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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-12229
Non-Argument Calendar
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D.C. Docket No. 1:12-cr-20914-WPD-4
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANDRE ANTONIO JACKSON,
a.k.a. Dre,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(January 2, 2014)
Before TJOFLAT, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
Andre Antonio Jackson appeals his sentence of 144-months’ imprisonment,
imposed after he pled guilty to conspiracy to possess with intent to distribute crack
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cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. At sentencing, the district
court found that Jackson qualified as a career offender under U.S.S.G. § 4B1.1(a)
and enhanced his sentence accordingly. Jackson argues that the district court erred
in sentencing him as a career offender because his prior conviction under Florida
Statutes § 316.1935(1) for fleeing or attempting to elude law enforcement is not a
“crime of violence” as defined by U.S.S.G. § 4B1.2(a).
The Sentencing Guidelines require enhanced sentences for defendants that
qualify as career offenders. See U.S.S.G. § 4B1.1(b). To be deemed a career
offender, a defendant must, among other things, have “at least two prior felony
convictions of either a crime of violence or a controlled substance offense.” Id. at
§ 4B1.1(a). A crime of violence is any offense, state or federal, that and fits into
one of three categories found in § 4B1.2(a) and is punishable by a term of
imprisonment in excess of one year. United States v. Chitwood, 676 F.3d 971, 975
(11th Cir.), cert. denied, 133 S. Ct. 288 (2012). Here, the relevant category of
crimes, often referred to as residual clause crimes, id., “involves conduct that
presents a serious potential risk of physical injury to another,” U.S.S.G. §
4B1.2(a)(2).
“We review de novo whether a prior conviction qualifies as a crime of
violence under the Sentencing Guidelines.” Chitwood, 676 F.3d at 975 (internal
quotation marks omitted). In determining whether a prior offense qualifies as a
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crime of violence, we apply a categorical approach, looking “no further than the
fact of conviction and the statutory definition of the prior offense.” United States
v. Lockley, 632 F.3d 1238, 1240 (11th Cir. 2011) (internal quotation marks
omitted). Under this approach, “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.” Chitwood,
676 F.3d at 975–76 (internal quotation marks omitted). Inclusion is justified when
an offense “creates as much risk of physical injury” as one of the crimes
enumerated in § 4B1.2(a). Id. at 979. Our inquiry is also guided by “cases
interpreting the residual clause of the Armed Career Criminal Act [(ACCA)], 18
U.S.C. § 924(e), because the § 4B1.2 definition of ‘crime of violence’ and
ACCA’s definition of ‘violent felony’ are substantially the same.” Id. at 975 n.2.
The Supreme Court held that a defendant’s prior conviction under an Indiana
law prohibiting knowing and intentional flight from a police officer was a violent
felony for purposes of the ACCA. Sykes v. United States, 564 U.S. __, 131 S. Ct.
2267, 2274, 2277 (2011). The Court compared vehicle flight to burglary and arson
and determined that it posed a comparable risk to those crimes because it
“intentional[ly] release[s] . . . a destructive force” and creates a “confrontation
leading to violence.” Id. at 2273–74. Importantly, the Court found that vehicle
flight poses such risks even when the fleeing criminal drives in a relatively safe
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manner. See id. The risk of danger inherent in vehicle flights arises from the
“legitimate and lawful” force police may use to end the confrontation created by
the decision to flee. See id. at 2273–74.
This court has held that “vehicle flight in violation of [Florida Statutes]
§ 316.1935(2) qualifies as a violent felony under the [ACCA].” United States v.
Petite, 703 F.3d 1290, 1301 (11th Cir.), cert. denied 134 S. Ct. 182 (2013). In
Petite, we stressed that “the Supreme Court made it clear that [r]isk of violence is
inherent to vehicle flight.” Id. at 1295 (alteration in original) (internal quotation
marks omitted). Accordingly, we held that vehicle flight, “even without any
reckless driving on the part of the offender,” poses a substantial risk of injury to
persons and property by provoking a “dangerous confrontational response from
[the] officer.” See id. at 1301.
Jackson argues that his conviction for fleeing or attempting to elude law
enforcement under Florida Statutes § 316.1935(1) does not qualify as a crime of
violence. We disagree. After careful review of the record and relevant case law,
we conclude that a conviction under § 316.1935(1) is a crime of violence within
U.S.S.G. § 4B1.2(a).
Like the statutes in Sykes and Petite, § 316.1935(1) makes it a felony for the
operator of a vehicle to flee from a law a law enforcement officer after being
ordered to stop. See id. at 1294–95. Since vehicle flight inherently poses a
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substantial risk of injury similar to the risk posed by the crimes of burglary and
arson, id. at 1301, we hold that a conviction under Florida Statutes § 316.1935(1)
qualifies as a crime of violence for the purposes of U.S.S.G. § 4B1.1(a).
Accordingly, we affirm.
AFFIRMED.
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