USA v. Verlon Sesson

Filing

Per Curiam OPINION filed : AFFIRMED, decision not for publication. R. Guy Cole , Jr., Deborah L. Cook, and Helene N. White, Circuit Judges.

Case: 13-6589

Document: 23-2

Filed: 07/25/2014

Page: 1

NOT RECOMMENDED FOR FULL TEXT PUBLICATION
File Name: 14a0558n.06
No. 13-6589

UNITED STATES COURTS OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,

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Plaintiff – Appellee,
v.
VERLON SESSON,
Defendant – Appellant.

FILED
Jul 25, 2014
DEBORAH S. HUNT, Clerk

ON
APPEAL FROM
THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE

BEFORE: COLE, COOK, and WHITE, Circuit Judges.
PER CURIAM. Verlon Sesson pleaded guilty of being a felon in possession of a
firearm, 18 U.S.C. § 922(g). The district court sentenced him to 180 months’ imprisonment
under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The dispositive issue is
whether the offense of simple robbery under Tennessee law1 qualifies as a violent felony for
sentencing enhancement purposes under the ACCA. During the pendency of this appeal, this
court held that a Tennessee robbery conviction is categorically a violent felony under both the
“use of force” and residual clauses of the ACCA. United States v. Mitchell, 743 F.3d 1054, 1066
(6th Cir. 2014), reh’g en banc denied, No. 13-5288, 2014 U.S. App. LEXIS 7264 (6th Cir. Apr.

1

Sesson pleaded guilty of simple robbery in 1986. The robbery statute in effect at that time, Tenn. Code
Ann. § 39-2-501(a) (1982) (now repealed), defined robbery as “the felonious and forcible taking from the person of
another, goods or money of any value, by violence or putting the person in fear.”

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Case: 13-6589

Document: 23-2

Filed: 07/25/2014

Page: 2

3, 2014), petition for cert. filed, __ U.S.L.W. __ (U.S. June 18, 2014) (No. 13-10682). Sesson
acknowledges, and we agree, that we are bound by Mitchell and must AFFIRM.2

2

Sesson argued below and argues in his opening brief that the Shepard documents presented to the district
court, the indictment and judgment pertaining to his simple robbery conviction, did not show that he necessarily
admitted through his plea the elements of the predicate offense that would show serious potential risk of physical
injury to another. Thus, he argues, the district court improperly enhanced his sentence on the basis of his simple
robbery conviction. Br. at 26-28. Sesson reiterates that he was charged originally with armed robbery but pleaded
guilty to simple robbery, and argues that without examining that plea colloquy there is no way of knowing whether
any facts supporting the elements of simple robbery were read into the record such that Sesson could admit to them.
Sesson argues that since the district court ruled the statute divisible, it should have determined which alternative
version of the offense, i.e., the “violence” or “fear” prong, was in issue by using permissible Shepard documents.
We first observe that Sesson did not dispute below that he had a robbery conviction. And on appeal Sesson
admits that the indictment and judgment from the 1986 simple robbery conviction were introduced at sentencing and
both showed that he pleaded guilty of simple robbery. Br. at 26. In any event, we need not address Sesson’s
argument that the Shepard documents in the record were insufficient to show that his conviction of simple robbery
qualified as a violent felony. As this court explained in Mitchell, it does not matter that the robbery statute is
divisible into “violence” and “fear” prongs because “neither alternative element departs from the definitions” in the
ACCA use of force or residual clauses. United States v. Mitchell, 743 F.3d at 1054, 1066 (6th Cir. 2014).

2