NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 16a0091n.06
Case No. 14

- 6158
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v. VICTOR J. STITT, II , Defendant

- Appellant

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

BEFORE: MOORE and COOK, Circuit Judges; PEARSON, District Judge

. * COOK, Circuit Judge. After Victor Stitt pulled a gun on his girlfriend, a jury convicted him of being a felon in possession of a firearm

. H e appeals, challenging the denial of his motion to suppress, venue in the Eastern District of Tennessee, and his sentence enhancement under the Armed Career Criminal Act (ACCA) . Finding no error , we AFFIRM hi s conviction and
sentence.
I. In 2011, Stitt lived with his girlfriend Rebecca Hostetler in Coffee County in the Eastern District of Tennessee. During an argument, Stitt r etrieved a firearm, tried to stick it in Hostetler’s mouth, and threatened to kill her. When a neighbor intervene d, Hostetler left , and

* The Honorable Benita Y. Pearson , United States District Judge for the Northern District of Ohio , sitting by designation.Case No. 14

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- Stitt asked another woman to drive him to his mother’s home in Cannon County in the Middle District of Tennessee. The neighbor told the police that Stitt and the other woman left in a champagne

- colored car. Coffee County detective s responded to a disp atch reporting a domestic

- violence incident and directing them to Stitt’s mother’s address . The detectives drove their unmarked car to the end of the driveway and saw the champagne

- colored car in the backyard. They also saw Stitt
sta nding at the back door of his mother’s trailer . He fled, and the detectives chased him around both sides of the trailer

. Trapped, Stitt surrendered. A .22 caliber handgun lay within arm’s reach of Stitt on the ground

. A grand jury indicted Stitt on one count of being a felon in possession in violation of 18 U.S.C. § 922(g) . Stitt moved to suppress evidence of the firearm, claiming that the detectives breached the trailer’s constitutional ly protected curtilage before spott ing him at the bac k door. After a hearing, a report and recommendation, and obje ctions, the district court denied the motion. A jury then convicted Stitt on the felon

- in

- possession charge. Because Stitt’s pre

sentence report identified nine “violent felony” convictions under ACCA , the court

— over Stitt’s objection

— labeled him an armed career criminal and imposed a within

- guidelines sentence of 290 months of imprisonment

. Stitt now appeals.
II. Stitt first claims that the district court erred in denying his motion to suppress. He argues that the end of the driveway

— where the detectives stopped their car

— constituted curtilage.Case No. 14

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- By entering this constitutionally protected area, the detectives violated Stitt’s Fourth Amendment rights , and the court should have suppressed the evidence the det ectives subsequently seized

. We review the district court’s findings o f fact for clear error but give de novo review to its conclusions of law. United States v. Ray , 803 F.3d 244, 275 (6th Cir. 2015) . “A factual finding is clearly erroneous when ‘a court , on reviewing the evidence, is left with the definite and firm conviction that a mistake has been committed.’” Id

. (quoting United States v. Gunter , 551 F.3d 472, 479 (6th Cir. 2009) ). Curtilage includes “the area around the home to which the activity of home life extends.” Daughenbaugh v. City of Tiffin , 150 F.3d 594, 598 (6th Cir. 1998) (quoting Oliver v. United States , 466 U.S. 170, 182 n.12 (1984) ). Four factors govern the classific ation of an area as curtilage: [ 1 ] t he proximity of the area claime d to be curtilage to the home, [2] whether the area is included within an enc losure surrounding the home, [3] the nature of the uses to whi ch the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing

. Id. (quoting United States v. Dunn , 480 U.S. 294, 301 (1987) )

. Analyzing these factors assists us in determin ing whether an individual “reasonably may expect that the area in question shou ld be treated as the home itself,” i.e. , as a place in which the individual reasonably may expect privacy.
Dunn , 480 U.S. at 300

. The end of the driveway, or turnaround, stood in close proximity to the trailer , suggest ing that Stitt reasonably could expect privacy there. See, e.g. , Widgren v. Maple Grove Twp. , 429 F.3d 575, 582 (6th Cir. 2005) (finding a cleared area four to six feet away from the house was curtilage).Case No. 14

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- But proximity alone does not suffice , and the other factors weigh against a finding of curtilage

. The public could view and access the turnaround from the street , undermining Stitt’s expectation of privacy

. See, e.g. , United States v. Galaviz , 645 F.3d 347, 356 (6th Cir. 2011) (finding no expectation of privacy when the defendant took no steps “to protect the driveway from observation by passersby”) . And though the property boasted a fence , the driveway lay outside the fence , and no gate blocked the entrance

. Id

. (concluding that the defendant lacked

an y expectation of privacy when the driveway was not enclosed by a fence or other barrier). Finally, the family’s use of the turnaround reinforced its non - private nature. Testimony established that visitors parked cars in the turnaround

— decidedly not an ac tivity associated with the privacies of life. Compare United States v. Estes , 343 F. App’x 97, 101 (6th Cir. 2009) (finding that the use of a driveway as a “point of entry into the residence” “undercut a finding that the driveway represents curtilage”), with Pritchard v. Hamilton Twp. Bd. of Trs. , 424 F. App’x 492, 499 (6th Cir. 2011) (finding that a backyard used for swimming could reasonably be expected to be private)

. Taken together, the facto rs suggest that Stitt lacked a reasonable expectation of pr ivacy in the turnaround , and the turnaround therefore was not curtilage. Stitt next alleges that the detectives ventured beyond the turnaround and entered constitutionally protected curtilage

— the backyard

— before spying Stitt at the backdoor

. One detectiv e admitted he “[didn’t] know” whether “[his] front tires [were] in the grass” beyond the turnaround when he stopped the car. But the magistrate judge explicitly found that the detectives remained in the turnaround, noting that “there was no clear end to t he driveway and [the detective] credibly testified that he stepped out onto the gravel driveway when he exited his car, which he parked in the driveway.” The district court adopted these factual findings , and unlessCase No. 14

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- Stitt pinpoints a clear error, we canno t overturn these findings on appeal

. Stitt merely asks us to reinterpret the det ective’s uncertain testimony in his favor and therefore fails to show clear error. A final point. Stitt emphasizes the property’s rural, low

- income character , arguing that

su ch properties lack clear divisions between curtilage and public areas . Affirming the denial of his suppression motion, he argues, would unfairly privilege wealthy homeowners who can afford fenc es and bushes to separate public dr iveways from private backya rds. But a railroad tie, a large rock, or a s ign would have marked the edge of the backyard and warned visitors not to proceed further. Testimony established that no such marker existed on the property. We discern no error in the denial of Stitt’s motio n to suppress.
III. Next, Stitt alleges that the district court’s failure to instruct the jury on venue requires us to vacate his conviction

. Because he neglected to o bject to the venue - instruction omission at trial , we review for p lain error. United States v. Cooper , 40 F. App’x 39, 40 (6th Cir. 2002)

. A plain error affects a defendant’s substantial rights and seriously questions the fairness, integrity or public reputation of the judicial proceedings. United States v. Smith , 601 F.3d 530, 541 (6th Cir. 2010)

. We reverse for plain error in jury instructions upon a showing that “taken as

a whole, the jury instructions were so clearly erroneous as to likely produce a grave miscarriage of justice.” United States v. Semrau , 693 F.3d 510, 528 (6th Cir. 2012) (quoting United States v.
Morrison , 594 F.3d 543, 546 (6th Cir. 2010) ). Stitt claims to meet this exacting standard because the evidence at trial insufficiently established venue in the Eastern District of Tennessee , and the jury

— if properly instructed

— would have found accordingly

. Venue is indeed a question of fact for the jury, United States v. Redfearn , 906 F.2d 352, 354 ( 8 th Cir. 1990) , but unlike other facts in the government’s case, a preponderance of theCase No. 14

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- evidence suffices , United States v. Beddow , 957 F.2d 1330, 1335 (6th Cir. 1992)

. Here, Hostetler’s identification of the g un with which Stitt threatened her in the Eastern District
mat ched the detective’s identification of the gun he found in the Middle District

. Additio nally, the woman who drove Stitt from the Eastern Distri ct to the Middle District never saw Stitt stop, pick up, or discard anything. When, as here, the evidence sufficiently establishes venue , and the defendant fails to request a venue instruction , the i nstruction’s absence is not plain error

. See United States v. Massa , 686 F.2d 526, 530 & n.10 (7th Cir. 1982) (collecting cases).
IV. Finally, Stitt claims that none of the nine convictions relied upon by the district court in sentencing him as an armed career criminal qualify as ACCA predicates . That misclassific ation, he continues, triggered the ACCA’s fifteen

- year minimum sentence

— far exceeding the ten

- year statutory maxi mum for felon

- in

- possession convictions

— and requires us to vacate hi s sentence. Compare 18 U.S.C. § 924(e)(1) , with id. § 924(a)(2)

. The government concedes that two convictions for facilitation of aggravated burglary and one conviction for attempted aggravated burglary are not ACCA predicate offenses. See Johnson v. United States , 135 S. Ct. 2551, 2563 (2015)

. We therefore consider whether at least three of Stitt’s six convictions for Tennessee aggravated burglary qualify as violent felonies

. See 18 U.S.C. § 924(e)(1) (requiring three previous violent

- felony convict ions to impose a fifteen

- year minimum sentence under the ACCA). In its enumerated

- offense clause, the ACCA singles out offenses that , if “punishable by imprisonment for a term exceeding one year,” 18 U.S.C. § 924(e)(2)(B ), always constitute violent feloni es, including burglar y, id . § 924(e)(2)(B)(ii)

. A s tate burglary offense falls within that clause if it describes the “generic” version of burglary

. Descamps v. United States , 133 S.Case No. 14

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United States v. Stitt

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- Ct. 2276, 2281 (2013) . Generic burglary “ha[s] the basic elements of u nlawful 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)

. Tennessee aggravated burglary therefore qualifies as generic burglary “only if the statute’s elements are the same as, or narrower than, those of the generic offense.” Descamps , 133 S. Ct. at 2281 (the “categorical approach”). If the statute includes broader elements than generic burglary, but it “sets out one or more elements . . . in the alternative,” the statute still qualifies as generic burglary if the government establishes that Stitt was necessarily convicted of the aggravated

- burglary alternati ve that matches the elements of generic burglary

. Id

. (the “modif ied

- categorical approach”). Tennessee aggravated burglary “is burglary of a habitation,” Tenn. Code Ann. § 39

- 14

- 403, where “ habitation ” describes a structure for overnight accommodation; a n occupied self

propelled vehicle designed for overnight accommodation; or a separa tely secured or occupied portion of or structure appurtenant to such a structure or vehicle , id . § 39

- 14

- 401 (1)

. Both parties invite us to evaluate Stitt’s aggravated

- burglary convictions under the modified

categorical approach , noting that aggravated burglary’s inclusion of self

- propelled vehicles expands the statute beyond generic burglary, which requires buildings or structures

. See Taylor , 495 U.S. at 599 (“A few States’ burglary statutes, however, . . . define burglary mor e broadly [than generic burglary], e.g. , . . . by including places, such as automobiles and vending machines, other than buildings.”) ; see also United States v. Priddy , 808 F.3d 676 , 687 (6th Cir. 2015) (White, J., concurring) (“Tennessee’s expansive defin ition of ‘habitation’ . . . likely renders its aggravated burglary statute broader than Taylor ’s definition of generic burglary.”)

. We may not use the modified

- categorical approach here

— our precedents foreclose it

. We repeatedly have found that “ a Tennessee conviction for aggravated burglary is categoricallyCase No. 14

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- a violent felony under the ACCA’s enumerated

- offense clause.” Priddy , 808 F.3d at 684 (majority opinion) (emphasis added) ; see also United States v. Nance , 481 F.3d 882, 88 7 (6th Cir. 2007) ( holding that “the weight of authority indicates that Tennessee’s aggravated burglary statute is generic”). Only the full court may invalidate the holdings of Priddy and Nance

. Stitt’s six aggravated

- burglary convictions categorically qualify as ACCA pred icates

. The district court therefore committed no error in deeming Stitt an armed career criminal.
V. We AFFIRM Stitt’s conviction and sentence.