NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 19a0371n.06

Case Nos. 17-6486/6487

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Jul 18, 2019 17-6486 ) DEBORAH S. HUNT, Clerk ) MARCUS MANN, ) Petitioner-Appellee, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR v. ) THE MIDDLE DISTRICT OF ) TENNESSEE UNITED STATES OF AMERICA, ) ) Respondent-Appellant. ) ) 17-6487 ) UNITED STATES OF AMERICA, ) ) Plaintiff-Appellant, ) ) v. ) ) MARCUS MANN, ) Defendant-Appellee. )

BEFORE: GUY, THAPAR, and NALBANDIAN, Circuit Judges.

PER CURIAM. Marcus Mann pled guilty to possessing a firearm as a convicted felon.

See 18 U.S.C. § 922(g). Because he already had several prior convictions under Tennessee law

(two for aggravated burglary, one for simple burglary, and one for aggravated assault), the district

court enhanced Mann’s sentence to the fifteen-year minimum under the Armed Career Criminal Case Nos. 17-6486/6487, Mann v. United States

Act (ACCA). See id. § 924(e)(1). Several years later, Mann challenged his sentence through a

motion for post-conviction relief. See 28 U.S.C. § 2255. While his § 2255 motion was pending,

the en banc Sixth Circuit determined that Tennessee aggravated burglary was not an ACCA

predicate. United States v. Stitt, 860 F.3d 854, 856 (6th Cir. 2017) (en banc). Relying on Stitt, the

district court reviewing Mann’s § 2255 motion determined that he no longer qualified for an ACCA

enhancement and reduced his sentence to ten years. But Mann’s victory was short-lived because

the government filed a protective appeal, and a few months later the Supreme Court reversed Stitt.

United States v. Stitt, 139 S. Ct. 399, 406–08 (2018).

The Supreme Court’s reversal means that our circuit returns to its pre-Stitt precedent.

Brumbach v. United States, Nos. 18-5703/5705, 2019 WL 3024727, at *3, __F.3d__ (6th Cir. July

11, 2019). And under that precedent, Tennessee aggravated burglary is an ACCA predicate. Id.

(citing United States v. Nance, 481 F.3d 882, 888 (6th Cir. 2007)). Thus, although the district

court was right to reduce Mann’s sentence, the law has changed during this appeal and made

Mann’s original sentence proper again. Therefore, we VACATE and REMAND with instructions

to reinstate the original sentence.

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