Background
Joshua Starling, who had prior felony convictions, borrowed a coworker’s gun while delivering a mattress in a neighborhood where he feared being robbed. Police officers who were following the delivery van to execute an unrelated arrest warrant searched Starling and found the firearm. After a bench trial, the district court convicted him of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1).
The indictment did not allege that Starling had three qualifying convictions committed on different occasions under the Armed Career Criminal Act. But Starling had been warned from his initial appearance that ACCA might apply, acknowledged the potential enhancement in pretrial filings, and did not object when the government introduced his 2004 drug conviction, 2006 burglary conviction, and 2011 drug conviction at trial. The district court found beyond a reasonable doubt that the offenses occurred on different occasions and later imposed a within-Guidelines sentence of 210 months.
At sentencing, Starling argued that his Tennessee cocaine convictions were not ACCA predicates because Tennessee law allegedly covered more cocaine isomers than federal law. He also argued, based on Erlinger v. United States, that the omission of ACCA’s different-occasions allegation from the indictment violated his rights.
The Court’s Holding
The Sixth Circuit held that Starling’s Tennessee cocaine convictions qualified as “serious drug offenses” under ACCA. Tennessee Code Annotated § 39-17-417 is divisible because its provisions establish distinct crimes based on the prohibited conduct, controlled substance, quantity, and penalty. The court therefore applied the modified categorical approach and consulted permissible state-court records, which showed that Starling was convicted under § 39-17-417(c)(1) of offenses involving at least one-half gram of cocaine.
The court concluded that § 39-17-417(c)(1) covers cocaine itself, not every cocaine isomer listed separately in Tennessee’s drug schedules, and thus categorically matches the federal definition relevant to ACCA. It added that, even if the state statute’s breadth were debatable, Starling had not shown a realistic probability that Tennessee prosecuted the purportedly broader conduct.
The court also rejected Starling’s indictment challenge. His jury-right argument failed because he waived a jury and the district judge found the different-occasions element beyond a reasonable doubt. His constructive-amendment claim received plain-error review because he did not object when the government presented its ACCA evidence at trial. Although the government conceded error, the court declined relief because the three offenses were separated by years, the different-occasions evidence was overwhelming and uncontroverted, and Starling had ample notice that the government intended to seek the enhancement.
Key Takeaways
- Tennessee cocaine convictions under § 39-17-417(c)(1) may qualify as ACCA serious-drug-offense predicates because that provision is divisible and specifically covers cocaine.
- A defendant who waives a jury trial cannot obtain relief merely because the ACCA different-occasions finding was made by the judge, provided the judge finds that element beyond a reasonable doubt.
- An untimely constructive-amendment objection is reviewed for plain error, and relief may be denied when the defendant had notice of the ACCA theory and the different-occasions evidence was overwhelming and uncontested.
Why It Matters
The decision clarifies how the Sixth Circuit applies the modified categorical approach to Tennessee drug convictions. Courts may use Shepard documents to identify the particular drug-and-quantity offense under § 39-17-417 rather than treating Tennessee’s entire controlled-substance schedule as defining a single indivisible crime.
The opinion also addresses the post-Erlinger treatment of indictments that omit ACCA’s different-occasions element. Even where that omission constitutes conceded error, a defendant who failed to object timely may receive no relief when the record establishes notice and overwhelming proof that the predicate offenses occurred separately.