678 F.3d 429 (6th Cir. 2012), 10-5075, United States v. Doyle

Docket Nº:10-5075.
Citation:678 F.3d 429
Opinion Judge:GRIFFIN, Circuit Judge.
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. David Earl DOYLE, Defendant-Appellant.
Attorney:M. Dianne Smothers, Office of Federal Public Defender, Memphis, Tennessee for Appellant. James W. Powell, Assistant United States Attorney, Jackson, Tennessee for Appellee.
Judge Panel:Before: GRIFFIN and WHITE, Circuit Judges; WATSON, District Judge. [*] GRIFFIN, J., delivered the opinion of the court, in which WATSON, D.J., joined. WHITE, J. (pp. 437-42), delivered a separate dissenting opinion. HELENE N. WHITE, Circuit Judge, (dissenting).
Case Date:May 04, 2012
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 429

678 F.3d 429 (6th Cir. 2012)

UNITED STATES of America, Plaintiff-Appellee,

v.

David Earl DOYLE, Defendant-Appellant.

No. 10-5075.

United States Court of Appeals, Sixth Circuit.

May 4, 2012

Page 430

ON BRIEF:

M. Dianne Smothers, Office of Federal Public Defender, Memphis, Tennessee for Appellant.

James W. Powell, Assistant United States Attorney, Jackson, Tennessee for Appellee.

Before: GRIFFIN and WHITE, Circuit Judges; WATSON, District Judge. [*]

GRIFFIN, J., delivered the opinion of the court, in which WATSON, D.J., joined. WHITE, J. (pp. 437-42), delivered a separate dissenting opinion.

OPINION

GRIFFIN, Circuit Judge.

Defendant David Earl Doyle appeals his sentence. The issue is whether his prior conviction under Tennessee state law for Class E felony evading arrest is a " violent felony" for purposes of the Armed Career Criminal Act (" ACCA" ). This court held in United States v. Rogers, 594 F.3d 517 (6th Cir.2010), that it was,1 but the Supreme Court vacated our judgment and remanded the case for further consideration in light of its recent decision, Sykes v. United States, __ U.S. __, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). See Rogers v. United States, __ U.S. __, 131 S.Ct. 3018, 180 L.Ed.2d 842 (2011) (mem.). For the reasons that follow, we again hold that Class E felony evading arrest under Tennessee law is a violent felony.

I.

On the morning of May 1, 2007, the Perry County Sheriff's Office received a complaint of a suspicious vehicle parked behind a church. Upon arriving at the

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church, the deputies noticed Doyle in the driver's seat of the vehicle and a woman in the passenger's seat. Both were asleep, and the vehicle was running. The deputies observed a nine millimeter pistol in the pocket of the open driver's side door and what appeared to be a short-barreled, 20-gauge shotgun laying between the seats of the vehicle. After removing the firearms, the deputies woke Doyle and the woman before arresting them on various charges.

Two weeks later, a federal grand jury returned an indictment charging Doyle with being a felon in possession of a firearm, 18 U.S.C. § 922(g); possession of a firearm altered to have a barrel of less than eighteen inches in length, 26 U.S.C. §§ 5822, 5861(c), 5871; and possession of an unregistered firearm, 26 U.S.C. §§ 5822, 5861(d), 5871. Doyle pled guilty to the charges.

At sentencing, the district court ruled that Doyle was an " armed career criminal" under the Guidelines because he had three prior convictions that qualified him for an enhanced sentence under the ACCA: aggravated assault; burglary other than a habitation; and a Class E felony of evading arrest. U.S.S.G. § 4B1.4(a); 18 U.S.C. § 924(e). His base offense level was set at 34. The district court granted a three-level reduction for acceptance of responsibility. With an adjusted level of 31 and a criminal history category of VI, Doyle's Guidelines range was 188-235 months.2 The district court granted Doyle a variance by sentencing him to the statutory mandatory minimum of 180 months on count one, and 120 months on each of counts two and three, both to run concurrent to the sentence imposed on count one. Doyle timely appealed.

II.

Doyle concedes that his previous convictions for aggravated assault, and for burglary, qualify as violent felonies under the ACCA. Therefore, we need only determine whether his prior conviction for Class E felony evading arrest is a violent felony. We review the district court's determination de novo. United States v. Flores, 477 F.3d 431, 434 (6th Cir.2007).

A.

The United States Sentencing Guidelines provide that a defendant is to be sentenced as an " armed career criminal" if he is subject to an enhanced sentence under the ACCA. U.S.S.G. § 4B1.4(a). Persons convicted under 18 U.S.C. § 922(g) (e.g., felon possessing a firearm) who have three previous convictions for " violent felon[ies] or ... serious drug offense[s]" are subject to an enhanced sentence under the ACCA. 18 U.S.C. § 924(e)(1). 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....

Id. § 924(e)(2)(B) (emphasis added). The italicized portion is known as the " residual clause." See Sykes v. United States, __ U.S. __, 131 S.Ct. 2267, 2273, 180 L.Ed.2d 60 (2011). In Tennessee, a Class E felony evading arrest offense does not

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have as an element the use, attempted use, or threatened use of physical force against another. Nor is it burglary, arson, or extortion, and it does not involve the use of explosives. Therefore, Class E felony evading arrest can be a violent felony only if it " otherwise involves conduct that presents a serious potential risk of physical injury to another." We employ a categorical approach to make the determination.

Under this approach, we look only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction. That is, 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.

Id. at 2272 (quoting James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (quotation marks omitted) (emphasis in original)). Further, we concern ourselves only with how an offense is committed " in the ordinary case," not how one commits it in " hypothesize[d,] unusual cases in which even a prototypically violent crime might not present a genuine risk of injury." James, 550 U.S. at 208, 127 S.Ct. 1586.

B.

The relevant Tennessee law provides:

(b)(1) It is unlawful for any person, while operating a motor vehicle on any street, road, alley or highway in this state, to intentionally flee or attempt to elude any law enforcement officer, after having received any signal from the officer to bring the vehicle to a stop.

* * *

(3) A violation of subsection (b) is a Class E felony unless the flight or attempt to elude creates a risk of death or injury to innocent bystanders or other third parties, in which case a violation of subsection (b) is a Class D felony.

Tenn.Code Ann. § 39-16-603(b)(1), (3).

Doyle argues that, because he was convicted only of a Class E felony, which, unlike the Class D variant, does not require that he " create[ ] a risk of death or injury to innocent bystanders or other third parties," his conviction necessarily falls outside the ACCA's residual clause, which covers conduct that " presents a serious potential risk of physical injury to another." Based on the analysis in United States v. Christian, 214 Fed.Appx. 337 (4th Cir.2007) (per curiam), the district court rejected Doyle's argument. Shortly after Doyle was sentenced, this court issued its decision in United States v. Rogers, 594 F.3d 517 (6th Cir.2010), holding that a conviction under Tennessee law for Class E felony evading arrest is a " crime of violence" under the Guidelines. Id. at 521. Rogers relied on this court's analysis in United States v. Young, 580 F.3d 373 (6th Cir.2009), cert. denied, __ U.S. __, 130 S.Ct. 1723, 176 L.Ed.2d 202 (2010), and rejected the very argument Doyle makes here. Doyle argues in his appellate brief that Rogers was wrongly decided. He does not, however (and for good reason, we believe), attempt to distinguish Rogers Rogers discussed the precise issue in this case and is undistinguishable.

However, after the parties filed their appellate briefs in this case, the Supreme Court vacated our judgment in Rogers and remanded the case for further consideration in light of its recent decision Sykes v. United States, __ U.S. __, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). See Rogers v. United States, __ U.S. __, 131 S.Ct. 3018, 180 L.Ed.2d 842 (2011) (mem.). As of today, the original Rogers panel has not issued a decision on remand, and, to our knowledge, no other panel of our court has

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addressed the issue. Therefore, Sykes's effect on our cases remains an open question.

In Sykes, the Supreme Court considered whether an Indiana law prohibiting drivers from knowingly or intentionally " flee[ing] from a law enforcement officer" was a violent felony under the ACCA's residual clause. 131 S.Ct. at 2270, 2273. One could commit Class D felony flight— " knowingly or intentionally ... flee[ing] from a law enforcement officer after the officer has, by visible or audible means, identified himself and ordered the person to stop" — in two primary ways: (1) by simply " us[ing] a vehicle to commit the offense[,]" Ind.Code Ann. § 35-44-3-3(b)(1)(A); or (2) by " draw[ing] or us[ing] a deadly weapon, inflict[ing] bodily injury on another person, or operat[ing] a vehicle in a manner that creates a substantial risk of bodily injury to another person [,]" id. § 35-44-3-3(b)(1)(B) (emphasis added). Sykes, 131 S.Ct. at 2271. Sykes was convicted under subsection (b)(1)(A) simply because he used a vehicle to commit the offense. Id. He argued that, because he was not convicted of flight under subsection (b)(1)(B), which requires that one " operat[e] a vehicle in a manner that creates a substantial risk of bodily injury to another person," his offense necessarily fell outside the requirements of the residual clause. Id. at 2276; compare 18 U.S.C. § 924(e)(2)(B)(ii) (" or otherwise involves conduct that presents a serious potential risk of...

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