Richard Vowell v. United States

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 12, 2019
• Docket: 17-5405
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0356n.06

No. 17-5405 FILED Jul 12, 2019 UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk FOR THE SIXTH CIRCUIT

RICHARD VOWELL, ) ) Petitioner–Appellant, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF TENNESSEE UNITED STATES OF AMERICA, ) ) OPINION Respondent–Appellee. ) )

Before: CLAY, MOORE, and DONALD, Circuit Judges.

KAREN NELSON MOORE, Circuit Judge. Richard Vowell appeals the district court’s

denial of his petition for collateral relief under 28 U.S.C. § 2255, asserting that he is not an armed

career criminal under 18 U.S.C. § 924(e). Although we conclude that Vowell’s appellate waiver

does not preclude Vowell from bringing his § 2255 petition, we AFFIRM the district court’s

judgment because Vowell was properly designated as an armed career criminal under the Armed

Career Criminal Act (“ACCA”).

I. BACKGROUND

In 1999, Vowell pleaded guilty to a single-count indictment for being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g). R. 55-1 (Plea Agreement at 1) (Page ID #113).

Pursuant to his plea agreement, Vowell agreed that his prior criminal history qualified for a

sentence enhancement under 18 U.S.C. § 924(e) of the ACCA. Id. at 2 (Page ID #114).

Additionally, Vowell waived his right to file a motion under § 2255 with the following exceptions: No. 17-5405, Vowell v. United States

(1) claims asserting ineffective assistance of counsel; (2) claims asserting prosecutorial

misconduct; and (3) claims asserting “that an applicable change in the case law renders the

defendant’s conduct, as agreed to in the factual basis, not a violation of federal law.” Id. at 4 (Page

ID #116).

Vowell’s presentence investigation report (“PSR”) identified various criminal convictions:

a 1979 conviction for Tennessee second-degree burglary (PSR at ¶ 24) (Page #5); a 1980

conviction for Tennessee armed robbery (id. at ¶ 25) (Page #5); a 1998 conviction for Tennessee

aggravated burglary (id. at ¶ 33) (Page #7); and a 1983 conviction for Georgia burglary (id. at ¶ 29)

(Page #6). The district court determined that Vowell qualified as a career offender under the

ACCA and sentenced him to 180 months of imprisonment and five years of supervised release.

R. 42 (Minute Entry).1 Vowell did not file a direct appeal of his conviction or sentence.2

1 Because Vowell was sentenced in 1999, electronic records are not attached to the district court’s docket and it is unclear, precisely, which three convictions the district court considered predicate offenses. See R. 46 (Mot. Vacate at 4–5) (Page ID #6–7) (explaining that a transcript and recording of the sentencing could not be located). And although Vowell asserted in his motion to vacate that his conviction for Georgia burglary was listed as a predicate offense in his PSR, he also stated, “[t]his burglary conviction was not cited as an ACCA predicate.” Id. at 1, 5 (Page ID #3, 7). On appeal, both parties consistently state that (1) the sentencing court determined Vowell’s Georgia burglary conviction constituted a predicate offense; (2) the sentencing court relied upon his Georgia burglary conviction in sentencing Vowell; and (3) Vowell was sentenced to 180 months pursuant to the ACCA. See Appellee Brief at 4; Appellant Brief at 4; see also PSR at ¶ 17 (Page #4) (explaining that Vowell was convicted of “[b]urglary” on December 8, 1983 and noting that the career offender sentencing guidelines applied to Vowell); id. at ¶ 29 (Page #6) (indicating that Vowell was arrested for Georgia burglary on October 28, 1983). Consequently, we will examine Vowell’s appeal in terms of the four predicate offenses listed above. 2 Vowell is currently serving a state-court sentence and has not yet begun serving his 180- month federal sentence.

2 No. 17-5405, Vowell v. United States

On September 7, 2016, Vowell filed a § 2255 motion to set aside his sentence, asserting

that his 1983 conviction for Georgia burglary did not constitute a predicate offense because it was

broader than generic burglary and “portions of Georgia’s burglary statute could only have qualified

as a violent felony under the ACCA’s now-void residual clause,” per Johnson v. United States,

135 S. Ct. 2551 (2015), and Mathis v. United States, 136 S. Ct. 2243 (2016). R. 46 (Mot. to Vacate

at 5–6) (Page ID #7–8).3 In response, the government asserted that Vowell’s petition was untimely,

as it had been filed nearly seventeen years after his conviction became final and more than a year

after Johnson was filed. R. 49 (Gov’t Response at 3–7) (Page ID #35–39). Additionally, the

government argued Vowell’s petition was barred by the § 2255 waiver in his plea agreement. Id.

at 7–9 (Page ID #39–41). Finally, the government asserted that Johnson was inapplicable, as

Vowell’s predicate offenses were not based on the unconstitutional residual clause and, moreover,

his conviction for Georgia burglary was a conviction for generic burglary under the ACCA. Id. at

9–17 (Page ID #41–49).

On January 30, 2017, the district court dismissed Vowell’s petition with prejudice. R. 51

(Page ID #95). Without reaching the Government’s timeliness or waiver arguments, the court

determined that Georgia’s burglary statute was divisible and that because Vowell was convicted

of burglarizing a “dwelling house,” Vowell had been correctly designated as a career offender. Id.

3 Vowell also asserted that (1) pursuant to Mathis and Descamps v. United States, 133 S. Ct. 2276 (2013), Vowell’s 1998 conviction for Tennessee aggravated burglary no longer constituted a predicate offense; and (2) to the extent the sentencing court relied upon Vowell’s previous conviction for Georgia escape, such a conviction was not a predicate offense under the ACCA. R. 46 at 6–13 (Page ID #8–15). Vowell does not raise either argument on appeal.

3 No. 17-5405, Vowell v. United States

at 9 (Page ID #103). This timely appeal followed. R. 53 (Notice of Appeal) (Page ID #107); Fed.

R. App. P. 4(a)(1)(B). On October 26, 2017, we granted Vowell a certificate of appealability on

the issue of whether he was properly sentenced under the ACCA. Vowell v. United States, No. 17-

5405 (6th Cir. Oct. 26, 2017) (order); see also 28 U.S.C. § 2253(c).

II. DISCUSSION

We review de novo the issue of whether a prior conviction qualifies as a predicate offense

under the ACCA. Richardson v. United States, 890 F.3d 616, 619 (6th Cir.), cert. denied, 139

S. Ct. 349 (2018). We may affirm the district court’s judgment on any grounds supported by the

record. Holloway v. Brush, 220 F.3d 767, 772 (6th Cir. 2000) (en banc).

A. Predicate Offenses Following United States v. Stitt

As an initial matter, since Vowell filed his appeal, the Supreme Court has held that the

“habitation” definition included in Tennessee’s aggravated burglary statute (one of Vowell’s four

predicate offenses identified by the parties and the PSR) is consistent with generic burglary under

the ACCA. United States v. Stitt, 139 S. Ct. 399, 407–08 (2018), reversing United States v. Stitt,

860 F.3d 854 (6th Cir. 2017) (en banc). Additionally, in Vowell’s motion to vacate, Vowell

conceded that both his 1979 conviction for Tennessee second-degree burglary and his 1980

conviction for Tennessee armed robbery constituted violent felonies under the ACCA. R. 46 (Mot.

to Vacate at 3) (Page ID #5). According to the government, the Supreme Court’s decision in Stitt

therefore forecloses Vowell’s appeal, since he now has three applicable predicate offenses: the

1979 Tennessee second-degree burglary conviction; the 1980 Tennessee conviction for armed

robbery; and the 1998 Tennessee conviction for aggravated burglary. See Appellee Brief at 7–8

4 No. 17-5405, Vowell v. United States

n.4 (“Were Stitt overruled by the Supreme Court, Vowell’s Tennessee aggravated burglary

conviction would be another qualifying ACCA predicate.”).

Although the government’s interpretation of Stitt appears to be overbroad,4 a review of the

record shows that the government has either ignored or forgotten its own briefing before the district

court. In Vowell’s § 2255 motion, Vowell asserted that his 1998 Tennessee conviction for

aggravated burglary could not be used as a predicate offense because Vowell “had not been

convicted of the aggravated burglary at the time he committed his federal offense.” R. 46 at 4

(citing 18 U.S.C. § 924(e)(1)). Specifically, Vowell committed his underlying federal offense of

being a felon in possession of a firearm on July 28, 1997. See id.; PSR at ¶ 4 (Page #3). Vowell

did not commit the aggravated burglary in Tennessee until October 29, 1997, however, and he was

not convicted of the crime until November 24, 1998. PSR at ¶ 33 (Page #7). In response to

Vowell’s § 2255 motion, the Government expressly agreed that for purposes of the ACCA,

Vowell’s 1998 conviction was not a predicate offense. See R. 49 (Gov’t Response at 11 n.5) (Page

ID #43) (“The United States agrees with petitioner that his 1998 Tennessee aggravated burglary

conviction does not count as an ACCA predicate because that offense is not a prior conviction;

petitioner committed that offense and was sentenced for it after he unlawfully possessed the

firearm in this case.”). Consequently, to resolve Vowell’s appeal, we must still determine whether:

(1) Vowell has waived his right to file a § 2255 motion pursuant to his plea agreement, and

4 After all, the Supreme Court examined only the “relevant language” of Tennessee’s definition of “habitation” and did not consider whether other aspects of Tennessee’s aggravated burglary statute were overbroad. See Stitt, 139 S. Ct. at 406.

5 No. 17-5405, Vowell v. United States

(2) Vowell’s 1983 conviction for Georgia burglary constitutes a predicate offense under the

ACCA.

B. Vowell’s § 2255 Waiver

On appeal, the government asserts that, pursuant to the knowing and voluntary § 2255

waiver Vowell signed in his plea agreement, Vowell has waived his right to challenge collaterally

his sentence and conviction under § 2255. See Appellee Brief at 13–16; R. 55-1 (Plea Agreement

at 4) (Page ID #116).5 In support of this argument, the government points to this court’s recent

decision in Slusser v. United States, 895 F.3d 437 (6th Cir. 2018), cert. denied, 139 S. Ct. 1291

(2019), in which we concluded that a defendant’s § 2255 waiver precluded the petitioner’s Johnson

challenge to his ACCA designation. Appellee Brief at 14–16. This holding was in conflict with

this court’s previous opinion in United States v. Caruthers, 458 F.3d 459, 472 (6th Cir.), cert.

denied, 549 U.S. 1088 (2006), which concluded that “an appellate waiver does not preclude an

appeal asserting that the statutory-maximum sentence has been exceeded.” In order to resolve this

conflict, the panel in Slusser determined that Caruthers’s waiver statement was dicta, because the

Caruthers court ultimately affirmed the defendant’s conviction and sentence on the merits.

Slusser, 895 F.3d at 439–40. Upon careful review, we do not believe that the conclusion in

Caruthers may be swept aside so easily.

The government also contends that Vowell’s motion was untimely because it was filed 5

more than a year after Johnson was decided. Appellee Brief at 8–12. Because we ultimately conclude that Vowell was correctly sentenced as a career offender, we need not reach this issue.

6 No. 17-5405, Vowell v. United States

In Caruthers, we considered the defendant’s argument on direct appeal that his designation

as a career offender under the ACCA was erroneous and, therefore, his sentence exceeded the

otherwise applicable statutory maximum of ten years for his conviction under 18 U.S.C. § 924(e).

Caruthers, 458 F.3d at 464. As part of Caruthers’s plea agreement, Caruthers waived “the right

to appeal any sentence within the maximum provided in the offense level as determined by the

Court or the manner in which that sentence was determined on the grounds set forth in 18 U.S.C.

§ 3742 or on any ground whatever.” Id. at 470. Although we concluded that Caruthers’s argument

on appeal clearly fell within his appellate waiver, id. at 470–71, and Caruthers conceded that he

had entered into his agreement knowingly and voluntarily, id. at 470 n.3, we nonetheless explained

that, consistent with the decisions of other Circuit courts, Caruthers’s appellate waiver could be

unenforceable to the extent his sentence exceeded the statutory maximum authorized by law. Id.

at 471–72. In applying this rule to Caruthers’s case, however, we noted that it was unclear whether

Caruthers’s claim––that his ACCA designation rendered his sentence of 180 months in excess of

the non-ACCA maximum of ten years––fell within the previously discussed exception. Id. at 472.

Ultimately, we concluded that it was unnecessary to determine “whether Caruthers’s appeal

qualifies as a challenge on the grounds that his sentence exceeds the statutory maximum,” because

Caruthers’s ACCA claim failed on the merits. Id. Thus, “we assume[d] for present purposes that

Caruthers’s appellate waiver [wa]s unenforceable.” Id. In other words, Caruthers determined that

an individual retains the right to challenge a sentence on the ground that it exceeds the statutory

maximum penalty, but it did not answer the separate question of whether a claim that an ACCA

7 No. 17-5405, Vowell v. United States

enhancement has been improperly applied qualifies as a claim that the sentence exceeds the

statutory maximum.

Following our decision in Caruthers, this court has restated the rule established in

Caruthers in the general context of appellate and collateral waivers and has cited Caruthers for

the broader proposition that, despite knowingly and voluntarily waiving the right to appeal, a

defendant may nonetheless assert that his sentence was above the statutory maximum. See, e.g.,

United States v. Freeman, 640 F.3d 180, 193–94 (6th Cir. 2011) (explaining that although the

defendant did not argue that his plea agreement was unknowing or involuntary and the defendant

reserved the right to appeal a sentence above the statutory maximum, “even where a defendant

does not reserve the right to appeal a sentence that exceeds the statutory maximum, ‘an appellate

waiver may not bar an appeal asserting that the sentence exceeds the statutory maximum’” (quoting

Caruthers, 458 F.3d at 471–72)); In re Acosta, 480 F.3d 421, 422 n.2 (6th Cir. 2007) (citing the

rule established in Caruthers and noting that, in the context of the defendant’s second § 2255

motion, although voluntariness and ineffective assistance of counsel may invalidate a plea

agreement and appellate waiver, “our focus on [those bases] is not intended to suggest that they

constitute an exclusive list”).6

6 These cases are consistent with how other Circuit courts have articulated the rule discussed in Caruthers. See, e.g., United States v. Hahn, 359 F.3d 1315, 1329 (10th Cir. 2004) (en banc) (noting that although the defendant had knowingly and voluntarily entered into the plea agreement, the court could nonetheless refuse to enforce the agreement if, for instance, the defendant asserted a statutorily impermissible sentence); United States v. Andis, 333 F.3d 886, 891–92 (8th Cir.) (en banc), cert. denied, 540 U.S. 997 (2003); United States v. Phillips, 174 F.3d 1074, 1076 (9th Cir. 1999) (concluding that even if the plea agreement had been entered into knowingly and voluntarily,

8 No. 17-5405, Vowell v. United States

Additionally, subsequent unpublished opinions in this Circuit have correctly distinguished

between the rule established in Caruthers––that an appellate waiver does not prohibit a defendant

from appealing a sentence in excess of the statutory maximum––and the issue left unresolved by

Caruthers––whether an ACCA designation can properly be characterized as being in excess of the

statutory maximum. See United States v. Amos, 604 F. App’x 418, 422 (6th Cir.), cert. denied,

136 S. Ct. 114 (2015) (“[W]e have held that appeal waivers do not bar defendants from appealing

a sentence above the statutory maximum for the underlying offense. However, we have yet to

settle whether a district court’s error in determining a defendant to be an armed career criminal

results in a supramaximal sentence, thereby barring an appeal waiver.”); United States v. Stark,

307 F. App’x 935, 938 (6th Cir. 2009) (explaining that it remains unclear “whether a defendant

waives his right to appeal a district court’s application of the ACCA by entering into a waiver of

appellate rights”).

The Slusser court, however, concluded that a criminal defendant’s knowing and voluntary

appellate waiver prohibited him from asserting a § 2255 claim that, under Johnson v. United States,

he was no longer a career offender and, therefore, his sentence exceeded the statutory maximum

for his crime. Slusser, 895 F.3d at 439–40. Slusser’s conclusion was premised, however, on the

misunderstanding that Caruthers’s appellate waiver statement was dicta, and therefore not binding.

But the important distinction between the general rule stated in Caruthers (an appellate waiver

may not preclude a claim that a sentence is in excess of the statutory maximum) and the actual

if the restitution order was nonetheless in excess of the statutory maximum in violation of the VWPA, and therefore illegal, the defendant would be permitted to appeal that decision).

9 No. 17-5405, Vowell v. United States

applicability to Caruthers’s case (whether an inaccurate ACCA designation creates a statutorily

excessive sentence) demonstrates why the waiver statement in Caruthers was not dicta. When the

court in Caruthers “assumed” that Caruthers’s appellate waiver was unenforceable against him, it

was assuming that Caruthers’s particular claim (that he had been incorrectly designated as a career

offender) actually fell within the broader anti-waiver rule the court had just endorsed. Had the

general rule not been true or a definitive holding, this assumption would not have permitted the

court to consider the merits of Caruthers’s ACCA claim, as Caruthers’s waiver would have been

enforceable regardless of whether the court “assumed” that an improper ACCA designation

rendered his sentence excessive. Put differently, if the rule in Caruthers were not true (i.e., if

appellate waivers were enforceable despite a statutorily excessive sentence), it would not matter

whether Caruthers’s ACCA claim could “accurately be called a challenge of his sentence on the

grounds that it exceeds the statutory maximum.” Caruthers, 458 F.3d at 472. Because our waiver

determination was central to our ultimate conclusion, and based on subsequent cases endorsing the

Caruthers rule, we conclude that Caruthers’s general appellate waiver rule is not dictum. See

Richmond Health Facilities–Kenwood, LP v. Nichols, 811 F.3d 192, 201 n.8 (6th Cir. 2016)

(quoting Black’s Law Dictionary (10th ed. 2014) and explaining that dictum is “[a] judicial

comment made while delivering a judicial opinion, but one that is unnecessary to the decision in

the case and therefore not precedential” (emphasis added)). Consequently, under the still-

applicable and binding rule endorsed in Caruthers, defendants should continue to be able to

challenge statutorily excessive sentences, regardless of their appellate waivers.

10 No. 17-5405, Vowell v. United States

Moreover, none of the cases upon which Slusser relied support a conclusion that the rule

in Caruthers is incorrect, even if the petitioner’s claim is brought under § 2255 and is premised on

a subsequent change in the law. True, a defendant may waive his constitutional or statutory rights,

including his right to appeal and to attack his sentence collaterally, if the waiver is entered into

“knowingly and voluntarily.” United States v. Bradley, 400 F.3d 459, 463 (6th Cir.), cert. denied,

546 U.S. 862 (2005). And a subsequent change in the law does not render an appellate waiver

unknowing or involuntary, even if the defendant or petitioner would not have agreed to the waiver

had he known about the subsequent change. Id. Consequently, the government argues that,

because Vowell entered into his waiver knowingly and voluntarily, he cannot now point to Johnson

as a basis for invalidating his waiver and bringing a § 2255 motion. Appellee Brief at 15; see also

Brady v. United States, 397 U.S. 742, 757 (1970) (determining that changes in the law do not

render an appellate waiver invalid); Slusser, 895 F.3d at 438 (concluding that a § 2255 petitioner

could not use Johnson to argue that his previous sentence was above the statutory maximum).

However, this reasoning conflates two distinct issues.

In Brady, Bradley, and United States v. Morrison, 852 F.3d 488 (6th Cir. 2017), upon

which the government also relies, the Supreme Court and this court concluded that subsequent

changes in the law did not render an otherwise valid waiver unknowing or involuntary. See Brady,

397 U.S. at 757; Morrison, 852 F.3d at 490–91; Bradley, 400 F.3d at 463. None of these cases,

however, concluded that a defendant would be prohibited from pointing to a change in the law that

renders his sentence in excess of the length authorized by statute, and, therefore, illegal. And as

noted above, a claim that a sentence is statutorily excessive as a basis for invalidating a waiver is

11 No. 17-5405, Vowell v. United States

separate and distinct from a claim that the waiver was agreed to unknowingly or involuntarily;

both may form a basis for finding a waiver unenforceable. See In re Acosta, 480 F.3d at 422 n.2.

Similarly, although we have previously held that a defendant’s § 2255 waiver is enforceable if his

waiver was knowing and voluntary, see Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999),

the Watson petitioner’s claims were not based on a subsequent change in the law that rendered his

sentence statutorily excessive, id. at 488; cf. Andis, 333 F.3d at 887 n.2 & 891–92 (concluding that

a defendant’s waiver could be unenforceable if it was “illegal,” i.e., “in excess of a statutory

provision,” and that the waiver exception would likely apply to both § 2255 motions and direct

appeals (internal quotation marks omitted)); United States v. Cockerham, 237 F.3d 1179, 1182–83

(10th Cir. 2001), cert. denied, 534 U.S. 1085 (2002) (determining that the same waiver exceptions

apply to direct appeals and § 2255 motions, including the claim that the sentence exceeds the

statutory maximum). Thus, to the extent cases such as Brady, Bradley, and Morrison limit a

defendant or petitioner’s ability to use subsequent changes in the law to invalidate his appellate

waiver, they logically extend only to situations in which the defendant or petitioner utilizes those

later decisions to argue that his waiver was involuntary or unknowing. They say nothing of

whether an appellate waiver encapsulates a subsequent change of the law which would otherwise

render a defendant or petitioner’s sentence statutorily excessive, i.e., illegal.7 Pursuant to

Caruthers, therefore, we hold that a defendant or petitioner may challenge his sentence as being

7 For similar reasons, this court’s recent decision in Cox v. United States, 695 F. App’x 851, 853 (6th Cir. 2017), is not persuasive. The court in Cox did not examine Caruthers and instead relied on cases which discuss only whether subsequent changes in the law may render an otherwise valid plea agreement unknowing or involuntary.

12 No. 17-5405, Vowell v. United States

statutorily excessive based on a subsequent change in the law, even if the waiver was otherwise

knowing and voluntary.

As applied to Vowell’s appeal, this court has not yet determined whether a petitioner’s

allegedly incorrect designation as a career offender under the ACCA renders his sentence in excess

of the statutory maximum. See Amos, 604 F. App’x at 422. However, the applicable sentencing

statutes clearly establish this. Had Vowell not been designated as a career offender under the

ACCA, Vowell would have been subjected to a maximum sentence of ten years of imprisonment.

See 18 U.S.C. § 924(a)(2). An ACCA sentence of fifteen years of imprisonment is, therefore,

necessarily in “excess” of that statutory maximum. Id. at § 924(e). Consequently, Vowell’s

appellate waiver does not prohibit him from raising his claims under § 2255. However, as

explained in further detail below, because Vowell was correctly sentenced as a career offender

under the ACCA, we affirm the district court’s denial of Vowell’s § 2255 motion.

C. Georgia Burglary Under the ACCA

Pursuant to the ACCA, a felon in possession of a firearm receives a mandatory minimum

180-month sentence if he has previously been convicted of at least three prior “violent felon[ies].”

18 U.S.C. § 924(e)(1). Before Johnson v. United States, the ACCA defined a “violent felony” as

a felony that (1) “has as an element the use, attempted use, or threatened use of physical force

against the person of another” [the elements clause]; (2) “is burglary, arson, or extortion, involves

use of explosives” [the enumerated-offenses clause]; or (3) “otherwise involves conduct that

presents a serious potential risk of physical injury to another” [the residual clause]. 18 U.S.C.

§ 924(e)(2)(B). In Johnson, the Court held that the residual clause was unconstitutionally vague,

13 No. 17-5405, Vowell v. United States

although it noted that its findings did not call into question the constitutionality of the elements

clause or enumerated-offenses clause. 135 S. Ct. at 2563.

As applied to Vowell’s burglary conviction, under the enumerated-offenses clause, not

every “burglary” conviction qualifies as an ACCA predicate offense; rather, only “generic

burglary,” or “an unlawful or unprivileged entry into, or remaining in, a building or other structure,

with intent to commit a crime,” qualifies. Taylor v. United States, 495 U.S. 575, 598 (1990). In

order to determine whether a previous burglary conviction qualifies as a predicate offense, courts

apply the “categorical approach,” whereby we determine “whether the elements of the crime of

conviction sufficiently match the elements of generic burglary.” Mathis, 136 S. Ct. at 2248. If the

elements are the same as, or narrower than, generic burglary, the statutory offense is a predicate

offense. Taylor, 495 U.S. at 599. This is simple if the statute is indivisible and sets out singular

elements of a crime. When a statute is alternatively phrased, however, the court must examine

whether the statute is “divisible,” meaning the statute lists elements––i.e., “the things the

prosecution must prove to sustain a conviction,” rather than means––i.e., factual alternatives for

how a defendant may commit a crime. Mathis, 136 S. Ct. at 2248–49 (internal quotation marks

omitted).

If a statute is broader than generic burglary but nonetheless divisible, the court conducts

the “modified categorial approach,” under which the court looks at Shepard-approved documents

to determine the crime, and its elements, for which the defendant was convicted; the court will

then compare that crime with the elements of generic burglary. Id. at 2248–49. These documents

may include the charging documents or indictment, terms of a plea agreement, transcript of a plea

14 No. 17-5405, Vowell v. United States

colloquy, and, under our precedent, a final state-court judgment. See id. at 2249 (explaining that

under the modified categorical approach, “a sentencing court looks to a limited class of documents

(for example, the indictment, jury instructions, or plea agreement and colloquy)”); United States

v. Davis, 751 F.3d 769, 776 (6th Cir. 2014) (noting that the defendant’s “Ohio Judgment Entry of

Sentence” was an appropriate Shepard document); United States v. Cooper, 739 F.3d 873, 881

(6th Cir.), cert. denied, 572 U.S. 1008 (2014) (considering the defendant’s “indictment, plea

agreement, and state-court judgment” to determine whether the defendant pleaded guilty to a

particular crime).8

8 On appeal, Vowell contends that courts are not permitted to consider a state court’s judgment in determining whether a conviction constitutes a predicate offense. Appellant Brief at 23–26. As noted above, this argument is contrary to our current precedent. Furthermore, because state-court judgments are signed and filed by the sentencing court and explicitly delineate the particular criminal count or counts for which a defendant has been convicted, state-court judgments easily meet the threshold certainty required under Taylor. See Shepard v. United States, 544 U.S. 13, 23 (2005) (noting Taylor’s rule requiring “that evidence of generic conviction be confined to records of the convicting court approaching the certainty of the record of conviction in a generic crime State”). Vowell points to two decisions from the Georgia Court of Appeals to suggest that a defendant’s conviction and indictment are not necessarily based on the same underlying elements and, therefore, this court may not rely on the listed crime as it appears in his state-court indictment. See Appellant Brief at 11–13 & 23 n.8 (citing Sanders v. State, 667 S.E.2d 396 (Ga. Ct. App. 2008), and Weeks v. State, 616 S.E.2d 852 (Ga. Ct. App. 2005)). However, in both of those cases, the defendants asserted that the evidence varied from the allegations in their indictments since their indictments identified a “dwelling house” but, because the houses were under construction, they were convicted of burglarizing only a “building.” Sanders, 667 S.E.2d at 399–400; Weeks, 616 S.E.2d at 854–55. Not only has Vowell produced no evidence (let alone significant argument) indicating that his conviction and indictment are inconsistent, but both defendants in Sanders and Weeks were still seemingly convicted of a generic burglary, i.e., the “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor, 495 U.S. at 598 (emphasis added). And as this court noted in Richardson, neither of these state cases “holds that an indictment may charge a generic burglary (e.g., unauthorized entry into a ‘building or structure’) but that a jury may instead find a defendant guilty of a non- generic burglary (e.g., unauthorized entry into an aircraft).” Richardson, 890 F.3d at 626 n.5. This is particularly true because under Georgia law, “where the defendant is charged with burglary, the

15 No. 17-5405, Vowell v. United States

In the current case, Vowell primarily contends that, under Johnson, his 1983 conviction for

Georgia burglary9 is no longer a predicate offense because the Georgia burglary statute is both

broader than generic burglary and indivisible. See Appellant Brief at 9–23. As this court recently

determined, however, in Richardson v. United States, although Georgia burglary is broader than

generic burglary, the Georgia statute is nonetheless divisible under the test articulated in Mathis.

890 F.3d at 621–22, 629. Thus, we must now examine the permitted Shepard documents to

determine whether Vowell was convicted of generic burglary. Vowell’s indictment for Georgia

burglary explains that, as to count one, Vowell “did then and there, unlawfully, without authority

and with intent to commit a theft therein, enter and remain within the residence and dwelling house

of Diane Wright.” R. 49-4 (Page ID #53) (emphasis added). Additionally, Vowell’s state-court

judgment explained that Vowell was convicted of “COUNT[] one (1)” and sentenced to ten years

of imprisonment. R. 49-5 (Page ID #54). Because Vowell was therefore convicted of entering a

“dwelling house,” Vowell’s conviction constitutes generic burglary under the ACCA and it was

properly evaluated as a predicate offense. See Richardson, 890 F.3d at 629 (examining the

defendant’s indictment and concluding that because he was indicted and convicted for entering a

indictment must specify the location of the burglary.” Morris v. State, 303 S.E.2d 492, 494 (Ga. Ct. App. 1983). 9 At the time of Vowell’s 1983 conviction, Georgia’s burglary statute provided: “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another or any building, vehicle, railroad car, watercraft, or other such structure designed for use as the dwelling of another or enters or remains within any other building, railroad car, aircraft, or any room or any part thereof.” Ga. Code Ann. § 16-7-1(a) (1980). See also Appellant Brief at 10 (stating the applicable statutory language).

16 No. 17-5405, Vowell v. United States

“dwelling house or building,” he was properly sentenced under the ACCA). Vowell concedes that

two of his other prior convictions constitute violent felonies under the ACCA. See R. 46 (Mot. to

Vacate at 3) (Page ID #5). Consequently, Vowell was correctly designated as a career offender,10

and we will affirm the district court’s denial of Vowell’s § 2255 petition.11

III. CONCLUSION

For all of the reasons set forth above, we reaffirm the appellate waiver rule established in

Caruthers: “[A]n appellate waiver does not preclude an appeal asserting that the statutory-

maximum sentence has been exceeded.” 458 F.3d at 471–72. Moreover, the Caruthers rule

10 Vowell asserts that he could not waive his right to challenge his sentence on the ground that it was based on an unconstitutional factor, i.e., the residual clause. Reply Brief at 14–21; see also Johnson, 135 S. Ct. at 2563 (concluding the residual clause of the ACCA was unconstitutionally vague). The government responds that because Johnson applies only to individuals who are sentenced under the residual clause, it does not apply to Vowell’s ACCA designation under the enumerated-offense clause. Appellee Brief at 17–18. This court has recently noted, however, that when the record is silent on which ACCA clause a defendant was sentenced under and a defendant raises a Johnson claim in his initial § 2255 claim, the court may examine it. See Raines v. United States, 898 F.3d 680, 686 (6th Cir. 2018). Such is the situation here. However, the Raines court also explained that “if [the defendant’s conviction] falls under the use- of-force clause or the enumerated-offenses clause, it remains a proper predicate offense in the wake of Johnson” and thus would not be constitutionally invalid. Id. at 688. Because Vowell’s 1983 conviction for Georgia burglary is a predicate offense under the enumerated-offenses clause of the ACCA, Johnson does not render Vowell’s sentence unconstitutional based on the residual clause. 11 Vowell also asserts that he is a not a career offender because Georgia burglary’s intent requirement is both indivisible and broader than generic burglary, as it does not require contemporaneous intent. Appellant Reply Brief at 24–26. The Supreme Court has recently clarified, however, that “we interpret remaining-in burglary under § 924(e) to occur when the defendant forms the intent to commit a crime at any time while unlawfully present in a building or structure.” See Quarles v. United States, No. 17-778, 2019 WL 2412905, at *5 (June 10, 2019). Consequently, even assuming Georgia burglary does not require contemporaneous intent, Vowell’s argument fails.

17 No. 17-5405, Vowell v. United States

extends to motions brought under § 2255, even if the basis for those motions is a subsequent

change in the law that renders the petitioner’s sentence statutorily excessive. However, because

Vowell was correctly sentenced as a career offender under the ACCA, we affirm the district court’s

denial of his § 2255 motion.