NOT RECOMMENDED FOR PUBLICATION File Name: 19a0175n.06
No. 18

- 5765

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. LADARIUS PORTER , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE

BEFORE: BATCHELDER, ROGERS, and THAPAR, Circuit Judges.
ROGERS , Circuit Judge

. Ladarius Porter was convicted of being a felon in possession of a firearm and was sentenced to 180 months’ imprisonment because the district court determined that Porter was an armed career criminal under the Armed Career Criminal Act (“ACCA”) , 18 U.S.C. § 924 . Porter appeals on the g round that he did not qualify as an armed career criminal because his prior conviction for aggravated robbery in Tennessee should not count as a “violent felony” under the ACCA’s “ elements ” clause. Porter’s argument, however, is foreclosed by binding circ uit precedent that holds that Tennessee aggravated robbery is categorically a violent felony under the elements clause. In January 2018, Ladarius Porter was charged with one count of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) . He pled guilty to this offense three months later. The district court determined that Porter qualified as an armed career criminal under the ACCA,
18 U.S.C. § 924(e) , because Porter had three qualifying prior convictions: two attemptedNo. 18

- 5765 , United States of America v. Porter

- 2

- especially aggr avated robberies in Tennessee in 2009 and 2010, and an aggravated robbery in Tennessee in 2010. Under the ACCA, a defendant who qualifies as an armed career criminal is subject to a 180

- month minimum sentence , and the district court sentenced Porter to 18 0 months’ imprisonment. At sentencing, Porter’s counsel objected to the district court’s sentence on the ground that Porter was not an armed career criminal under the statute. Porter’s counsel argued that Tennessee aggravated robbery is not a “violent felony” as defined under the ACCA ’s elements clause , and therefore Porter did not have three predicate offenses that were violent felonies and Porter should not be subject to the 180

- month minimum sentence. Relying on published Sixth Circuit precedent , th e district court found that Porter qualified for the 15

- year minimum sentence under the ACCA. Porter now appeals on the same ground, arguing that Tennessee aggravated robbery is not a “violent felony” under the ACCA. Porter was properly categorized as an armed career criminal under the ACCA because Tennessee aggravated robbery is a “violent felon y ” under the published holding of this court in United States v. Mitchell , 743 F.3d 1054 (6th Cir. 2014)

. In Mitchell , we held that Tennessee robbery is “categor ically a ‘violent felony’ under . . . the ACCA” because it requires a degree of force that satisfies the ACCA’s elements clause. 743 F.3d at 10 58

– 60

. Tennessee aggravated robbery incorporates the same physical force requirement as discussed in Mitchell and additionally requires that the robbery be “[a]ccomplished with a deadly weapon” or that the “vi c tim suffer[] serious bodily injury.” Tenn. Code Ann. § 39

- 13

- 402

. Therefore, Mitchell ’s holding applies with equal force to Tennessee robbery and Tenness ee aggravated robbery. See United States v. Lester , 719 F. App’x 455, 458 (6th Cir. 2017)

.No. 18

- 5765 , United States of America v. Porter

- 3

- Porter’s brief anticipated a possible Supreme Court holding in Stokeling v. United States , __ U.S. __, 139 S. Ct. 544 (2019)

— a case involving whether Florida rob bery is a crime of violence under the ACCA

— that might somehow abrogate Mitchell

. As it turned out , however, Stokeling upheld the categorization of Florida robbery as a crime of violence, see 139 S. Ct. at 554

– 55 , and thus did not abrogate Mitchell

. 1
Port er also argues that Mitchell was wrongly decided because it ignored intermediate

- level Tennessee court decisions where persons were convicted of robbery without engaging in force sufficient to qualify under the ACCA’s elements clause. W e are in any event bound by Mitchell ’s holding

. Moreover, we squarely rejected a similar argument with respect to intermediate

- level Tennessee decisions in Un it ed States v. Southers , 866 F.3d 364 (6th Cir. 2017) , itself a published

case that re affirmed the holding of Mitchell

. 2
The district court’s sentence is affirmed.

1 After briefing, and after the Supreme Court’s decision in Stokeling , Porter filed a 28(j) letter, see F.R.A.P. 28(j), in which he cit es Stokeling and argues that, while Stokeling appears to cut against him , it actually renders the elements clause of the ACCA unconstitutionally vague. However we do not read the Supreme Court’s holding as rendering unconsti tutional a statutory provision that was previously constitutional

. 2 Only one intermediate

- level Tennessee case cited by Porter came down after Southers , but it does not demonstrate that a person can be convicted of Tennessee aggravated robbery without using force sufficient to satisfy the elements clause in the ACCA. See State v. Ketchum , No. M2016

- 00685

- CCA

- R3

- CD, 2017 Tenn. Crim. App. LEXIS 427 (Tenn. Crim. App. May 23, 2017). In Ketchum , the Tennessee Court of Criminal Appeals upheld a robbery conv iction where the defendant “grabbed the [victim’s] purse strap

. . . . shoved the [victim’s] shopping cart towards the victim,” and then “ripped the left

- hand strap from the purse,” after which the victim ran from the defendant. 2017 Tenn. Crim. App. LEXI S 427 at *2

– *3. The court determined that this was sufficient evidence for a jury to find that the victim was placed in fear and thus sufficient evidence to convict the defendant of Tennessee robbery. Id. at *17

– *18. The defendant’s actions

— grabbing the purse with enough force to break it and shoving a shopping cart at the victim

— appear to be actions employing force “capable of causing physical pain or injury,” which is the threshold for a crime of violence under the elements clause. See Stokeling , 139 S. Ct. at 553. Porter argues that under Ketchum , a person could be convicted of robbery in Tennessee if “a purse handle snaps, thereby frightening the victim , ” App. Br. at 17 , but t his ignores the fact that in Ketchum it was the defendant who caused the purse handle to snap and who frightened the victim

.