United States of America v. Eugene Bernardini

NOT RECOMMENDED FOR PUBLICATION
File Name: 15a0704n.06
No. 13-6180
UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EUGENE BERNARDINI,
Defendant-Appellant.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE
BEFORE: BATCHELDER and ROGERS, Circuit Judges; BECKWITH, District Judge.
PER CURIAM. This case returns from the Supreme Court on remand for further
consideration in light of Johnson v. United States, 135 S. Ct. 2551 (2015). In Johnson, the
Supreme Court held that the Armed Career Criminal Act’s (ACCA) residual clause was void for
vagueness. 135 S. Ct. at 2564. The Court did not disturb “the remainder of the Act’s definition
of a violent felony.” Id. In his pre-Johnson appeal to this court, Bernardini argued that his
conviction for robbery in Tennessee under Tennessee Code Annotated § 39-13-401 was not a
violent felony and thus not a basis for sentencing him under the ACCA. We affirmed
Bernardini’s sentence because we had previously held in a different case that a conviction for
robbery under that statute was a violent felony as provided for by both the ACCA’s use-of-force
clause and its residual clause. See United States v. Bernardini, 583 F. App’x 544, 545 (6th Cir.
2014) (citing United States v. Mitchell, 743 F.3d 1054, 1060, 1062 (6th Cir. 2014)). Johnson left

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No. 13-6180
United States v. Bernardini
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the ACCA’s use-of-force clause undisturbed, and Bernardini’s robbery conviction is still a
violent felony under the ACCA’s use-of-force clause. Although the district court held only that
Bernardini’s robbery conviction was a violent felony under the residual clause, we may affirm
the district court on any ground supported by the record. United States v. Gill, 685 F.3d 606, 609
(6th Cir. 2012). Accordingly, we affirm Bernardini’s sentence.

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