by Dale Chappell

The U.S. Court of Appeals for the Sixth Circuit held that Tennessee third-degree burglary, as interpreted by the Tennessee Supreme Court, cannot qualify as generic burglary under the Armed Career Criminal Act (“ACCA”), granting 28 U.S.C § 2255 relief and vacating an 18-year ACCA sentence. In doing so, the Sixth Circuit announced that its conclusion to the contrary in United States v. Caruthers, 458 F.3d 459 (6th Cir. 2006), “is no longer controlling authority in this circuit.”

Larry Cradler was convicted in 2011 of being a felon in possession of a firearm under 18 U.S.C. § 922(g), which normally carries a maximum of 10 years in prison. But because he had at least three prior violent felonies, he was sentenced under the ACCA to 18.5 years in prison.

In 2014, Cradler filed a motion to vacate his sentence under 28 U.S.C. § 2255, arguing that his prior Tennessee third-degree burglary was not a qualifying burglary under the U.S. Supreme Court’s decisions in Descamps v. United States, 570 U.S. 254 (2013), Johnson v. United States, 135 S. Ct. 2551 (2015), and Mathis v. United States, 136 S. Ct. 2243 (2016), interpreting when a prior conviction for a violent felony can qualify under the ACCA. The U.S. District Court for the Western District of Tennessee denied his motion, holding that Tennessee burglary still qualifies under the ACCA. The Sixth Circuit granted a certificate of appealability to decide the issue and reversed.

On appeal, the Government raised affirmative defenses of timeliness and procedural bar for the first time, instead of in the district court, which the Court rejected. While a Court of Appeals can hear an affirmative defense for the first time on appeal, or even raise one sua sponte, the U.S. Supreme Court instructed in Wood v. Milyard, 566 U.S. 463 (2012), that “courts should reserve that authority for use in exceptional cases.” This is not an exceptional case, the Sixth Circuit said. “The United States had ample opportunity to raise the defense below,” the Court stated, “over a period of 31 months.” The Court moved to the merits of Cradler’s claims.

The Court began its analysis by explaining that federal courts use the so-called “categorical approach” articulated in Taylor v. United States, 495 U.S. 575 (1990), to determine which state crimes qualify under the “violent felony” provision of § 924 of the ACCA. The categorial approach requires courts to compare the elements of the state statute of conviction with the elements of the generic definition of the crime listed in the ACCA’s definition of violent felony. If the state statute criminalizes more conduct than the generic definition, the conviction is not the same crime described in the ACCA’s violent felony provision, and thus, the conviction does not qualify as a violent felony under the ACCA.

With the categorical approach, courts may only compare the elements of the state and generic definition of the offense in question. They may not examine “the particular facts underlying those convictions.” Id. However, when the state statute contains elements of the offense expressed in the alternative, the statute provides for multiple, separate crimes, so it is impossible to look solely at the elements to determine whether the state conviction qualifies as a violent felony under the ACCA because there is no way to know upon which alternative the conviction is based. These types of state statutes are referred to as “divisible statutes.”

When federal courts encounter a divisible state statute, they are allowed “to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative [set of elements] formed the basis of the defendant’s prior conviction.” Descamps. By looking at these limited facts underlying the conviction, courts are able to determine “which elements in a divisible statute should be compared to the generic definition of the offense,” the Sixth Circuit explained. This method of inquiry is referred to as the “modified approach.”

In Descamps, the U.S. Supreme Court advised: “[T]he modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute. The modified approach thus acts not as an exception, but instead as a tool. It retains the categorial approach’s central feature: a focus on the elements, rather than the facts, of a crime.”

Turning to the present case, the Sixth Circuit noted that the state statute of conviction is divisible, so the modified approach is required.

Tennessee defines third-degree burglary as “breaking and entering into a business house ... with intent to commit a felony” or entering “any building” and opening or attempting to open “any vault, safe, or other secure place….” Tenn. Code Ann. § 39-904. However, federal courts cannot identify “the full range of conduct that is encompassed by each statutory element” by looking only at the statute. Instead, federal courts must also look to “the pronouncements of the state’s highest court to determine” the full range of conduct, the Court noted citing Johnson. The Johnson Court instructed that federal courts are bound by the state’s highest court’s “interpretation of state law, including its determination of the elements” of state statutes.
Utilizing the modified approach, the Court examined Cradler’s indictment, which makes no reference to “a vault, safe, or other secure place.” As such, his state conviction was based on the elements in the first alternative, so they serve as the basis of comparison with the generic definition of burglary.

The Court identified Fox v. State, 383 S.W.2d 25 (Tenn. 1964), as the Tennessee Supreme Court case that’s of most help “in determining the full range of conduct encompassed by” the first alternative. Despite the fact the first alternative of the statute criminalizes “breaking and entering,” the Tennessee Supreme Court interpreted that provision in Fox to also include felonious conduct by someone who is “already lawfully inside the business house.”

In contrast, the generic definition of burglary requires unlawful or unprivileged entry. The Sixth Circuit observed that the portion of the state statute at issue “criminalizes more conduct than generic burglary.” As a result, it doesn’t qualify as the enumerated crime of “burglary,” and consequently, “it is not a violent felony for ACCA purposes,” the Court concluded.

The Sixth Circuit took this opportunity to overturn its earlier decision in Caruthers, which held that the same portion of the burglary statute at issue in this case qualifies under the ACCA as a generic burglary and therefore a violent felony. In light of the U.S. Supreme Court decision in Mathis, the Sixth Circuit acknowledged that the Caruthers Court “misapplied the modified approach—it looked to the facts in Caruthers’ indictment and then compared those facts to the elements of generic burglary, rather than only using the facts to ascertain which paragraph” of the state statute applied.

If a court finds under § 2255 that a “sentence imposed was not authorized by law ... the court shall vacate and set the judgment aside” and resentence the prisoner. Because Cradler’s prior Tennessee burglary conviction does not qualify under the ACCA, his 18-year sentence is beyond the 10 years “authorized by law” and must be vacated.

Accordingly, the Court reversed the district court’s decision and remanded the case for further proceedings consistent with this opinion. See: Cradler v. United States, 891 F.3d 659 (6th Cir. 2018).

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Editor’s note: In its opinion, the Court provides an overview of state offenses and violent felony analysis for ACCA purposes with notable brevity and clarity. It together with this article should serve as useful references for readers beginning their research in this area of the law. Additionally, affected readers should consider the potential implications and dimensions of Mathis beyond the specific issue of this case and the Sixth Circuit. 

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