Opinion
3:20-cr-00033
12-17-2021
UNITED STATES OF AMERICA v. TAVARIS BETTS
MEMORANDUM AND ORDER
ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE
Defendant Tavaris Betts seeks a ruling that Tennessee aggravated burglary in violation of Tenn. Code Ann. § 39-14-403 (2016) does not qualify as a violent felony for purposes of the Armed Career Criminal Act (ACCA). The court finds that it is required by controlling Sixth Circuit precedent to reject his arguments, based on United States v. Brumbach, 929 F.3d 791 (6th Cir. 2019), cert. denied, 140 S.Ct. 974 (2020).
The aggravated burglary statute in effect at the time of Betts' conviction has been superseded and is no longer in effect.
The Sixth Circuit has repeatedly held that Brumbach “closed the book on Tennessee aggravated burglary, ” United States v. Tigue, 811 Fed.Appx. 970, 975 (6th Cir. 2020), cert. denied sub nom. McClurg v. United States, 141 S.Ct. 937 (2020), insofar as Brumbach held, in a published opinion, that United States v. Nance, 481 F.3d 882 (6th Cir. 2007), is controlling. In Nance, the court held that an aggravated burglary conviction under Tennessee law categorically counts as a burglary under the Supreme Court's generic definition and so may count as a predicate offense under the ACCA. Nance, 481 F.3d at 888. Accord United States v. Gann, 827 Fed.Appx. 566, 568 (6th Cir. 2020), cert. denied, 142 S.Ct. 1 (2021); United States v. Brown, 957 F.3d 679, 683 (6th Cir. 2020) (“Nance is ‘once again the law of this circuit.'” (quoting Brumbach, 929 F.3d at 794- 95)); Lurry v. United States, 823 Fed.Appx. 350, 355 (6th Cir. 2020) (“Simply stated, this court's precedent . . . forecloses [the defendant's] arguments that his prior Tennessee convictions do not qualify as violent felonies under the ACCA.” (citing Brumbach, 929 F.3d at 794)); United States v. Morris, 812 Fed.Appx. 341, 347 (6th Cir. 2020) (Moore, J., concurring) (“Until this court grants en banc review, we must follow Brumbach, no matter how ‘weighty' the underlying substantive issues or how thoughtfully the issues are addressed.”).
Betts' citation to United States v. Cartwright, 12 F.4th 572 (6th Cir. 2021), has no bearing on his case, because Cartwright was convicted under a prior version of the Tennessee burglary statute, which permitted a conviction for burglary without unlawful or unprivileged entry into a building or structure and, therefore, was broader than “generic burglary.” Id. at 581-82.
Betts also argues aggravated burglary does not qualify as generic burglary, because the statute permits a conviction based on a mere “reckless” violation of the statute. (Doc. No. 55, at 5.) He argues that, although he pleaded guilty, he did not “admit that the burglary was intentional.” (Id. at 4.) The court is cognizant that, when the Supreme Court denied certiorari in Gann, Justice Sotomayor issued a statement acknowledging that the Sixth Circuit has not yet addressed the question of “whether Tennessee aggravated burglary also comports with the requirement that generic burglary include the intent to commit a crime.” Gann v. United States, 142 S.Ct. 1, 2 (Oct. 4, 2021). Nonetheless, regardless of the merits of Betts' argument, this court is bound by Sixth Circuit precedent to conclude that Tennessee aggravated burglary is a crime of violence under the ACCA. See United States v. Gann, 827 Fed.Appx. at 569 (“Gann also argues that . . . Tennessee aggravated burglary does not qualify as generic burglary because it lacks generic burglary's intent- to-commit-a-crime element. But several panels of this court have also treated this argument as foreclosed by Brumbach. In light of Brumbach, we do the same.” (internal citations omitted)).
Based on Gann and Brumach, the court finds that Tennessee aggravated burglary, Tenn. Code Ann. § 39-14-403 (2016), qualifies as a crime of violence under the ACCA.
It is so ORDERED.