Tuesday, December 15, 2015

Judge White: TN definition of "habitation" may make Aggravated Burglary non-generic

Today's published opinion in United States v. Priddy, No. 15-5136, is most exciting for Judge White's partial concurrence.

First, the meat of the case. Mr. Priddy was charged with two counts of felon in possession. He has prior Tennessee convictions that include three for Aggravated Burglary, one for Robbery, and two for Burglary. Mr. Priddy wanted his attorney to objection to his ACCA classification. Counsel noted at sentencing, "I think he falls into the Armed Career Criminal category" and "the [prior convictions] that give rise to the application of [the ACCA enhancement] are three aggravated burglaries, then two burglaries of a business or of some other thing that was not a residence, and a robbery."

The Sixth Circuit discussed the difference between waiting an issue and forfeiting an issue and concluded, "... where the defendant has 'explicitly agreed' that a particular guideline calculation or enhancement applies to his sentence, any challenge to that enhancement on appeal is waived." Normally, the Sixth "does not review" waived issues, but decided to give Mr. Priddy "the benefit of the doubt" and conduct plain error analysis of his claims.

The Sixth Circuit then described Tennessee Aggravated Burglary: "[a]ggravated burglary occurs when an individual enters a habitation 'without effective consent of the property owner' and ... intends to commit a felony." It pointed to its finding in United States v. Nance, 481 F.3d 882 (6th Cir. 2007) that Tennessee aggravated burglary is a generic burglary for ACCA purposes.

What Nance and the majority in Priddy both failed to do, however, is look to Tennessee's definition of "habitation" in TN Stat 39-14-401:
a) any structure, including buildings, module units, mobile homes, trailers, and tents, which is designed or adapted for the overnight accommodation of persons,
b) "a self-propelled vehicle that is designed or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant, and
c) includes each separately secured or occupied portion of the structure or vehicle and each structure appurtenant to or connected with the structure or vehicle.

In her concurrence, Judge White noted this "expansive definition" "likely renders [Tennessee's] aggravated burglary statute broader than Taylor's definition of generic burglary." She questioned the continued validity of Nance and pointed to alternate holdings in Ozier and Lara.

Whether Tennessee's Aggravated Burglary statute is divisible, and how far it is divisible, is still somewhat in debate. The Sixth Circuit has held the statute indivisible and has held it divisible. Contrary to the Sixth's holding in Lara, there is argument to be made that, though "habitation" has a list of alternate situations, a sentencing court should not delve into those facts, as a jury would not need to find what sort of habitation was burgled in order to find a defendant guilty of Aggravated Burglary.

The plain error analysis in this case limits its use for the position that Tennessee Aggravated Burglary is a predicate offense for ACCA. Judge White's concurrence indicates the "habitation" issue is still a live issue that counsel should be aware of.