United States v. Batey

1

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. TIMOTHY JUTODD BATEY, Defendant-Appellant.

No. 22-5339

United States Court of Appeals, Sixth Circuit

March 8, 2023

NOT RECOMMENDED FOR PUBLICATION

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

Before: GRIFFIN, BUSH, and MURPHY, Circuit Judges.

OPINION

JOHN K. BUSH, Circuit Judge

Timothy Batey pleaded guilty to being a felon in possession of a firearm. The district court determined he was an armed career criminal for sentencing under 18 U.S.C. § 924(e) based on six prior violent felony convictions. On appeal, Batey challenges his categorization as an armed career criminal. He acknowledges one prior qualifying conviction but disputes that any of the remaining five are violent felonies. Because two of those challenged offenses qualify as violent felonies Batey has three prior convictions that qualify him as an armed career criminal for sentencing. Accordingly, we AFFIRM the district court's sentence.

I.

On September 22, 2020, Metro Nashville Police officers pulled over and arrested Batey. He possessed a handgun manufactured outside of Tennessee, and he also had previous convictions for felony aggravated assault and felony aggravated robbery. Thus, Batey was charged with being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). He pleaded guilty.

Batey's Presentence Report (PSR) identified six prior Tennessee convictions as violent felonies under the Armed Career Criminal Act (ACCA). If properly characterized, those convictions made Batey an armed career criminal subject to a sentencing enhancement under 18 U.S.C. § 924(e), which requires three prior violent felony convictions. The six listed convictions include three juvenile convictions from 2006 and convictions for aggravated assault in 2011 aggravated robbery in 2013, and another aggravated assault in 2016. All of these convictions, except for the 2013 aggravated robbery conviction, were contested by Batey, who objected to his armed career criminal designation. The district court disagreed. It found Batey to be an armed career criminal and sentenced him to the 15-year mandatory minimum. Batey timely appealed his classification as an armed career criminal and the sentence that resulted from that finding.

II.

We review de novo the legal question whether an ACCA predicate offense qualifies as a violent felony. Davis v. United States, 900 F.3d 733, 735 (6th Cir. 2018).

Courts use a "categorical approach" to determine whether a prior conviction counts as a violent felony under the ACCA. Descamps v. United States, 570 U.S. 254, 257 (2013). A conviction qualifies as such a predicate offense under the ACCA if the elements from the state statute "necessarily involve the defendant's 'use, attempted use, or threatened use of physical force against the person of another.'" Borden v. United States, 141 S.Ct. 1817, 1822 (2021) (quoting U.S.C. § 924(e)(2)(B)(i)). A state statute is "divisible" for this analysis when it sets out one or more elements of the offense that can lead to a conviction that satisfies the ACCA while other elements do not. United States v. Burris, 912 F.3d 386, 393 (6th Circ. 2019) (en banc). In those cases, courts use a "modified categorical approach," where they may "consult a limited class of documents" to determine which elements "formed the basis of the defendant's prior conviction." Descamps, 570 U.S. at 257; accord Burris, 912 F.3d at 402.

Batey's 2013 conviction for aggravated robbery qualifies as an ACCA predicate offense. Tennessee's aggravated robbery statute, Tenn. Code Ann. § 39-13-402, is categorically a violent felony under the ACCA. See Porter v. United States, 959 F.3d 800, 802 (6th Cir. 2020) (citing United States v. Gloss, 661 F.3d 317, 318-19 (6th Cir. 2011)).^[1] Batey concedes this classification. Also, the Government concedes that Batey's three juvenile offenses do not qualify as ACCA predicate offenses. That leaves Batey's 2011 and 2016 convictions for aggravated assault, both of which are based on a divisible statute. If those two convictions qualify as ACCA predicate offenses, then they, combined with the 2013 conviction for aggravated robbery, are the three violent felony convictions necessary to make Batey an armed career offender. We address the 2011 and 2016 convictions in turn below.

A. 2011 Conviction

On March 10, 2011, when Batey was convicted of aggravated assault, the state statute underlying that conviction read:

(a) A person commits aggravated assault who:

(1) Intentionally or knowingly commits an assault as defined in § 39-13101 and:

(A) Causes serious bodily injury to another; or

(B) Uses or displays a deadly weapon; or (2) Recklessly commits an assault as defined in § 39-13-101(a)(1), and:

(A) Causes serious bodily injury to another; or

(B) Uses or displays a deadly weapon.

(b) A person commits aggravated assault who, being the parent or custodian of a child or the custodian of an adult, intentionally or knowingly fails or refuses to protect the child or adult from an aggravated assault as defined in subdivision (a)(1) or aggravated child abuse as defined in § 39-15-402.

(c) A person commits aggravated assault who, after having been enjoined or restrained by an order, diversion or probation agreement of a court of competent jurisdiction from in any way causing or attempting to cause bodily injury or in any way committing or attempting to commit an assault against an individual or individuals, intentionally or knowingly attempts to cause or causes bodily injury or commits or attempts to commit an assault against the individual or individuals.

Tenn. Code Ann. § 39-13-102 (effective May 27, 2010). We have held that this statute is divisible, which requires determining which subsection the defendant was convicted of violating. United States v. Cooper, 739 F.3d 873, 880 (6th Cir. 2014). As part of this determination, the government has the burden to establish that a prior conviction constitutes an ACCA predicate offense. United States v. Medina-Almaguer, 559 F.3d 420, 425 (6th Cir. 2009) (citing Shepard v. United States, 544 U.S. 13, 16 (2005)).

As noted, the modified categorical approach allows a court to consult certain material, known as "Shepard documents," which include the "statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Shepard, 544 U.S. at 16. The Supreme Court also has said this inquiry is limited to "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." Id. at 26.

Our court has elaborated that this analysis may not include the factual recitations in the PSR but does include "facts [the] defendant necessarily admitted in entering a guilty plea." Cooper, 739 F.3d at 881 (citation omitted; alterations in original). Further, state court judgments are "comparable judicial records" that may be used to determine what the defendant necessarily pleaded guilty to. Id. (quoting Shephard, 544 U.S. at 26); Vowell v. United States, 938 F.3d 260, 269 (6th Cir. 2019). Finally, we have permitted "fair and reasonable" inferences from Shepard documents. United States v. Patterson, 878 F.3d 215, 219 (6th Cir. 2017); accord United States v. Reyes-Contreras, 910 F.3d 169, 178 (5th Cir. 2018) (en banc), abrogated in part on other grounds by Borden v. United States, 141 S.Ct. 1817, 1834 (2021) ("Nothing in Shepard or Taylor requires us to act as robots and to ignore the necessary implications from the formal documents in the file of a judgment of conviction."); United States v. Ossana, 679 F.3d 733, 736 (8th Cir. 2012); United States v. Miller, 478 F.3d 48, 52 (1st Cir. 2007) ("The court is not required either to wear blinders or to leave common sense out of the equation.").

The Shepard documents for Batey's 2011 aggravated assault conviction establish it is a violent felony under the ACCA. His three charges of violating Tenn. Code Ann. § 39-13-102 employed language that matches the wording of subsection (a)(1)(B) exactly. Each count mentions a different victim, but all mention that the deadly weapon was a handgun. Batey pleaded guilty to the first count in order to have the second and third dismissed. Finally, the judgment form confirms that Batey pleaded to Count 1 and a Class C felony. Although this form does not specify the specific subsection, there is no indication in any of the other Shepard documents that Batey pleaded guilty to subsection (b) or (c), the only other Class C felonies, to contradict all the evidence that he pleaded guilty to subsection (a)(1)(B). See United States v. West, 799 Fed.Appx. 322, 328 (6th Cir. 2020) (finding that no reference to a parent-child relationship or the existence of a restraining order in the Shepard documents ruled out the conclusion that a defendant had pleaded to the (b) or (c) variants because "Tennessee Rule of Criminal Procedure 11 requires that a court 'determine that there is a factual basis for [a guilty] plea' before accepting it") (quoting Tenn. R. Crim. P. 11(b)(3); alteration in original). Convictions under § 39-13-102(a)(1)(B) are violent felonies under the ACCA's use-of-force clause. Braden v. United States, 817 F.3d 926, 933 (6th Cir. 2016). Thus, the 2011 aggravated assault conviction is a second predicate offense for Batey's status as an armed career criminal.

B. 2016 Conviction

On July 21, 2016, when Batey was convicted of aggravated assault, the relevant state statute read:

(a)(1) A person commits aggravated

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