Norris Hollom v. USA

Filing

OPINION filed : AFFIRMED. Decision not for publication. Alan E. Norris (AUTHORING), Alice M. Batchelder, and Jane Branstetter Stranch, Circuit Judges.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 16-6461
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NORRIS HOLLOM,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.

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FILED
May 30, 2018
DEBORAH S. HUNT, Clerk

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

BEFORE: NORRIS, BATCHELDER, and STRANCH, Circuit Judges.
ALAN E. NORRIS, Circuit Judge. Norris Hollom, a federal prisoner proceeding through
counsel, appeals the district court’s judgment denying his motion to vacate, set aside, or correct
his sentence, filed pursuant to 28 U.S.C. § 2255. In 2014, Hollom pleaded guilty to one count of
being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). At sentencing,
the district court based its Sentencing Guidelines calculation in part on § 2K2.1(a)(2), which
provides for a higher base offense level when a defendant has two prior convictions for violent
crimes. On appeal, Hollom argues that the convictions that the district court relied upon in applying
this sentencing enhancement—aggravated assault in Tennessee—do not constitute crimes of
violence, and therefore he is entitled to be re-sentenced. For the reasons that follow, we hold that
aggravated assault in Tennessee constitutes a crime of violence for the purposes of the Sentencing
Guidelines, and we affirm the district court judgment denying Hollom’s motion.

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No. 16-6461, Hollom v. United States
I.
A.

Factual Background
In February 2013, law enforcement officers responded to gunshots they heard while on an

unrelated traffic stop. When they arrived at the scene, they observed petitioner Norris Hollom and
another man remove items from their pockets and throw them over a fence. The officers found
guns and ammunition on the ground and found a loaded magazine compatible with one of the guns
in the sweatshirt Hollom was wearing. Hollom was indicted on one count of felon in possession
of a firearm and one count of felon in possession of ammunition, each a violation of 18 U.S.C. §
922(g)(1). Hollom and the government entered into a plea agreement under which the government
dropped the firearm possession charge, and Hollom pleaded guilty to the ammunition charge.
At sentencing, the district court treated two of Hollom’s prior convictions—guilty pleas in
2001 and 2004 for aggravated assault in Tennessee—as crimes of violence under the Sentencing
Guidelines. See U.S.S.G. § 2K2.1(a)(2). This resulted in a guidelines sentence of seventy-seven to
ninety-six months’ incarceration. The district court granted a downward variance under 18 U.S.C.
§ 3553(a) and sentenced Hollom to fifty-seven months.
Soon after the Supreme Court decided Johnson v. United States, 135 S. Ct. 2551 (2015),
which rendered void for vagueness the residual clause of the Armed Career Criminal Act’s
definition of a violent felony, Hollom filed a pro se motion with the district court under 28 U.S.C.
§ 2255 to vacate, set aside, or correct his sentence. While that motion was pending, the Supreme
Court decided Mathis v. United States, 136 S. Ct. 2243 (2016), which sought to clarify the process
a sentencing court should follow to determine whether a past conviction constitutes a crime of
violence. The district court ordered further briefing as to what effect, if any, Mathis had on the
pending motion.
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After briefing, the district court denied Hollom’s motion, and later denied his request for a
certificate of appealability. On May 8, 2017, this court granted Hollom a certificate of
appealability, stating that “reasonable jurists could debate whether Hollom’s prior convictions of
aggravated assaults in Tennessee are valid prerequisites for sentencing as a career offender under
the Mathis analysis.”
B.

Sentencing Guidelines
The Sentencing Guidelines provision used by the district court to enhance Hollom’s

sentence1 applies “if the defendant committed any part of the instant offense subsequent to
sustaining at least two felony convictions of either a crime of violence or a controlled substance
offense.” U.S.S.G. § 2K2.1(a)(2). The Sentencing Guidelines define a crime of violence as
follows:
(a)

The term “crime of violence” means any offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that—
(1)

has as an element the use, attempted use, or threatened use of physical
force against the person of another, or

(2)

is a burglary of a dwelling, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a) (Nov. 1, 2014). Subsection (1) is often referred to as the “elements” clause or
“use-of-force” clause, and subsection (2) has two clauses: the first part is the “enumerated-offense”
clause, and the second part is the “residual” clause.2 In addition to the offenses in the “enumerated-

1

The parties agree that the Sentencing Guidelines from 2014 apply to this case.

2

There is an analogous residual clause in the Armed Career Criminal Act (ACCA). See 18
U.S.C. § 924(e)(2)(B). As mentioned, the Supreme Court held that the ACCA residual clause was
void for vagueness, Johnson, 135 S. Ct. at 2563, but the residual clause in the Sentencing
Guidelines survived a similar challenge, Beckles v. United States, 137 S. Ct. 886, 895 (2017).
Nevertheless, the Sentencing Commission later removed the residual clause. See U.S.S.G.
§ 4B1.2(a)(2) (Aug. 1, 2016). Both parties acknowledge that the Guidelines’ residual clause was
operational at the time of Hollom’s sentencing.
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offense” clause, the Application Note lists additional predicate offenses: “murder, manslaughter,
kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate
extension of credit, and burglary of a dwelling.” U.S.S.G. § 4B1.2 cmt n.1. The Sentencing
Commission later consolidated the Application Note offenses into the Guidelines, but even “[p]rior
to the amendment, we treated the crimes ‘specifically enumerated in Application Note 1’ as
separate offenses.” United States v. Kennedy, 683 F. App’x 409, 419 (6th Cir. 2017) (quoting
United States v. Rodriguez, 664 F.3d 1032, 1036 (6th Cir. 2011)).
C.

Tennessee Aggravated Assault
The applicable Tennessee simple assault statute provides:
(a)

A person commits assault who:
(1)

Intentionally, knowingly or recklessly causes bodily injury to another;

(2)

Intentionally or knowingly causes another to reasonably fear
imminent bodily injury; or

(3)

Intentionally or knowingly causes physical contact with another and a
reasonable person would regard the contact as extremely offensive or
provocative.

Tenn. Code Ann. § 39-13-101 (1998). The aggravated assault statute adds:
(a)

A person commits aggravated assault who:
(1)

Intentionally or knowingly commits an assault as defined in [the
simple assault statute] § 39-13-101 and:
(A) Causes serious bodily injury to another; or
(B) Uses or displays a deadly weapon; or

(2)

Recklessly commits an assault as defined in § 39-13-101(a)(1), and:
(A) Causes serious bodily injury to another; or
(B) Uses or displays a deadly weapon.

....

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(d)(1)Aggravated assault under subdivision (a)(1) . . . is a Class C felony.
Aggravated assault under subdivision (a)(2) is a Class D felony.
Tenn. Code Ann. § 39-13-102 (1998).
II.
“We determine a ‘crime of violence’ under the Guidelines in the same way as a ‘violent
felony’ under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because both share
essentially the same definitions.” United States v. Gibbs, 626 F.3d 344, 352 n.6 (6th Cir. 2010)
(citing United States v. Bartee, 529 F.3d 357, 359 (6th Cir. 2008)).
When evaluating a criminal conviction to determine whether it qualifies as a crime-ofviolence predicate for the ACCA or the Sentencing Guidelines, sentencing courts are directed to
use a categorical approach, looking “only to the fact of conviction and the statutory definition of
the prior offense.” Taylor v. United States, 495 U.S. 575, 602 (1990). “[A] sentencing judge may
look only to the elements of the offense, not to the facts of the defendant’s conduct.” Mathis,
136 S. Ct. at 2251 (cleaned up).
This is straightforward for simple criminal statutes, but others provide disjunctive, eitheror elements, and so are divisible into multiple versions of a crime. See Descamps v. United States,
133 S. Ct. 2276, 2281 (2013). If a statute is divisible, meaning that it “comprises multiple,
alternative versions of the crime,” a court uses a “modified categorical approach” and may
“examine a limited class of documents,” such as the indictment, a plea agreement, or jury
instructions, “to determine which of a statute’s alternative elements formed the basis of the
defendant’s prior conviction.” Id. at 2284. “[T]he modified approach merely helps implement the
categorical approach when a defendant was convicted of violating a divisible statute. The modified
approach thus acts not as an exception, but instead as a tool. It retains the categorical approach’s
central feature: a focus on the elements, rather than the facts, of a crime.” Id. at 2285.
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The Supreme Court recently reinforced the rule that courts must not analyze a statute by
using a modified categorical approach that considers alternative means of committing a crime,
rather than alternative elements. See Mathis v. United States, 136 S. Ct. 2243, 2256 (2016). Under
Mathis, “[t]he first task for a sentencing court faced with an alternatively phrased statute is thus to
determine whether its listed items are elements or means. If they are elements, the court should do
what we have previously approved: review the record materials to discover which of the
enumerated alternatives played a part in the defendant’s prior conviction . . . .” Id. (emphasis
added). “But if instead they are means, the court has no call to decide which of the statutory
alternatives was at issue in the earlier prosecution.” Id. (emphasis added). “[A] statute may itself
identify which things must be charged (and so are elements) and which need not be (and so are
means)” or perhaps “a state court decision definitively answers the question” and so “a sentencing
judge need only follow what it says.” Id.
The elements of the statute here seem clear from the text, and the Tennessee Supreme Court
has confirmed: “Aggravated assault . . . consists of three elements: (1) mens rea; (2) commission
of an assault as defined in 39–13–101; and (3)(a) serious bodily injury or (b) use or display of a
deadly weapon.” State v. Hammonds, 30 S.W.3d 294, 298 (Tenn. 2000). It is evident that the third
element is divisible into two alternative elements: “serious bodily injury” and “use or display of a
deadly weapon.”
The second element is not so simple. The underlying simple assault statute may be alone
divisible into three alternative elements, but when the charged crime is aggravated assault, the
defendant’s conduct that constituted the underlying simple assault is merely the means by which
that element of aggravated assault is satisfied—not an element itself. Id. at 302. In Hammonds, the

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Tennessee Supreme Court considered the validity of an aggravated assault indictment, and
reasoned:
The indictment alleges the first element of the offense mens rea—“intentionally
and knowingly.” The indictment also alleges the second element of the offense,
commission of an assault—“did . . . commit an assault.” And finally, the indictment
alleges the third element of the offense, use or display of a deadly weapon—“using
and displaying a deadly weapon.” As previously explained, prior decisions of this
Court do not require the State to specify in the indictment the precise means or
theory by which the State intends to establish each element of the offense.
Id. (emphasis added); accord United States v. Perez-Silvan, 861 F.3d 935, 940 (9th Cir. 2017)
(“[Hammonds] indicates that the second element of aggravated assault is indivisible. Thus, courts
cannot employ the modified categorical approach to determine which variant of simple assault
under § 39–13–101 the defendant has committed.”).
Once a divisible statute is divided into the appropriate alternative elements, a sentencing
court considers the possible means of violating the statute and must “assume that [the defendant’s]
‘conviction rested upon nothing more than the least of the acts criminalized, and then determine
whether even those acts’ would qualify as a crime of violence under the guidelines.” United States
v. Yates, 866 F.3d 723, 728 (6th Cir. 2017) (quoting Moncrieffe v. Holder, 569 U.S. 184, 133
(2013) (cleaned up)).
Considering the least of the acts criminalized by aggravated assault in Tennessee, the
simple assault statute can include when one “[i]ntentionally or knowingly causes physical contact
with another and a reasonable person would regard the contact as extremely offensive or
provocative.” Tenn. Code Ann. § 39-13-101(a)(3) (1998). This physical contact then may be
escalated to aggravated assault by the “display of a deadly weapon.” Tenn. Code Ann. § 39-13102(a)(1)(B) (1998) (emphasis added).

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A crime may qualify as a crime of violence if “the crime has as an element the use,
attempted use, or threatened use of physical force.” Rodriguez, 664 F.3d at 1036 (citing U.S.S.G.
§ 4B1.2(a)).
Other circuits have held that even a general-intent crime may include the threatened
use of physical force as an element if it includes the use of a deadly weapon as an
element. See, e.g., United States v. Ramon Silva, 608 F.3d 663, 670–71, 674 (10th
Cir. 2010). Most of these cases deal with assault or battery statutes that require only
“the least touching,” but qualify as crimes of violence when the touching is
accompanied by a deadly weapon. See United States v. Grajeda, 581 F.3d 1186,
1191–92 (9th Cir. 2009); United States v. Dominguez, 479 F.3d 345, 348–49 (5th
Cir. 2007) . . . .
Not every crime becomes a crime of violence when committed with a
deadly weapon, however. See, e.g., United States v. Baker, 559 F.3d 443, 452 (6th
Cir. 2009) (holding that Tennessee felonious reckless endangerment, which
requires the use of a deadly weapon, was not a crime of violence). Similarly, not all
crimes involving a deadly weapon have the threatened use of physical force as an
element. Id. In the crime of violence context, “the phrase ‘physical force’ means
violent force,” Johnson, 130 S. Ct. at 1270–71, and the use of a deadly weapon may
transform a lesser degree of force into the necessary “violent force.” Nonetheless,
the underlying crime must already have as an element some degree of, or the threat
of, physical force in the more general sense (such as “the least touching”).
Rede-Mendez, 680 F.3d at 558 (citation and footnotes omitted).
Despite Hollom’s suggestions to the contrary, we need not imagine some perfect crime that
includes the least touching married with peacefully displaying a weapon such as a holstered
firearm. The least of the acts criminalized includes not only the least touching, but a touching that
a reasonable person would find extremely offensive or provocative. “We focus on the least
culpable conduct criminalized by the statute but [must] resist imagining unlikely crimes that
theoretically could be covered by it.” United States v. Verwiebe, 874 F.3d 258, 260–61 (6th Cir.
2017). “There must be a realistic probability the statute would be used to criminalize the conduct.”
Id. at 261 (citing Moncrieffe, 569 U.S. at 191).

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The Ninth Circuit recently considered whether Tennessee aggravated assault constitutes a
crime of violence, and its reasoning is helpful:
Perez-Silvan maintains that his aggravated assault conviction does not qualify as a
crime of violence because the second element of aggravated assault in § 39–13–
102(a)(1), which requires the commission of a simple assault in violation of § 39–
13–101, can be fulfilled by “[i]ntentionally or knowingly caus[ing] physical contact
with another [that] a reasonable person would regard . . . as extremely offensive or
provocative.” Tenn. Code Ann. § 39–13–101(a)(3).
Perez-Silvan is correct that “mere[ ] touching,” the common law definition
of a battery, does not satisfy the level of force required for a crime of violence.
Johnson v. United States, 559 U.S. 133, 139–43, 130 S. Ct. 1265, 176 L.Ed.2d 1
(2010). According to Johnson, in the context of a crime of violence, “physical
force” entails “violent force—that is, force capable of causing physical pain or
injury to another person.” Id. at 140, 130 S. Ct. 1265. Thus, on its own, an offensive
“physical contact” in § 39–13–101(a)(3) would not qualify as a crime of violence.
Nonetheless, Perez-Silvan misunderstands his statute of conviction. Even
though an offensive touching under § 39–13–101(a)(3) can satisfy the second
element of § 39–13–102(a)(1), an aggravated assault conviction further requires
that the offensive touching “[c]ause[ ] serious bodily injury to another” or “use[ ]
or display[ ] a deadly weapon.” Tenn. Code. Ann. § 39–13–102(a)(1)(A)–(B); see
also Hammonds, 30 S.W.3d at 298. Both of these requirements entail the use of
violent force.
Perez-Silvan, 861 F.3d at 942-43. “[R]egardless of whether the deadly weapon itself touches the
victim’s body, we cannot imagine one using or displaying a deadly weapon in the course of an
offensive touching without threatening the use of violent force.” Id. at 943.
We agree with the Ninth Circuit’s reasoning and join it in holding that extremely offensive
or provocative touching, coupled with the use or display of a deadly weapon, includes an implied
threat of force sufficient to constitute a crime of violence under the Sentencing Guidelines.
Therefore, we hold that a conviction for aggravated assault under Tenn. Code Ann. § 39-13-102
categorically qualifies as a crime-of-violence predicate under the use-of-force clause found in
U.S.S.G. § 4B1.2(a). We need not consider the applicability of any of § 4B1.2(a)’s other clauses.
III.
The judgment of the district court is affirmed.
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