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 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

v. 

SHANNON L. FERGUSON, 

Defendant-Appellant. 

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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 Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S 

OFFICE, Knoxville, Tennessee, for Appellee. 

_________________ 

OPINION 

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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 Ferguson’s previous convictions were violent felonies 

that triggered the Armed Career Criminal Act’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 

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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 appeal, Ferguson asserts that none of his prior 

convictions count as predicate offenses for purposes of the ACCA. Although he is correct that 

some of his prior convictions are not predicate offenses, three are. Accordingly, for the 

following reasons, we AFFIRM the district court’s judgment. 

 Ferguson’s prior convictions for aggravated burglary no longer count 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 burglary statute sweeps more broadly than the 

generic definition of burglary and, therefore, may not be counted 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 for burglary, however, do count toward a finding that he is 

an armed career criminal. Our existing precedent compels this holding. See United States v. 

Priddy, 808 F.3d 676, 684–85 (6th Cir. 2015). Tennessee’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 Court has defined “generic burglary” as “an 

unlawful or unprivileged entry into, or remaining in, 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 all 
No. 15-6303 United States v. Ferguson Page 3

Class D burglary convictions under Tennessee law—that is, convictions under subsections (a)(1), 

(a)(2), or (a)(3) of the Tennessee burglary statute—fit within the generic definition of burglary 

and are therefore violent felonies for purposes of the ACCA. Priddy, 808 F.3d at 684–85. The 

judgments in Ferguson’s burglary convictions indicate that he was thrice convicted of the Class 

D variant of Tennessee burglary. Accordingly, Priddy dictates that his three burglary 

convictions are violent felonies, and the district court’s finding 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 expressed some sympathy for Ferguson’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 may 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) (explaining 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 convictions are violent 

felonies. Because he has three such convictions, the district court properly sentenced him as an 

armed career criminal. We therefore AFFIRM the judgment of the district court.