Tuesday, August 28, 2018


Shepard documents are used to establish Tennessee aggravated assaults as ACCA predicate offenses. 

The use of Tennessee’s aggravated assault statute as an ACCA predicate offense is again at issue in the Sixth Circuit.

In Davis v. United States, Jeremiah Davis pleaded guilty in 2001 to being a felon in possession of a firearm under 18 U.S.C. §922(g)(1). On the basis of three prior Tennessee aggravated assault convictions he was sentenced as an armed career criminal under the ACCA. In 2016, Mr. Davis filed a habeas petition seeking relief under Johnson v. United States, 135 S.Ct. 2551 (2015). He contended that the earlier of those assault convictions were not ACCA predicate offenses.

            The district court agreed with Mr. Davis. The court relied on United States v. McMurray, 653 F.3d 367, 376 (6th Cir. 2011) which held that reckless aggravated assault was not a violent felony under the ACCA’s use of physical force clause. 18 U.S.C. §924(e)(2)(B). The court concluded that Mr. Davis was entitled to Johnson relief because he could only have been sentenced under the ACCA’s residual clause.

            The Sixth Circuit reversed the grant of habeas relief. The court noted that Mr. Davis argued in the district court that the prior convictions were not predicate offenses under the ACCA’s use-of-force clause because aggravated assault could be committed with a reckless mental state. But that argument was mostly abandoned on appeal “and for good reason.” (Op. at 4). The Sixth Circuit observed that McMurray was effectively overruled by Voisine v. United States, 136 S.Ct. 2272 (2016) in which the Supreme Court “found recklessness sufficient to constitute a crime that has, as an element, the use or attempted use of physical force.” (Op. at 4).

            Subsequent to Voisine, the Sixth Circuit held in United States v. Verwiebe, 874 F.3d 258, 264 (6th Cir. 2017) that reckless conduct can qualify a conviction as a crime of violence under U.S.S.G §4B1.2’s use-of-force clause. Verwiebe was applied in United States v. Harper, 875 F.3d 329 (6th Cir. 2017) to support the conclusion that reckless aggravated assault in Tennessee is a crime of violence under §4B1.2’s use-of-force clause. Although Verwiebe and Harper involved §4B1.2’s use-of-force clause, their holdings applied to the ACCA’s use-of-force clause because both clauses are construed to have the same meaning. (Op. at 4). In Mr. Davis’s case, the Sixth Circuit said Harper was binding and Tennessee’s aggravated assault statute (Tenn. Code Ann. §39-13-101(a)(1)) “is categorically a crime of violence.” (Op. at 4). (Note – Harper (17-7613) and Verwiebe (17-8413) are pending on petitions for writs of certiorari and are scheduled for the Supreme Court’s conference on 9-24-18).

            Against that backdrop, Mr. Davis argued that he was entitled to Johnson relief because the government failed to show that his convictions were under a subsection of the statute that brought him within the ACCA’s scope. The Sixth Circuit found that the juvenile petitions on which the government relied showed that Mr. Davis was charged with aggravated assaults that stemmed from two separate shootings in which the victims sustained “serious bodily injury.” (Op. at 5). The court rejected Mr. Davis’s contention that the juvenile petitions were not Shepard documents because, “after a bench trial, the sentencing court can consider only the judge’s formal rulings of law and findings of fact.” (Op. at 6). The Sixth Circuit found that charging documents can be considered whether a bench trial or a guilty plea occurs.

            Mr. Davis further argued that one of the juvenile petitions could not be considered because it originally charged him with attempted first degree murder and he was convicted of the lesser included offense of aggravated assault. In the Sixth Circuit’s view, however, the only possible lesser included offense was contained in the subsection of the aggravated assault statute that qualified as an ACCA predicate.

            Thus, the Sixth Circuit concluded that Mr. Davis was not entitled to Johnson relief because Tenn. Code Ann. §39-13-101(a)(1) is a crime of violence under the ACCA’s use-of-force clause.

 

 

 

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