U.S. v. Harrimon

• Decision Date: 14 May 2009
• Docket Number: No. 08-10690.,08-10690.
• Citation: 568 F.3d 531
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Richard Ray HARRIMON, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

568 F.3d 531

UNITED STATES of America, Plaintiff-Appellant, v. Richard Ray HARRIMON, Defendant-Appellee.

No. 08-10690.

United States Court of Appeals, Fifth Circuit.

May 14, 2009.

Gary C. Tromblay (argued), Dallas, TX, for U.S.

Kevin Joel Page (argued), Fed. Pub. Def., Dallas, TX, for Harrimon.

Appeal from the United States District Court for the Northern District of Texas.

Before JONES, Chief Judge, and WIENER and BENAVIDES, Circuit Judges.

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 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, ___ U.S. ___, 128 S.Ct. 1581, 1583, 170 L.Ed.2d 490 (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 Code² 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 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, ___ U.S. ___, 129 S.Ct. 687, 690, 172 L.Ed.2d 484 (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, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (adopting this "categorical approach"); see also James v. United States, 550 U.S. 192, 203, 127 S.Ct. 1586, 167 L.Ed.2d 532 (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 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 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, ___ U.S. ___, 129 S.Ct. 687, 691-93, 172 L.Ed.2d 484 (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.

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. 129 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, 127 S.Ct. 1586, 167 L.Ed.2d 532 (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 ....").

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.

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 (...