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United States v. Myers

United States Court of Appeals, Sixth Circuit

June 3, 2019

United States of America, Plaintiff-Appellee,
v.
Donald Cory Myers, Defendant-Appellant.

          Argued: January 31, 2019

          Appeal from the United States District Court for the Eastern District of Tennessee at Winchester. No. 4:17-cr-00005-1-Travis R. McDonough, District Judge.

         ARGUED:

          Gianna Maio, 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:

          Gianna Maio, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Chattanooga, Tennessee, for Appellant.

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

          Before: GRIFFIN, WHITE, and BUSH, Circuit Judges

          OPINION

          HELENE N. WHITE, CIRCUIT JUDGE.

         Defendant-Appellant Donald Myers challenges his 180-month sentence imposed under the Armed Career Criminal Act (ACCA) based on two prior Tennessee convictions for initiation of a process intended to result in the manufacture of methamphetamine. Myers argues that the Tennessee initiation offense is not a serious drug offense under the ACCA. We AFFIRM.

         I. Background

         A. Factual Overview

         On August 24, 2016, Myers entered Kelly Sullivan's home without permission, pulled out a gun, pointed it at Sullivan, and demanded drugs. Sullivan told Myers that she had drugs in her car and the two went outside. Once outside, Sullivan saw her neighbor Kristy Baker and attempted to whisper to her to call the police. Myers then grabbed Sullivan and told Baker, "if you value this woman's life, you will get me drugs." (R. 28, PID 91.) Baker ran from the scene and called the police, who soon arrived and arrested Myers.

         Myers pleaded guilty to being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). The Pre-Sentence Investigation Report (PSR) recommended that Myers qualify as an armed career criminal under the ACCA, 18 U.S.C. § 924(e), based on his prior Tennessee convictions for aggravated assault and two separate initiations of a process intended to result in the manufacture of ...


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