Greer v. United States

938 F.3d 766

Tracy A. GREER, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

No. 16-4755

United States Court of Appeals, Sixth Circuit.

Argued: May 3, 2019

Decided and Filed: September 12, 2019

ARGUED: Claire R. Cahoon, FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee. ON BRIEF: Claire R. Cahoon, FEDERAL PUBLIC DEFENDER, Toledo, Ohio, for Appellant. Matthew B. Kall, UNITED STATES ATTORNEY’S OFFICE, Cleveland, Ohio, for Appellee.

Before: GUY, CLAY, and GRIFFIN, Circuit Judges.

GRIFFIN, Circuit Judge.

The only issue in this appeal is whether the crime of aggravated burglary, as defined by two now-repealed Ohio statutes, qualifies as generic burglary under the enumerated-offense clause of the Armed Career Criminal Act ("ACCA") in light of recent Supreme Court guidance. See, e.g. , United States v. Stitt , ––– U.S. ––––, 139 S. Ct. 399, 202 L.Ed.2d 364 (2018). The district court held that petitioner Tracy Greer’s aggravated burglary convictions qualified as "violent felonies" under the ACCA’s enumerated-offense clause and denied Greer’s petition. We agree and affirm.

I.

The ACCA imposes a mandatory minimum sentence of fifteen years for a conviction under 18 U.S.C. § 922(g) if the defendant has three or more previous convictions for either "violent felon[ies]" or "serious drug offense[s]" (or both). 18 U.S.C. § 924(e)(1). In 2007, Greer pleaded guilty, pursuant to a plea agreement, to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (along with thirteen counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d) and one count of using a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) ). In the plea agreement, the parties agreed that Greer was "punishable as an Armed Career Criminal" given his five prior convictions for aggravated burglary under Ohio law. The district court agreed and sentenced Greer to 272 months of imprisonment, comprised of 188 months for the § 2113 and § 922(g)(1) counts, to be served concurrently, and an additional 84 months for the § 924(c) count, to be served consecutively.

After the Supreme Court invalidated what was commonly referred to as the ACCA’s "residual clause," see Johnson v. United States , ––– U.S. ––––, 135 S. Ct. 2551, 2563, 192 L.Ed.2d 569 (2015), and made that decision retroactive to cases on collateral review, see Welch v. United States , ––– U.S. ––––, 136 S. Ct. 1257, 1261, 194 L.Ed.2d 387 (2016), Greer timely moved to vacate his sentence under 28 U.S.C. § 2255. The district court denied Greer’s motion and held that his prior aggravated burglary convictions qualified as ACCA predicates under the ACCA’s enumerated-offense clause—the first portion of 18 U.S.C. § 924(e)(2)(B)(ii) —which remained good law after Johnson . United States v. Greer , No. 1:06-CR-559, 2016 WL 7387103, at *1 (N.D. Ohio Dec. 21, 2016). But the court granted a certificate of appealability on this issue and authorized Greer to file an appeal. Id. at *5 ; see 28 U.S.C. § 2253(c) ; Fed. R. App. P. 22(b). He did so.

While Greer’s appeal was pending, we decided United States v. Stitt , 860 F.3d 854 (6th Cir. 2017) (en banc), and held that Tennessee’s aggravated burglary statute was not a "violent felony" under the ACCA because its definition of "habitation" had a broader scope than the enumerated offense of generic burglary under 18 U.S.C. § 924(e)(2)(B)(ii). The government then conceded that Greer was not properly classified as an armed career criminal given the similarity in language between the Tennessee statute in Stitt and the Ohio statute under which Greer sustained his prior convictions. But the government reserved the right to withdraw its concession if the Supreme Court decided the issue differently. The government filed for certiorari in Stitt , and when the Court granted it, the government moved to hold this case in abeyance pending the Supreme Court’s decision. We granted that motion. After the Supreme Court reversed the en banc decision of this court, see Stitt , ––– U.S. ––––, 139 S. Ct. 399, 202 L.Ed.2d 364, we lifted the stay.

II.

"In reviewing the denial of a 28 U.S.C. § 2255 motion, we apply a de novo standard of review to the legal issues and uphold the factual findings of the district court unless they are clearly erroneous." Hamblen v. United States , 591 F.3d 471, 473 (6th Cir. 2009) (citation omitted). Whether Greer qualifies as an armed career criminal is a legal determination that we review de novo. Raines v. United States , 898 F.3d 680, 686 (6th Cir. 2018) (per curiam) (citation omitted).

III.

As a preliminary matter, the government argues that Greer has waived his ACCA argument for two reasons. First, in the plea agreement, Greer stipulated that he was "punishable as an Armed Career Criminal." Second, the plea agreement included an appellate waiver, which limited Greer’s right to file both a direct appeal and a collateral attack on his conviction or sentence. While the appellate waiver contained an exception allowing Greer "to appeal any punishment in excess of the statutory maximum," the government argues that the waiver should apply here because that exception covers direct appeals, not collateral attacks. The government argues that each of these two concessions constitutes the "intentional relinquishment or abandonment of a known right" and urges us to reject Greer’s appeal as waived. United States v. Olano , 507 U.S. 725, 733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (quoting Johnson v. Zerbst , 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ).

But the government’s arguments are undercut by a potent bit of irony. Typically, this court reviews only those issues adequately preserved for appeal. When a party neglects to advance a particular issue in the lower court, we consider that issue forfeited on appeal. United States v. Archibald , 589 F.3d 289, 295–96 (6th Cir. 2009). And, "as with any other argument, the government can forfeit a waiver argument by failing to raise it in a timely fashion." Hunter v. United States , 160 F.3d 1109, 1113 (6th Cir. 1998) (citation omitted); see also Olano , 507 U.S. at 733–34, 113 S.Ct. 1770 (clarifying the distinction between waiver and forfeiture). For whatever reason, the government decided not to pursue either of its waiver arguments before the district court. Thus, it has forfeited them on appeal.

The government points out that our forfeiture rule is not inflexible, and that we have the power to excuse its forfeiture here. See Cradler v. United States , 891 F.3d 659, 666 (6th Cir. 2018). But we typically do so only in "exceptional cases," and the government offers no compelling reasons to justify departing from our usual practice. Id. (quoting Wood v. Milyard , 566 U.S. 463, 473, 132 S.Ct. 1826, 182 L.Ed.2d 733 (2012) ); see Jones Bros., Inc. v. Sec’y of Labor , 898 F.3d 669, 677–78 (6th Cir. 2018). In fact, the government’s position is particularly brazen here; the government asks us to excuse its forfeiture, then turn around and enforce Greer’s waivers to dispose of this appeal. We decline to do so. After all, "[o]ur function is to review the case presented to the district court, rather than a better case fashioned" later on appeal. DaimlerChrysler Corp. Healthcare Benefits Plan v. Durden , 448 F.3d 918, 922 (6th Cir. 2006) (citation omitted). We therefore proceed to the merits.

IV.

The government argues that Greer’s convictions fall within the enumerated offense of "burglary" under 18 U.S.C. § 924(e)(2)(B)(ii). To determine whether a past conviction qualifies as burglary under the ACCA, we employ the "categorical approach" and "compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e. , the offense as commonly understood." Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Greer’s prior convictions qualify as ACCA predicates "only if the statute’s elements are the same as, or narrower than, those of the generic offense." Id.

"[T]he contemporary understanding of ‘burglary’ has diverged a long way from its commonlaw roots." Taylor v. United States , 495 U.S. 575, 593, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). So the proper setting for examining the contours of generic burglary is not its understanding at common law, but rather its understanding at the time the ACCA was passed, as evidenced in the criminal codes of the states. Id. at 598, 110 S.Ct. 2143. Using this approach, the Court concluded that "the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Id .

All of Greer’s previous convictions were for aggravated burglary under Ohio law. See Ohio Rev. Code Ann. §§ 2911.11(A), 2909.01 (1973). In 1996, Ohio Senate Bill 2 "significantly modified Ohio’s criminal code," including the statute of Greer’s convictions. Kiser v. Mohr , No. 2:16-CV-0422, 2016 WL 4227396, at *1 n.1 (S.D. Ohio Aug. 11, 2016). Courts commonly keep track of this change by referring to the old version of the code as "Pre-Senate Bill 2" and the current version as "Post-Senate Bill 2." See, e.g. , United States v. Johnson , 708 F. App'x 245, 247–48 (6th Cir. 2017). Greer’s convictions occurred in the early 1980s, under the Pre-Senate Bill 2 version of Ohio Revised Code § 2911.11(A).¹ It provided:

No person, by force, stealth, or deception, shall trespass in an occupied structure as defined in section 2909.01 of the Revised Code, or in a separately secured or separately occupied portion thereof, with purpose to commit therein any theft offense as defined in section 2913.01 of the Revised Code, or any felony, when any of the following apply:

(1) The offender inflicts, or attempts or threatens to inflict physical harm on another;

(2)

...