United States v. Willie Bailey

634 F. App'x 473
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 15, 2015
Docket14-6524
StatusUnpublished
Cited by5 cases

This text of 634 F. App'x 473 (United States v. Willie Bailey) 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. Willie Bailey, 634 F. App'x 473 (6th Cir. 2015).

Opinion

OPINION

PER CURIAM.

Defendant Willie Bailey appeals his sentence of 180 months of imprisonment imposed by the district court following his plea of guilty to three counts of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). The district court imposed this sentence after it determined that Bailey had six predicate violent felonies for purposes of the Armed Career Criminal Act (“ACCA”), which requires a mandatory-minimum sentence of 180 months for a defendant convicted of violating § 922(g) who has three or more prior convictions for violent felonies. 18 U.S.C. § 924(e)(1). On appeal, Bailey argues that two of his convictions cannot qualify as violent felonies and that the residual clause of the ACCA is unconstitutionally vague. We AFFIRM.

*474 I.

On June 24, 2013, a federal grand jury in the Western District of Tennessee returned a three-count indictment against Bailey. The Indictment charged Bailey with three counts of being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g). Count I charged Bailey with possession of ammunition for a .30-30 rifle. Count II charged Bailey with possession of ammunition for a .20 gauge shotgun, and Count III charged Bailey with possession of ammunition for a .12 gauge shotgun.

On February 27, 2014, Baily appeared before the district court for a change-of-plea hearing. At that hearing, Bailey withdrew his original plea of not guilty and pled guilty to the all of the Counts charged in the Indictment. The district judge accepted Bailey’s plea of guilty, after finding that a sufficient factual basis existed for that plea.

United States Pretrial Services prepared an initial Presentence Investigation Report (“PSR”) on April 22, 2014. The PSR recommended that the district court adjudge Bailey an armed career criminal for purposes of 18 U.S.C. § 924(e) based on his prior convictions for multiple violent felonies. The PSR identified the following prior convictions as predicate violent felonies for purposes of the ACCA: (1) a 1987 Tennessee conviction for third-degree burglary, (2) a 1989 Tennessee conviction for third-degree burglary, (3) a 1992 Tennessee conviction for attempted burglary, (4) a 1994 Tennessee conviction for aggravated burglary, (5) a 1994 Tennessee conviction for robbery, and (6) a 1996 Tennessee conviction for aggravated robbery.

On April 29, 2014, the government filed its Position Regarding Presentence Report. It did not object to any portion of the PSR.

Bailey filed his Position Regarding Pre-sentence Report on June 10, 2014, objecting to the use of five of the six predicate violent felonies for purposes of the ACCA. Bailey first objected that his 1987 and 1989 convictions for third-degree burglary were not categorically violent felonies under the Supreme Court’s decision in Descamps v. United States, — U.S. -, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Bailey next objected that the government had not met its burden to prove that his 1992 conviction for attempted burglary and his 1996 conviction for aggravated robbery were violent felonies because the PSR relied on facts taken from the respective affidavits of complaint. Finally, Bailey objected that he was not the individual convicted of the 1994 aggravated burglary because the Social Security number for the defendant who committed that crime differed from Bailey’s Social Security number.

On December 5, 2014, Bailey appeared before the district judge for sentencing. The district court first overruled Bailey’s objection to paragraph 35 of the PSR, dealing with Bailey’s prior conviction in 1994 for aggravated burglary. Based on documents submitted by the government, the district judge found that Bailéy was in fact the individual convicted of the 1994 aggravated burglary. Bailey does not challenge this finding on appeal.

The district judge then turned to Bailey’s objection that his 1987 and 1989 convictions under Tennessee’s third-degree burglary statute could not be predicate offenses for purposes of the ACCA following the Supreme Court’s decision in Des-camps. The district court overruled Bailey’s objection, finding itself bound by this Court’s prior decision in United States v. Caruthers, 458 F.3d 459, 473-76 (6th Cir. 2006), which held that a conviction under Tennessee’s pre-1989 burglary statute qualifies as a violent felony. At this point, *475 the district judge had ruled that Bailey had committed three predicate violent felonies.

The government then requested that the district court find that three of Bailey’s other prior convictions also qualified as violent felonies under the ACCA. Those prior convictions were Bailey’s 1992 Tennessee conviction for attempted burglary, 1994 Tennessee conviction for robbery, and 1996 Tennessee conviction for aggravated robbery. The district judge granted the government’s request with respect to the attempted burglary conviction based on this Court’s decision in United States v. Ghoston, 530 Fed.Appx. 468, 469-70 (6th Cir.2013). And based on its recollection that robbery had been ruled a violent felony, the district court also granted the government’s request with respect to Bailey’s two robbery convictions. The district judge thus found that all six of Bailey’s prior convictions, flagged by the PSR, qualified as violent felonies for purposes of the ACCA.

Because the district court found that Bailey qualified as an armed career criminal, 18 U.S.C. § 924(e)(1) required the court to impose a sentence of at least 180 months. The district judge sentenced Bailey to the statutory minimum.

II.

This Court reviews de novo whether a defendant’s prior conviction constitutes a violent felony for purposes of the ACCA. United States v. Fallins, 777 F.3d 296, 297 (6th Cir.2015). The panel must apply the “ ‘categorical approach’ to assess whether a predicate offense is a violent felony.” Id. This Court considers “the statutory definition of the predicate crime,” without regard to the facts underlying the conviction. Id.

The ACCA defines a “violent felony” as follows:

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

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Cite This Page — Counsel Stack

Bluebook (online)
634 F. App'x 473, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-willie-bailey-ca6-2015.