Summary
The Sixth Circuit affirmed Joshua Starling’s conviction for being a felon in possession of a firearm and his sentence enhanced under the Armed Career Criminal Act. The court held that Starling’s Tennessee cocaine convictions qualified as serious drug offenses under ACCA because the relevant Tennessee statute was divisible and the convictions involved cocaine, not merely cocaine isomers. The court also held that Starling forfeited his challenge to the indictment’s failure to allege ACCA predicates and that the challenge failed under plain-error review.
Topics
Practice areas
Questions Presented
- Whether Starling's Tennessee convictions for cocaine offenses under Tenn. Code Ann. § 39-17-417(c)(1) qualify as serious drug offenses under the ACCA.
- Whether the government's failure to allege the ACCA occasions-different element in the indictment constituted a constructive amendment requiring reversal under Erlinger v. United States.
- Whether Starling preserved his constructive-amendment objection and, if not, whether the alleged error satisfied plain-error review.
Holdings
- Starling's Tennessee cocaine convictions under Tenn. Code Ann. § 39-17-417(c)(1) qualify as ACCA serious drug offenses because the statute is divisible and the elements of the specific offense involving cocaine categorically match the federal ACCA definition.
- Even assuming the government's failure to include ACCA allegations in the indictment was error, Starling was entitled only to plain-error review because he failed to timely object, and the error did not seriously affect the fairness, integrity, or public reputation of the proceedings.
Key quotations
“Because Starling failed to timely raise his constructive-amendment argument, plain-error review is appropriate here.” (Page 13)
“For both those reasons, Starling’s constructive-amendment challenge fails plain-error review’s fourth prong, foreclosing relief on those grounds.” (Page 16)
Factual background
Starling, who had prior felony convictions, possessed a firearm while making a mattress delivery in Nashville. Police arrested him while serving an unrelated arrest warrant and found the firearm after searching him. His prior convictions included Tennessee drug offenses and a burglary, and the district court used three convictions committed on different occasions to apply the ACCA enhancement.
Procedural history
A federal grand jury indicted Starling under 18 U.S.C. § 922(g)(1), without alleging ACCA predicate offenses or the occasions-different element. After a bench trial, the district court found him guilty and found beyond a reasonable doubt that three prior offenses occurred on different occasions. The court rejected Starling's challenges to the ACCA enhancement, imposed a within-Guidelines sentence of 210 months, and the Sixth Circuit affirmed.