RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0191p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

U NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

S HANNON L. F ERGUSON , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 15-6303

Appeal from the United States District Court for the Eastern District of Tennessee of Chattanooga. No. 1:14-cr-00061-1—Curtis L. Collier, District Judge. Decided and Filed: August 22, 2017 Before: BATCHELDER, ROGERS , and WHITE, Circuit Judges.

_________________ COUNSEL
ON BRIEF: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, Chattanooga, Tennessee, for Appe llant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tenne ssee, for Appellee.

_________________ OPINION

_________________ ALICE M. BATCHELDER, Circuit Judge. Shannon Ferguson pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g )(1). Before his sentencing, the district court found that at least three of Fergus on’s previous convictions were violent felonies that triggered the Armed Career Criminal Ac t’s (“ACCA”) mandatory minimum sentence of fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1). The parties’ arguments focus on eight prior convictions, each of which occurred in Tennessee. Three convictions were for burglary, in 

### >No. 15-6303 United States v. Ferguson Page 2

violation of Tenn. Code Ann. § 39-14-402, and five convictions were for aggravated burglary, in violation of Tenn. Code Ann. § 39-14-403. On app eal, Ferguson asserts that none of his prior convictions count as predicate o ffenses for purposes of the ACCA . Although he is correct that some of his prior convictions are not predicat e offenses, three are. Accordingly, for the following reasons, we AFFIRM the district court’s judgment.
Ferguson’s prior convictions for aggravated burglary no longer c ount toward a finding that he is an armed career criminal. Sitting en banc, our court recently overruled a decade-old precedent and held that Tennessee’s aggravated bur glary statute sweeps more broadly than the generic definition of burglary a nd, therefore, may not be counte d as a predicate offense. United States v. Stitt , 860 F.3d 854, 860–61 (6th Cir. 2017) (en banc) (overruling United States v.
Nance , 481 F.3d 882 (6th Cir. 2007)).
Ferguson’s prior convictions fo r burglary, however, do count toward a finding that he is an armed career criminal. Our exis ting precedent compels this holding. See United States v. Priddy , 808 F.3d 676, 684–85 (6th Cir. 2015). Tenness ee’s burglary statute provides that (a) A person commits burglary who, without the effective consent of the property
owner: (1) Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault; (2) Remains concealed, with the intent to commit a felony, theft or assault, in a building; (3) Enters a building and commits or attempts to commit a felony, theft or assault; or (4) Enters any freight or passenger car , automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault.

. . . (c) Burglary under subdivision (a)(1), (2) or (3) is a Class D felony. (d) Burglary under subdivision (a)(4) is a Class E felony. Tenn. Code Ann. § 39-14-402. The Supreme Cour t has defined “generic burglary” as “an unlawful or unprivileged entry into, or remaining i n, a building or other structure, with intent to commit a crime.” Taylor v. United States , 495 U.S. 575, 598 (1990). In Priddy , we held that allNo. 15-6303 United States v. Ferguson Page 3

Class D burglary convictions under Tennessee law—that is, convict ions under subsec tions (a)(1), (a)(2), or (a)(3) of the Tennessee burglary statut e—fit within the generi c definition of burglary and are therefore violent feloni es for purposes of the ACCA. Priddy , 808 F.3d at 684–85. The judgments in Ferguson’s burglary c onvictions indicate that he was thrice convi cted of the Class D variant of Tennessee burglary. Accordingly, Priddy dictates that his three burglary convictions are violent felonies , and the district court’s findi ng that he is an armed career criminal was proper.
Ferguson argues that Priddy incorrectly held that § 39- 14-402(a)(3) fits within the generic definition of burglary because it allows a defendant to be convicted of burglary if he enters a building and then forms the requisite intent to commit a crime while inside. He builds this argument on the foundation of a comment made by the district court during the sentencing hearing. Although the district court expresse d some sympathy for Fe rguson’s argument, the hearing occurred shortly before we decided Priddy

. Priddy controls. One panel of this court may not overrule the decision of another panel; only the en banc court or the United States Supreme Court ma y overrule the prior panel. See Salmi v. Sec’y of Health & Human Servs. , 774 F.3d 685, 689 (6th Cir. 1985). As it so happens, the en banc court in Stitt did comment on Priddy , but not in a way that assists Ferguson. In Stitt , we explicitly overruled Nance . We also indicated that Priddy ’s holding concerning aggravated burglary relied on the binding precedent set by Nance but “did not expand further on Nance ’s reasoning.” See Stitt , 860 F.3d at 861 n.4. Stitt has therefore abrogated Priddy ’s holding on aggravated burglary. Cf. id. at 863 (Boggs, J., concurring) (e xplaining that the court overruled
Nance but not mentioning Priddy ). Nothing in Stitt , however, undermined Priddy ’s holding on burglary. Accordingly, we hold that Priddy ’s burglary analysis remains controlling, governs here, and compels us to find that Ferguson’s prior Tennessee burglary c onvictions are violent felonies. Because he has three such convictions, the district court properly sentenced him as an armed career criminal. We therefore AFFI RM the judgment of the district court.