Thomas Edward Lee v. United States of America

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 19a0310n.06
Case Nos. 17-6513/6514
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
THOMAS EDWARD LEE,
Petitioner-Appellee,
v.
UNITED STATES OF AMERICA,
Respondent-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
THOMAS EDWARD LEE,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE MIDDLE DISTRICT OF
TENNESSEE
BEFORE: SUTTON, GRIFFIN, and READLER, Circuit Judges.
SUTTON, Circuit Judge. In 2010, Thomas Lee pleaded guilty to being a felon in
possession, in violation of 18 U.S.C. § 922(g)(1). Based on three prior Tennessee aggravated
burglary convictions, the parties noted in the plea agreement that Lee had three prior violent felony
convictions and, as an armed career criminal under 18 U.S.C. § 924(e), should be sentenced to
188 months in prison. The district court accepted the agreement and imposed the 188-month
sentence.

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Case Nos. 17-6513/6514, Lee v. United States/United States v. Lee
2
In Johnson v. United States, the Supreme Court held that the residual clause of the Armed
Career Criminal Act violates due process. 135 S. Ct. 2551, 2563 (2015). Relying on Johnson,
Lee filed this § 2255 motion, arguing that his aggravated burglary convictions no longer qualified
as violent felonies under the Act and that he should be resentenced. While Lee’s petition was
pending, this court held that Tennessee aggravated burglary did not qualify as a violent felony
because Tennessee’s statute covers more structures than the Act’s enumerated burglary offense
covers. United States v. Stitt, 860 F.3d 854 (6th Cir. 2017) (en banc). The government then agreed
that Lee did not qualify for the career-offender enhancement. The district court granted Lee’s
§ 2255 motion and amended his sentence to time served.
The government appealed and asked that we hold the case in abeyance while it sought the
Supreme Court’s review in Stitt. We agreed to do so. Late last year, the Supreme Court reversed
this court’s decision in Stitt, holding that the structures covered by the Tennessee statute fit within
the Act’s generic burglary definition. United States v. Stitt, 139 S. Ct. 399, 406–08 (2018).
The government asks us to reverse the sentence because the Supreme Court’s decision in
Stitt undermines the basis for the district court’s grant of relief. Lee does not—he cannot—dispute
that he no longer is eligible for relief based on the structures the Tennessee aggravated burglary
statute covers.
Instead, Lee says that those state convictions do not qualify as burglaries under the Act for
a different reason, one distinct from the issue in Stitt. Lee argues that generic burglary requires
entry by an instrument used to commit the intended felony inside. Meanwhile, he adds, Tennessee
burglary requires only entry by an instrument used to attempt to break in, making the Tennessee
statute overbroad. The district court did not have a chance to consider that argument the first time
around, which is the typical (and usually the better) course.

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Case Nos. 17-6513/6514, Lee v. United States/United States v. Lee
3
We vacate the district court’s decision granting Lee’s § 2255 motion and remand for the
district court to reconsider the motion.

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