NOT RECOMMENDED FOR PUBLICATION

File Name: 20a0227n.06

Case No. 18-5692

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

JOSHUA BOOKER,

Petitioner-Appellee,

v.

UNITED STATES OF AMERICA,

Respondent-Appellant.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE EASTERN DISTRICT OF 

TENNESSEE 

BEFORE: BATCHELDER, GIBBONS, and SUTTON, Circuit Judges.

SUTTON, Circuit Judge. In November 2013, Joshua Booker sold a stolen gun to an 

undercover police officer. He pleaded guilty to possessing a firearm as a felon. 18 U.S.C. 

§ 922(g)(1). Based on his lengthy criminal record, including six convictions for aggravated 

burglary in Tennessee, the district court found that Booker was an armed career criminal. 

18 U.S.C. § 924(e). The court sentenced him to 188 months in prison. Booker did not object to 

his classification as an armed career criminal. Nor did he appeal. 

The next year, the Supreme Court held that the Armed Career Criminal Act’s residual 

clause violates due process. Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). Booker filed 

a § 2255 motion to reopen his sentence, arguing that his aggravated burglary convictions no longer 

qualified as violent felonies. While that motion was pending, this court decided the same question 
Case No. 18-5692, Booker v. United States

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in another case. It held that Tennessee aggravated burglary was not a violent felony under the Act. 

United States v. Stitt, 860 F.3d 854, 861–62 (6th Cir. 2017) (en banc). The district court reduced 

Booker’s sentence under Stitt. 

The victory was temporary. A few months after the district court granted his § 2255 

motion, the Supreme Court reversed Stitt and held that Tennessee aggravated burglary fit within 

the Act’s generic burglary definition. United States v. Stitt, 139 S. Ct. 399, 406–08 (2018). In 

reversing our decision in Stitt, the Court returned our circuit to its earlier precedents. See

Brumbach v. United States, 929 F.3d 791, 794–95 (6th Cir. 2019). Under those decisions, 

Tennessee aggravated burglary counts as a violent felony under the Act. Id.; see United States v. 

Nance, 481 F.3d 882, 888 (6th Cir. 2007). Consistent with this line of cases, we have remanded

several cases to reinstate the original sentence after the inmate obtained § 2255 relief based on the 

Stitt en banc decision. See, e.g., Brumbach, 929 F.3d at 794–95; see also, e.g., Sesson v. United 

States, Nos. 17-5955/5957/6323, 2020 WL 773049, at *2 (6th Cir. Jan. 30, 2020) (order); White v. 

United States, No. 17-5967/5969, 2020 WL 773056, at *2 (6th Cir. Jan. 21, 2020) (order); Barnett 

v. United States, No. 17-5977/5978, 2019 WL 7946346, at *2 (6th Cir. Dec. 12, 2019) (order); 

Bearden v. United States, No. 17-5927, 2019 WL 7882516, at *2 (6th Cir. Nov. 6, 2019) (order); 

Hill v. United States, No. 18-5089/5090, 2019 WL 7602328, at *2 (6th Cir. Oct. 10, 2019) (order); 

United States v. Crutchfield, 785 F. App’x 321, 323–24 (6th Cir. 2019); United States v. Bawgus, 

782 F. App’x 408, 409–10 (6th Cir. 2019); United States v. Bateman, 780 F. App’x 355, 356–57 

(6th Cir. 2019); Greer v. United States, 780 F. App’x 352, 353 (6th Cir. 2019); United States v. 

Hamilton, 774 F. App’x 283, 283 (6th Cir. 2019) (per curiam); Bell v. United States, 773 F. App’x 

832, 833 (6th Cir. 2019); Mann v. United States, 773 F. App’x 308, 309 (6th Cir. 2019) (per 

curiam). 
Case No. 18-5692, Booker v. United States

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Booker urges us not to take this well-worn path for three reasons. First, he maintains that 

his six aggravated burglary convictions do not qualify as violent felonies because the breaking-in 

instrument by itself satisfies the “entry” element of the crime. But Brumbach rejected the same 

argument, concluding that “[e]ven if there is merit to Brumbach’s arguments concerning 

Tennessee’s definition of entry, a panel of this court cannot overrule Nance.” 929 F.3d at 795. A 

more recent decision rejected the argument more fully. United States v. Brown, __F.3d__, 2020 

WL 1966845 (6th Cir. Apr. 24, 2020). After a thorough and thoughtful analysis, Brown concluded 

that “the Act’s generic definition should encompass [a] broader entry-by-instrument rule.” Id. at

*7. The court considered and rejected each of the points Booker raises today. 

Second, Booker argues that Tennessee burglary is missing the intent element of generic 

burglary. The Supreme Court has defined generic burglary as “unlawful or unprivileged entry 

into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United 

States, 495 U.S. 575, 599 (1990). One variant of Tennessee burglary, says Booker, lacks “intent 

to commit a crime,” because § 402(a)(3) makes it a burglary to, “without the effective consent of 

the property owner . . . [e]nter[] a building and commit[] or attempt[] to commit a felony, theft, or 

assault.” Tenn. Code Ann. § 39-14-402(a)(3). The underlying “felony, theft, or assault” necessary

for an (a)(3) conviction, he adds, could require mere recklessness, which to his mind suggests the 

convicted burglar never formed “intent to commit a crime.” 

But Brumbach, again, makes clear that Nance is good law and leaves no room for raising 

still more arguments about Tennessee aggravated burglary. 929 F.3d at 794. As we recently 

explained in Brown, moreover, “Tennessee’s burglary statute is divisible . . . criminaliz[ing] four 

different offenses.” 2020 WL 1966845, at *7. Booker’s intent argument concerns one of them, 

§ 402(a)(3). But a different variant, § 402(a)(1), maps precisely on to Taylor’s definition, covering 
Case No. 18-5692, Booker v. United States

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persons who unlawfully “enter[] a building . . . with intent to commit a felony, theft or assault.” 

See Taylor, 495 U.S. at 599; Brown, 2020 WL 1966845, at *7. Here, as in Brown, the indictments 

for each of Booker’s convictions charge him with unlawfully entering buildings “with intent to 

commit theft.” ROA 43 at 2, 5, 8, 10, 12, 14. That language tracks the (a)(1) variant of burglary, 

and he never argues there is an intent problem with that variant. See Brown, 2020 WL 1966845, 

at *7. 

Third, Booker maintains that insufficient proof shows that the six convictions covered

distinct crimes on “occasions different from one another.” 18 U.S.C. § 924(e)(1). He argues that 

courts may review underlying state court documents only to determine the elements of the crimes 

of conviction, not to determine their dates and locations. See Shepard v. United States, 544 U.S. 

13, 16 (2005). Precedent forecloses the argument. United States v. Hennessee held that courts 

“may consider both elemental and non-elemental facts contained in Shepard-approved documents 

to determine whether prior felonies were committed on occasions different from one another.” 932 

F.3d 437, 444 (6th Cir. 2019). Those documents show that Booker burglarized at least six separate 

structures on five separate dates. That suffices. See, e.g., Brown, 2020 WL 1966845, at *8; Greer,

780 F. App’x at 352–53. 

For these reasons, we vacate and remand with instructions to reinstate Booker’s original 

sentence.