1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0292p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

U

NITED S TATES OF A MERICA , Plaintiff-Appellee ,

v

.

D ONALD E UGENE P RIDDY , Defendant-Appellant

. ┐ │ │ │ │ │ │ │ ┘ No. 15-5136

Appeal from the United St ates District Court for the Western District of Tennessee at Jackson. No. 1:13-cr-10054-1—J. Daniel Br een, Chief District Judge. Decided and Filed: December 15, 2015 Before: KEITH, CLAY, and WHITE, Circuit Judges.

_________________ COUNSEL
ON BRIEF: M. Dianne Smothers, FEDERAL PUBL IC DEFENDER, Memphis, Tennessee, for Appellant. Kevin G. Ritz, UNITED STATES ATTORNEY’S OF FICE, Memphis, Tennessee, for Appellee. CLAY, J., delivered the opinion of the court in which KEITH, J., joined, and WHITE, J., joined in part. WHITE J. (pp. 13–14), delivered a separate opinion concurring in all but section II.A.1. of the majority opinion.

_________________ OPINION

_________________ CLAY, Circuit Judge. Defendant Donald Prid dy (“Defendant”) appeal s his sentence of 180 months of imprisonment imposed by the dist rict court following his plea of guilty to two counts of being a felon in possession of a firear m, in violation of 18 U.S.C. § 922(g). The 

### >No. 15-5136 United States v. Priddy Page 2

district court imposed this sentence after it determ ined that Defendant had four predicate violent felonies for purposes of the Armed Career Crim inal Act (“ACCA”), which requires a mandatoryminimum sentence of 180 months for a defendant convicted of violating § 922(g) who has three or more prior convictions for violent felonies. 18 U.S.C. § 924(e)(1). On appeal, Defendant argues his convictions cannot qualify as violent felonies and that the district court erred in sentencing him under the ACCA. For the reasons that follow, we AFFIRM the district court’s judgment.

I.

BACKGROUND On June 24, 2013, a federal grand jury in the Western District of Tennessee returned a two-count indictment against De fendant. The indictment charge d Defendant with two counts of being a felon in possession of a firearm, in violation of 18 U. S.C. § 922(g). Count I charged Defendant with possession of a Rohm Model RG -12 .22 caliber revolver. Count II charged Defendant with possession of a Smith and We sson .357 caliber revolver. On September 15, 2014, Defendant pled guilty to both charges. United States Pretrial Services prep ared a Presentence Investigation Report (“PSR”) which recommended that the distri ct court adjudge Defendant an armed career criminal for purposes of the ACCA ba sed on his prior convictions for multiple violent felonies. The PSR identified the follo wing prior Tennessee convictions as predicate violent felonies: (1) two 1991 convictions for aggravated burglary, (2) a 1994 conviction for robbery, (3) a 1999 conviction for aggravated burglary, and (4) two 2005 convictions for burglary. Before sentencing, defense counsel explai ned to Defendant that he qualified for sentencing enhancement under the ACCA, but De fendant did not understand why his prior convictions qualified him as an armed career crim inal. Defense counsel then conceded that Defendant was subject to the ACCA’s sentenci ng enhancement and also asked if Defendant could address the court:No. 15-5136 United States v. Priddy Page 3

I believe [Defendant] may wish to addr ess Your Honor. And I know you always give a defendant that opport unity. But despite my truly best efforts in trying to explain to him the situation with Arme d Career Criminal Act, and how that applies as is different from career offender or different from a guideline situation - it’s confusing on a good day for anybody. But I’ve explained to him -- and you can see from our filing, I have not raised objections to the guideline calculations. But in -- specifically to the unfortunate situation that I think he falls into the Armed Career Criminal category. The nature of his prio r convictions are set out in the report. Even with current cases th at may be pending and thi ngs that we’re watching certainly very closely -- unfortunately, [Defendant] ha s several burglary priors. He has an escape. Just a mix, if yo u will. But the ones, unfortunately, that give rise to the application of [the ACCA enhancement] are three aggravated burglaries and then two burgl aries of a business or of some other thing that was not a residence, and a robbery. (R. 55, Sentencing Hearing, PageID# 68 (emphasis added)). The court permitted Defendant to speak. Defendant then questioned why his two convictions for aggravated burglary in 1991, for which he was sentenced concurrently, counted as two separate convictions. Defendant denied committing two separate burglaries and stated that he only pled guilty to two charges because he was promised a concurrent sentence if he did so . The court told Defendant that even though he was sentenced concurrently, that did not change th e fact that he was convi cted of two separate offenses. The court also told Defendant that he could not use the federal sentencing forum to gain review of his state convictions. The court then explained to Defendant th at regardless of those two convictions for aggravated burglary in 1991, he still had three or more fel onies that would qualify as violent felonies under the ACCA.

The district court ruled that the ACCA e nhancement applied to De fendant’s sentence. The court specifically found that Defendant’s three aggravated burglary convictions and his robbery conviction were violent felonies for pur poses of the ACCA. The court did not address Defendant’s 2005 burglary convictions because De fendant already had enough violent felonies to qualify for the ACCA enhancement. The cour t sentenced Defendant to a statutory minimum term of 180 months in prison.No. 15-5136 United States v. Priddy Page 4

II.

DISCUSSION

Standard of Review As an initial matter, the parties dispute th is Court’s standard of review on appeal. Defendant asserts that this Court review de novo whether a prior conviction constitutes a violent felony under the ACCA. The government agrees that review is ordinarily de novo but argues that because Defendant failed to object to the dist rict court’s application of the ACCA, he waived any challenge to his ACCA-enhanced sentence. Therefore, the government argues that this Court should decline to address the merits of that claim. The government contends, alternatively, that if this Court reaches the mer its of the case, it must review Defendant’s claims only for plain error because Defendant failed to raise his appellate claims below. Thus, the first question becomes whether Defendant waived his claim challenging his ACCA-enhanced sentence, or alternatively, whether he forfeited it. “Waiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.” United States v. Olano , 507 U.S. 725, 733 (1993) (quoting Johnson v. Zerbst , 304 U.S. 458, 464 (1938)). A defendant’s failure to object to a sentencing error, or even his acknowledgment that he has no objection, does not amount to a waiver of that error. See United States v. Simmons , 587 F.3d 348, 374 (6th Cir. 2009) (expl aining that “[w]here the sent encing judge asks the parties [if they have any objections] but a party fails to raise any objections ‘not previously raised,’ the defendant forfeits all unpreserved claims and plain-error review applies on appeal”) (citing United States v. Vonner , 516 F.3d 382, 385-86 (6 th Cir. 2008)). In regards to forfeiture, a party must objec t “with that reasonable degree of specificity which would have adequately apprised the tria l court of the true ba sis for his objection.” United States v. Bostic , 371 F.3d 865, 871 (6th Cir. 2004) (quoting United States v. LeBlanc , 612 F.2d 1012, 1014 (6th Cir. 1980)). “A sp ecific objection provides the dist rict court with an opportunity to address the error in the firs t instance and allows this court to engage in more meaningful review.” Id. Therefore, this Court requires dist rict courts to ask what we call the Bostic question:No. 15-5136 United States v. Priddy Page 5
“[whether the parties] have any ob jections to the sentence . . . that have not previously been raised.” Id. at 872. This so-called Bostic question is “especially pertinent with respect to objections that concern the adequacy of the court’s explanation precisely because such objections cannot be made until after the court states it s reasoning in the course of sentencing the defendant.” Simmons , 587 F.3d at 354. However, where the defendant has “explicitly agreed” that a particular guideline calculation or enhancement applies to his sentence, any challenge to that enhancement on appeal is waived. See United States v. Aparco-Centeno , 280 F.3d 1084, 1088 (6th Cir. 2002) (holding that an objection to classificati on of two offenses as aggravated felonies was waived because in his sentencing memorandum the defendant “explicitly agreed that they qualified as such.”). A defendant waives an argument that he doe s not qualify for a sentencing enhancement by “explicitly agree[ing]” that he does qualify. Id. Such explicit agreem ent occurs when the defendant expresses a “plain, positive conc urrence” with applying the enhancement, United States v. Mabee , 765 F.3d 666, 671-73 (6th Cir. 2014), like when he “agree[s] in open court” that he qualifies for a designation that increases his sentence. Aparco-Centeno , 280 F.3d at 1088. After agreeing, the defendant cannot make the opposite argument on appeal; the argument is waived and this Court does not review it. Id. ; see also United States v. Hall , 373 F. App’x. 588, 591 (6th Cir. 2010). We have previously found a defendant to ha ve waived a claim under similar facts. In Aparco-Centeno , the defendant challenged the districtcourt’s determination that his prior convictions constituted “aggravated felonies.” Aparco-Centeno , 280 F.3d at 1087. At the sentencing hearing, defense couns el had no objection to the PSR and the two prior convictions listed in it. Id. at 1088. Defense counsel also wrot e in his sentencing memorandum that “[b]ecause [the defendant’s] sentences for two of these offences were at least one year in duration, they are classified as aggravat ed felonies under 8 U.S.C. § 1101(a)(43).” Id. We noted that not only did defense counsel fail to object to th e district court’s consideration of the two prior convictions as aggr avated felonies, he “exp licitly agreed that they qualified as such. Only on appeal does [the de fendant] argue that his conviction for receiving stolen property does not qualify as an aggravated felony under 8 U.S.C. § 1326.” Id. Thus, theNo. 15-5136 United States v. Priddy Page 6

defendant’s argument was waived when his couns el stated in the sentencing memorandum that those prior convictions were aggrav ated felonies. As we wrote, “[a]n attorney ca nnot agree in open court with a judge’s proposed course of c onduct and then charge the court with error in following that course.” Id. (citing United States v. Sloman , 909 F.2d 176, 182 (6th Cir. 1990)). Similarly, here, defense counsel not only fa iled to raise any objections to Defendant being sentenced pursuant to the ACCA at se ntencing, but also stated in her sentencing memorandum that “Defendant faces sentencing unde r the ‘armed career criminal’ act due to his prior convictions.” And, defens e counsel reiterated to the cour t two more times that Defendant qualified for sentencing enhancement under the AC CA. Based on the case law, that explicit agreement seems to be more than enough to constitute waiver. Nevertheless, we will give Defendant the benefit of the doubt and conduct a plain error analysis. As we will discuss later in the opini on, defense counsel was unaware at the time of Defendant’s sentencing that th e Supreme Court would issue an opinion that would call into question whether the ACCA enhancement applied to Defendant’s sentence. Therefore, we will review Defendant’s claim for plain error. To obtain relief under that standard, Defendant must establish “(1) error, (2) that is plain, and (3) that affects substantial rights.” Johnson v. United States , 520 U.S. 461, 466-67 (1997). If he can s how all three conditions, this Court will “exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity or public reput ation of judicial proceedings.” Id. at 467 (alteration in original). “Meeting all four prongs is di fficult, ‘as it should be.’” Puckett v. United States , 556 U.S. 129, 135 (2009) (quoting United States v. Dominguez Benitez , 542 U.S. 74, 83 n.9 (2004)). Analysis The government bears the burden to prove that Defendant has three pr ior convictions that constitute predicate violent felonies for purposes of the ACCA. United States v. Goodman , 519 F.3d 310, 316 (6th Cir. 2008). A defendant is cl assified as an “armed career criminal” under 18 U.S.C. § 924(e)(1) if he has been convicted under 18 U.S.C. § 922(g) of possessing a firearm after having three previous convictions for either violent felonies or serious drug offenses. The ACCA defines a “violent felony” as:No. 15-5136 United States v. Priddy Page 7
any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that woul d be punishable by imprisonment for such term if committed by an adult, that- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, i nvolves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.] 18 U.S.C. § 924(e)(2)(B). We have interpreted th is section to create th ree different grounds for liability: the “use-of-force” clause in § 924(e )(2)(B)(i); the “enumerated-offenses” clause in § 924(e)(2)(B)(ii); and the “residual clause” i mmediately following the enumerated-offenses in § 924(e)(2)(B)(ii). See United States v. Mitchell , 743 F.3d 1054, 1058 (6th Cir. 2014); United States v. Prater , 766 F.3d 501, 509 (6th Cir. 2014). A defendant sentenced as an armed career criminal is subject to a mandatory minimum se ntence of fifteen years of imprisonment. 18 U.S.C. § 924(e)(1).
On June 26, 2015, in Johnson v. United States , 135 S. Ct. 2551 (2015), the Supreme Court held that the residual clause of the A CCA—providing sentence enhancements for crimes that “otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another”—is unconstitutionally va gue in violation of the Due Process Clause of the Fifth Amendment. Id. at 2557. The government accordingly cannot enhance Defendant’s sentence based on a prior conviction that constitutes a violent felony pursuant only to the residual clause. But a defendant can still receive an ACCA-enhan ced sentence based on the statute’s use-of-force clause or enumerated-offense clause: “Today’s decision does not call into question application of the Act to the four enumerated[-]offenses, or th e remainder of the Act’s definition of a violent felony.” Id. at 2563.

A. The Enumerated-Offense Clause A prior conviction qualifies as an ACCA pr edicate offense if it “is burglary, arson, or extortion, involves use of explosiv es.” § 924(e)(2)(B)(i). To determ ine if a past conviction is for one of those crimes, this Court utilizes a ca tegorical approach in which we “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of theNo. 15-5136 United States v. Priddy Page 8

‘generic’ crime - i.e., the offense as commonly understood.” Descamps v. United States , 133 S. Ct. 2276, 2281 (2013). The prior conviction “qualif ies as an ACCA predicate only if the statute’s elements are the same as, or narrower than, those of the generic offense.” Id. If the prior conviction invol ves the violation of a “divis ible” statute—i.e., one which consists of multiple, alternative versions of th e crime—then this Court utilizes a “modified categorical approach” and “consult[s] a limited cla ss of documents, such as indictments and jury instructions, to determine wh ich alternative formed the ba sis of the defendant’s prior conviction.” Id. at 2281. In this second step, we may consult “the terms of the charging document, the terms of a plea agreement or tr anscript of colloquy betw een judge and defendant in which the factual basis for the plea was conf irmed by the defendant, or to some comparable judicial record of this information” to dete rmine the precise subsection to which Defendant pleaded guilty. Shepard v. United States , 544 U.S. 13, 26 (2005). 1. Defendant’s Three Aggravated Burglary Convictions Tennessee law explains the elements of aggravated burglary in Tenn.Code Ann. § 39–14– 403: “Aggravated burglary is burglary of a habitation as defined in §§ 39–14–401 and 39–14– 402.” The Supreme Court of Tennessee elaborated on this definition in State v. Langford , 994 S.W.2d 126 (Tenn. 1999), stating that “[a]ggravated burgla ry occurs when an individual enters a habitation ‘without the effective consent of the property owner’ and . . . intends to commit a felony.” Id. at 127 (quoting Tenn.Code Ann. §§ 39–14–402 to –403). Relying on this state-law definition of the crime, this Court has held that Tennessee’s aggravated burglary statute “represents a generic burglary capable of constituting a violent felony for ACCA purposes.” United States v. Nance , 481 F.3d 882, 888 (6th Cir. 2007). Because the Tennessee aggravated burglary statute is a generic version of the crime of burglary, it constitutes a violent felony under the ACCA ’s enumerated-offense clause, 18 U.S.C. § 924(e)(2)(B)(ii) ( listing burglary as a violent felony). Taylor v. United States , 495 U.S. 575, 599 (1990) (“We conclude that a person has b een convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any cr ime, regardless of its exact definition or label, having the basic elements of unlaw ful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”).No. 15-5136 United States v. Priddy Page 9

The holdings from Taylor and Nance are controlling and establish that a Tennessee conviction for aggravated burg lary is categorically a viol ent felony under the ACCA’s enumerated-offense clause. 2. Defendant’s Two Burglary Convictions The Tennessee burglary statute under which Defendant was convicted provides that a person commits burglary when, “without, the eff ective consent of the property owner,” he (1) Enters a building other than a habitation (or any portion th ereof) not open to the public, with intent to commit a felony or theft; (2) Remains concealed, with th e intent to commit a felony or theft, in a building; (3) Enters a building and commits or a ttempts to commit a felony or theft; or (4) Enters any freight or passenger car, auto mobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony or theft. Tenn. Code Ann. § 39–14–402(a) (1990). Because the st atute “list[s] potential offense elements in the alternative,” it is divisible under Descamps

. See also United States v. Moore , 578 F. App’x. 550, 553 (6th Cir. 2014) (finding that Tenn. Code Ann. § 39–14–402 is divisible under Descamps ); Mitchell , 743 F.3d at 1065 (“The ordinary use of the conjunction ‘or’ is almost always disjunctive, that is, the words it connects are to be given separate meanings” (citations and internal quotation marks omitted)).

We find that the first thr ee variants of Tennessee burgl ary, i.e., Tenn. Code Ann. § 39– 14–402(a)(1), (a)(2), and (a)(3), qualify as generic burglarysince they each involve “unprivileged entry into, or remain ing in, a building or structure, with intent to commit a crime.” Taylor , 495 U.S. at 599. We also find th at Tennessee burglary under § 39–14–402(a)(1) involves the “entry-into” variant of generic burglary since it substa ntially corresponds to Taylor’s definition of generic burglary. Likewise, burglary under § 39–14–402(a)(2) tracks Taylor’s definition of the “remai ning-in” variant of generic burglary. And, burglary under § 39–14–402(a)(3) is also a “remaining-in” varian t of generic burglary because someone who enters a building or structure and, while inside, commits or attempts to commit a felony will necessarily have remained inside th e building or structure to do so. See, e.g., Taylor , 495 U.S. at 602 (“[A]n offense constitutes ‘burglary’ for purpos es of [the ACCA] if either its statutoryNo. 15-5136 United States v. Priddy Page 10

definition substantially corresponds to ‘generic ’ burglary, or the charging paper and jury instructions actually required the jury to find a ll the elements of generic burglary in order to convict the defendant.”).
On the other hand, the fourth variant of Tennessee burglary, i.e., Tenn. Code Ann. § 39– 14–402(a)(4), does not qualify as gene ric burglary since th e locations listed in that subsection of the statute are not build ings or structures. See, e.g., Shepard , 544 U.S. at 15-16 (“The [ACCA] makes burglary a violent felony only if committe d in a building or encl osed space (“generic burglary”), not in a boat or motor vehicle.”); Moore , 578 F. App’x. at 553 (finding that burglary under Tenn. Code Ann. § 39–14–402(a)(4) does not qualify as generic burglary). The Tennessee burglary statute, however, pr ovides an easier way to distinguish the variants of the offenses which are generic burglary–§ 39–14–402(a)(1), (a )(2), and (a)(3)–from the variant which is no t–§ 39–14–402(a)(4). The st atute labels violations of its first three subsections as “Class D feloni es,” Tenn. Code Ann. § 39–14–402(c), bu t labels a violation of the fourth subsection as only a “Class E fe lony,” Tenn. Code Ann. § 39–14–402(d). See also Moore , 578 F. App’x. at 554 (noting the cla ss of felony distinctions in the Tennessee burglary statute). Therefore, if the conviction reco rds for a Tennessee burglary offe nse indicate that the defendant was convicted of a Class D felony, then that o ffense was necessarily a violation of Tenn. Code Ann. § 402(a)(1), (a)(2), or (a)(3) and, as a result, wa s a generic burglary under Taylor

. See id. (“Because [the Shepard documents] indicate that Moore plea ded guilty to a Class D version of burglary . . . we can safely c onclude that Moore must have been charged with violating subsection (a)(1), (a)( 2), or (a)(3).”). Id. Here, both Defendant and the government agre e that Defendant pleaded guilty to a Class D felony. Given this fact, we can safely conclude that Defendant must have been charged with violating subsection (a)(1), (a)(2), or (a)(3). However, Defendant argues that it is impossible to determine which precise subsection he violated. Ultimately, though, we conclude that it makes little difference. The important takeaway is th at Defendant could not have pleaded guilty to violating subsection (a)(4) because a violation of that subsection is a Class E felony. Therefore, because each of those subsections qua lifies as generic burglary under Taylor , Defendant’s offenses were necessarily generic burglaries and, thus, violent felonies under the ACCA.No. 15-5136 United States v. Priddy Page 11

B. The Use-of-Force Clause When determining whether a particular offe nse qualifies as a “violent felony” under the use-of-force clause, we are limited to determini ng whether that offense “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The force involved must be “vio lent force—that is, force capable of causing physical pain or injury to another person.” Johnson v. United States , 559 U.S. 133, 140 (2010). 1. Defendant’s Robbery Conviction Under Tennessee law, robbery is defined as “the intentional or knowing theft of property from the person of another by violence or putt ing the person in fear.” Tenn. Code Ann. § 39–13– 401(a). In Mitchell , this Court held that a Tennessee conv iction for robbery qualifies as a violent felony under the ACCA’s use-of-force clause. 743 F.3d at 1059. We first concluded that the statute satisfied the use-of-force clause. We e xplained that “violence,” as determined by the Tennessee Supreme Court, means “physical force unl awfully exercised so as to injure, damage or abuse.” Mitchell , 743 F.3d at 1059 (quoting State v. Fitz , 19 S.W.3d 213, 214 (Tenn. 2000) (citations and internal quotation marks omitted)). Therefore, the statute’s element of violence “satisfie[d] § 924(e)(2)(B)(i)’s re quirement of the ‘use, attempte d use, or threatened use of physical force.’” Id. We also determined that the elemen t of “fear” satisfie d § 924(e)(2)(B)(i). We recognized that the Tennessee Supreme Court ha s held that the “fear constituting an element of robbery is a fear of bodily injury and of present personal peril from violence offered or impending.” Id. (quoting State v. Taylor , 771 S.W.2d 387, 398 (Tenn. 1989) (citations and internal quotation marks omitted)). In applying th e definition of violence as determined by the Tennessee Supreme Court in Fitz , we explained that “the commi ssion of a robbery through fear, which in Tennessee reduces to the fear of bodily injury fr om physical force offered or impending, directly corresponds to § 924(e)(2)(B)(i)’s ‘use . . . or threatened use of force.’” Id. Therefore, “robbery in violation of . . . Te nn. Code Ann. § 39–13–401 is categorically a ‘violent felony’ under § 924(e)(2)(B)(i) of the ACCA.” Id. at 1060. Finally, we determined that under the categorical approach, robbery as defined by the Tennessee statute qualified as a violent felony under the residual clause as well. Id. at 1060-63 (holding that a conviction under Tenn.No. 15-5136 United States v. Priddy Page 12

Code Ann. § 39–13–401 “categorically qualif[ies] as [a] ‘violent felon[y]’ under the residual clause of the ACCA”). More recently, this Court held in United States v. Kemmerling , 612 F. App’x 373, 376 (6th Cir. 2015) that the Supr eme Court’s recent decision in Johnson “did not affect the ‘use of physical force clause’” and affirmed a defendant ’s ACCA-enhanced senten ce because his prior Tennessee robbery conviction qualified as a vi olent felony under the use-of-force clause. See also United States v. Bailey , No. 14-6524, 2015 WL 4257103, at *4 (6th Cir. July 15, 2015) (holding that, even after Johnson , the defendant’s Tennessee conviction for robbery is categorically a violent felony under th e ACCA’s use-of-force clause). Defendant argues that Mitchell’s decision turned upon the ACCA’s residual clause definition of violent felony and therefore its preced ential value is now less clear. However, it is clear that the Supreme Court’s holding in Johnson does not disrupt the holding in Mitchell . The Mitchellcourt found that under the categorical appr oach, a Tennessee robbery conviction is a violent felony under both the use-of-force clause and the residual clause. The conviction need only qualify as a violent felony under one of the clauses. Therefore, even in light of the Supreme Court’s invalidation of the resi dual clause, this Court’s determ ination remains unchanged thatunder the categorical approach, robbery in Tennessee is a predicate offense under the use-offorce clause.

CONCLUSION The district court correctly found that four of Defendant’s prior convictions constitute violent felonies under the ACCA’s enumerated-offe nse and use-of-force clauses. Because that is all that the ACCA requires befo re triggering a mandatory-minimum sentence of 180 months, we AFFIRM the judgment of the district court.No. 15-5136 United States v. Priddy Page 13

____________________________ CONCURRING IN PART

____________________________ HELENE N. WHITE, Circuit Judge, concurring in part. I conc ur in the majority opinion except with respect to se ction II.A.1. concerning aggravated bur glary. Because Priddy’s robbery and burglary convictions are cate gorically violent felonies for the reasons discussed by the majority, we need not address Priddy’s aggravat ed burglary convictions. More specifically, we need not rely on United States v. Nance , 481 F.3d 882 (6th Cir. 2007), to resolve this issue, and should refrain from doing so, because Nance offered no discussion of the Tennessee statute’s definition of “habitation,” which likely renders Tennessee’s aggravated burglary statute nongeneric. Although Nance held that a conviction of aggravat ed burglary under Tennessee’s statute is categorically a violent fel ony for purposes of the Armed Care er Criminal Act (ACCA), it treated the statute as indivisible and did not di scuss the alternative definitions of “habitation” found in § 39–14–401, which include stru ctures other than buildings , such as tents and some vehicles. Later cases in this Circuit have held that Tennessee’s aggravated burglary statute is divisible, in part because the definition of “hab itation” provides alternative sub-elements within the “habitation” element. See United States v. Ozier , 796 F.3d 597, 600–03 (6th Cir. 2015); United States v. Lara , 590 F. App’x 574, 585 (6th Cir. 2014). Tennesse e’s expansive definition of “habitation”—not discussed in Nance —likely renders its aggravat ed burglary statute broader than Taylor ’s definition of generic burglary. Compare Tenn. Code. Ann. § 39–14–401 (defining habitation to include, inter alia , “any structure, including buildi ngs, module units, mobile homes, trailers, and tents, which is designed or adapted fo r the overnight accomm odation of persons,” and “a self-propelled vehicle that is designe d or adapted for the overnight accommodation of persons and is actually occupied at the time of initial entry by the defendant”), with Taylor v. United States , 495 U.S. 575, 599 (1990) (obser ving that statutes may be broader than generic burglary “by including places, such as automobiles and ve nding machines, other than buildings”); United States v. Cooper , 302 F.3d 592, 594–95 (6th Cir. 20 02) (noting that burglaryNo. 15-5136 United States v. Priddy Page 14

statute may be broader than generic definition “by, for instance . . . permitting conviction for the entry of an automobile, a booth, a boat, or a tent”).

Because Nance ’s unqualified holding th at aggravated burglar y under the Tennessee statute is a violent felony under th e ACCA is likely too broad under Taylor and Descamps v. United States , 133 S. Ct. 2276, 2283–86 (2013), and Pri ddy’s robbery conviction and two burglary convictions under § 39–14–402(a)(1)-(3) are clearly violent felonies, I would find it unnecessary to address whether his aggravated burglary convictions also qualify as violent felonies under the ACCA.