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Brumbach v. United States

United States Court of Appeals, Sixth Circuit

July 11, 2019

Brian David Brumbach, Petitioner-Appellee,
v.
United States of America, Respondent-Appellant. United States of America, Plaintiff-Appellant,
v.
Brian David Brumbach, Respondent-Appellee.

          Argued: June 27, 2019

          Appeal from the United States District Court for the Middle District of Tennessee at Nashville. Nos. 3:09-cr-00227-1; 3:16-cv-00776-David M. Lawson, District Judge.

         ARGUED:

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

          Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellee.

         ON BRIEF:

          Cecil W.VanDevender, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellant.

          Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for Appellee.

          Before: SILER, BATCHELDER, and DONALD, Circuit Judges.

          OPINION

          Bernice Bouie Donald, Circuit Judge.

         Brian David Brumbach ("Brumbach") filed for relief under 28 U.S.C. § 2255, arguing that his sentence had been improperly enhanced under the Armed Career Criminal Act ("ACCA") because his twelve prior convictions for Tennessee aggravated burglary did not qualify as violent felonies under the ACCA. The district court stayed his petition until this court issued a ruling in United States v. Stitt, where we held that Tennessee's aggravated burglary statute did not qualify as an enumerated offense under the ACCA. United States v. Stitt, 860 F.3d 854, 860-61 (6th Cir. 2017) (en banc) ("Stitt I"). Applying Stitt I, the district court granted Brumbach's § 2255 petition. However, the Supreme Court ultimately reversed Stitt I in United States v. Stitt, 139 S.Ct. 399, 408 (2018) ("Stitt II"). Accordingly, we reverse the district court's order granting Brumbach's petition, and remand for reinstatement of his original sentence.

         I. Background

         On May 23, 2009, Brumbach was arrested for pointing a gun at a man who had been talking to Brumbach's girlfriend. Brumbach was charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), to which he pleaded guilty under a Fed. R. Crim. P. 11(c)(1)(C) plea agreement in 2011. Brumbach agreed that because he had at least three previous convictions for violent felonies and possessed a gun, he qualified as an armed career criminal under 18 U.S.C. § 924(e)(1). The parties agreed to a mandatory minimum sentence of 180 months' imprisonment.

         The United States Probation Office prepared a Presentence Investigation Report ("PSR"), within which the Probation Office explained that Brumbach had twelve prior convictions for aggravated burglary under Tennessee law, and classified him as an armed career criminal. At sentencing, Brumbach raised no objections to the PSR, and the ...


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