NOT RECOMMENDED FOR PUBLICATION
File Name: 20a0227n.06
Case No. 18-5692
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Apr 27, 2020
JOSHUA BOOKER, ) DEBORAH S. HUNT, Clerk
)
Petitioner-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
UNITED STATES OF AMERICA, ) TENNESSEE
)
Respondent-Appellant. )
)
BEFORE: BATCHELDER, GIBBONS, and SUTTON, Circuit Judges.
SUTTON, Circuit Judge. In November 2013, Joshua Booker sold a stolen gun to an
undercover police officer. He pleaded guilty to possessing a firearm as a felon. 18 U.S.C.
§ 922(g)(1). Based on his lengthy criminal record, including six convictions for aggravated
burglary in Tennessee, the district court found that Booker was an armed career criminal.
18 U.S.C. § 924(e). The court sentenced him to 188 months in prison. Booker did not object to
his classification as an armed career criminal. Nor did he appeal.
The next year, the Supreme Court held that the Armed Career Criminal Act’s residual
clause violates due process. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). Booker filed
a § 2255 motion to reopen his sentence, arguing that his aggravated burglary convictions no longer
qualified as violent felonies. While that motion was pending, this court decided the same question
Case No. 18-5692, Booker v. United States
in another case. It held that Tennessee aggravated burglary was not a violent felony under the Act.
United States v. Stitt, 860 F.3d 854, 861–62 (6th Cir. 2017) (en banc). The district court reduced
Booker’s sentence under Stitt.
The victory was temporary. A few months after the district court granted his § 2255
motion, the Supreme Court reversed Stitt and held that Tennessee aggravated burglary fit within
the Act’s generic burglary definition. United States v. Stitt, 139 S. Ct. 399, 406–08 (2018). In
reversing our decision in Stitt, the Court returned our circuit to its earlier precedents. See
Brumbach v. United States, 929 F.3d 791, 794–95 (6th Cir. 2019). Under those decisions,
Tennessee aggravated burglary counts as a violent felony under the Act. Id.; see United States v.
Nance, 481 F.3d 882, 888 (6th Cir. 2007). Consistent with this line of cases, we have remanded
several cases to reinstate the original sentence after the inmate obtained § 2255 relief based on the
Stitt en banc decision. See, e.g., Brumbach, 929 F.3d at 794–95; see also, e.g., Sesson v. United
States, Nos. 17-5955/5957/6323, 2020 WL 773049, at *2 (6th Cir. Jan. 30, 2020) (order); White v.
United States, No. 17-5967/5969, 2020 WL 773056, at *2 (6th Cir. Jan. 21, 2020) (order); Barnett
v. United States, No. 17-5977/5978, 2019 WL 7946346, at *2 (6th Cir. Dec. 12, 2019) (order);
Bearden v. United States, No. 17-5927, 2019 WL 7882516, at *2 (6th Cir. Nov. 6, 2019) (order);
Hill v. United States, No. 18-5089/5090, 2019 WL 7602328, at *2 (6th Cir. Oct. 10, 2019) (order);
United States v. Crutchfield, 785 F. App’x 321, 323–24 (6th Cir. 2019); United States v. Bawgus,
782 F. App’x 408, 409–10 (6th Cir. 2019); United States v. Bateman, 780 F. App’x 355, 356–57
(6th Cir. 2019); Greer v. United States, 780 F. App’x 352, 353 (6th Cir. 2019); United States v.
Hamilton, 774 F. App’x 283, 283 (6th Cir. 2019) (per curiam); Bell v. United States, 773 F. App’x
832, 833 (6th Cir. 2019); Mann v. United States, 773 F. App’x 308, 309 (6th Cir. 2019) (per
curiam).
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Case No. 18-5692, Booker v. United States
Booker urges us not to take this well-worn path for three reasons. First, he maintains that
his six aggravated burglary convictions do not qualify as violent felonies because the breaking-in
instrument by itself satisfies the “entry” element of the crime. But Brumbach rejected the same
argument, concluding that “[e]ven if there is merit to Brumbach’s arguments concerning
Tennessee’s definition of entry, a panel of this court cannot overrule Nance.” 929 F.3d at 795. A
more recent decision rejected the argument more fully. United States v. Brown, __F.3d__, 2020
WL 1966845 (6th Cir. Apr. 24, 2020). After a thorough and thoughtful analysis, Brown concluded
that “the Act’s generic definition should encompass [a] broader entry-by-instrument rule.” Id. at
*7. The court considered and rejected each of the points Booker raises today.
Second, Booker argues that Tennessee burglary is missing the intent element of generic
burglary. The Supreme Court has defined generic burglary as “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). One variant of Tennessee burglary, says Booker, lacks “intent
to commit a crime,” because § 402(a)(3) makes it a burglary to, “without the effective consent of
the property owner . . . [e]nter[] a building and commit[] or attempt[] to commit a felony, theft, or
assault.” Tenn. Code Ann. § 39-14-402(a)(3). The underlying “felony, theft, or assault” necessary
for an (a)(3) conviction, he adds, could require mere recklessness, which to his mind suggests the
convicted burglar never formed “intent to commit a crime.”
But Brumbach, again, makes clear that Nance is good law and leaves no room for raising
still more arguments about Tennessee aggravated burglary. 929 F.3d at 794. As we recently
explained in Brown, moreover, “Tennessee’s burglary statute is divisible . . . criminaliz[ing] four
different offenses.” 2020 WL 1966845, at *7. Booker’s intent argument concerns one of them,
§ 402(a)(3). But a different variant, § 402(a)(1), maps precisely on to Taylor’s definition, covering
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Case No. 18-5692, Booker v. United States
persons who unlawfully “enter[] a building . . . with intent to commit a felony, theft or assault.”
See Taylor, 495 U.S. at 599; Brown, 2020 WL 1966845, at *7. Here, as in Brown, the indictments
for each of Booker’s convictions charge him with unlawfully entering buildings “with intent to
commit theft.” ROA 43 at 2, 5, 8, 10, 12, 14. That language tracks the (a)(1) variant of burglary,
and he never argues there is an intent problem with that variant. See Brown, 2020 WL 1966845,
at *7.
Third, Booker maintains that insufficient proof shows that the six convictions covered
distinct crimes on “occasions different from one another.” 18 U.S.C. § 924(e)(1). He argues that
courts may review underlying state court documents only to determine the elements of the crimes
of conviction, not to determine their dates and locations. See Shepard v. United States, 544 U.S.
13, 16 (2005). Precedent forecloses the argument. United States v. Hennessee held that courts
“may consider both elemental and non-elemental facts contained in Shepard-approved documents
to determine whether prior felonies were committed on occasions different from one another.” 932
F.3d 437, 444 (6th Cir. 2019). Those documents show that Booker burglarized at least six separate
structures on five separate dates. That suffices. See, e.g., Brown, 2020 WL 1966845, at *8; Greer,
780 F. App’x at 352–53.
For these reasons, we vacate and remand with instructions to reinstate Booker’s original
sentence.
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