PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-4948
TORY LAMONT HUDSON,
Defendant-Appellant.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
R. Bryan Harwell, District Judge.
(4:06-cr-01244-RBH)
Argued: January 25, 2012
Decided: March 7, 2012
Before WILKINSON, NIEMEYER, and SHEDD,
Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the
opinion, in which Judge Wilkinson and Judge Shedd joined.
2 UNITED STATES v. HUDSON
COUNSEL
ARGUED: Michael Williams Chesser, Aiken, South Caro-
lina, for Appellant. Robert Frank Daley, Jr., OFFICE OF THE
UNITED STATES ATTORNEY, Columbia, South Carolina,
for Appellee. ON BRIEF: William N. Nettles, United States
Attorney, Columbia, South Carolina, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
This case presents the question of whether Tory Hudson’s
sentence for possessing a firearm in violation of 18 U.S.C.
§ 922(g)(1) was properly enhanced under the Armed Career
Criminal Act ("ACCA"), 18 U.S.C. § 924(e), on the basis of
three previous felony convictions when two of the convictions
were for violation of Florida’s "fleeing-or-eluding" statute,
Fla. Stat. § 316.1935(2) (punishing one who "willfully flees
or attempts to elude a . . . [marked] law enforcement patrol
vehicle . . . with siren and lights activated"). More specifi-
cally, we must determine whether a violation of the Florida
statute is a "violent felony" as that term is used in ACCA, 18
U.S.C. § 924(e)(2)(B).
The district court, applying the law as it existed in 2007,
determined that Hudson’s previous convictions under the
Florida statute were indeed violent felonies and, accordingly,
sentenced Hudson as an armed career criminal to 180 months’
imprisonment. Hudson appealed the court’s ruling qualifying
the Florida convictions as predicate offenses under ACCA.
On appeal, the parties’ briefing has followed a protracted
course occasioned by the intervening Supreme Court deci-
sions in Begay v. United States, 553 U.S. 137 (2008); Cham-
bers v. United States, 555 U.S. 122 (2009); and Sykes v.
UNITED STATES v. HUDSON 3
United States, 131 S. Ct. 2267 (2011). Now, applying Sykes,
the most recent of these decisions, we affirm. We also reject
Hudson’s contention that ACCA’s "residual clause," con-
tained in 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally
vague.
I
Following a traffic stop, Olanta (South Carolina) police
arrested Hudson for driving with a suspended license and,
during a subsequent search of his vehicle, uncovered a .32
caliber revolver and ammunition. Hudson pleaded guilty to
possession of a firearm by a felon, in violation of 18 U.S.C.
§ 922(g)(1). On September 5, 2007, the district court sen-
tenced Hudson as an armed career criminal to 180 months’
imprisonment, relying on one prior conviction for possession
of cocaine with intent to distribute and two prior no-contest
pleas to violating Florida’s "fleeing-or-eluding" statute, Fla.
Stat. § 316.1935(2). Hudson objected to the use of the two
fleeing-or-eluding convictions, contending that they were not
violent felonies under ACCA. The district court overruled the
objections, applying United States v. James, 337 F.3d 387
(4th Cir. 2003), where we held that a conviction under South
Carolina law for failing to stop for a blue light was a violent
felony.
On appeal, Hudson has challenged the district court’s
ACCA ruling. After he filed his brief, however, the Supreme
Court decided Begay v. United States, 553 U.S. 137 (2008),
and Hudson filed a supplemental brief contending that under
Begay, a violation of the Florida fleeing-or-eluding statute
was not a violent felony.
Shortly thereafter, Hudson filed a notice under Federal
Rule of Appellate Procedure 28(j), bringing to the court’s
attention supplemental authority. He noted that in United
States v. Harrison, 558 F.3d 1280 (11th Cir. 2009), the Elev-
enth Circuit held that a violation of the Florida statute at issue
4 UNITED STATES v. HUDSON
here, § 316.1935(2), was not sufficiently aggressive or violent
to qualify as a "violent felony" under ACCA. In response to
Hudson’s notice, we directed the parties to file supplemental
briefs. The government then argued that our decision in
United States v. Roseboro, 551 F.3d 226 (4th Cir. 2009),
which was handed down a month earlier than Harrison, con-
trolled the outcome of this case. In Roseboro, we concluded
that James had been overruled because the analysis we
applied in that case was inconsistent with the test adopted in
Begay. Roseboro, 551 F.3d at 233. Nonetheless, we held that
an intentional violation of South Carolina’s failure to stop for
a blue light law could still be a violent felony for ACCA pur-
poses. Id. at 240.
Several months later, in light of the Supreme Court’s deci-
sion in Chambers v. United States, 555 U.S. 122 (2009), we
overruled Roseboro with our decision in United States v. Riv-
ers, 595 F.3d 558 (4th Cir. 2010). We concluded that the
modified categorical approach used in Roseboro could not be
applied to South Carolina’s blue light statute to determine
whether a violation of that statute was a violent felony. Riv-
ers, 595 F.3d at 564. Accordingly, we rejected use of the
South Carolina conviction for purposes of an ACCA sentence
enhancement. Id. at 565.
Before acting on our Rivers decision in this case, however,
we placed Hudson’s appeal in abeyance pending the Supreme
Court’s decision in Sykes, which was scheduled to address
whether a violation of Indiana’s blue light law was a violent
felony under ACCA. On June 9, 2011, the Supreme Court
handed down its decision in Sykes, finding that a violation of
the Indiana statute was indeed a violent felony for purposes
of ACCA. 131 S. Ct. at 2276-77. We again requested supple-
mental briefing from the parties to address the impact of Sykes
on this case, and, after receiving this briefing, we held oral
argument.
The issues Hudson now presents are whether his two prior
convictions for violating Florida’s fleeing-or-eluding statute,
UNITED STATES v. HUDSON 5
§ 316.1935(2), are violent felonies for purpose of ACCA and,
if so, whether the residual clause in ACCA, 18 U.S.C.
§ 924(e)(2)(B)(ii), is unconstitutionally vague.
II
A violation of 18 U.S.C. § 922(g)(1), for which Hudson
was convicted in this case, ordinarily carries a maximum sen-
tence of 10 years’ imprisonment. 18 U.S.C. § 924(a)(2).
ACCA, however, provides for a sentence enhancement based
on the defendant’s criminal history, providing that a person
who violates § 922(g) and has "three previous convictions . . .
for a violent felony or a serious drug offense, or both," must
be sentenced to at least 15 years’ imprisonment. Id.
§ 924(e)(1). The Act defines a "violent felony" as "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 per-
son 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 parties agree that the previous fleeing-or-eluding con-
victions used to enhance Hudson’s sentence did not involve
either the "use, attempted use, or threatened use of physical
force against the person of another," as provided in paragraph
(B)(i), and are not burglary, arson, extortion, or a crime that
"involves the use of explosives," as provided in paragraph
(B)(ii). See 18 U.S.C. § 924 (e)(2)(B). The question is
whether these convictions are violent felonies as defined in
the "residual clause" of paragraph (B)(ii), which qualifies as
6 UNITED STATES v. HUDSON
a violent felony any crime that "otherwise involves conduct
that presents a serious potential risk of physical injury to
another." Id. § 924 (e)(2)(B)(ii).
The Supreme Court most recently applied ACCA’s residual
clause in Sykes v. United States, 131 S. Ct. 2267 (2011),
where it held that a defendant’s previous conviction under
Indiana law for using a vehicle to "knowingly or intentionally
. . . flee[ ] from a law enforcement officer" fell within
ACCA’s residual clause and was thus a "violent felony." Id.
at 2270, 2277 (internal quotation marks omitted) (citing Ind.
Code § 35-44-3-3). The Court focused its analysis on the stat-
utory language to determine whether a subject crime was suf-
ficiently comparable in degree of risk to the offenses
enumerated in § 924(e)(2)(B)(ii)—burglary, extortion, arson,
and crimes involving the use of explosives. It explained that
the subject crime "involves the requisite risk" when that crime
presents a risk of injury "‘comparable to that posed by its
closest analog among the enumerated offenses.’" Id. at 2273
(quoting James v. United States, 550 U.S. 192, 203 (2007)).
Applying this risk-based test, the Court concluded that inten-
tional vehicular flight poses a degree of risk at least equal to,
if not greater than, the enumerated offenses of burglary and
arson. Id. at 2273-75.
In reaching this conclusion, the Court rejected Sykes’ argu-
ment that because Indiana law also criminalized an aggra-
vated form of conduct involving vehicular flight, during
which the offender "operates a vehicle in a manner that
creates a substantial risk of bodily injury to another person,"
his conviction for the lesser-included offense of simple inten-
tional vehicular flight—that is, flight without "creat[ing] a
substantial risk of bodily injury"—was intended by the Indi-
ana legislature not to be a violent felony. Id. at 2276. The
Court noted that although Indiana had structured its statute to
create two separate offenses—one that included as an element
a substantial risk of injury and the other that involved only
simple but intentional vehicular flight—both were treated by
UNITED STATES v. HUDSON 7
the Indiana legislature as crimes of the same magnitude and
punished accordingly. Id. Moreover, the Court explained that
"serious and substantial risks are an inherent part of vehicle
flight [and] [u]nder subsection (b)(1)(A), they need not be
proved separately to secure a conviction equal in magnitude
to those available for other forms of resisting law enforcement
with a vehicle that involve similar risks." Id. The Supreme
Court declined, however, to decide, as the government urged,
that it is "irrelevant under the residual clause whether a crime
is a lesser included offense even in cases where that offense
carries a less severe penalty than the [greater] offense that
includes it." Id. at 2277.
Although Sykes at first blush appears to be readily disposi-
tive of Hudson’s appeal, Hudson correctly notes that the dis-
tinction between the Florida statute under which he was
convicted and the Indiana statute at issue in Sykes requires
further analysis. Specifically, as Hudson points out, the Flor-
ida fleeing-or-eluding statute, unlike the Indiana statute,
penalizes conduct having different levels of risk with different
punishments, and, accordingly, Hudson’s case presents the
issue that the Supreme Court indicated in Sykes it was not
deciding.
Florida’s fleeing-or-eluding statute differentiates between
several types of fleeing-and-eluding behavior. The base
offense, stated in § 316.1935(2), punishes a person who "will-
fully flees or attempts to elude a . . . [marked] law enforce-
ment patrol vehicle . . . with siren and lights activated" and
provides for imprisonment for up to 5 years. Punishment is
increased to a maximum of 15 years if, as provided in
§ 316.1935(3)(a), a person "[d]rives [during the course of
flight] at high speed, or in any manner which demonstrates a
wanton disregard for the safety of persons or property." And
finally, vehicular flight is punishable for up to 30 years’
imprisonment if, as stated in § 316.1935(3)(b), the driver, in
addition to driving recklessly or at high speed, "causes serious
bodily injury or death to another person." Florida thus created
8 UNITED STATES v. HUDSON
three separate crimes with three separate penalties. See Sykes,
131 S. Ct. at 2276.
Nonetheless, applying the Sykes analysis to the base
offense at issue here, § 316.1935(2), inevitably leads to the
conclusion that the prohibited conduct of intentional vehicular
fleeing itself, without more, is a violent felony. In Sykes, the
Court stated unequivocally that "risk of violence is inherent
to vehicle flight." 131 S. Ct. at 2274. It emphasized that
"[w]hen 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."
Id. at 2273. Moreover, "[t]he 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." Id. And "[b]ecause an accepted way
to restrain a driver who poses dangers to others is through sei-
zure, officers pursuing fleeing drivers may deem themselves
duty bound to escalate their response to ensure the felon is
apprehended." Id. "Confrontation with police is the expected
result of vehicle flight." Id. at 2274.
Based on a review of statistical information, the Sykes
Court also found that vehicular flight presented a degree of
risk at least as great as the risks associated with the enumer-
ated offenses of arson and burglary. Id. at 2273-75 (noting
that police pursuits produced a rate of injury to non-suspects
of 4 per 100 pursuits, compared to 3.2 injuries per 100 burgla-
ries, and 3.3 injuries per 100 arsons). And, importantly, the
Court’s assessment of the risks presented by vehicular flight
was not qualified by any requirement of high speed or reck-
lessness. Nor should it have been under the Court’s analysis.
As the Court explained, "Even if the criminal attempting to
elude capture drives without going 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." Sykes,
UNITED STATES v. HUDSON 9
131 S. Ct. at 2273. Even pursuits involving "safe" drivers will
almost always end in a confrontation between the driver and
police. The core dangers associated with willful vehicular
flight are thus present even absent aggravating factors.
Relying on the Eleventh Circuit’s decision in Harrison,
Hudson presses the argument that the Florida legislature’s
decision to create a tiered punishment scheme reflects an
implicit judgment that fleeing or eluding without high speed
or wanton disregard for safety does not present risks that are
comparable to the risks included in the residual clause as enu-
merated in § 924(e)(2)(B)(ii) offenses. This argument rests on
the presumption that because Florida defined high-risk crimes
in §§ 316.1935(3)(a) and 316.1935(3)(b), it correspondingly
defined a minimal risk crime in § 316.1935(2), which crimi-
nalizes simple but intentional fleeing or eluding, so that the
risk inherent in that offense is not sufficient to amount to a
violent felony for purposes of ACCA. While it may be true
that the conduct underlying violations of §§ 316.1935(3)(a)
and 316.1035(3)(b) presents greater risks of violence and
injury than does conduct underlying a violation of the base
offense in § 316.1935(2), it does not follow that a violation of
§ 316.1935(2) does not also present a substantial risk of injury
to another. As we have already detailed above, there are sev-
eral reasons by which to conclude that intentional vehicular
flight in any manner poses a potential level of risk that is suf-
ficient to render the offense a violent felony. Given the
Supreme Court’s recognition of the inherent risk in intentional
vehicular flight, the State’s decision to punish some forms of
vehicular flight more seriously than others has little bearing
on the analysis. The tiered statutory structure simply provides
for increasing punishment with increasing levels of risk.
In short, we conclude that Hudson’s violations of Florida
Statute § 316.1935(2), punishing a person who "willfully flees
or attempts to elude a . . . [marked] law enforcement patrol
vehicle . . . with siren and lights activated," qualify as predi-
10 UNITED STATES v. HUDSON
cate offenses under the residual clause in ACCA, 18 U.S.C.
§ 924(e)(2)(B)(ii).
III
Hudson also contends that the residual clause in ACCA,
§ 924(e)(2)(B)(ii), is unconstitutionally vague. This argument
fails for two reasons. First, Hudson failed to raise this vague-
ness objection in his opening brief so that it is now properly
considered waived. See United States v. Leeson, 453 F.3d
631, 638 n.4 (4th Cir. 2006).
Second, notwithstanding his waiver, the Supreme Court has
consistently declined to find the residual clause void for
vagueness. Most recently in Sykes, the Court noted that
although ACCA’s "general and qualitative" approach to
defining violent felonies "may at times be more difficult for
courts to implement, it is within congressional power to
enact." Sykes, 131 S. Ct. at 2277.
For the reasons given, we affirm the judgment of the dis-
trict court.
AFFIRMED