United States v. Rodney Southers

866 F.3d 364, 2017 FED App. 0111P, 2017 U.S. App. LEXIS 9208
CourtCourt of Appeals for the Sixth Circuit
DecidedMay 8, 2017
Docket15-6395
StatusUnpublished
Cited by35 cases

This text of 866 F.3d 364 (United States v. Rodney Southers) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Rodney Southers, 866 F.3d 364, 2017 FED App. 0111P, 2017 U.S. App. LEXIS 9208 (6th Cir. 2017).

Opinions

SUHRHEINRICH, J., delivered the opinion of the court in which BATCHELDER and STRANCH, JJ„ joined. STRANCH, J. (pg. 371), delivered a separate concurring opinion.

OPINION

SUHRHEINRICH, Circuit Judge.

Defendant-Appellant Rodney Southers appeals the district court’s finding at sentencing that he qualified as an armed career criminal' under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and claims, for the first time on direct appeal, that he had'ineffective counsel at sentencing. For the following reasons we affirm the district court’s finding, and decline to entertain Defendant’s Sixth Amendment claim.

I.

On January 21, 2014, Defendant was arrested on an outstanding warrant. Pursuant to a search incident to arrest, police found on Defendant’s person seventeen rounds of ammunition. An Alcohol, Tobacco and Firearms task force officer then filed a criminal complaint against Defendant in the United States District Court for the Eastern District of Tennessee alleging Defendant was a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1). Evidence was then presented to a grand jury, which charged Defendant on this offense. Defendant pleaded guilty without a plea agreement.

The probation office classified Defendant as an armed career criminal under the ACCA due to Defendant’s two prior robbery convictions and one prior attempted-aggravated-robbery conviction. Based on this designation, Defendant’s sentencing range was enhanced to a range of fifteen years to life imprisonment.

At sentencing, Defendant’s only objection was that his convictions for robbery and attempted-aggravated robbery on May 24, 2000, should be considered a single event for purposes of the ACCA. In response, the government produced the indictments and judgments for each predicate offense. Each indictment listed a distinct business as the victim, and the corresponding judgments which cross-referenced the relevant indictment; As part of an effort to persuade the court that these crimes were a single event or part of the same course of conduct, Defendant testified at sentencing. He stated that he and his partner “planned to hit two stores,” first “the Golden Gallon, and then ... the Favorite Market.”

The district court found that, despite possibly being connected by one conspiratorial agreement, the two robberies were “legally and factually distinct,” and therefore were “properly considered separate offenses for purposes of the [ACCA].” However, the court did grant the government’s motion to reduce Defendant’s sentence pursuant to U.S.S.G. § 5K1.1 and 18 [366]*366U.S.C. § 3553(e), and ultimately sentenced Defendant to 110 months’' imprisonment. Defendant timely appealed.

II.

■ On appeal, Defendant alleges two errors by the district court in applying the ACCA. First, Defendant argues, for the first time on appeal, that his Tennessee robbery convictions were improperly found to be “violent felonies” for purposes of the ACCA. Second, he reiterates his objection that his • two May 24, 2000 predicates should be considered one predicate for purposes of the ACCA. Both arguments fail.

A.

Although we generally review a district court’s determination that a prior conviction qualifies as a “violent felony” under the ACCA de novo,, where, as here, a defendant fails to make this objection to the district court, we review for plain error. United States v. Anderson, 695 F.3d 390, 399 (6th Cir. 2012). To prevail under this standard, Defendant must establish “(1) error, (2) that is plain, and (3) that affects substantial rights.” Johnson v. United States, 520 U.S. 461, 466-67, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (quotation marks and citation omitted). We “may then exercise [our] discretion to notice [this] forfeited error, but only if (4) the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. Defendant fails here at the first step.

If a felon convicted of unlawfully possessing ammunition also has three previous convictions for, among other things, “violent felonies,” the ACCA provides for a mandatory sentencing enhancement. 18 U.S.C. § 924(e)(1). The ACCA defines violent felony- as “any crime punishable by imprisonment for a term exceeding one year ... that ... has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. § 924(e)(2)(B). The meaning of “physical force” is a matter of federal law, and is defined as “force capable of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133, 138, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). However, the meaning,' scope, arid elements of the predicate violent felonies are matters of state law. Id. at 138, 130 S.Ct. 1265. i

In determining whether a prior conviction qualifies as violent felony under the ACCA, the courts use the “categorical approach,” examining' only “the statutory definition of the offenjse and not the particular facts underlying the conviction.” Anderson, 695 F.3d at 399. If it is possible to violate the statute both in a manner that qualifies as violent felony and in a manner that does not—i.e., a divisible statute—-the court inay “consider the indictment, guilty plea, or similar documents to determine whether they necessarily establish the nature of the prior conviction.” Id. (citing Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005)). However, if all modes of violating a divisible statute constitute qualifying offenses, the statute is categorical, and it is unnecessary to look beyond its face. Descamps v. United States, — U.S. —, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013).

Under Tennessee law, robbery is defined as “the intentional or knowing theft of property from the person of another by violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401. Although robbery in Tennessee can be committed in two manners, our inquiry into whether it is a categorically violent felony is made easy due to the fact that- this Court has already answered this question.

[367]*367In United States v. Mitchell, we held that both variants of violating the statute constitute violent felonies, obviating our need to look beyond the face of the statute. 743 F.3d 1054, 1059-60 (6th Cir. 2014). There we examined Tennessee Supreme Court precedent interpreting both “violence” and “putting the person in -fear” under the statute. We noted that in State v. Fritz, the Tennessee Supreme Court held that “violence” under the Tennessee robbery statute means “physical force unlawfully exercised so as to injure, damage or abuse.” 19 S.W.3d 213, 214 (Tenn. 2000). In State v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Ricardo Alvarado
95 F.4th 1047 (Sixth Circuit, 2024)
United States v. Gerald Lynn Campbell
77 F.4th 424 (Sixth Circuit, 2023)
Luten v. United States
W.D. Tennessee, 2023
United States v. Jamael White
58 F.4th 889 (Sixth Circuit, 2023)
Corthion v. United States
W.D. Tennessee, 2021
Ervin v. United States
W.D. Tennessee, 2020
United States v. Kevin Abney
Sixth Circuit, 2020
United States v. David Brown
957 F.3d 679 (Sixth Circuit, 2020)
United States v. James Hennessee
932 F.3d 437 (Sixth Circuit, 2019)
Fraker v. Butler
E.D. Kentucky, 2019
Matthews v. Barr
927 F.3d 606 (Second Circuit, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
866 F.3d 364, 2017 FED App. 0111P, 2017 U.S. App. LEXIS 9208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-rodney-southers-ca6-2017.