United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION & ORDER
GI'EGOIY F.'VAN TATENHOVE UNITED STATES DISTRICT
inmate Reginald Boxley filed a pro se petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2241 to
challenge application of the career offender enhancement to
his sentence. [R. 1] The government has filed its response
[R. 15], to which Boxley has replied [R. 16] Having reviewed
the submissions of both parties, the Court concludes that
Boxley's sentence was properly enhanced and his petition
must therefore be denied.
November 1998, Boxley was charged in Jackson, Tennessee with
possessing crack cocaine with intent to distribute in
violation of 21 U.S.C. § 841(a)(1). He was convicted of
that offense in July 2002 following a jury trial. A
presentence investigation report concluded that at least two
of Boxley's prior convictions in Tennessee were for
“crimes of violence” under the Sentencing
Guidelines: a 1988 conviction for aggravated assault and a
1988 conviction for first-degree burglary. [R. 15-2 at Page
ID #102-03, 118-21] The report therefore concluded that
Boxley constituted a career offender pursuant to U.S.S.G.
§ 4B1.1, and thus qualified for an enhanced
sentence. The trial court agreed, and at a
sentencing hearing on November 8, 2002 sentenced Boxley to a
360-month term of imprisonment. United States v.
Boxley, No. 1: 98-CR-10045-JDT-1 (W.D. Tenn. 1998). The
Sixth Circuit affirmed on direct appeal. United States v.
Boxley, 373 F.3d 759 (6th Cir.), cert. denied,
543 U.S. 972 (2004). In 2005, Boxley filed an initial motion
for relief under 28 U.S.C. § 2255, but the trial court
dismissed it as untimely. Boxley v. United States,
No. 1: 05-CV-1354-JDT (W.D. Tenn. 2005).
2016, the Sixth Circuit granted Boxley permission to file a
second or successive § 2255 motion to challenge the
enhancement of his sentence in light of Johnson v. United
States, 135 S.Ct. 2551 (2015), but directed the trial
court to hold the motion in abeyance pending the Supreme
Court's then-upcoming decision in Beckles v. United
States, 137 S.Ct. 886 (2017). In his § 2255 motion,
Boxley argued that while Johnson had invalidated the
enhancement provision found in the Armed Career Criminal Act,
18 U.S.C. § 924(e), his sentence was (or may have been)
enhanced under the residual clause found in U.S.S.G. §
4B1.2(a)(2), and its nearly identical wording should likewise
be held void for vagueness. When the Supreme Court decided
Beckles, it concluded that the sentencing guidelines
- at least those in effect after its decision in United
States v. Booker, 543 U.S. 220 (2005) rendered the
guidelines advisory - “... are not amenable to a
vagueness challenge.” Beckles, 137 S.Ct. at
894. But Boxley's sentence was imposed before
Booker when the guidelines were still mandatory, and
Beckles did not address “... whether
defendants sentenced ... before ... Booker ... may
mount vagueness attacks on their sentences.”
Id. at 903 n.4 (Sotomayor, J., concurring in the
judgment). Deciding Boxley's § 2255 motion, the
trial court then concluded that his challenge to his
mandatory guidelines sentence was untimely because
Johnson did not create a new right upon which he
could base his second or successive motion for relief.
Boxley v. United States, No. 1:16-CV-1265-JDT (W.D.
Tenn. Sept. 24, 2018) (citing Raybon v. United
States, 867 F.3d 625 (6th Cir. 2017)).
§ 2241 petition, Boxley contends that neither his 1988
aggravated assault conviction nor his 1988 first-degree
burglary conviction constitute a crime of violence in light
of Mathis v. United States, 136 S.Ct. 2243 (2016).
Because Boxley was convicted and sentenced in 2002 under a
mandatory guidelines regime and because he relies upon
Mathis, a case decided a dozen years after his
conviction, the Court assumes without deciding that he
satisfies the threshold requirements set forth in Hill v.
Masters, 836 F.3d 591 (6th Cir. 2016) to assert this
claim in a § 2241 petition.
both of Boxley's prior convictions properly qualified as
crimes of violence as required to enhance his sentence. When
Boxley's sentence was imposed on November 8, 2002, the
2002 version of the Sentencing Guidelines provided that an
offense qualified as a crime of violence: (a) under the
“elements” clause if it “has as an element
the use, attempted use, or threatened use of physical force
against the person of another”; (b) under the
enumerated offenses clause if it “is burglary of a
dwelling, arson, or extortion, involves use of
explosives”; or (c) under the residual clause if it
“otherwise involves conduct that presents a serious
potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a)(1), (2) (Nov. 1, 2002). In addition,
Application Note 1 to Section 4B1.2 lists both
“aggravated assault” and “burglary of a
dwelling” as crimes of violence, and offenses listed in
the Application Note are considered “enumerated
offenses.” United States v. Rodriguez, 664
F.3d 1032, 1036 (6th Cir. 2012).
1988, when Boxley was convicted of first degree burglary,
Tennessee law defined burglary as “the breaking and
entering into a dwelling house, or any other house, building,
room or rooms therein used and occupied by any person or
persons as a dwelling place or lodging either permanently or
temporarily and whether as owner, renter, tenant, lessee or
paying guest, by night, with intent to commit a
felony.” Tenn. Code Ann. § 39-3-401(a) (1982).
Mathis teaches us to first look to decisions of the
Tennessee courts to determine if the statute sets forth
alternative means or elements, Mathis at 136 S.Ct.
at 2256, and the Tennessee Supreme Court has held that the
statute defined only a single offense of burglary. State
v. Teasley, 719 S.W.2d 148, 150 (Tenn. 1986). The
statute is thus indivisible. See Snider v. United
States, 908 F.3d 183, 188 (6th Cir. 2018). Tennessee
first degree burglary also fits within the generic definition
of burglary as an enumerated offense, as both entail an
intrusion on a place of habitation. United States v.
Ferguson, 868 F.3d 514, 515 (6th Cir. 2017); United
States v. Jones, 673 F.3d 497, 505 (6th Cir. 2012)
(“The pre-1989 statute was at least as narrow as the
Taylor court's definition of generic burglary,
because it applied only to dwellings and occupied buildings.
So the statute under which Defendant was convicted was a
generic burglary statute.”).This conviction was
therefore properly characterized as one for a crime of
was also convicted in 1988 of aggravated assault pursuant to
Tenn. Code Ann. § 39-2-101(b)(2) (1986). [R. 15-6] The
1988 version of the statute is, like its successors,
divisible because it “includes ‘multiple,
alternative elements, and so effectively creates several
different crimes.'” Braden v. United
States, 817 F.3d 926, 932-33 (6th Cir. 2016) (quoting
Descamps v. United States, 570 U.S. 254, 264
(2013)); Drake v. United States, No. 17-6446, 2018
WL 6436412 (6th Cir. Apr. 12, 2018). See also United
States v. Perez-Silvan, 861 F.3d 935, 940-43 (9th Cir.
2017). To determine which crime Boxley was convicted of
committing, the Court may review charging documents such as
the indictment. Descamps, 570 U.S. at 264. Boxley
was charged with assaulting his victim with a deadly weapon,
a baseball bat, under § 39-2-101(b)(2). [R. 15-7] A
conviction under that provision qualifies as a violent felony
under the elements clause. Davis v. United States,
900 F.3d 733, 736-38 (6th Cir. 2018); United States v.
Joy, 658 Fed.Appx. 233, 236 (6th Cir. 2016); see also
United States v. Phillips, No. No. 17-5760, 2019 WL
1568708, at *3-4 (6th Cir. Apr. 11, 2019). It also separately
qualifies as a crime of violence under the enumerated
offenses clause. United States v. Cooper, 739 F.3d
873, 881-83 (6th Cir. 2014). Boxley's conviction for
aggravated assault therefore supplied the necessary second
conviction for a crime of violence, and his sentence was
properly enhanced pursuant to U.S.S.G. § 4B1.1. The
Court must therefore deny his petition as without merit.
it is ORDERED as follows:
1. Reginald Boxley's petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2241 [R. 1] is
2. This action is DISMISSED and
STRICKEN from the Court's docket.
3. Judgment shall be entered contemporaneously with this
Memorandum Opinion and Order.