NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1052n.06
No. 11-3833
FILED
Oct 05, 2012
DEBORAH S. HUNT, Clerk
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
On Appeal from the United
v. States District Court for the
Northern District of Ohio
WILLIE YATES,
Defendant-Appellant.
/
Before: GUY, DAUGHTREY, and STRANCH, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Defendant W illie Yates was convicted
following a jury trial of one count of being a felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1), and one count of possession with intent to distribute crack cocaine in
violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Defendant appeals from the district court’s
denial of his motion to suppress evidence seized following the search of his residence
pursuant to a warrant. Defendant also contends that the district court erred in sentencing him
as an armed career criminal subject to both an enhanced mandatory minimum sentence of 15
No. 11-3833 2
years and a greater sentencing guideline range. See 18 U.S.C. § 924(e)(1); U NITED S TATES
S ENTENCING G UIDELINES M ANUAL (USSG) § 4B1.4 (2010). Finding no error, we affirm.1
I.
On October 26, 2010, a search warrant was obtained and executed at 1009 Merton
Avenue, Akron, Ohio, based on the affidavit of Akron Police Detective Timothy Harvey.
Members of the Akron Police Department detained defendant, a/k/a “2 Legit,” outside the
residence before conducting the search that resulted in the seizure of the firearms,
ammunition, and crack cocaine that led to the charges in this case. Specifically, officers
seized: (1) a .38 caliber Rossi revolver from the living room; (2) 23 rounds of Remington
.38 caliber ammunition from the top of a dresser in a bedroom; (3) a .22 caliber Sterling
pistol, magazine, and ammunition from inside a microwave located in a detached garage; and
(4) approximately 4.5 grams of crack cocaine from the top of the refrigerator in the kitchen.
Other items seized included a digital scale with a razor blade, $258 in cash, a glass crack
pipe, photographs, and documents bearing defendant’s name and address.
Defendant was charged in a two-count indictment with possession of firearms or
ammunition after having been convicted of three prior felonies, and with possession of
cocaine base after having been convicted of two prior drug offenses. A superceding
indictment repeated the felon-in-possession charge in count 1, 18 U.S.C. § 924(g)(1), and
1
Declining to consider defendant’s pro se supplemental brief because counsel has been appointed
to represent defendant in this appeal, this court granted the government’s motion to strike the pro se brief
on June 4, 2012. See United States v. Martinez, 588 F.3d 301, 328 (6th Cir. 2009), cert. denied, 131 S. Ct.
538 (2010); United States v. Williams, 641 F.3d 758, 770 (6th Cir.), cert. denied, 132 S. Ct. 348 (2011).
No. 11-3833 3
substituted a charge of possession with intent to distribute cocaine base in count 2, 21 U.S.C.
§ 841(a)(1) and (b)(1)(C).
In a motion to suppress, defendant argued that the affidavit was insufficient to
establish probable cause to support the state court’s issuance of the search warrant. After
briefing and oral argument, the district court found the affidavit did provide sufficient basis
for the issuing judge to conclude that there was a fair probability that contraband or evidence
of a crime would be found in the residence—but not in the detached garage. The district
court also concluded that even if the affidavit did not establish probable cause, the Leon
good-faith exception to the warrant requirement would apply. United States v. Leon, 468
U.S. 897, 922-23 (1984). At the conclusion of a two-day jury trial that followed, defendant
was found guilty of all charges.
At sentencing, defendant objected to the presentence report’s recommendation that
he be sentenced as an armed career criminal as a result of his having at least three prior
convictions for a “violent felony” as that term is defined by the Armed Career Criminal Act
(ACCA).2 Without disputing that he had two prior convictions that qualified—arson and
robbery—defendant argued that he did not have a third conviction for a violent felony.
Overruling the objection, the district court concluded that defendant had at least one prior
Ohio conviction for fourth-degree felony failure to comply with an order or signal of a police
2
The government filed an information giving notice of its intention to seek an enhanced statutory
maximum sentence of not more than 30 years upon conviction for possession with intent to distribute cocaine
base. That enhancement is not at issue on appeal.
No. 11-3833 4
officer that qualifies as a “violent felony” because it “otherwise involves conduct that
presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).3
The armed-career-criminal designation resulted in an increase in the mandatory
minimum sentence from 10 to 15 years (§ 924(e)(1)), and an increase in the offense level
from 28 to 34 (USSG § 4B1.4(b)). Given an offense level of 34 and a criminal history
category of VI, defendant’s applicable sentencing guideline range was 262 to 327 months.
The district court considered the relevant sentencing factors and sentenced defendant to
concurrent 327-month terms of imprisonment to be followed by a six-year term of supervised
release. This appeal followed.
II.
A. Motion to Suppress Evidence
On appeal from the decision on a motion to suppress evidence, we review the district
court’s factual findings for clear error and its legal conclusions de novo. United States v.
Townsend, 305 F.3d 537, 541 (6th Cir. 2002). If the district court denied the motion to
suppress, this court must view the evidence in the light most favorable to the government.
United States v. Erwin, 155 F.3d 818, 822 (6th Cir. 1998) (en banc); see also United States
v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005).
3
The presentence report reflects that defendant had three prior convictions for fourth-degree felony
failure to comply, one of which was committed on the same occasion as the robbery. (PSR ¶¶ 42, 47 and 48.)
No. 11-3833 5
1. Affidavit
Detective Harvey’s affidavit dated October 26, 2010, alleged he had good cause to
believe that crack cocaine, firearms, currency, measuring and processing devices, and records
and documents related to drug trafficking would be found within the premises at 1009
Merton Avenue. Explaining that he was assigned to the Narcotics Uniform Detail and had
been a member of the Akron Police Department for eleven years, Harvey stated that he knew
from experience and training that drug trafficking involves cash transactions, records and
documents of those transactions, equipment and scales, and the use of firearms and other
weapons to maintain security. Detective Harvey attested that he spoke with “an information
source,” referred to as the confidential informant (CI), concerning alleged drug activity at
1009 Merton Avenue. The CI told him that the occupant Willie Yates, a/k/a “2 Legit,” was
in possession of crack cocaine, was selling it from the residence, and was a dealer supplying
crack cocaine to multiple locations in the City of Akron.
In addition to this information, Harvey reported that the CI had arranged a purchase
of crack cocaine from 1009 Merton “within the past 10 days.” That transaction was
described as follows:
Affiant, within the past ten days, went to the above described premises
with an information source [CI]. The source was searched by Akron Street
Narcotics officers and was found not to be in possession of any controlled
substances or currency. The source was provided with APD funds. Affiant
observed as the source arrived at 879 Hunt Street: where they picked up
Hillary D. Patterson (W/F/32). Patterson then directed the source to drive to
her suppliers [sic] house at 1009 Merton Ave. Upon arriving at the address,
the source parked in the street and Sgt. Forney observed Patterson exit the
No. 11-3833 6
vehicle and enter the front door of 1009 Merton Ave. A few minutes later
affiant observed Patterson exit the residence and return to the sources’ [sic]
vehicle. Sgt. Forney and affiant then observed the source and Patterson drive
back to 879 Hunt Street where Patterson exited the vehicle. The source then
exited the driveway of 879 Hunt St. and travelled eastbound on Hunt St. Upon
return, the source delivered to affiant a quantity of crack cocaine that the
source stated was purchased by Patterson within 1009 Merton Avenue. The
source stated that they had picked up Patterson at 879 Hunt St. and drove to “2
Legit’s” house located at 1009 Merton Ave. where the source gave Patterson
the APD buy-money. The source stated that Patterson entered the residence
and returned with the crack cocaine that Patterson stated she had purchased
from “2 Legit” with the funds previously provided. The source was again
searched and found again not to be in possession of controlled substances or
currency. The substance was field tested by Akron Street Narcotics officers
and indicated a positive reaction for the presence of a controlled substance, to
wit: crack cocaine.
Harvey also attested that the CI, although unnamed in the affidavit, had previously provided
him with information concerning the possession and sale of controlled substances in the
Akron, Summit County, Ohio area that Harvey had corroborated, and that the CI had
displayed “specific knowledge as to the uses, effects and distribution patterns of controlled
substances in the Akron, Summit County, Ohio area.”
The affidavit added that, during the transaction described above, Harvey saw a white
2001 Cadillac with Ohio registration “2LEGIT” parked in the driveway of 1009 Merton
Avenue. Harvey stated that he knew the Cadillac was owned and driven by Yates because
another narcotics officer had stopped Yates while driving the Cadillac on June 1, 2010. Also,
in response to a subpeona issued on October 25, 2010, First Energy Service Company
identified Willie Yates, Jr., as the subscriber for 1009 Merton with a “move-in” date of
No. 11-3833 7
February 2, 2010. Harvey explained that he knew of and participated in numerous arrests of
Willie Yates, nine of which were specifically listed in the affidavit, and determined that
Willie Yates was on community control for a recent conviction for possession of crack
cocaine at that time. Finally, Harvey was aware that the premises at 1009 Merton Avenue
had been the subject of citizen calls to the Akron Police Narcotics Unit.
2. Probable Cause
The Fourth Amendment provides that “no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.” U.S. C ONST. amend. IV. A judge issuing a search
warrant must “make a practical, commonsense decision whether, given all the circumstances
set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of
persons supplying hearsay information, there is a fair probability that contraband or evidence
of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).
The issuing judge’s determination is afforded great deference, and the duty of the reviewing
court is to ensure that the affidavit provided the issuing judge “with a substantial basis for
determining the existence of probable cause.” Id. at 239; see also United States v. Allen, 211
F.3d 970, 973 (6th Cir. 2000) (en banc).
Defendant argues first that the affidavit could not establish probable cause because
it contained uncorroborated hearsay concerning the purchase of crack cocaine by an
apparently unwitting intermediary whose reliability had not been established. Specifically,
No. 11-3833 8
the CI told Harvey that Patterson purchased the crack cocaine from “2 Legit” while inside
the residence at 1009 Merton Avenue. Although defendant emphasizes that Patterson was
not interviewed or searched by the police before or after the transaction, Patterson was an
identified intermediary and not a tipster or police informant. We have explained that “while
an affidavit must state facts supporting an independent judicial determination that the
informant is reliable, those facts need not take any particular form.” United States v.
McCraven, 401 F.3d 693, 697 (6th Cir. 2005).
In fact, it is clear that a judge issuing a search warrant may rely on hearsay evidence
in making a probable cause determination. United States v. Gunter, 551 F.3d 472, 479 (6th
Cir. 2009); United States v. Smith, 182 F.3d 473, 477 (6th Cir. 1999). When the bulk of the
information in the affidavit is hearsay from a confidential source, the “court must consider
the veracity, reliability, and the basis of knowledge for that information as part of the totality
of the circumstances analysis.” United States v. Coffee, 434 F.3d 887, 893 (6th Cir. 2006)
(citing Frazier, 423 F.3d at 532). Although “independent corroboration of a confidential
informant’s story is not a sine qua non to a finding of probable cause,” in the absence of any
indicia of the informant’s reliability courts insist that the affidavit contain substantial
independent police corroboration. Frazier, 423 F.3d at 532.4
4
The district court acknowledged that the more typical scenario involves an informant who conducts
the “controlled buy.” Indeed, this court has recognized that an officer’s participation in such a “controlled
buy” is independent corroboration which may provide sufficient facts to support a finding of probable cause
even absent other information regarding the informant’s reliability. See United States v. Archibald, 685 F.3d
553, 557 (6th Cir. 2012) (citing Coffee, 434 F.3d at 893-95).
No. 11-3833 9
Here, the CI told Harvey that Willie Yates, a/k/a “2 Legit,” was a crack cocaine dealer
and was selling crack cocaine from the premises at 1009 Merton Avenue. Although the CI’s
identity was withheld, Harvey knew the CI and attested that the CI previously provided
accurate information concerning possession and distribution of controlled substances in the
Akron area. The CI also demonstrated knowledge concerning drug use and the distribution
patterns of controlled substances in the Akron area. This information was coupled with
independent police corroboration. Not only did Harvey know Yates, but he also knew that
Yates was the subscriber for the utilities for the premises and that Yates drove the white
Cadillac that was in the driveway during the arranged transaction. Harvey stated that he was
aware that Yates had prior arrests involving possession and distribution of crack cocaine, and
that there had been citizen complaints to the Akron Narcotics Unit concerning the premises
at 1009 Merton Avenue. Harvey also was involved in the search of the CI before and after
the transaction, and participated in the surveillance of the CI driving Patterson to and from
her supplier’s house at 1009 Merton Avenue. Patterson was observed going into the
premises and coming out a few minutes later to get in the CI’s vehicle, and the substance that
the CI reportedly obtained from Yates through Patterson tested positive for cocaine. There
is no reason to suspect that Patterson obtained the cocaine elsewhere, or that Patterson was
anything but an unwitting intermediary obtaining crack cocaine from her supplier.
Defendant also argues that reliance on a single drug transaction was insufficient to
establish a nexus between the premises and the evidence sought. See United States v.
No. 11-3833 10
Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc) (holding that affidavit’s description
of marijuana field as “near” residence to be searched did not establish required nexus). As
this court recently explained in rejecting a similar claim, however, “we have previously found
that a single controlled purchase is sufficient to establish probable cause to believe that drugs
are present at the purchase location.” Archibald, 685 F.3d at 558. Moreover, we have found
evidence of ongoing drug trafficking provided a sufficient basis to infer that evidence of that
crime would be found at the dealer’s residence. Gunter, 551 F.3d at 481; see also United
States v. Moore, 661 F.3d 309, 314 (6th Cir. 2011) (finding sufficient nexus where residence
to be searched was the residence in which the drugs were observed); United States v. Jones,
159 F.3d 969, 975 (6th Cir. 1998) (“‘[i]n the case of drug dealers, evidence is likely to be
found where the dealers live’”) (citation omitted).5
Finally, defendant argues that probable cause became stale because the affidavit
indicated only that the single drug transaction at the premises occurred “within the past ten
days.” Whether information is stale depends on the “inherent nature of the crime,” and the
critical question is whether the affidavit established a fair probability that evidence would
still be found at the location to be searched. United States v. Spikes, 158 F.3d 913, 923 (6th
Cir. 1998); see also United States v. Abboud, 438 F.3d 554, 572 (6th Cir. 2006) (discussing
5
Nor does defendant’s citation to United States v. Van Shutters, 163 F.3d 331, 336-38 (6th Cir.
1998), support defendant’s assertion that the affidavit must establish a specific nexus between the evidence
sought and the specific location within the house (i.e., drugs on top of the fridge, paraphernalia inside a bread
box, and ammunition on a bedroom dresser). In Van Shutters, the warrant failed to state a nexus because it
completely neglected to indicate any connection between the suspected counterfeiter and that residence.
No. 11-3833 11
Spikes and upholding warrant for search of evidence of bank fraud that occurred three years
earlier). The function of the staleness inquiry is not to set an arbitrary time limit within
which the facts must be presented in a warrant application. United States v. Greene, 250
F.3d 471, 480 (6th Cir. 2001) (citing Spikes, 158 F.3d at 923) (upholding warrant where the
last of the informant’s 12 purchases occurred 23 months before warrant application); see also
Archibald, 685 F.3d at 558 (upholding warrant where controlled purchase from residence
was three days earlier); United States v. Jackson, 470 F.3d 299, 308 (6th Cir. 2006) (same).
“When analyzing staleness, we look to the specific facts of the case and consider
several factors, including (1) the character of the crime, (2) the criminal, (3) the thing to be
seized, and (4) the place to be searched.” Archibald, 685 F.3d at 558 (citing Abboud, 438
F.3d at 572-73). Here, the affidavit indicated that the distribution of crack cocaine was
ongoing rather than an isolated instance; that the defendant was residing at the premises and
had been listed on the utilities for more than six months; and that defendant was distributing
crack cocaine from the premises. Although the crack cocaine itself is easily transferred and
readily consumed, evidence of trafficking from the dealer’s residence in this case is sufficient
to establish a fair probability that contraband or other evidence would still be found in the
premises up to ten days after the reported drug transaction. Cf. United States v. Hammond,
351 F.3d 765, 771 (6th Cir. 2003) (finding tip that a marijuana growing operation was on
defendant’s property was not stale although made five months earlier).
No. 11-3833 12
Considering the CI’s veracity and basis for knowledge as part of the totality of the
circumstances, including corroboration of the known CI’s information, and giving the issuing
judge’s determination the deference it deserves, the affidavit provided a substantial basis for
concluding that there was probable cause to believe contraband or evidence of drug
trafficking would be found at 1009 Merton Avenue.
B. Armed Career Criminal
A defendant convicted of being a felon in unlawful possession of a firearm is subject
to an enhanced sentence if, when the unlawful possession occurred, the felon has had three
previous convictions “for a violent felony or a serious drug offense, or both, committed on
occasions different from one another.” 18 U.S.C. § 924(e)(1); see also Sykes v. United
States, 131 S. Ct. 2267, 2270 (2011). In addition, a defendant who is subject to an enhanced
sentence under § 924(e) is to be sentenced as an armed career criminal. USSG § 4B1.4(a).
We review the district court’s determination de novo. United States v. Flores, 477 F.3d 431,
434 (6th Cir. 2007).
Defendant’s enhancement in this case was based on his having had three previous
convictions for a “violent felony,” which is defined as any crime punishable by a term of
imprisonment 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.
No. 11-3833 13
18 U.S.C. § 924(e)(2)(B) (emphasis added). In determining whether an offense is a “violent
felony,” the court must use the “categorical approach” and “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.” James v. United
States, 550 U.S. 192, 202 (2007); see also Begay v. United States, 553 U.S. 137, 140 (2008).
Also, we are concerned with how the offense is generally or ordinarily committed, not how
it might be committed in an unusual case. James, 550 U.S. at 207-08; Chambers v. United
States, 555 U.S. 122, 128-30 (2009); United States v. Young, 580 F.3d 373, 377 (6th Cir.
2009).6
As noted earlier, defendant conceded that he had two prior convictions for a violent
felony—robbery (use, attempted use, or threatened use of physical force) and arson (an
enumerated offense)—but maintained that he did not have a third predicate offense because
Ohio’s fourth-degree felony failure to comply with an order or signal of a police officer did
not constitute a violent felony under the residual clause of § 924(e)(2)(B)(ii). The Ohio
statute at issue makes it unlawful to “operate a motor vehicle so as willfully to elude or flee
a police officer after receiving a visible or audible signal from a police officer to bring the
person’s motor vehicle to a stop.” O HIO R EV. C ODE § 2921.331(B). A violation of division
(B) is a felony in the fourth degree if “in committing the offense, the offender was fleeing
6
We have recognized that the same analysis applies to determining whether a prior conviction is a
“crime of violence” for purposes of the career offender guidelines. See United States v. Gibbs, 626 F.3d 344,
352 n.6 (6th Cir. 2010).
No. 11-3833 14
immediately after the commission of a felony.” Id. § 2921.331(C)(4). In other words,
fourth-degree felony failure to comply is, in essence, vehicular flight from an officer after
the commission of another felony.
Previously, we applied a two-part test in determining whether an offense qualified
under the residual clause: (1) whether the offense “poses a serious potential risk of physical
injury to others”; and (2) whether the offense “involves the same kind of purposeful, violent
and aggressive conduct as the enumerated offenses of burglary, arson, extortion, or offenses
involving the use of explosives.” Young, 580 F.3d at 377. However, the Court in Sykes
clarified that “[i]n 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.” Sykes, 131 S. Ct. at 2275. The Court reiterated that “risk levels provide a categorical
and manageable standard.” Id. at 2275-76. Distinguishing Begay, which found recidivist
driving under the influence did not fall within the residual clause, the Court in Sykes
explained that Begay “involved a crime akin to strict liability, negligence, and recklessness
crimes; and the purposeful, violent, and aggressive formulation was used in that case to
explain the result.” Id. at 2276.
Defendant seems to argue that, like the DUI offense in Begay, fourth-degree vehicular
flight from an officer is akin to a strict liability, negligence, or recklessness crime. This
contention is without merit. The Ohio statute makes it unlawful to operate a motor vehicle
No. 11-3833 15
so as willfully to elude or flee a police officer, which is similar to the “stringent mens rea
requirement” that distinguished Sykes from Begay. Sykes, 131 S. Ct. at 2275 (explaining that
the conduct for which the drunk driver was convicted in Begay need not be purposeful or
deliberate, while violators of the Indiana vehicular flight statute in Sykes must act
“knowingly or intentionally”); see also Young, 580 F.3d at 377 (Michigan’s fleeing-and-
eluding statute apples only to those who willfully fail to obey). In any case, as Sykes
instructs, we do not need to decide the issue by reference to the purposeful, violent and
aggressive formulation where the risk levels suffice to resolve the case before us.
Here Ohio’s prohibition on willfully eluding and fleeing an officer in a vehicle
immediately after the commission of another felony, as a categorical matter, presents a
serious potential risk of physical injury to another which is “‘comparable to that posed by its
closest analog among the enumerated offenses.’” Sykes, 131 S. Ct. 2273 (quoting James, 550
U.S. at 203 (explaining that attempted burglary poses risks akin to that of completed
burglary)).7 Consistent with our analysis of the risk of violating Michigan’s fleeing-and-
eluding statute in Young, the Supreme Court identified the risks inherent in typical vehicular
flight from an officer and concluded that they are “similar in degree of danger to that
involved in arson” and “present[] more certain risk as a categorical matter than burglary.”
Sykes, 131 S. Ct. at 2273-74. That is:
7
Although it is theoretically possible “to operate a vehicle so as willfully to elude or flee a police
officer” while “fleeing immediately after the commission of a felony” without creating a serious potential
risk of physical injury to another, one does not generally attempt to flee or elude an officer in such a manner.
OHIO REV CODE § 2921.33(B) and (C)(4); see Young, 580 F.3d at 378 n.2.
No. 11-3833 16
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.
[James, 550 U.S. at 200.] 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. In Sykes’ case, officers pursued a man with two
prior violent felony convictions and marijuana in his possession. In other
cases officers may discover more about the violent potential of the fleeing
suspect by running a check on the license plate or by recognizing the fugitive
as a convicted felon. See, e.g., Arizona v. Gant, [129 S. Ct. 1710, 1715]
(2009).
Because an accepted way to restrain a driver who poses dangers to
others is through seizure, officers pursuing fleeing drivers may deem
themselves duty bound to escalate their response to ensure the felon is
apprehended. Scott v. Harris, 550 U.S. 372, 385 [] (2007), rejected the
possibility that police could eliminate the danger from a vehicle flight by
giving up the chase because the perpetrator “might have been just as likely to
respond by continuing to drive recklessly as by slowing down and wiping his
brow.” And once the pursued vehicle is stopped, it is sometimes necessary for
officers to approach with guns drawn to effect arrest. Confrontation with
police is the expected result of vehicle flight. It places property and persons
at serious risk of injury.
No. 11-3833 17
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. See post, at 2280
(THOMAS, J., concurring in judgment); see also post, at 2280-2281 (listing
Indiana cases addressing ordinary intentional vehicle flight and noting the
high-risk conduct that those convictions involved).
Sykes, 131 S. Ct. at 2273-74. The Court went on to explain that although statistics are not
dispositive, in fact, statistics support the conclusion that the risk of simple vehicular flight
may outstrip the risk of personal injury from arson or burglary. Id. at 2274-75.
The Court’s conclusion in Sykes that simple vehicular flight poses risks comparable
to or more certain than the enumerated offenses of arson and burglary applies even more so
to the offense at hand because fourth-degree felony failure to comply requires not only that
an offender willfully elude or flee from an officer’s signal to stop, but also that the offender
be fleeing immediately after the commission of another felony. The district court did not err
in finding that defendant’s conviction for this aggravated vehicular flight in violation of Ohio
Rev. Code § 2921.331(C)(4) constitutes a violent felony for purposes of the ACCA. As
No. 11-3833 18
such, defendant had three prior convictions for a violent felony and was properly sentenced
as an armed career offender.
AFFIRMED.