NOT RECOMMENDED FOR PUBLICATION File Name: 20a0471n.06
Case No. 17-5941
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Aug 10, 2020 LANDREO LURRY, ) DEBORAH S. HUNT, Clerk ) Petitioner - Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF UNITED STATES OF AMERICA, ) TENNESSEE ) Respondent - Appellant. ) OPINION )
BEFORE: GIBBONS, LARSEN, and NALBANDIAN Circuit Judges.
NALBANDIAN, Circuit Judge. Before this panel is another appeal concerning the fallout
from United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc) (Stitt I), rev’d, 139 S. Ct. 399
(2018). Landreo Lurry pleaded guilty as a felon in possession of a firearm. The district court
enhanced his sentence because his three prior convictions under Tennessee’s aggravated burglary
statute qualified at that time as violent felonies under the Armed Career Criminal Act (ACCA).
After Stitt I, Lurry’s prior convictions no longer qualified as violent felonies and so the district
court granted him time-served relief. The government appealed while it was asking the Supreme
Court to review Stitt I. And now that the Supreme Court has reversed Stitt I, the government wants
Lurry’s original sentence imposed. Given the Supreme Court’s and our precedent, we agree and
now VACATE the district court’s judgment and REMAND for proceedings not inconsistent with
our decision. No. 17-5941, Lurry v. United States,
I.
Lurry pleaded guilty to violating 18 U.S.C. § 922(g). See United States v. Lurry, 483 F.
App’x 252, 252–53 (6th Cir. 2012). The district court then concluded that Lurry qualified for a
sentencing enhancement under the ACCA given his three prior convictions for aggravated burglary
in Tennessee. So it sentenced him to 180 months’ imprisonment followed by 3 years’ supervised
release.
Then came Lurry’s first appeal. As part of his guilty plea, Lurry had reserved his right to
challenge the district court’s refusal to suppress evidence. Lurry, 483 F. App’x at 252. He
challenged his conviction on those grounds alone and this court affirmed. Id. at 253–55.
Proceeding pro se, Lurry moved this court in 2013 under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence. And the next year, Lurry moved the district court to reduce his
sentence under 18 U.S.C. § 3582(c)(2). In the first motion, he argued for a sentence reduction
because the Sentencing Guidelines “did not include the offense of unlawful possession of a firearm
by a felon[.]” (R. 96, Mot., PageID 458 (criminal docket); R. 9, Mot., PageID 100.) In the second,
he argued the district court erroneously “separated and counted [his] two prior felon Aggravated
Burglaries convictions as two convictions” even though they involved the same parties (Lurry and
co-defendants) and “occurred on the same date just hours apart[.]” (R. 97, Mot., PageID 468
(criminal docket); R. 10, Mot., PageID 110.)
In June 2016, as part of his habeas claim, Lurry also challenged his sentence under Johnson
v. United States, 135 S. Ct. 2551 (2015). He argued that his prior convictions for aggravated
burglary in Tennessee did not qualify as violent felonies and could not support his enhanced
sentence. But the court administratively closed Lurry’s habeas proceedings given this court’s
decision, at that point, to rehear en banc the panel decision in United States v. Stitt, 637 F. App’x
2 No. 17-5941, Lurry v. United States,
927 (6th Cir. 2016).1 The panel, following circuit precedent, had concluded that Tennessee
aggravated burglary remained categorically a violent felony under the ACCA.
The en banc court disagreed. See Stitt I, 860 F.3d 854. So after Stitt I, aggravated burglary
under Tenn. Code Ann. § 39-14-403 no longer qualified as an ACCA predicate in this circuit. Id.
at 858. Stitt I also overruled this court’s prior decisions holding otherwise: United States v. Priddy,
808 F.3d 676 (6th Cir. 2015), and United States v. Nance, 481 F.3d 882 (6th Cir. 2007).
After the Stitt I en banc decision, the probation office submitted a memorandum to the
district court recommending relief to Lurry based on Stitt I. The district court ordered the
government to respond. The government recognized that Lurry was entitled to relief.
Nevertheless, it stated that “[t]he law on whether convictions under statutes like Tennessee’s
aggravated burglary statute qualify as ACCA predicates remains unsettled and it is quite possible
the Supreme Court will review the matter ‘soon.’ The United States submits Stitt [I] was wrongly
decided and preserves the argument here for future purposes.” (R. 17, Response, PageID 142
(quoting Stitt I, 860 F.3d at 868 (Boggs, J., concurring)).)
The government recognized, “[h]owever, [that] Stitt [I] [wa]s [at that time] binding case
law in this circuit, and under Stitt [I], LURRY’s prior aggravated burglary convictions are not
violent felonies.” (Id.) And “[w]ithout th[o]se convictions, LURRY would not qualify as an armed
1 About a year after Lurry made his request for review under Johnson, he also moved the district court to supplement his § 2255 motion with an argument grounded in Mathis v. United States, 136 S. Ct. 2243 (2016). In that motion he argued that under Mathis, “burglaries are not violent crimes within the meaning of the 4b1.2 guidelines.” (R. 15-1, Mem., PageID 135.) He also asserts that the “Tennessee burglary statute is an indivisible statute and . . . indivisible statute[s] cannot be used as a predicate for an ACCA enhancement.” (Id. at 136.) He contends that Mathis “makes clear that sentencing courts may no longer” “reference record documents to determine a defendant[’]s prior conviction” as well. (Id. at 135.) And the government, he contends, has the burden to produce Shepard documents for sentencing but failed to do so. For those reasons, he urged the court to find that his three “prior convictions are disqualified from the ACCA enhancement.” (Id. at 136.) 3 No. 17-5941, Lurry v. United States,
career criminal.” (Id.) His guidelines range “would [instead] be 51–63 months” and at that point
Lurry had served “approximately 95 months[.]” (Id. at 143.) So the government recommended
that “[i]f th[e district c]ourt grant[ed] [Lurry’s] § 2255 motion, it should vacate his sentence and
impose a sentence of time served, effective immediately, without setting the matter for a formal
resentencing or otherwise ‘requiring the production of the prisoner.’” (Id. (quoting § 2255(c)).)
The district court agreed. It acknowledged the government’s position—that Stitt I was
wrong. It also acknowledged the government’s ability to “stay [] the issuance of the mandate” in
Stitt I “so that it may file a petition for writ of certiorari in the U.S. Supreme Court” in that case.
(R. 18, Order, PageID 157 n.4.) Even so, the district court explained that it “should not defer
ruling on Lurry’s § 2255 request” because “[f]or now, Stitt [I] [wa]s binding on th[e] Court.” (Id.
at 157–58 n.4.)
On that basis, the district court granted Lurry’s request for relief under Johnson. The court
exercised its discretion to “correct [the] sentence without requiring the production of the prisoner”
and “sentenced [Lurry] to time served, to be followed by a three-year period of supervised release.”
(Id. at 158.) It accordingly denied Lurry’s two motions to reduce his sentence under § 3582(c)(2)
along with his motion to supplement his § 2255 motion as moot. And it did the same with Lurry’s
first argument in his § 2255 motion—that his attorney provided ineffective assistance during
sentencing by failing to argue Lurry’s aggravated-burglary convictions did not qualify as violent
felonies under the ACCA.
But it rejected two remaining arguments from Lurry’s original § 2255 motion. First, it
found that Lurry’s appellate counsel did not provide ineffective assistance. This court’s precedent
foreclosed the argument that Lurry asserted appellate counsel should have raised—that the traffic
stop leading to Lurry’s arrest was unconstitutional. And second, it found that Lurry did not receive
4 No. 17-5941, Lurry v. United States,
ineffective assistance of counsel during his guilty plea because his counsel “warn[ed] him about
the possibility of being sentenced as an armed career criminal” and explained the consequences of
that possibility. (Id. at 166.) So his counsel did not coerce him into entering his guilty plea by
either providing him a faulty sentencing estimate or failing to advise him about possible
consequences under the ACCA. The district court entered its judgment on Lurry’s § 2255 motion
on July 20, 2017.
The government timely appealed. Before the parties filed their appellate briefs, the
government petitioned for and the Supreme Court granted certiorari in Stitt I. So this court granted
the government’s motion to hold this appeal in abeyance. After the Supreme Court issued its
decision reversing Stitt I, the government filed a status report “request[ing] that this appeal proceed
in the regular course.” (A.R. 26, Status Report, 2.)
II.
On appeal, the government asks us to vacate the district court’s judgment in light of United
States v. Stitt, 139 S. Ct. 399 (2018) (Stitt II), and to remand to the district court to reinstate Lurry’s
original sentence. Lurry on the other hand asks us to find that his prior convictions are not violent
felonies under the ACCA and to affirm the district court’s decision. Alternatively, if we do not
affirm the district court’s decision, Lurry asks us to remand so that the district court may review
in the first instance Lurry’s arguments against applying the ACCA enhancement as well as the
previously moot arguments Lurry raised in his original § 2255 motion, his motion to supplement,
and his § 3582 motions.2
2 Lurry also filed a letter under Federal Rule of Appellate Procedure 28(j) urging us to dismiss the government’s appeal and vacate his underlying conviction or at a minimum order supplemental briefing because of Rehaif v. United States, 139 S. Ct. 2191 (2019). But this court has already denied Lurry supplemental briefing on those grounds given that Lurry failed to cross appeal the decision although the district court “handed both [parties] . . . a loss below.” Lurry v. United States, No. 17-5941, 2019 U.S. App. LEXIS 36863, at *3 (6th Cir. Dec. 12, 2019) (Order). 5 No. 17-5941, Lurry v. United States,
A.
Before addressing the merits, we must determine whether we can resolve the arguments on
appeal and our standard of review. Lurry urges us to find that the government waived the
arguments it raises on appeal or that it invited error or failed to preserve those arguments.
Although the government agreed that, under Stitt I, Lurry’s prior convictions no longer
qualified as violent felonies, it explained it disagreed with Stitt I and explicitly “preserve[d] the
argument here for future purposes.” Given those statements, we cannot find the government
“intentional[ly] relinquish[ed] or abandon[ed]” the arguments it makes on appeal (that the district
court erroneously granted Lurry relief under Stitt I). United States v. Olano, 507 U.S. 725, 733
(1993) (quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). So we cannot agree that the
government waived those arguments. Nor do we agree that the government invited error. See
United States v. Morris, --- F. App’x ---, 2020 WL 2299628, at *2 (6th Cir. May 8, 2020)
(concluding that “there was no error to invite” in a near-identical situation); United States v. Tigue,
811 F. App’x 970, 973–74 (6th Cir. 2020) (same).
We also conclude that the government preserved the error it now raises on appeal. Lurry
urges us to conclude that the government did not because it “did not move to stay proceedings in
the district court.” (Appellee’s Br. at 15.) But he cites no authority supporting his position—that
failure to stay proceedings here bars the government’s appeal. And in fact, this court has already
permitted a government appeal in near-identical circumstances. See Tigue, 811 F. App’x at 973–
74. The failure to move for a stay will not moot a case where we can still grant meaningful relief.
And we generally decline to hear issues raised under § 2255 for the first time on appeal anyway, let alone those raised for the first time in a Rule 28(j) letter. See United States v. Moody, 397 F. App’x 201, 203 n.2 (6th Cir. 2010); see also In re Lewis, 398 F.3d 735, 748 n.9 (6th Cir. 2005). So we don’t address Lurry’s Rehaif argument in this appeal. 6 No. 17-5941, Lurry v. United States,
Al-Dabagh v. Case W. Rsrv. Univ., 777 F.3d 355, 359 (6th Cir. 2015). And here, Lurry’s sentence
can be reinstated.
Lurry also contends that the government did not set forth what it was preserving with
sufficient specificity. See United States v. Bostic, 371 F.3d 865, 871 (6th Cir. 2004). We disagree.
This is not a situation in which the government “only sa[id] that [it] has further objections and
wishes to preserve them, omitting any explanation as to what they are” or where the government
objected “at such a high degree of generality that the district court ha[d] no opportunity to correct
its purported error and the court of appeals has been deprived of a more detailed record to review.”
United States v. Simmons, 587 F.3d 348, 357–58 (6th Cir. 2009). And the government’s “objection
was [not] ‘too loosely formulated and imprecise to apprise the trial court of the legal grounds for
[its] complaint.’” United States v. LeBlanc, 612 F.2d 1012, 1014 (6th Cir. 2017) (quoting United
States v. Arteaga-Limones, 529 F.2d 1183, 1199 (5th Cir. 1976)). The government’s argument
was clear—it questioned Stitt I’s validity. And its rationale was apparent from the documents that
it filed in Stitt I. In this context, that was sufficient.
B.
Because the government properly preserved the arguments it now raises, this panel reviews
de novo the district court’s determination of whether Lurry’s prior convictions qualify as violent
felonies under the ACCA. See Braden v. United States, 817 F.3d 926, 930 (6th Cir. 2016).
On appeal, Lurry asks us to find his prior Tennessee convictions do not qualify as violent
felonies under the ACCA for three reasons. First, Lurry’s intent argument. He claims the (a)(3)
variant of Tennessee aggravated burglary, see Tenn. Code Ann. §§ 39-14-403 and 39-14-
402(a)(3), fails to include an adequate intent requirement. (Appellee’s Br. at 23–31 (explaining
that the statute does not include a contemporaneous intent requirement and “does not require the
7 No. 17-5941, Lurry v. United States,
intent to commit a crime at all”).) Under Tennessee law, where a statute “does not plainly dispense
with a mental element, . . . recklessness suffices to establish the culpable mental state.” (Id. at 29–
30 (quoting Tenn. Code Ann. § 39-11-301(c)).) But generic burglary, Lurry argues, “requires
intent to commit a crime at the time of the unlawful or unprivileged entry or the initial ‘remaining
in’ without consent.” (Id. at 25 (quoting United States v. McArthur, 850 F.3d 925, 939 (8th Cir.
2017)); see also id. at 30.) Given that and the fact that this court found that “the Tennessee
aggravated burglary statute is indivisible[,]” Lurry urges this court to find that Tennessee
aggravated burglary is categorically not a violent felony under the ACCA. (Id. at 26–27 (quoting
Snider v. United States, 908 F.3d 183, 188 (6th Cir. 2018)).) If this court finds, however, that the
modified categorical approach applies, Lurry argues that he would still win because “it appears
that at least one of [his] . . . previous Tennessee aggravated burglary convictions came under”
(a)(3). (Id. at 28.)
Second, Lurry argues that Tennessee aggravated burglary “does not require an entry” and
“requires only an attempted entry.” (Id. at 31–32 (emphasis omitted).) He explains that common
law “and a majority of jurisdictions make clear that an entry is made when any part of the person,
such as a hand, crosses the threshold of the building.” (Id. at 32.) When only an instrument crosses
a threshold, Lurry explains, “the law on burglary [makes] . . . a distinction based on the person’s
purpose in using that instrument.” (Id. at 32–33.) In those majority jurisdictions and at common
law, “[c]rossing the threshold with an instrument . . . simply to break-in is merely an attempted
entry.” (Id. at 33–35.) So “generic burglary may be committed when an instrument crosses the
threshold and it is being used in an effort to commit the intended felony, but not when that
instrument is being used solely in an attempt to make entry.” (Id. at 35.) A few jurisdictions,
including Tennessee, however, “have adopted a broader rule”: Entry in Tennessee “occurs
8 No. 17-5941, Lurry v. United States,
whenever any instrument crosses the threshold” regardless of ”whether that instrument is used
solely to effect entry, or to accomplish the intended larceny or felony as well[.]” (Id. at 34 (quoting
People v. Davis, 958 P.2d 1083, 1086 (Cal. 1998)).) Thus, according to Lurry, Tennessee burglary
criminalizes more than generic burglary given its broader entry element.
Third, Lurry argues that Tennessee aggravated burglary “does not require an affirmative
act to gain entry, such as words or conduct inducing the property owner’s consent at the time of
entry.” (Id. at 42.) Instead, that statute criminalizes entry or remaining “without the effective
consent of the property owner” (“deception”) as well. (Id. at 43 (quoting Tenn. Code Ann. § 39-
14-402) (explaining Tennessee law defines “deception” as “knowingly” “fail[ing] to correct a false
impression” (internal alteration omitted) (quoting Tenn. Code Ann. § 39-11-106(a)(7)(A)(iii))).)
In Tennessee, Lurry explains, “it is enough that [the defendant] allowed a misperception to persist
for some reason unrelated to the later crime, in order to be convicted of aggravated burglary.” (Id.
at 44–45.) But Lurry asserts that generic burglary does contain an affirmative-act requirement.
(Id. at 43–45.) Once again, on those grounds, Lurry argues his prior convictions are overbroad
and do not qualify as violent felonies under the ACCA.
Simply stated, this court’s precedent after Stitt II forecloses his arguments that his prior
Tennessee convictions do not qualify as violent felonies under the ACCA. See Brumbach v. United
States, 929 F.3d 791, 794 (6th Cir. 2019); see also Tigue, 811 F. App’x at 975 (“Brumbach closed
the book on Tennessee aggravated burglary[.]”). And a panel of this court cannot overrule a prior
panel decision absent an inconsistent decision of the Supreme Court or this court sitting en banc.
See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).
Even if Brumbach did not foreclose Lurry’s arguments, we have separately addressed and
rejected every one of them. First, the Supreme Court has by now rejected Lurry’s assertion that
9 No. 17-5941, Lurry v. United States,
generic burglary requires the defendant have the intent to commit a felony at the “initial ‘remaining
in’ without consent.” See Quarles v. United States, 139 S. Ct. 1872 (2019). This circuit’s
precedent also forecloses his intent argument targeted at the (a)(3) variant of Tennessee burglary
incorporated by Tennessee’s aggravated-burglary statute. See Brumbach, 929 F.3d at 794–95
(explaining that “convictions under subsections (a)(1), (a)(2), or (a)(3) of the Tennessee burglary
statute . . . fit within the generic definition of burglary” (emphasis added) (quoting United States
v. Ferguson, 868 F.3d 514, 515 (6th Cir. 2017))); see also Morris, 2020 WL 2299628, at *3–4
(explaining that this court has “already examined” the language in the (a)(1), (a)(2), and (a)(3)
variants of burglary under Tennessee law “and concluded that all three variants count as ACCA
burglary under” Supreme Court precedent (emphasis added)).
Second, this court has specifically rejected the attempted-entry argument Lurry wants to
now bring. Brumbach, 929 F.3d at 795; see also Gilliam v. United States, 804 F. App’x 387, 388–
89 (6th Cir. 2020) (collecting cases); United States v. Brown, 957 F.3d 679, 683–84 (6th Cir. 2020)
(recognizing as much but finding “[the] argument weighty enough to warrant a response from this
court on the merits” and rejecting it).
And last, this court rejected the affirmative-acts argument Lurry now brings in United
States v. Stitt, 780 F. App’x 295 (6th Cir. 2019) (Stitt III), reh’g denied, (6th Cir. Sept. 26, 2019),
cert. denied, 140 S. Ct. 2573 (2020) (mem.). In Stitt III, a panel of this court concluded that
“despite Tennessee burglary’s inclusion of both ‘passive’ and ‘affirmative’ acts of deception
within its statutory framework, Tennessee aggravated burglary categorically constitutes generic
burglary.” 780 F. App’x at 298–301 (emphasis added). We find Stitt III’s reasoning persuasive.
Thus, the government correctly argues that Lurry’s prior Tennessee convictions do qualify
as violent felonies under the ACCA after Stitt II.
10 No. 17-5941, Lurry v. United States,
C.
The government in its appeal urges us to simply remand for the district court to reinstate
Lurry’s original sentence. But given our resolution of his arguments on appeal, several arguments
Lurry has raised are no longer moot: his ineffective-assistance-of-counsel argument raised in his
original § 2255 motion, the arguments raised in his motion to supplement, and the arguments he
raised in his two § 3582 motions. The government recognizes this. But it asserts an outcome
favorable to it here resolves the arguments remaining in Lurry’s § 2255 motion and in his motion
to supplement. And it argues that Lurry may simply move the district court for relief under § 3582
in separate proceedings given the district court docketed those motions “in Lurry’s criminal case
as petitions for resentencing” and so they have “no bearing on his post-conviction proceeding[.]”
(Reply Br. at 34.)
It’s true that we have in similar circumstances usually remanded for the district court to
simply reinstate the original sentence. See Brown, 957 F.3d at 683 (collecting cases). But because
the district court granted Lurry relief, it never addressed those mooted arguments. It never even
decided whether to grant or deny Lurry’s motion to supplement his § 2255 motion. And though
the government is correct that the district court docketed Lurry’s § 3582 motions as part of his
criminal docket, the court also docketed them as part of his civil proceedings. The court denied
those motions as moot as part of the same proceedings where it resolved Lurry’s § 2255 motion.
So we see no reason to foreclose the district court from resolving these arguments, including
whether to grant Lurry’s motion to supplement, on remand in the first instance.
III.
Under Stitt I, the district court appropriately afforded Lurry relief. But the Supreme Court
overruled Stitt I. Our precedent also forecloses any arguments Lurry now raises against applying
11 No. 17-5941, Lurry v. United States,
the ACCA enhancement based on his prior Tennessee aggravated-burglary convictions.
Accordingly, we VACATE the district court’s decision that Lurry’s prior convictions do not
qualify as violent felonies under the ACCA and REMAND for further proceedings not inconsistent
with this decision.