UNITED STATES of America, Appellee, v. Gregory Scott TYLER, Appellant, 580 F.3d 722

SHEPHERD, Circuit Judge. Gregory Scott Tyler appeals his sentence of 120 months imprisonment. Tyler contends that his prior Minnesota conviction for fleeing a peace officer in a motor vehicle is not a “crime of violence” and, therefore, the district court erred when it sentenced him as a career offender. We vacate Tyler’s sentence and remand for resentencing. In February 2008, Tyler pled guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a).

Prior to his sentencing hearing, Tyler objected to the Presentence Investigation Report, which concluded that Tyler’s prior conviction under Minnesota Statutes § 609.487 subdivision 3 for fleeing a peace officer in a motor vehicle was a “crime of violence” and recommended that Tyler be sentenced as a career offender. See United States Sentencing Commission, Guidelines Manual, § 4B1.2(a) (Nov.2008).

At sentencing, the district court overruled Tyler’s objection, determining that his prior Minnesota conviction constituted a “crime of violence.” I think this involves [ ] purposeful!,] violent!,] and aggressive conduct.

And here you have somebody who at least [ ] attempts to flee, and flee meaning with the intent to elude a peace officer following the signal given by any peace officer to the driver of a motor vehicle, it seems to me there is somebody who — if you’re willing to disregard or elude a peace officer who has told you to stop, I think you are putting yourself and anybody in close proximity in danger and it’s an intentional, purposeful act.... Here!,] the whole purpose of driving that car is to elude somebody who has the lawful authority to stop you.

And it seems to me that evidence is an intent to do something that’s necessary to get away and whether that’s run into somebody, high speeds, whatever it is. So at least in my mind looking at the Begay case, I think this clearly fits what the majority in that opinion is describing as a crime of violence or violent felony. (Sentencing Tr. 9-10.) After classifying Tyler as a career offender under USSG § 4B1.1, the district court calculated an advisory Guidelines range of 151 to 188 months, resulting from a total offense level of 29 and a criminal history category of VI.

Because the government moved for a downward departure based on substantial assistance, the district court ultimately sentenced Tyler to 120 months imprisonment. However, the court made clear that, absent the substantial assistance departure, it would have imposed a 170-month sentence, which was within the Guidelines range based on Tyler’s career offender status.

The sole issue on appeal is whether Tyler’s prior Minnesota conviction for fleeing a peace officer in a motor vehicle constitutes a “crime of violence.” “We review de novo the district court’s conclusion [that] a particular offense constitutes a ‘crime of violence’ under the ‘career offender’ provision of § 4B1.1.” United States v. Cantrell, 530 F.3d 684, 694 (8th Cir.2008).

The Sentencing Guidelines define “crime of violence” as: [A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that— (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. USSG § 4B1.2(a). The Minnesota Statutes characterize the offense of fleeing a peace officer in a motor vehicle as follows: Subd. 3.

Fleeing officer; motor vehicle. Whoever by means of a motor vehicle flees or attempts to flee a peace officer who is acting in the lawful discharge of an official duty, and the perpetrator knows or should reasonably know the same to be a peace officer, is guilty of a felony and may be sentenced to imprisonment for not more than three years and one day or to payment of a fine of not more than $5,000, or both. Minn.Stat. § 609.487 subd. 3. That same statutory

section also defines what types of conduct constitute fleeing: Subdivision 1. Flee; definition. For purposes of this section, the term “flee” means to increase speed, extinguish motor vehicle headlights or taillights, refuse to stop the vehicle, or use other means with intent to attempt to elude a peace officer following a signal given by any peace officer to the driver of a motor vehicle. Id. § 609.487 subd. 1.

This offense does not require “the use, attempted use, or threatened use of physical force,” nor does it constitute “burglary of a dwelling, arson, [ ] extortion, [or the] use of explosives.” USSG § 4B1.2(a). Thus, we must decide whether the offense “(1) involves conduct that presents a serious potential risk of physical injury to another and (2) typically involves purposeful, violent, and aggressive conduct.” United States v. Gordon, 557 F.3d 623, 626 (8th Cir.2009) (quotations and citation omitted).

In performing this analysis, we resist the dissent’s invitation to review the underlying facts of Tyler’s conviction for fleeing a peace officer as “we focus on the generic elements of the offense and not on the specific facts underlying [the] conviction.” Id. at 625 (citing Begay, 128 S.Ct. at 1584 (applying the “categorical approach” adopted by the Supreme Court in Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990))).

We cannot say that Minnesota’s crime of fleeing a peace officer in a motor vehicle typically “involves conduct that presents a serious potential risk of physical injury to another.” Gordon, 557 F.3d at 626. In fact,

section 609.487 contains a separate subdivision that criminalizes the act of fleeing a peace officer in a motor vehicle when it causes “death ... or any bodily injury to any person other than the perpetrator” and provides enhanced criminal penalties. Minn.Stat. § 609.487 subd. 4. Neither high speed nor reckless driving is a statutory element of Minnesota Statutes § 609.487 subd. 3. The statute requires only that a perpetrator “increase speed, extinguish motor vehicle headlights or taillights, [or] refuse to stop ... with intent to attempt to elude a peace officer____” MinmStat. § 609.487 subd. 1.

While such actions are admittedly disobedient, they do not necessarily translate into a serious potential risk of physical injury. See United States v. Harrison, 558 F.3d 1280, 1294 (11th Cir.2009) (finding that Florida’s fleeing crime is not a violent felony).

Indeed, the fact that the behavior underlying [the] willful-fleeing crime, in the ordinary case, involves only a driver who willfully refuses to stop and continues driving on [or who extinguishes headlights or taillights] — but without high speed or recklessness — makes it unlikely that [any] confrontation [with police] will escalate into a high-speed chase that threatens pedestrians, other drivers, or the officer. Id.

Even assuming a serious risk of physical injury exists in a routine violation of Minnesota Statutes § 609.487 subdivision 3, we cannot say that the offense “typically involve[s] ... violent[ ] and aggressive conduct.” Gordon, 557 F.3d at 626. To be convicted of the Minnesota crime in question, the perpetrator must act “with intent to attempt to elude a peace officer.... ” Minn.Stat. § 609.487 subd. 1 (emphasis added). Thus, the offense typically involves purposeful conduct.

However, the statute’s definition of “fleeing” criminalizes conduct that is neither violent nor aggressive, such as merely “extinguishing] motor vehicle headlights or taillights.” Id. The common thread running through offenses found to be “crimes of violence” is that those crimes implicate a propensity in the perpetrator to commit violent acts against others. Cf.

Begay, 128 S.Ct. at 1587 (noting the importance of the “likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger” in determining whether a pri- or offense constitutes a “violent felony” under the Armed Career Criminal Act). We do not believe extinguishing one’s headlights or taillights to avoid being pulled over by a police officer implies a propensity to act violently toward others. The government contends that fleeing a peace officer in a motor vehicle typically leads to a chase and a confrontational encounter with the officer being disobeyed.

However, the elements of the statute do not require a confrontation, chase, or any other conduct indicating that the crime in question necessarily involves conduct presenting a serious risk of physical injury to another or conduct that is violent and aggressive. We note that there is disagreement among the circuits concerning whether fleeing a peace officer in a motor vehicle constitutes a “violent felony” or “crime of violence.” Compare Harrison, 558 F.3d at 1294-96 (Florida’s fleeing offense is not a violent felony), with United States v.

LaCasse, 567 F.3d 763, 765-67 (6th Cir.2009) (Michigan’s fleeing offense is a violent felony), United States v. Harrimon, 568 F.3d 531, 534-37 (5th Cir.2009) (Texas’s fleeing offense is a violent felony), and United States v. West, 550 F.3d 952, 960-71 (10th Cir.2008) (Utah’s fleeing offense is a violent felony). We believe the Texas and Utah statutes are distinguishable from the Minnesota statute at issue in this case because they do not define fleeing so broadly as to encompass nonviolent conduct. See Tex.

Penal Code Ann. § 38.04 (using the term “flees” without defining it); Utah Code Ann. § 41-6a-210 (requiring that the perpetrator “operate the vehicle in willful or wanton disregard of the signal so as to interfere with or endanger the operation of any vehicle or person” or “attempt to flee or elude a peace officer by vehicle or other means” without defining the terms “flee” or “elude”). However, we note that Michigan’s fleeing offense is defined similarly to Minnesota’s offense and, therefore, disagree with the Sixth Circuit’s analysis in LaCasse. See Mich. Comp.

Laws § 750.479a (prohibiting “increasing the speed of the vehicle, extinguishing the lights of the vehicle, or otherwise attempting to flee or elude”). Focusing on the generic elements of the offense, as we must do under the categorical approach, see Gordon, 557 F.3d at 625, we conclude that Minnesota’s crime of fleeing a peace officer in a motor vehicle does not constitute a “crime of violence” under the Sentencing Guidelines because we cannot say that the offense typically involves (1) conduct presenting a serious risk of physical injury to another or (2) conduct that is violent and aggressive.

The district court erred in sentencing Tyler as a career offender and, thus, improperly calculated Tyler’s offense level and Guidelines range, which constitutes significant procedural error. See e.g., United States v. Wilson, 562 F.3d 965, 968 (8th Cir.2009). Although the court ultimately sentenced Tyler below the improperly calculated Guidelines range after it departed downward for substantial assistance, we cannot discern what sentence the court would have imposed if it had departed downward from a properly calculated Guidelines range. Therefore, we cannot say that the court’s procedural error was harmless.

See id. Accordingly, we must vacate Tyler’s sentence and remand for resentencing. . See Begay v. United States, - U.S. -, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). . Although the Gordon court was analyzing whether an offense constituted a "violent felony” under the Armed Career Criminal Act, we employ the same test to decide whether an offense constitutes a "crime of violence” under the Sentencing Guidelines because the

definitions of "violent felony” and "crime of violence” are virtually identical. See, e.g., United States v. Wilson, 562 F.3d 965, 967-68 (8th Cir.2009). . As both parties note, we previously found that the Oregon offense of fleeing or attempting to elude police officers while operating a motor vehicle was a "crime of violence” under the Guidelines. See United States v. Kendrick, 423 F.3d 803, 808-09 (8th Cir.2005). Kendrick does not bind on our decision for multiple reasons. First, the decision predated Begay v. United States, - U.S. -, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). As we recognized in United States v.

Williams, 537 F.3d 969 (8th Cir.2008), our analysis prior to Begay focused solely on whether the offense involves conduct presenting a serious risk of physical injury to another. Id. at 972. While Begay did not disturb such findings in our prior cases, it added a second inquiry to our analysis-whether the offense typically involves "purposeful, violent, and aggressive” conduct. Id.

Though Kendrick still stands for the proposition that Oregon's fleeing offense involves conduct that presents a serious risk of physical injury to another, it says nothing about whether the offense typically involves purposeful, violent, and aggressive conduct. Further, Kendrick says nothing about Minnesota’s fleeing statute, which differs from Oregon’s. Compare Minn.Stat. § 609.487 (defining "fleeing” broadly to include nonviolent conduct), with Or.Rev.Stat. § 811.540 (using terms "fleeing” and "elude” without defining them to include nonviolent conduct).