RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 22a0151p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

RANDY BELCHER, 

Defendant-Appellant.

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No. 21-5414

Appeal from the United States District Court for the Eastern District of Tennessee at Chattanooga;

No. 1:19-cr-00161-1—Curtis L. Collier, District Judge.

Argued: May 4, 2022

Decided and Filed: July 12, 2022

Before: KETHLEDGE, STRANCH, and NALBANDIAN, Circuit Judges.

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COUNSEL

ARGUED: Erin P. Rust, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, 

INC., Chattanooga, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES 

ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON BRIEF: Erin P. Rust, 

FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, 

Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, 

Knoxville, Tennessee, for Appellee.

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OPINION

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KETHLEDGE, Circuit Judge. In United States v. Mitchell, 743 F.3d 1054, 1059 (6th Cir. 

2014), we held that robbery as defined under Tennessee law is a “violent felony” as defined by 

the Armed Career Criminal Act (“ACCA” or “the Act”). 18 U.S.C. § 924(e)(2)(B). Here, based 

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No. 21-5414 United States v. Belcher Page 2

in part on that holding, the district court sentenced Randy Belcher to a 15-year mandatoryminimum sentence under the Act. Belcher now argues that two somewhat recent Supreme Court 

decisions—Elonis v. United States, 575 U.S. 723 (2015), and Borden v. United States, 141 S. Ct. 

1817 (2021)—undermine our holding in Mitchell. We disagree and affirm the district court. 

In 2020, Belcher pled guilty to being a felon in possession of a firearm, in violation of 

18 U.S.C. § 922(g)(1). The ACCA mandates a minimum sentence of 15 years for any defendant 

who is convicted of a firearms offense under § 922(g) after being convicted of at least three 

violent felonies “committed on occasions different from one another[.]” 18 U.S.C. § 924(e)(1). 

As relevant here, the Act defines “violent felony” as any offense, punishable by a term of 

imprisonment exceeding one year, that “has as an element the use, attempted use, or threatened 

use of physical force against the person of another[.]” Id. § 924(e)(2)(B). When Belcher pled 

guilty to violating § 922(g), he had six prior convictions under Tennessee law: one for 

aggravated burglary and five for robbery. The latter are violent felonies under Mitchell; the 

district court therefore imposed the mandatory-minimum sentence of 15 years under the Act. 

Belcher now argues that Mitchell is no longer good law. Specifically, he says that, in 

Elonis and Borden, the Supreme Court made clear that the ACCA’s definition of violent felony 

excludes offenses where the defendant’s use or threatened use of force can be reckless or 

negligent (as opposed to intentional). And Belcher contends that robbery under Tennessee law is 

such an offense, because—he asserts—a defendant can be convicted of that offense by 

threatening force negligently rather than intentionally.

But Tennessee law provides no support for that assertion. As relevant here, Tennessee 

defines robbery as “the intentional or knowing theft of property from the person of another by 

violence or putting the person in fear.” Tenn. Code Ann. § 39-13-401. The Tennessee Supreme 

Court has 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.” State v. Taylor, 771 S.W.2d 387, 

398 (Tenn. 1989). For violence to be “offered” in this context, the defendant must do the 

offering, meaning he must intend to threaten force. Belcher’s argument, rather, is that the 

Tennessee Court’s use of the word “impending” leaves room for cases where the defendant did 

not intend to cause fear, but where the victim actually did experience (or reasonably could have 
No. 21-5414 United States v. Belcher Page 3

experienced) fear nonetheless. Thus, Belcher asserts, a defendant satisfies the fear element of 

Tennessee robbery when he negligently causes his victim to experience fear. 

In the long history of the Tennessee robbery statute, however, not once has a Tennessee 

court construed the fear element that way. And in the very case from which Belcher tries to infer 

that proposition, the court upheld the defendant’s conviction only after concluding (among other 

things) that “the defendant’s intention was to ‘intimidate and frighten the victim into docile 

nonresistance and meek compliance[.]’” State v. Witherspoon, 648 S.W.2d 279, 281 (Tenn. 

Crim. App. 1983) (quoting Sloan v. State, 491 S.W.2d 858, 861 (Tenn. Crim. App. 1972)). 

There is no basis, then, to conclude that Mitchell misapprehends Tennessee law. We therefore 

adhere to our earlier holding that robbery as defined by Tennessee law is a violent felony under 

the ACCA.

Separately, Belcher argues that a jury, rather than (as here) the district court, must 

determine whether a defendant’s prior offenses were “committed on occasions different from one 

another” for purposes of the Act. 18 U.S.C. § 924(e)(1); see generally Apprendi v. New Jersey, 

530 U.S. 466, 490 (2000). But we have already held the contrary. See United States v. Johnson, 

440 F.3d 832, 848 (6th Cir. 2006) (holding that “the date of commission” of an offense is “so 

basic as to be implicit in the fact of a prior conviction”) (internal quotation marks omitted). Nor 

was the district court’s finding on this point incorrect: Belcher himself admits that three of his 

prior offenses (in 1994, 2000, and 2007) each came at least six years apart, meaning that they 

were “separated by substantial gaps in time” and did not “share a common scheme or purpose.” 

Wooden v. United States, 142 S. Ct. 1063, 1071 (2022). The district court did not err in any 

respect. 

The district court’s judgment is affirmed.