Summary
discussing same Indiana statute at issue in Sykes
Summary of this case from United States v. DoyleOpinion
No. 08-1691.
Submitted February 18, 2009.
Decided April 30, 2010.
Appeal from the United States District Court for the Southern District of Indiana, John Daniel Tinder, J.
Bradley P. Shepard (submitted), Office of the United States Attorney, Indianapolis, IN, for Plaintiff-Appellee.
Daniel T. Hansmeier (submitted), Office of the Federal Public Defender, Springfield, IL, Richard H. Parsons (submitted), Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Before BAUER, RIPPLE and KANNE, Circuit Judges.
Charles Dunson pleaded guilty to possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). The district court, over Dunson's objection, set a base offense level of 24 on the assumption that his prior Indiana conviction for fleeing a police officer in a vehicle, see IND. CODE § 35-44-3-3(a)(3), (b)(1)(A), is a conviction for a "crime of violence," see U.S.S.G. §§ 2K2.1(a)(2) cmt. n. 1, 4B1.2(a). The court sentenced Dunson to 110 months' imprisonment, below the Guidelines range. Dunson now appeals.
Shortly after Dunson filed this appeal, we held in United States v. Spells, 537 F.3d 743, 752 (7th Cir. 2008), that the Indiana crime at issue is a "violent felony" for purposes of the Armed Career Criminal Act ("ACCA"), see 18 U.S.C. § 924(e)(1), (2)(B)(ii). "Taking flight calls the officer to give chase," we reasoned, and "dares the officer to needlessly endanger himself in pursuit." Spells, 537 F.3d at 752. Our decision was informed by Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and is not undermined by the Supreme Court's most recent application of Begay, see Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) (holding that passively failing to report for service of a criminal sentence is not a "violent felony").
The defendant in United States v. Sykes, 598 F.3d 334 (7th Cir. 2010), asked us to overrule Spells in light of the Eleventh Circuit's conclusion in United States v. Harrison, 558 F.3d 1280 (11th Cir. 2009), that fleeing from police in a vehicle is not a violent felony under the ACCA. We reexamined our approach but concluded that it was "neither unworkable nor unsound." Id. at 338. Someone who violates § 35-44-3-3(b)(1)(A), we explained, makes a "purposeful decision to do something that is inherently likely to lead to violent confrontation," even though the statute does not " require that an offender actually endanger others through his flight." Id. at 336-37.
Although Dunson was not sentenced as an armed career criminal, we interpret "violent felony" as used in § 2K2.1 the same way as "crime of violence" in § 924(e). See, e.g., United States v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008). So Spells and Sykes are squarely on point, and the district court properly classified Dunson's prior conviction for fleeing a police officer in a vehicle as a crime of violence.
AFFIRMED.