IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 14, 2009
No. 08-10690
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellant
v.
RICHARD RAY HARRIMON
Defendant-Appellee
Appeal from the United States District Court
for the Northern District of Texas
Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
In this case we consider whether a violation of Texas Penal Code §
38.04(b)(1) (evading arrest or detention by use of a vehicle) is a “violent felony”
for the purposes of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).
We hold that it is.
I
On January 11, 2008, Defendant-Appellee Richard Ray Harrimon pleaded
guilty to two counts of possession of a firearm by a convicted felon in violation
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of 18 U.S.C. § 922(g)(1),1 which is generally punishable by up to ten years in
prison, id. § 924(a)(2). The ACCA, however, “imposes a more stringent 15-year
mandatory minimum sentence on an offender who has three prior convictions
‘for a violent felony or a serious drug offense.’” Begay v. United States, 128 S. Ct.
1581, 1583 (2008) (quoting 18 § U.S.C. 924(e)(1)). Harrimon had three prior
felony convictions relevant to this appeal: a conviction for burglary of a building
in 1986 and convictions for evading arrest or detention by use of a vehicle
(“fleeing by vehicle”) in violation of section 38.04(a) of the Texas Penal Code 2 in
2003 and 2004. The probation office concluded that the ACCA’s fifteen-year
mandatory minimum sentence did not apply because fleeing by vehicle is not a
violent felony, and the government objected. At the sentencing hearing on June
1
Under 18 U.S.C. § 922(g), it is:
unlawful for any person--
(1) who has been convicted in any court of[] a crime punishable by
imprisonment for a term exceeding one year[]
....
to ship or transport in interstate or foreign commerce, or possess in or affecting
commerce, any firearm or ammunition; or to receive any firearm or ammunition
which has been shipped or transported in interstate or foreign commerce.
2
Section 38.04 of the Texas Penal Code provides that:
(a) A person commits an offense if he intentionally flees from a person he knows
is a peace officer attempting lawfully to arrest or detain him.
(b) An offense under this section is a Class B misdemeanor, except that the
offense is:
(1) a state jail felony if the actor uses a vehicle while the actor is in flight and
the actor has not been previously convicted under this section[.]
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13, 2008, the district court overruled the government’s objection and imposed
concurrent sentences of ninety-six months of imprisonment followed by three
years of supervised release for each count. The government timely appealed.
II
We review the district court’s interpretation and application of the Armed
Career Criminal Act de novo. United States v. Helm, 502 F.3d 366, 367 (5th Cir.
2007) (per curiam). For the purposes of the ACCA, 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.
18 U.S.C. § 924(e)(2)(B).
“In determining whether [a] crime is a violent felony, we consider the
offense generically, that is to say, we examine it in terms of how the law defines
the offense and not in terms of how an individual offender might have committed
it on a particular occasion.” Begay, 128 S. Ct. at 1584; see Chambers v. United
States, 129 S. Ct. 687, 690 (2009) (“The [ACCA’s] defining language, read
naturally, uses ‘felony’ to refer to a crime as generally committed.”); Taylor v.
United States, 495 U.S. 575, 602 (1990) (adopting this “categorical approach”);
see also James v. United States, 550 U.S. 192, 203 (2007) (“[W]e 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.”). Here, the elements of fleeing by vehicle are clearly
defined under Texas law: “(1) a person, (2) intentionally flees, (3) from a peace
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officer, (4) with knowledge he or she is a peace officer, (5) the peace officer is
attempting to arrest or detain the person, (6) the attempted arrest or detention
is lawful, and (7) the person uses a vehicle while . . . in flight.” Powell v. State,
206 S.W.3d 142, 143 (Tex. App.—Waco 2006, pet. ref’d). So defined, fleeing by
vehicle is punishable by more than one year of imprisonment.3 Tex. Penal Code
38.04(a). Turning to the other elements of § 924(e)(2)(B), the government does
not contend either that fleeing by vehicle has as an element the use, attempted
use, or threatened use of physical force against the person of another; that it is
burglary, arson, or extortion; or that it involves the use of explosives. 18 U.S.C.
§ 924(e)(2)(B). Therefore, we must consider whether it “otherwise involves
conduct that presents a serious potential risk of physical injury to another”
under the “residual” provision of clause (ii) of § 924(e)(2)(B).
As the Supreme Court explained in Begay v. United States, the examples
3
Harrimon argues that his 2003 conviction for evading arrest or detention by use of a
vehicle was not “punishable by a term of imprisonment exceeding one year” under 18 U.S.C.
§ 924(e)(2)(B) because it was punished as a Class A misdemeanor under section 12.44 of the
Texas Penal Code. Section 12.44 (1) allows judges to punish defendants convicted of state jail
felonies such as the crime at issue here, which are generally punishable by imprisonment of
up to two years, see Tex. Penal Code § 12.35(a), as Class A misdemeanors, for which one year
is the maximum term of imprisonment, see id. § 12.21; and (2) allows the court to authorize
prosecutors to prosecute state jail felonies as Class A misdemeanors. Tex. Penal Code § 12.44.
In arguing that his 2003 conviction was not “punishable” by more than one year’s
imprisonment, Harrimon relies on United States v. Rodriquez, 128 S. Ct. 1783 (2008).
Rodriquez, however, provides no support. In that case, the Supreme Court held that the lower
courts erred in failing to include a statutory recidivism enhancement when determining the
“maximum term of imprisonment” under another ACCA provision, concluding that “the
concept necessarily referred to the maximum term prescribed by the relevant criminal
statute.” Rodriquez, 128 S. Ct. at 1792. Here, the relevant statute plainly authorizes up to
two years of imprisonment for evading arrest or detention by use of a vehicle, Tex. Penal Code
§ 38.04(a), a fact which is unaltered by the sentencing judge’s discretionary decision either to
impose a lesser sentence or to allow the prosecutor to prosecute the offense as a misdemeanor
(it is not clear from the record which of these possibilities occurred).
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in clause (ii)—burglary, arson, extortion, and crimes involving the use of
explosives—limit “the crimes that clause (ii) covers to crimes that are roughly
similar, in kind as well as in degree of risk posed, to the examples themselves.”
128 S. Ct. at 1585. The “presence [of the examples] indicates that the statute
covers only similar crimes . . . .” Id. Thus, in determining whether fleeing by
vehicle as defined in Texas Penal Code § 38.04 is a violent felony for the
purposes of the ACCA, we must decide whether it is roughly similar to the
examples in clause (ii) both (1) in kind and (2) in degree of risk posed (which
must be at least a serious potential risk of physical injury to another). See
Chambers v. United States, 129 S. Ct. 687, 691–93 (2009) (holding that failure
to report to a penal institution, which is conceptually different from the crimes
listed in clause (ii) and does not pose a serious potential risk of physical injury
to another, is not a violent felony under the ACCA).
III
A
We first consider whether the crime at issue is similar in kind to burglary,
arson, extortion, or crimes involving the use of explosives. As the Supreme
Court stated in Begay, these crimes “all typically involve purposeful, violent, and
aggressive conduct.” 128 S. Ct. at 1586 (quotation omitted). “That conduct is
such that it makes more likely that an offender, later possessing a gun, will use
that gun deliberately to harm a victim.” Id. Thus, in Begay, the Court held that
the violation of a New Mexico DUI statute, which did not demand purposeful
conduct and thus did not “show an increased likelihood that the offender is the
kind of person who might deliberately point the gun and pull the trigger,” was
not a violent felony under the ACCA. Id. at 1587.
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We conclude that fleeing by vehicle is purposeful, violent, and aggressive.
First, it is purposeful: unlike the DUI statute at issue in Begay, fleeing by
vehicle requires intentional conduct. Further, it is aggressive. “As commonly
understood, aggressive behavior is offensive and forceful and characterized by
initiating hostilities or attacks.” United States v. West, 550 F.3d 952, 969 (10th
Cir. 2008) (quotation omitted). Fleeing by vehicle requires disregarding an
officer’s lawful order, which is a clear challenge to the officer’s authority and
typically initiates pursuit. See United States v. Spells, 537 F.3d 743, 752 (7th
Cir. 2008) (“Taking flight calls the officer to give chase, and aside from any
accompanying risk to pedestrians and other motorists, such flight dares the
officer to needlessly endanger himself in pursuit.”). This active defiance of an
attempted stop or arrest is similar to the behavior underlying an escape from
custody, which, as the Supreme Court noted in Chambers, is “less passive” and
“more aggressive” than that likely underlying failure to report. 128 S. Ct. at
691. Fleeing by vehicle is also violent: the use of a vehicle, usually a car, to
evade arrest or detention typically involves violent force which the arresting
officer must in some way overcome. As the Seventh Circuit observed in Spells,
not only the arresting officer or officers, but also pedestrians and other motorists
are subject to this force. Spells, 537 F.3d at 752. Further, fleeing by vehicle
“will typically lead to a confrontation with the officer being disobeyed,” a
confrontation fraught with risk of violence. West, 550 F.3d at 970; see James v.
United States, 550 U.S. 192, 203 (2007) (“The main risk of burglary arises not
from the simple physical act of wrongfully entering onto another’s property, but
rather from the possibility of a face-to-face confrontation between the burglar
and a third party . . . .”).
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Although the Seventh and Tenth Circuits have reached similar conclusions
post-Begay while analyzing similar statutes in Spells and West,4 we note that the
Eleventh Circuit has not. In United States v. Harrison, the court, analyzing a
Florida statute similar to the Texas statute at issue here, held that “disobeying
a police officer’s signal and continuing to drive on, without high speed or reckless
conduct, is not sufficiently aggressive and violent enough to be like the
enumerated ACCA crimes,” and that “[i]t is not the deliberate kind of behavior
associated with violent criminal use of firearms.” 558 F.3d 1280, 1295 (11th Cir.
2009) (quotation omitted). While Harrimon urges that we follow Harrison, for
the reasons explained above, we respectfully disagree with the Eleventh Circuit’s
analysis. Cf. Chambers, 129 S. Ct. at 694–95 & n.2 (Alito, J., concurring) (noting
that the “‘categorical approach’ to predicate offenses has created numerous splits
among the lower federal courts” and listing cases). To our minds, an offender’s
willingness to use a vehicle to flout an officer’s lawful order to stop shows “an
increased likelihood” that the offender would, if armed and faced with capture,
“deliberately point the gun and pull the trigger.”5 Begay, 128 S. Ct. at 1587.
4
Our conclusion is also consistent with United States v. Roseboro, in which the Fourth
Circuit stated that “[t]he intentional act of disobeying a law enforcement officer by refusing
to stop for his blue light signal, without justification, is inherently an aggressive and violent
act, and, therefore, a violent felony under the ACCA” and remanded for a determination of
whether the defendant’s conviction for a violation of South Carolina’s failure to stop for a blue
light statute was intentional. 551 F.3d 226, 240 (4th Cir. 2009) (citation and footnote omitted).
5
Harrimon also argues that under United States v. Johnson, the residual provision of
clause (ii) covers only conduct that poses a risk to property. 286 F. App’x 155, 157–58 (5th Cir.
2008) (per curiam) (citing Begay, 128 S. Ct. at 1586 (“Congress sought to expand th[e]
definition [of violent felony] to include both crimes against the person (clause (i)) and certain
physically risky crimes against property (clause (ii))”)). This is a correct reading of Johnson,
see id. at 158; however, while unpublished opinions are persuasive authority, see 5th Cir. R.
47.5.4, we decline to follow Johnson. As the Tenth Circuit has cogently explained, while Begay
discusses Congress’s intent to include physically risky property crimes in the ACCA, “the
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B
We next consider whether fleeing by vehicle is similar to the example
crimes in degree of risk, Begay, 128 S. Ct. at 1585, and thus “involve[s] conduct
that presents a serious potential risk of physical injury to another,” Chambers,
129 S. Ct. at 691 (quotation omitted). As the Supreme Court explained in
James, the categorical approach does not require “that every conceivable factual
offense covered by a statute must necessarily present a serious potential risk of
injury before the offense can be deemed a violent felony.” 550 U.S. at 208.
“Rather, the proper inquiry is whether the conduct encompassed by the elements
of the offense, in the ordinary case, presents a serious potential risk of injury to
another.” Id. Here, we have no difficulty concluding that, in the ordinary case,
fleeing by vehicle poses a serious risk of injury to others. While Harrimon
argues that fleeing by vehicle does not become dangerous until law enforcement
interrupts the perpetrator, fleeing by vehicle, by definition, can only occur after
an initial attempt by an officer to arrest or detain the perpetrator. “This
disobedience poses the threat of a direct confrontation between the police officer
and the occupants of the vehicle, which, in turn, creates a potential for serious
physical injury to the officer, other occupants of the vehicle, and even
bystanders.” West, 550 F.3d at 964–65 (quotation omitted).
Moreover, while it is possible, as Harrimon argues, to be guilty of fleeing
by vehicle despite obeying all traffic laws and later surrendering quietly, see
dispositive section of the Begay opinion specifically holds . . . that the ACCA’s residual
language includes prior convictions for offenses that, like burglary, arson, extortion or crimes
involving explosives, concern conduct that is purposeful, violent, and aggressive.” West, 550
F.3d at 967 (quotation omitted); see id. at 967–68 (noting, in addition, that extortion—an
example crime—is not a property crime and that Begay was not decided on the grounds that
DUI is not a property crime, and collecting cases).
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Harrison, 558 F.3d at 1295, we think that, in the typical case, an offender fleeing
from an attempted stop or arrest will not hesitate to endanger others to make
good his or her escape. See West, 550 F.3d at 964 (“[U]nder the stress and
urgency which will naturally attend his situation, a person fleeing from law
enforcement will likely drive recklessly and turn any pursuit into a high-speed
chase with the potential for serious harm to police or innocent bystanders.”
(quoting United States v. Kendrick, 423 F.3d 803, 809 (8th Cir. 2005)); see also
James, 550 U.S. at 208 (“One can always hypothesize unusual cases in which
even a prototypically violent crime might not present a genuine risk of
injury—for example, an attempted murder where the gun, unbeknownst to the
shooter, had no bullets[.]”).
It is this marked likelihood of pursuit and confrontation that separates
fleeing by vehicle from failure to report to a penal institution, which the
Supreme Court has said does not pose such a risk. See Chambers, 129 S. Ct. at
691–93. In the case of failure to report, “[t]here is no reason to believe” that
whatever the offender is doing instead poses a serious potential risk of physical
injury, and indeed, “an individual who fails to report would seem unlikely, not
likely, to call attention to his whereabouts by simultaneously engaging in
additional violent and unlawful conduct.” Id. at 692. In the case of fleeing by
vehicle, however, we know from the nature of the offense what the offender is
doing: using a vehicle to evade an officer’s attempt to lawfully arrest or detain
the offender, with the risks discussed above.6
6
Fleeing by vehicle may be similarly distinguished from simple motor vehicle theft,
which we have held does not present a serious potential risk of physical injury to another,
United States v. Charles, 301 F.3d 309, 313–15 (5th Cir. 2002) (en banc). Whereas simple
motor theft frequently occurs without being observed or interrupted, fleeing by vehicle cannot.
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Finally, while, unlike the Supreme Court in Chambers, we do not have the
benefit of a report from the United States Sentencing Commission, the empirical
evidence appears to support the “intuitive belief” that fleeing by vehicle involves
a serious potential risk of physical injury to others. Id. We note that according
to a study funded by the Justice Department and collecting police pursuit data
from fifty-six law enforcement agencies in thirty states, 314 injuries (including
fatal injuries) to police and bystanders resulted from 7,737 reported pursuits.
Cynthia Lum & George Fachner, Int’l Assoc. of Chiefs of Police, Police Pursuits
in an Age of Innovation and Reform 57 (2008),
http://www.theiacp.org/LinkClick.aspx?fileticket=IlJDjYrusBc%3d&tabid=392.
This amounts to roughly .04 injuries to others per pursuit. Of course, these
numbers do not tell us how often the conduct underlying fleeing by vehicle leads
to police pursuits, but if, as we strongly suspect, pursuits occur a reasonable
percentage of the time, then the risk of injury to others would appear to be at
least “roughly similar” to that associated with arson. Begay, 128 S. Ct. at 1585.
According to the United States Fire Administration, there are roughly 267,000
fires attributed to arson per year, resulting in over 2,475 injuries, including fatal
injuries—and, apparently, injuries to perpetrators—or roughly .009 injuries per
arson. U.S. Fire Admin., Arson in the United States, 1 Topical Fire Research
Series (Issue 8) (2001), http://www.usfa.dhs.gov/downloads/pdf/tfrs/v1i8-508.pdf;
see also U.S. Fire Admin., Arson for Profit: National Arson Awareness Week
M e d i a K i t 2 ( 2 0 0 9 ) ,
http://www.usfa.dhs.gov/downloads/pdf/arson/aaw09_media_kit.pdf (reporting
a National Fire Protection Association estimate of 323,900 “intentional fires”
reported to United States fire departments in 2005, resulting in 9,593 civilian
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and on-duty firefighter injuries, including fatal injuries, or approximately .03
injuries per intentional fire, apparently including injuries to perpetrators).
IV
For the foregoing reasons, the district court erred as a matter of law in
concluding that a violation of Texas Penal Code § 38.04(b)(1) (evading arrest or
detention by use of a vehicle) is not a “violent felony” for the purposes of the
ACCA. We therefore VACATE Harrimon’s sentence and REMAND for re-
sentencing consistent with this opinion.
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