Tuesday, August 22, 2017

Non-aggravated burglary is more "violent" than aggravated burglary

After the rare Johnson/Mathis victory in the Sixth Circuit's Stitt decision---which held that Tennessee aggravated burglary was not a violent felony under the Armed Career Criminal Act---a strange legal dance ensued. Defense attorneys tried to make the Stitt logic apply to "regular" Tennessee burglary, despite the fact that Stitt relied on the distinctive definition of "habitation" in Tennessee's aggravated burglary statute, which the non-aggravated burglary statute did not have (and prior published decisions had held that Tennessee burglary was a violent felony). Meanwhile, prosecutors and judges had to find an eloquent way to justify the cognitive dissonance of non-aggravated burglary being considered more "violent" than aggravated burglary.

Today's published Ferguson decision settles the matter (barring some later reversal), holding that Stitt has no application to Tennessee non-aggravated burglary. The short three-page opinion leans on prior precedent without much additional explanation, and one might detect a measure of frustration in the panel's observation that "[s]itting en banc, our court recently overruled a decade-old precedent" in Stitt. (Two of the judges on the Ferguson panel joined with the Stitt majority but wrote separate concurrences, and one judge dissented.) Tennessee burglary still qualifies as generic burglary for the ACCA's definition of "violent felony."

Ferguson closes an important door to relief for Johnson/Mathis petitioners, and it creates a confusing conversation for anyone with clients who had prior Tennessee burglaries and hoped for a sentencing reduction.

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