggestion that the plain error
standard applies, the government addressed the merits of the issue raised, and the government
has the burden to prove the applicability of the ACCA, United States v. Barbour, 750 F.3d 535,
542 (6th Cir. 2014), we decline to reach the same outcome as the McGovney court.
Finally, the government asserts that Brumback committed two other prior offenses that
categorically qualify as violent felonies—robbery in Nebraska and arson in Kentucky. The
government now admits that the second-degree escape conviction listed in its notice of enhanced
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sentencing does not qualify as a violent felony. The government did not rely on the robbery
conviction when it gave Brumback notice of the intent to seek enhanced sentencing, but even
assuming the robbery and arson crimes are violent felonies, one of the third-degree burglary
offenses would have to count to reach three violent felony offenses warranting sentencing under
the ACCA. We cannot avoid remand by relying on the robbery and arson offenses.
Because the record is not sufficient to undertake the modified categorical analysis with
respect to whether the Kentucky third-degree burglary convictions qualify as violent felonies, we
have no choice but to remand the case to the district court. On remand, the government may
introduce proper Shepard documents to assist the district court in performing the modified
categorical analysis. See Descamps, 133 S. Ct. at 2281.
III. CONCLUSION
Accordingly, we REVERSE Brumback’s sentence under the ACCA and REMAND the
case to the district court for resentencing consistent with this opinion.
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