United States v. Markel Strong

MATHIS, Circuit Judge. A jury convicted Markel Strong of possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to 221 months’ imprisonment. Because Strong had three prior convictions for violent felonies, he received a higher sentence under the Armed Career Criminal Act (ACCA). On appeal, Strong argues that his prior Tennessee burglary conviction does not qualify as an ACCA predicate offense. He also challenges the substantive reasonableness of his sentence. Discerning no error, we affirm.

I.

In December 2021, police officers responded to a call about a shooting in a hotel parking lot. At the scene, the officers encountered the victim who had left his hotel room with his dog when he saw three men breaking into his vehicle. When the victim yelled at the men and ran toward them, they responded by shooting at him and his dog and then fleeing the scene.

About a month later, officers observed a vehicle driving with an invalid temporary drive-out tag and heavily tinted windows. The officers initiated a traffic stop and asked the driver, Markel Strong, to exit his vehicle. The officers learned that Strong was driving with a suspended license, so they arrested him and impounded his vehicle.

During an inventory search of the vehicle, officers discovered a 9mm pistol with one live round of ammunition in the chamber and 24 live rounds in an extended magazine. The officers also found two backpacks that contained about two dozen rounds of ammunition. Ballistics testing of the pistol revealed that the weapon matched a cartridge casing recovered from the scene of the hotel-parking-lot shooting.

A federal grand jury indicted Strong on two counts of possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). Before trial, Strong moved the district court to prospectively find that he could not receive an enhanced sentence under ACCA. Strong argued that one of his three prior convictions under Tennessee law, for burglarizing a building in violation of Tennessee Code Annotated § 39-14-402(a)(1) (2017), was not a qualifying offense, though he conceded that his two prior convictions for aggravated assault were. The district court denied his motion, ruling that burglary convictions under § 39-14-402(a)(1) are ACCA predicate offenses. Later, at the government’s request, the district court dismissed one of the felon-in-possession charges and Strong proceeded to trial on the other. In the end, the jury found Strong guilty.

At sentencing, the district court applied ACCA and calculated Strong’s Sentencing Guidelines range as 262 to 327 months’ imprisonment. Strong did not object to the ACCA enhancement, but he requested a downward variance to 180 months’ imprisonment. After hearing arguments from the parties, the district court varied downward and sentenced Strong to 221 months’ imprisonment. This appeal followed.

II.

Strong challenges the district court’s decision to impose an ACCA-enhanced sentence. A defendant convicted of being a felon in possession of a firearm typically faces a sentence of up to fifteen years’ imprisonment. 18 U.S.C. §§ 922(g)(1), 924(a)(8). But if the defendant has three prior convictions for violent felonies or serious drug offenses, ACCA requires a mandatory minimum sentence of fifteen years’ imprisonment and a maximum sentence of life imprisonment. Id. § 924(e)(1).

At issue is whether Strong’s Tennessee burglary conviction qualifies as a violent felony under ACCA. We review the district court’s resolution of this question de novo. United States v. Wilson, 978 F.3d 990, 993 (6th Cir. 2020). Strong does not dispute that he has two other qualifying convictions.

Relevant here, ACCA identifies “burglary” as a violent felony. 18 U.S.C. § 924(e)(2)(B)(ii). But a state burglary conviction does not qualify as a violent felony for ACCA purposes if “the elements of [the relevant state burglary statute] are broader than those of generic burglary.” Mathis v. United States, 579 U.S. 500, 520 (2016). So to determine whether Strong’s conviction qualifies as burglary under the ACCA, we employ a “categorical approach” and “compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the ‘generic’ crime—i.e., the offense as commonly understood.” Descamps v. United States, 570 U.S. 254, 257 (2013). In other words, we compare the elements of Tennessee burglary with the elements of generic burglary.

What are the elements of Tennessee burglary and generic burglary? Under Tennessee law, a person commits burglary when he, “without the effective consent of the property owner”:

(1) Enters a building other than a habitation (or any portion thereof) not open to the public, with intent to commit a felony, theft or assault;

(2) Remains concealed, with the intent to commit a felony, theft or assault, in a building;

(3) Enters a building and commits or attempts to commit a felony, theft or assault; or

(4) Enters any freight or passenger car, automobile, truck, trailer, boat, airplane or other motor vehicle with intent to commit a felony, theft or assault or commits or attempts to commit a felony, theft or assault. Tenn. Code Ann. § 39-14-402(a). The Supreme Court defines generic burglary as the “unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” United States v. Stitt, 586 U.S. 27, 33 (2018) (quotation omitted).

The Tennessee burglary statute defines “multiple crimes,” Mathis, 579 U.S. at 505, as it “sets out one or more elements of the offense in the alternative,” Descamps, 570 U.S. at 257. So the statute is divisible. We thus use the modified categorical approach, which allows us to consider “a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Mathis, 579 U.S. at 505–06. The indictment from Strong’s burglary case reveals that his conviction falls under § 39-14-402(a)(1).

We “have held, broadly, that convictions under subsections (a)(1), (a)(2), and (a)(3) of the Tennessee burglary statute fit within the generic definition of burglary and are therefore violent felonies for” ACCA purposes. United States v. Brown, 957 F.3d 679, 689 (6th Cir. 2020) (citation modified); see also Brumbach v. United States, 929 F.3d 791, 794 (6th Cir. 2019). This precedent forecloses Strong’s argument that his Tennessee burglary conviction is not a violent felony under ACCA.

Strong counters by arguing that the facts underlying his burglary conviction show that Tennessee’s burglary statute is broader than generic burglary. Strong broke into someone’s backyard shed and stole gardening equipment. But in comparing Strong’s prior burglary conviction with the elements of generic burglary, “we do not consider how [Strong] committed the crime that led to the prior conviction.” United States v. Cervenak, 135 F.4th 311, 320 (6th Cir. 2025) (en banc).

Strong also argues that we should reconsider Brown. We reject this argument: “One panel of this court may not overrule the decision of another panel; only the en banc court or the United States Supreme Court may overrule the prior panel.” S.C. v. Metro. Gov’t of Nash., 86 F.4th 707, 715 (6th Cir. 2023) (quotation omitted).¹1. The government contends that Strong waived any challenge to the district court’s application of the ACCA to his sentence. Because we reject Strong’s challenge on the merits, we need not address the government’s waiver argument.

III.

Strong also lodges a substantive-reasonableness challenge to his sentence. We review the substantive reasonableness of sentences imposed by district courts for an abuse of discretion. Gall v. United States, 552 U.S. 38, 51 (2007).

A substantive-reasonableness challenge is a claim that a defendant’s sentence is “too long” because the district court “placed too much weight on some of the [18 U.S.C.] § 3553(a) factors and too little on others.” United States v. Rayyan, 885 F.3d 436, 442 (6th Cir. 2018). We “consider whether the length of the sentence is sufficient, but not greater than necessary, to comply with the purposes of sentencing in light of the § 3553(a) factors.” United States v. Nunley, 29 F.4th 824, 834 (6th Cir. 2022) (quotation omitted).

Recall that Strong’s 221-month sentence fell 41 months below the bottom of his Guidelines range. We afford a presumption of reasonableness to a within-Guidelines sentence. United States v. Hamaed, 178 F.4th 281, 302 (6th Cir. 2026). A defendant’s challenge to a below-Guidelines sentence “is even more demanding.” United States v. Betro, 115 F.4th 429, 456 (6th Cir. 2024) (quotation omitted). “Although it is not impossible to succeed on a substantive-reasonableness challenge to a below-guidelines sentence, defendants who seek to do so bear a heavy burden.” United States v. Greco, 734 F.3d 441, 450 (6th Cir. 2013).

Strong has not met that burden. At the sentencing hearing, the district court informed Strong that it must consider the § 3553(a) factors to “make an individual assessment about what [his] sentence should be” and ensure that it “impose[d] a sentence that’s sufficient but not greater than necessary to accomplish the purposes of sentencing.” R. 140, PageID 937–38. It recognized the nature and severity of Strong’s offense, describing a felon-in-possession offense as a “serious crime,” and noted that Strong fired his gun during an “extraordinarily violent” burglary. Id. at 938; see 18 U.S.C. § 3553(a)(1), (a)(2)(A). It also acknowledged the need to deter such conduct, observing that Strong “need[ed] time” to learn how to respect the law. R. 140, PageID 944; see 18 U.S.C. § 3553(a)(2)(A)–(C). As the court noted, Strong violently assaulted another inmate while in custody and violated dozens of prison rules. The court considered Strong’s personal characteristics. It noted Strong’s background, including his upbringing, mental health, family circumstances, and his education. See 18 U.S.C. § 3553(a)(1). It also highlighted Strong’s “education[al or] vocational” needs, finding that there are resources available to assist Strong in obtaining a college degree. R. 140, PageID 944; see 18 U.S.C. § 3553(a)(2)(D). In the end, the district court varied downward because the prior burglary conviction that contributed to the ACCA enhancement was, “in the scheme of things, a more minor version of that otherwise qualifying offense.” R. 140, PageID 946. The court recognized that it was imposing a “significant sentence” but hoped that Strong would “figure out what leads him astray” and “come out [of prison] with some better answers.” Id. at 946, 954.

Strong asserts that the district court did not reduce his sentence enough. He claims that the district court did not consider the circumstances of the underlying offense and his mitigating evidence about his background. We disagree. Although Strong may believe that the district court’s below-Guidelines sentence was not lenient enough, the court properly balanced the § 3553(a) factors. The court thus made a “reasoned and reasonable decision that the § 3553(a) factors, on the whole, justified the sentence.” Gall, 552 U.S. at 59–60.

IV.

For these reasons, we AFFIRM the district court’s judgment.