RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0291p.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. 10-5417
v.
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Defendant-Appellant. -
ANTHONY GLOSS,
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Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 09-00144-001—Todd J. Campbell, Chief District Judge.
Decided and Filed: November 17, 2011
Before: NORRIS, SUTTON and GRIFFIN, Circuit Judges.
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COUNSEL
ON BRIEF: Patrick G. Frogge, BELL, TENNENT & FROGGE, Nashville, Tennessee,
for Appellant. J. Alex Little, ASSISTANT UNITED STATES ATTORNEY, Nashville,
Tennessee, for Appellee.
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OPINION
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SUTTON, Circuit Judge. Anthony Gloss appeals a 180-month sentence required
by the Armed Career Criminal Act. He presents one argument: that the district court
should not have sentenced him under the Act because his Tennessee conviction for
facilitation of aggravated robbery does not amount to a “violent felony.” We disagree
and affirm.
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No. 10-5417 United States v. Gloss Page 2
I.
In August 2009, Gloss pled guilty to one count of being a felon in possession of
a firearm. See 18 U.S.C. § 922(g). The PSR recommended that Gloss be sentenced
under the Armed Career Criminal Act on account of two Tennessee convictions for
violent felonies and one Tennessee conviction for a serious drug offense. Gloss
conceded he had committed one serious drug offense and one violent felony (aggravated
assault), but objected to the conclusion that his conviction for facilitation of aggravated
robbery qualified as a violent felony. Relying on United States v. Nance, 481 F.3d 882
(6th Cir. 2007), the district court overruled Gloss’s objection. The court sentenced Gloss
to 180 months, the minimum sentence required under the Act.
II.
The mandatory-minimum sentencing requirements of the Act apply to any person
who has been convicted of being a felon in possession of a firearm and who has three
previous convictions for violent felonies or serious drug offenses. The Act defines
“violent felony” as:
[A]ny 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.
18 U.S.C. § 924(e)(2)(B).
The question is whether the challenged Tennessee offense—facilitation of
aggravated robbery—falls into one or both of these categories. The definitions of two
Tennessee criminal laws come into play. Facilitation: “[a] person is criminally
responsible for the facilitation of a felony, if, knowing that another intends to commit
a specific felony, but without the intent required for criminal responsibility . . . , the
person knowingly furnishes substantial assistance in the commission of the felony.”
No. 10-5417 United States v. Gloss Page 3
Tenn. Code Ann. § 39-11-403. Aggravated robbery: a person commits the crime
through “the intentional or knowing theft of property from the person of another by
violence or by putting the person in fear,” where that theft is “[a]ccomplished with a
deadly weapon or by display of any article used or fashioned to lead the victim to
reasonably believe it to be a deadly weapon; or . . . [w]here the victim suffers serious
bodily injury.” Tenn. Code Ann. §§ 39-13-401, 39-13-402.
To convict an individual of facilitation of aggravated robbery, the State thus must
establish that he (1) knowingly provided substantial assistance to another (2) whom he
knew intended to steal property from a victim by using a real or disguised weapon or by
causing serious bodily injury. See State v. Parker, 932 S.W.2d 945, 950–51 (Tenn.
Crim. App. 1996). Is that a “violent felony” under the Act?
We think so—at least under the first clause of the definition, which is all we need
to decide to uphold this sentence. A conviction for criminal facilitation in Tennessee
“requires that [the underlying crime] actually occur.” United States v. Sawyers, 409 F.3d
732, 738 (6th Cir. 2005). And the State cannot prove aggravated robbery—and hence
cannot secure a conviction for facilitation of aggravated robbery—unless it establishes
beyond a reasonable doubt that the crime was either “accomplished with a deadly
weapon” (or an article disguised as a deadly weapon), or resulted in the victim
“suffer[ing] serious bodily injury.” Tenn. Code Ann. § 39-13-402; see also Parker, 932
S.W.2d at 950–51. Any robbery accomplished with a real or disguised deadly weapon,
or that causes serious bodily injury, falls under the first clause of the definition of violent
felony, as it necessarily involves “the use, attempted use, or threatened use of physical
force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). It makes no
difference that the defendant was not the person who committed the aggravated robbery.
See, e.g., United States v. Brown, 550 F.3d 724, 729 (8th Cir. 2008). All that matters is
that someone did so, and that the defendant knowingly provided substantial assistance
to that person.
This conclusion squares with precedent. Most pertinently, we came to the same
conclusion in Nance, which held that facilitation of aggravated robbery in Tennessee is
No. 10-5417 United States v. Gloss Page 4
a violent felony. 481 F.3d at 888. Outside the context of this Tennessee facilitation
offense, we and other courts have reached analogous results in cases involving other
types of joint criminal enterprises. If a conviction for facilitation or conspiracy requires
the government to prove the elements of the underlying violent felony, such a conviction
will itself qualify as a violent felony under the first clause of § 924(e)(2)(B). See, e.g.,
United States v. Chandler, 419 F.3d 484, 487 (6th Cir. 2005) (facilitation of aggravated
assault in Tennessee is a violent felony); United States v. Preston, 910 F.2d 81, 86 (3d
Cir. 1990) (conspiracy to commit robbery in Pennsylvania is a violent felony). If, by
contrast, the government may obtain a conviction by proving only that the defendant
agreed to participate in violent crime or solicited it—and not that some person
committed or attempted to commit the underlying offense—conspiracy or facilitation
tends to be outside the reach of the first clause of § 924(e)(2)(B), and generally will be
deemed a violent felony only if it qualifies under the residual clause. See, e.g., United
States v. Benton, 639 F.3d 723, 731 (6th Cir. 2011); United States v. Gore, 636 F.3d 728,
731–32 (5th Cir. 2011); United States v. King, 979 F.2d 801, 803 (10th Cir. 1992). This
case falls cleanly into the first category.
All of this makes Gloss’s appellate arguments largely beside the point. He
claims that Nance must be reassessed in the aftermath of Begay v. United States, 553
U.S. 137 (2008), and Chambers v. United States, 555 U.S. 122 (2009). But that is so
only if we rely on the residual clause of § 924(e)(2)(B) in this case and only if we
construe Nance as relying exclusively on the residual clause. Begay and Chambers
clarified the meaning of the residual clause, which covers crimes that “involve[] conduct
that presents a serious potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii). The Court held that the residual clause generally reaches only those
crimes that, like arson, burglary and extortion, are “purposeful, violent, and aggressive,”
Begay, 553 U.S. at 144–45; it does not reach more passive, strict-liability crimes like
driving under the influence or failing to report to prison. Id. at 146; Chambers, 555 U.S.
at 128; see also Sykes v. United States, 564 U.S. ___, 131 S. Ct. 2267, 2275–76 (2011).
Begay and Chambers say nothing about the first clause of § 924(e)(2)(B), and
No. 10-5417 United States v. Gloss Page 5
accordingly have nothing to say about our application of that clause to this sentence and
this crime—the facilitation of aggravated robbery under Tennessee law.
We do not read Nance, moreover, as relying only on the residual clause in
determining that facilitation of aggravated robbery is a violent felony. Although Nance
never explicitly referred to one clause over the other, the language of the decision
implied that it was relying on the first clause. Nance noted that we had previously held
that “the underlying felony constitutes ‘an element’ that can be examined by the court
because criminal facilitation in Tennessee requires the government to show that the
underlying crime actually occurred.” Nance, 481 F.3d at 888 (quoting Sawyers, 409
F.3d at 738). Every element of aggravated robbery, as a result, is also an element of
facilitation of aggravated robbery. As shown, there can be little doubt that aggravated
robbery involves the use, attempted use, or threatened use of physical force against the
person of another.
Having concluded that facilitation of aggravated robbery is a violent felony
within the meaning of § 924(e)(2)(B)(i), we need not decide whether it also qualifies
under the residual clause as a crime that “involves conduct that presents a serious
potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii).
III.
For these reasons, we affirm.