UNITED STATES of America, Plaintiff-Appellee, v. David Earl DOYLE, Defendant-Appellant, 678 F.3d 429

GRIFFIN, J., delivered the opinion of the court, in which WATSON, D.J., joined. WHITE, J. (pp. 437-42), delivered a separate dissenting opinion. OPINION GRIFFIN, Circuit Judge. Defendant David Earl Doyle appeals his sentence. The issue is whether his prior conviction under Tennessee state law for Class E felony evading arrest is a “violent felony” for purposes of the Armed Career Criminal Act (“ACCA”). This court held in United States v.

Rogers, 594 F.3d 517 (6th Cir.2010), that it was, but the Supreme Court vacated our judgment and remanded the case for further consideration in light of its recent decision, Sykes v. United States, — U.S. 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). See Rogers v. United States, — U.S. -, 131 S.Ct. 3018, 180 L.Ed.2d 842 (2011) (mem.). For the reasons that follow, we again hold that Class E felony evading arrest under Tennessee law is a violent felony. I. On the morning of May 1, 2007, the Perry County Sheriffs Office received a complaint of a suspicious vehicle parked behind a church.

Upon arriving at the church, the deputies noticed Doyle in the driver’s seat of the vehicle and a woman in the passenger’s seat. Both were asleep, and the vehicle was running. The deputies observed a nine millimeter pistol in the pocket of the open driver’s side door and what appeared to be a short-barreled, 20-gauge shotgun laying between the seats of the vehicle. After removing the firearms, the deputies woke Doyle and the woman before arresting them on various charges.

Two weeks later, a federal grand jury returned an indictment charging Doyle with being a felon in possession of a firearm, 18 U.S.C. § 922(g); possession of a firearm altered to have a barrel of less than eighteen inches in length, 26 U.S.C. §§ 5822, 5861(c), 5871; and possession of an unregistered firearm, 26 U.S.C. §§ 5822, 5861(d), 5871. Doyle pled guilty to the charges.

At sentencing, the district court ruled that Doyle was an “armed career criminal” under the Guidelines because he had three prior convictions that qualified him for an enhanced sentence under the ACCA: aggravated assault; burglary other than a habitation; and a Class E felony of evading arrest. U.S.S.G. § 4B1.4(a); 18 U.S.C. § 924(e). His base offense level was set at 34. The district court granted a three-level reduction for acceptance of responsibility. With an adjusted level of 31 and a criminal history category of VI, Doyle’s Guidelines range was 188-235 months.

The district court granted Doyle a variance by sentencing him to the statutory mandatory minimum of 180 months on count one, and 120 months on each of counts two and three, both to run concurrent to the sentence imposed on count one. Doyle timely appealed. II. Doyle concedes that his previous convictions for aggravated assault, and for burglary, qualify as violent felonies under the ACCA. Therefore, we need only determine whether his prior conviction for Class E felony evading arrest is a violent felony. We review the district court’s determination de novo. United States v.

Flores, 477 F.3d 431, 434 (6th Cir.2007). A. The United States Sentencing Guidelines provide that a defendant is to be sentenced as an “armed career criminal” if he is subject to an enhanced sentence under the ACCA. U.S.S.G. § 4B 1.4(a). Persons convicted under 18 U.S.C. § 922(g) (e.g., felon possessing a firearm) who have three previous convictions for “violent felon[ies] or ... serious drug offensefs]” are subject to an enhanced sentence under the ACCA. 18 U.S.C. § 924(e)(1). A “violent felony” is “any crime punishable by imprisonment for a term exceeding one year” that (

i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. ... Id. § 924(e)(2)(B) (emphasis added). The italicized portion is known as the “residual clause.” See Sykes v. United States, — U.S. -, 131 S.Ct. 2267, 2273, 180 L.Ed.2d 60 (2011).

In Tennessee, a Class E felony evading arrest offense does not have as an element the use, attempted use, or threatened use of physical force against another. Nor is it burglary, arson, or extortion, and it does not involve the use of explosives. Therefore, Class E felony evading arrest can be a violent felony only if it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” We employ a categorical approach to make the determination.

Under this approach, we look only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction. That is, we consider whether the elements of the offense are of the type that would justify its inclusion within the residual provision, without inquiring into the specific conduct of this particular offender. Id. at 2272 (quoting James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (quotation marks omitted) (emphasis in original)).

Further, we concern ourselves only with how an offense is committed “in the ordinary case,” not how one commits it in “hypothesize[d,] unusual cases in which even a prototypieally violent crime might not present a genuine risk of injury.” James, 550 U.S. at 208, 127 S.Ct. 1586. B. The relevant Tennessee law provides: (b)

(1) It is unlawful for any person, while operating a motor vehicle on any street, road, alley or highway in this state, to intentionally flee or attempt to elude any law enforcement officer, after having received any signal from the officer to bring the vehicle to a stop.

(3) A violation of subsection (

b) is a Class E felony unless the flight or attempt to elude creates a risk of death or injury to innocent bystanders or other third parties, in which case a violation of subsection (

b) is a Class D felony. Tenn.Code Ann. § 39-16-603(b)(l), (3). Doyle argues that, because he was convicted only of a Class E felony, which, unlike the Class D variant, does not require that he “create[ ] a risk of death or injury to innocent bystanders or other third parties,” his conviction necessarily falls outside the ACCA’s residual clause, which covers conduct that “presents a serious potential risk of physical injury to another.” Based on the analysis in United States v. Christian, 214 Fed.Appx. 337 (4th Cir.2007) (per curiam), the district court rejected Doyle’s argument.

Shortly after Doyle was sentenced, this court issued its decision in United States v. Rogers, 594 F.3d 517 (6th Cir.2010), holding that a conviction under Tennessee law for Class E felony evading arrest is a “crime of violence” under the Guidelines. Id. at 521. Rogers relied on this court’s analysis in United States v. Young, 580 F.3d 373 (6th Cir.2009), cert. denied, — U.S. -, 130 S.Ct. 1723, 176 L.Ed.2d 202 (2010), and rejected the very argument Doyle makes here. Doyle argues in his appellate brief that Rogers was wrongly decided.

He does not, however (and for good reason, we believe), attempt to distinguish Rogers — Rogers discussed the precise issue in this case and is undistinguishable. However, after the parties filed their appellate briefs in this case, the Supreme Court vacated our judgment in Rogers and remanded the case for further consideration in light of its recent decision Sykes v. United States, — U.S. -, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). See Rogers v. United States, — U.S. -, 131 S.Ct. 3018, 180 L.Ed.2d 842 (2011) (mem.).

As of today, the original Rogers panel has not issued a decision on remand, and, to our knowledge, no other panel of our court has addressed the issue. Therefore, Sykes’s effect on our cases remains an open question. In Sykes, the Supreme Court considered whether an Indiana law prohibiting drivers from knowingly or intentionally “fleeting] from a law enforcement officer” was a violent felony under the ACCA’s residual clause. 131 S.Ct. at 2270, 2273.

One could commit Class D felony flight— “knowingly or intentionally ... flee[ing] from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop” — in two primary ways: (1) by simply “us[ing] a vehicle to commit the offense[,]” Ind.Code Ann. § 35-44-3-3(b)(1)(A); or (2) by “drawing] or us[ing] a deadly weapon, inflict[ing] bodily injury on another person, or operating] a vehicle in a manner that creates a substantial risk of bodily injury to another person[,]” id. § 35-44-3-3(b)(l)(B) (emphasis added). Sykes, 131 S.Ct. at 2271.

Sykes was convicted under subsection (b)(1)(

A) simply because he used a vehicle to commit the offense. Id. He argued that, because he was not convicted of flight under subsection (b)(1)(B), which requires that one “operate] a vehicle in a manner that creates a substantial risk of bodily injury to another person,” his offense necessarily fell outside the requirements of the residual clause. Id. at 2276; compare 18 U.S.C. § 924(e)(2)(B)(ii) (“or otherwise involves conduct that presents a serious potential risk of physical injury to another ” (emphasis added)). This essentially is the same argument Doyle makes in the present case.

The Supreme Court rejected Sykes’s argument primarily because the two ways to commit vehicle flight carried the same criminal liability — both were Class D felonies punishable by six months to three years. Id. According to the Court, the parity in punishment reflected a view that, because “serious and substantial risks are an inherent part of [any] vehicle flight,” those risks “need not be proved separately....” Id. at 2276; see also id. at 2283 (Thomas, J., concurring) (“[U]sing a vehicle to intentionally flee is always a class D felony, without any need to prove risk.”).

Therefore, that a defendant was convicted under subsection (b)(1)(

A) does not necessarily mean he did not create a substantial risk of bodily harm to another person. To the contrary, it means his conduct necessarily created such risk precisely because he used a vehicle to flee. See id. at 2276. The Court reserved the question whether it matters under the residual clause that “a crime is a lesser' included offense ... where that offense carries a less severe penalty than the offense that includes it.” Id. at 2277; see id. at 2295 (Kagan, J., dissenting) (“[T]he Court reserves the question whether a vehicular flight provision like subsection (b)(1)(

A) is a [violent felony] under ACCA ‘where that offense carries a less severe penalty than [a greater] offense that includes it.’ ”). This appeal involves the type of state statute about which Sykes reserved discussion, for Class E felony evading arrest is a lesser included offense of the Class D version, State v. Stanton, No. M2003-03049CCA-R3-CD, 2005 WL 639139, at *10 (Tenn.Crim.App. Mar. 17, 2005), and carries less criminal liability and potential for punishment than the Class D version, compare Tenn.Code Ann. § 40-35-lll(b)(4)-(5).

After a thorough review of the Sykes decision, we conclude that nothing in it casts doubt upon our holding in Rogers that Class E felony evading arrest under Tennessee law is a crime of violence. Indeed, we find that Sykes further supports our conclusion that Class E felony evading arrest is a violent felony under the ACCA. Rogers relied on our earlier decision in Young, which involved a Michigan statute materially similar to the Tennessee statute.

In Young, we held that fleeing and eluding under Michigan law was a crime of violence because it (1) posed a serious potential risk of physical injury to others, and (2) involved the same kind of “purposeful, violent, and aggressive conduct” as burglary, arson, extortion, or offenses involving the use of explosives. Young, 580 F.3d at 377 (citing Begay v. United States, 553 U.S. 137, 144-45, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008)).

It was purposeful because the statute requires willful non-compliance; it was aggressive because a deliberate attempt to flee or elude police is a “clear challenge to the officer’s authority,” usually causes the officer to give chase, and “typically lead[s] to a confrontation between the offender and the officer”; it was violent and sufficiently risky because the entire purpose of intentional flight is to avoid detention or arrest by means that nearly always pose a substantial danger to others, including pursuing officers. Id. at 377-78.

Rogers concluded that Young’s holding “govern[ed],” “regardless of whether Rogers’s evading-arrest offense was a Class E or a more serious Class D felony under Tennessee law.” Rogers, 594 F.3d at 521. We noted that, in two ways, the residual clause covered a broader range of conduct than that necessary for a Class D felony.

First, whereas one must “create[ ] a risk of death or injury to innocent bystanders or other third parties” to be convicted of a Class D felony, one need only create a “serious potential risk of physical injury to another” for the crime to fall within the residual clause, and one who commits a Class E felony does this “in the ordinary ease[.]” Id.

Second, while the Class D version requires the creation of risk to “innocent bystanders or other third parties,” a phrase that textually excludes pursuing officers, the residual clause requires only that risk be posed to “another,” a term that logically includes pursuing officers, and a Class E felony “nearly always” creates this risk. Id. “As a categorical matter,” we concluded, “the decision to flee thus carries with it the requisite potential risk, even if the resulting chase does not escalate so far as to create the actual risk of death or injury that would make it a Class D felony under Tennessee law.” Id.

Sykes fully supports our holdings in Young and Rogers. To answer the question before it, the Supreme Court in Sykes looked at the enumerated offenses in the residual clause for guidance, and found that vehicular flight posed risks comparable to two listed offenses: When a perpetrator defies a law enforcement command by fleeing in a car, the determination to elude capture makes a lack of concern for the safety of property and persons of pedestrians and other drivers an inherent part of the offense.

Even if the criminal attempting to elude capture drives without going at full speed or going the wrong way, he creates the possibility that police will, in a legitimate and lawful manner, exceed or almost match his speed or use force to bring him within their custody. A perpetrator’s indifference to these collateral consequences has violent — even lethal — potential for others. A criminal who takes flight and creates a risk of this dimension takes action similar in degree of danger to that involved in arson, which also entails intentional release of a destructive force dangerous to others.

This similarity is a beginning point in establishing that vehicle flight presents a serious potential risk of physical injury to another. Another consideration is a comparison to the crime of burglary. Burglary is dangerous because it can end in confrontation leading to violence. The same is true of vehicle flight, but to an even greater degree. The attempt to elude capture is a direct challenge to an officer’s authority. It is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase.

The felon’s conduct gives the officer reason to believe that the defendant has something more serious than a traffic violation to hide. Sykes, 131 S.Ct. at 2273 (internal citations omitted). The Supreme Court further recognized that pursuing officers may consider themselves duty bound to escalate their response to ensure the eluding party is apprehended, and that when the pursuit ends, it is sometimes necessary for officers to approach the vehicle with guns drawn to make an arrest. Id. at 2273-74. This expected confrontation between suspect and police officer places property and persons at serious risk of injury.

Id. at 2274. Using unequivocal language, the Court further stated: Risk of violence is inherent to vehicle flight. Between the confrontations that initiate and terminate the incident, the intervening pursuit creates high risks of crashes. It presents more certain risk as a categorical matter than burglary. It is well known that when offenders use motor vehicles as their means of escape they create serious potential risks of physical injury to others. Flight from a law enforcement officer invites, even demands, pursuit. As that pursuit continues, the risk of an accident accumulates.

And having chosen to flee, and thereby commit a crime, the perpetrator has all the more reason to seek to avoid capture. Unlike burglaries, vehicle flights from an officer by definitional necessity occur when police are present, are flights in defiance of their instructions, and are effected with a vehicle that can be used in a way to cause serious potential risk of physical injury to another. Id. at 2274 (citations omitted).

Our reasoning in both Young and Rogers with respect to the Michigan and Tennessee statutes, respectively, is consistent with, and fully supported by, the Court’s analysis in Sykes of vehicular flight under Indiana law.

The dissent recognizes that “many types of vehicular flight from police will pose a risk of injury to others equal to or greater than the risk posed by [burglary, extortion, arson, and crimes involving the use of explosives],” but finds Class E felony evading arrest categorically different from these types of flights because it only requires an intentional refusal to stop when ordered to do so by police.

Judge White believes that mere unwillingness to stop, without additional risky or evasive conduct, “does not, in the ordinary case, ‘presente] a serious potential risk of physical injury to another.’ ” (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). She relies on a distinction she sees in the cases between Class E and Class D felony evading arrest convictions. In our view, however, these cases demonstrate merely that conduct constituting Class D felony evading arrest will, in the ordinary case, fall under the residual clause.

We fail to see how they show that conduct giving rise to a Class E felony conviction categorically does not “presentí] a serious potential risk of physical injury to another.” The pattern that emerges clearly from these cases is that, provided a person’s vehicular flight creates no actual risk of injury to others, or, if it does, creates it only in relation to pursuing officers, the person can be guilty only of a Class E felony. See State v. Turner, 193 S.W.3d 522, 525 (Tenn.2006); e.g., State v. Winters, No. M2009-01164-CCA-R3-CD, 2011 WL 1085101, at *1 (Tenn.Crim.App. Mar. 24, 2011) (risk to officer); State v.

Rogers, No. M2006-01339-CCA-R3-CD, 2007 WL 4245051, at *1 (Tenn.Crim.App. Dec. 4, 2007) (same); State v. Burnette, No. W2006-02092-CCA-R3-CD, 2007 WL 2822906, at *1-2 (Tenn.Crim.App. Sept. 28, 2007) (same); State v. Medford, No. W2002-00226-CCA-R3-CD, 2003 WL 22446575, at *1 (Tenn.Crim.App. Oct. 21, 2003) (same); State v. Marable, No. M1999-00576-CCA-R3-CD, 2001 WL 1028817, at *4 (Tenn.Crim.App. Sept. 7, 2001) (same); State v. Johnson, No. W2000-00386-CCA-R3-CD, 2001 WL 721082, at *1-4 (Tenn.Crim.App. June 26, 2001) (same); State v. Gann, No. 01 C019704-CC-00164, 1998 WL 265495, at *1-2 (Tenn.Crim.App.

May 27,1998) (same). The residual clause, of course, is not so restricted; it covers conduct that creates a serious potential risk of harm simply to “another,” a term that, to be sure, includes pursuing police officers. Rogers, 594 F.3d at 522. Such potential risks to officers always are present in vehicular-flight cases, even if actual risk of harm to third parties is not, as officers must eventually confront those who have already once intentionally disregarded their lawful authority.

See Sykes, 131 S.Ct. at 2274 (noting that “[r]isk of violence is inherent to vehicle flight,” and that such risk is created in part by “confrontations that initiate and terminate the incident”); id. (“Unlike burglaries, vehicle flights from an officer by definitional necessity occur when police are present, are flights in defiance of their instructions, and are effected with a vehicle that can be used in a way to cause serious potential risks of physical injury to another.”); cf.

James, 550 U.S. at 203, 127 S.Ct. 1586 (noting that the “main risk of burglary arises ... from the possibility of a face-to-face confrontation between the burglar and a third party — whether an occupant, a police officer, or a bystander— who comes to investigate”). Finally, the dissent relies somewhat on the fact that the Supreme Court denied certiorari in at least twenty vehicular-flight cases last term, but granted it and vacated the judgment only in Rogers. We choose not to read too much into this fact.

In our view, it merely demonstrates the Supreme Court’s recognition that, of all the certiorari petitions pending before it when Sykes was issued, only Rogers involved the type of state statute about which the Court reserved decision and therefore believed deserved a second look in light of Sykes. III. We have fully considered the effect of the Supreme Court’s recent decision in Sykes. Nothing in the decision causes us to reconsider our holding in Rogers that Class E felony evading arrest under Tennessee law, Tenn. AnmCode § 39 — 16— 603(b)(1), is a violent felony under the ACCA. For these reasons, we affirm. .

Rogers held that the offense was a "crime of violence" under the Sentencing Guidelines, but an identical analysis applies in determining whether an offense is a violent felony under the ACCA. United States v. McMurray, 653 F.3d 367, 371 n. 1 (6th Cir.2011). . Without the ACCA enhancement, Doyle’s adjusted offense level would have been 23, and his criminal history category would have been V, resulting in a Guidelines range of 84-105 months. .

The Michigan statute at issue in Young provided that: A driver of a motor vehicle who is given ... a ... signal by a [police officer] ... directing the driver to bring his or her motor vehicle to a stop, and who willfully fails to obey that direction ... is guilty of a misdemeanor. ... Young, 580 F.3d at 376 (quoting Mich. Comp. Laws § 257.602a(l) (1996)). Commission of the offense less than five years after a prior fleeing-and-eluding conviction is punishable as a felony. Id. .

In light of Sykes, our application in Young of Begay’s "purposeful, violent, and aggressive” test may have been redundant to our inquiry into risk.

Sykes, 131 S.Ct. at 2275 (“In many cases the purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk, for crimes that fall within the former formulation and those that present serious potential risks of physical injury to others tend to be one and the same.”); see also id. at 2277 (Thomas, L, concurring) (noting that the majority opinion “impl[ies] that the ‘purposeful, violent, and aggressive’ test may still apply to offenses 'akin to strict liability, negligence, and recklessness crimes.’ ”); id. at 2285 (Scalia, L, dissenting) (same).

Young’s inquiry into the risk remains sound. .But cf. State v. Kelso, No. E2000-01602CCA-R3-CD, 2001 WL 681313, at *3 (Tenn. Crim.App. June 18, 2001) ("We need not reach the question whether pursuing law enforcement officers or passengers who voluntarily accompany a driver are excluded from the categories of 'innocent bystanders' and 'other third parties.' ”).