NOT RECOMMENDED FOR PUBLICATION File Name: 17a0513n.06 No. 16-6136 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. CARLOS FALLINS, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

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BEFORE: BATCHELDER, GIBBONS, and COOK, Circuit Judges. JULIA SMITH GIBBONS, Circuit Judge. Carlos Fallins pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). He was sentenced to 195 months’ imprisonment based, in part, on his designation as an armed career criminal under 18 U.S.C. § 924(e). Fallins challenges that designation on appeal. Specifica lly, he claims that his prior conviction for attempted aggravated arso n under Tenn. Code Ann. § 39-12-101 and 39-14- 302(a)(1) does not qualify as a violent felony under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The district court origin ally found that it qua lified under the ACCA’s residual clause, id. § 924(e)(2)(B)(ii), but that findi ng was invalidated in light of Johnson v. United States , 135 S. Ct. 2551 (2015). At resentencing, the district court again found that Fallins’s attempted-aggravated-arson conviction qua lified as a violent felony, but this time did so under the ACCA’s elements clause, 18 U.S.C. § 924(e)(2)(B)(i). We disagree, vacate Fallins’s sentence, and remand for resentencing.No. 16-6136, United States v. Fallins

2 I. On October 16, 2013, Carlos Fallins pled gui lty to being a felon in possession of a firearm, in violation of 18 U. S.C. § 922(g). The presentence report (“PSR”) found that Fallins qualified for an enhanced sentence because he had three ACCA predicate offenses: a 1995 robbery conviction under Tenn. Code Ann. § 39-13-401; a 1997 conviction for attempted aggravated arson under Tenn. Code Ann. § 39-14-302(a)(1); and a 2005 conviction for possession of crack cocaine for resale under Tenn. Code Ann. § 39-17-417. Fallins objected to the PSR, arguing that his prior conviction for attempted aggravated arson did not qualify as a violent fel ony within the meaning of the ACCA. 1 The district court disagreed and found that this c onviction qualified under the ACCA’s residual clause. It then sentenced Fallins to 195 months’ impris onment, which this court affirmed. United States v. Fallins , 777 F.3d 296, 302 (6th Cir. 2015). Six months later, the Supreme Court inva lidated the ACCA’s residual clause as unconstitutionally vague. See Johnson , 135 S. Ct. at 2557. As a result, this court’s judgment was vacated, see Fallins v. United States , 135 S. Ct. 2945, 2945 (2015), and Fallins’s case was remanded to the district court “for resentencing in light of Johnson .” No. 14-5153, R. 44, at 1. On remand, the government again argued that Tennessee attempted aggravated arson is a violent felony under the ACCA, this time relying on the elements clause. The district court agreed and resentenced Fallins to 195 months’ imprisonment as an armed career criminal. Fallins timely appealed.

1 Fallins also objected to the classification of his drug conviction as a “serious drug offense,” but has not preserved that argument for this appeal.No. 16-6136, United States v. Fallins

3 II. We review de novo whether a conviction qualifies as a violent felony under the ACCA. United States v. Prater , 766 F.3d 501, 507 (6th Cir. 2014); see also United States v. Hockenberry , 730 F.3d 645, 663 (6th Cir. 2013). The ACCA mandates a fifteen-year mandatory -minimum sentence where a defendant is convicted of being a felon in possession of a firearm while having three or more prior convictions for “serious drug offense[s]” or “vio lent felon[ies].” 18 U.S.C. § 924(e). Fallins concedes that he has two prior convictions th at qualify as ACCA predicate offenses: a 1995 robbery conviction under Tenn. Code Ann. § 39- 13-401 and a 2005 conviction for possession of crack cocaine for resale under Tenn. Code Ann. § 39-17-417. The sole issue presented on appeal is whether Fallins’s 1997 conviction for atte mpted aggravated arson under Tenn. Code Ann. § 39-12-101 and § 39-14-302(a)(1 ) qualifies as the third. Following Johnson , only two avenues remain for classifying an offense as a “violent felony” under the ACCA. 135 S. Ct. at 2557 (inva lidating the ACCA’s residual clause as unconstitutionally vague). The parties agree that one of thos e avenues, the enumerated-offenses clause, does not apply here. See 18 U.S.C. § 924(e)(2)(B)(ii). The only remaining avenue, then, is the ACCA’s elements clause. A crime qualifie s as a violent felony under that clause if it is “punishable by imprisonment for a term exceeding one year . . . [and] has as an element the use, attempted use, or threatened use of physi cal force against the person of another.” Id. § 924(e)(2)(B)(i). The district court found that Fallins’s attempted-aggravated-arson conviction qualified as a violent fe lony under this provision. In determining whether Tennessee attempted aggravated arson qualifies as a violent felony under the elements clause, we employ a categorical approach—meaning, we look to theNo. 16-6136, United States v. Fallins

4 statutory definition of the offense rather than the facts underlying Fallins’s conviction. See United States v. Elliott , 757 F.3d 492, 494 (6th Cir. 2014) (“Wh ether a prior conviction should be considered a violent felony within the meani ng of the ACCA is determined by considering the offense generically, that is, ‘in terms of how the law defines the offense and not in terms of how an individual offender might have comm itted it on a particular occasion.’” (quoting Begay v. United States , 553 U.S. 137, 141–42 (2008))). “If the statute requires proving that someone used, attempted, or threatened to use physical force against anothe r, it satisfies the elements clause even if the statute does not match the elements clause word for word.” United States v.
Patterson , 853 F.3d 298, 302 (6th Cir. 2017) (citation omitted). In analyzing the state offense, however, we “must presume that the conviction ‘re sted upon [nothing] more than the least of th[e] acts’ criminalized, and then determine wh ether even those acts are encompassed by the generic federal offense.” Moncrieffe v. Holder , 133 S. Ct. 1678, 1684 (2013) (quoting Johnson v. United States , 559 U.S. 133, 137 (2010)). Through it all, we are “bound by the Tennessee Supreme Court’s interpretation [of the state stat ute], including its guidance on the elements of the crime.” United States v. Mitchell , 743 F.3d 1054, 1059 (6th Cir. 2014). Fallins was convicted of attempted aggravated arson, in violation of Tenn. Code Ann. § 39-12-101 and § 39-14-302(a)(1). Aggravated arson is defined, in relevant part, as “commit[ting] arson as defined in § 39-14-301 or § 39-14-303 . . . [w]hen one (1) or more persons are present therein[.] ” Tenn. Code Ann. § 39-14-302(a )(1). A person commits arson when he “knowingly damages any st ructure by means of a fire or explosion . . . [w]ithout the consent of all persons who have a possessory, pr oprietary or security interest therein[.]” Id. § 39-14-301(a)(1). 2

2 Arson of personal property or real estate, codified in Tenn. Code Ann. § 39-14-303, is defined almost identically to arson of a structure, and thus is treated the same for ACCA purposes.No. 16-6136, United States v. Fallins

5 Looking to the elements of attempted aggravated arson enumerated above, as well as the Tennessee Supreme Court’s interpretation of thos e elements, we find that the offense does not require proving that Fallins used, attempted to us e, or threatened to use physical force against another person. 3 See 18 U.S.C. § 924(e)(2)(B)(i); Patterson , 853 F.3d at 302. This is so, primarily, because a defendant can be convicted of violating § 39-14- 302(a)(1) without ever using, attempting to use, or threatening to use force against another individual. Arson is elevated to aggravated arson unde r § 39-14-302(a)(1) where “one (1) or more persons are present” in the structure damaged by the fire or explosion. Tennessee’s criminal code defines “person” to in clude “the singular and the plural and means and includes any individual .” Tenn. Code Ann. § 39-11-106(a)(27) (em phasis added). Accord ingly, “the plain language of [Tennessee’s] aggravated arson statut e includes not only victims of aggravated arson but also the perp etrator of the ac t of arson.” State v. Nelson , 23 S.W.3d 270, 271 (Tenn. 2000); see also Fletcher v. State , 9 S.W.3d 103, 105 (Tenn. 1999) (“Where the language of a statute is plain and unambiguous, this Court is not at liberty to apply a construction apart from the words of the statute.”). Put another way, a defendant can be convicted of aggravated arson under § 39- 14-302(a)(1) even if he is the only person present in the targeted structur e. Because the ACCA requires more—namely, that a person other than the defendant be the target of the force— Fallins’s attempted-aggravated-arson conviction ca nnot categorically qualify as a violent felony under the ACCA’s elements clause. See 18 U.S.C. § 924(e)(2)(B)(i) (classifying as a “violent

3 At Fallins’s initial sentencing, the government agre ed with Fallins that his attempted-aggravated-arson conviction did not qualify as a violent felony under the ACCA’s elements clause, 18 U.S.C. § 924(e)(2)(B)(i), or enumerated-offenses clause, id. § 924(e)(2)(B)(ii). Instead, it relied excl usively on the ACCA’s residual clause. Id. Fallins argues that the government waived its ability to rely on the ACCA’s elements clause at resentencing because it disclaimed any reliance on that prov ision during his initial sentencing. B ecause we find that Fallins’s attemptedaggravated-arson conviction does not categorically qualify as a violent felony under any ACCA provision, however, we need not reach this issue.No. 16-6136, United States v. Fallins

6 felony” only those offenses that have “as an element the use, attempted use, or threatened use of physical force against the person of another ” (emphasis added)). This interpretation of § 39-14-302(a)(1) may give pause. And, indeed, the Supreme Court has cautioned courts to employ common sens e in applying the categorical approach and to avoid “legal imagination.” Moncrieffe , 133 S. Ct. at 1684–85 (noting that there “must be a realistic probability, not a theoreti cal possibility, that the State w ould apply its statute to conduct that falls outside the generic definition of a cr ime” (internal quotation marks omitted)). But the Tennessee Supreme Court has envisioned this exact scenario in addressing the scope of § 39-14- 302(a)(2), which elevates arson to aggravated arson “[w]hen any person, including firefighters and law enforcement officials, suffers serious bodily injury as a result of th e fire or explosion.” Nelson , 23 S.W.3d at 271–72. In analyz ing that provision, the c ourt found that, based on the plain language of the statute, the term “person” in § 39-14- 302(a)(2) includes not only the victims of aggravated arson, but also the defendant himself. Id. The court did not end there. In reaching its conclusion, the cour t also addressed the defendant’s argument that interpreting the term “any person” in § 39-14 -302(a)(2) to include the defendant would lead to absurd results in interpreting § 39-14-302(a)(1), the provision under which Fallins was convicted. Nelson , 23 S.W.3d at 271–72. Specifically, the defendant in Nelson argued that the term “any person” could not “be so broad as to include the defendant because any defendant in a structure destroyed by arson automatically commits aggravated arson simply by his or her presence in the structure.” Id. at 271. The court accepted the premise of the defendant’s argument as a necessary consequenc e of its holding, while no ting that there were valid reasons for interpreting both § 39- 14-302(a)(1) and (a)(2) in that manner. 4 It reasoned that

4 Indeed, traditional canons of statutory constructio n would seem to compel a similar interpretation of “person” in both § 39-14-302(a)(1) and (a)(2). See In re Kaliyah S. , 455 S.W.3d 533, 552 (Tenn. 2015) (“StatutesNo. 16-6136, United States v. Fallins

7 “[t]he presence of an arsonist in a building that he or she has targeted or an arsonist who is injured during the course of an arson inevitably requires the assistance of rescue personnel, and it is well within the province of the General Assemb ly to impose a heightened penalty for the risk to which these public servants are exposed.” Id. at 272. The Nelson court’s reasoning thus confirms what the statutor y definition of “person” in § 39-11-106 already suggests: a defendant can be convicted of aggravated arson under § 39-14- 302(a)(1) even if he is the only person present in the targeted st ructure. Although this may not be the most obvious reading of § 39-14-302(a )(1), we are “bound by the Tennessee Supreme Court’s interpretation [of the statute], including its guidance on the elements of the crime.” Mitchell , 743 F.3d at 1059. Accordingly, because Tennessee aggravated arson does not necessarily require the presence of another person, neither does an attempt to commit that offense. It follows, therefore, that Fallins’ s attempted-aggravated-arson conviction did not require proving the “attempted us e . . . of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). Thus, this convict ion cannot qualify as a violent felony under the ACCA’s elements clause. 5
III. For the foregoing reasons, we reverse Fall ins’s armed-career-criminal designation and remand for resentencing consistent with this opinion.

that relate to the same subject matter or have a common purpose must be read in pari materia so as to give the intended effect to both.”).
5 Because § 39-14-302(a)(1) is not divisible—meaning, it does not set out one or more elements of the offense in the alternative—the modified-cat egorical approach is not applicable. See United States v. Denson , 728 F.3d 603, 608 (6th Cir. 2013).