U.S. v. Harris

• Decision Date: 03 November 2009
• Docket Number: No. 08-15909.,08-15909.
• Citation: 586 F.3d 1283
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony HARRIS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

586 F.3d 1283

UNITED STATES of America, Plaintiff-Appellee, v. Anthony HARRIS, Defendant-Appellant.

No. 08-15909.

United States Court of Appeals, Eleventh Circuit.

November 3, 2009.

Mary A. Mills, Fed. Pub. Def., Tampa, FL, for Defendant-Appellant.

Michelle Thresher Taylor, Tampa, FL, for Plaintiff-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before MARCUS and HILL, Circuit Judges, and VOORHEES,^* District Judge.

MARCUS, Circuit Judge:

Anthony Harris appeals the district court's application of the U.S.S.G. § 2K2.1(a)(4)(A) career offender enhancement to his sentence for being a felon in possession of a firearm. He argues that his prior felony conviction under Fla. Stat. § 316.1935(3)(a) for willfully fleeing or eluding a police officer at high speed or with wanton disregard for the safety of persons or property should not qualify as a "crime of violence," as defined by U.S.S.G. § 4B1.2. Harris claims more specifically that under the framework announced by the Supreme Court in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), eluding the police does not constitute "purposeful, violent and aggressive conduct," id. at 1586-87, and, therefore, cannot form a predicate offense for the career offender sentence enhancement. However, application of the framework explained by the Supreme Court in Begay, as well as its holdings in James v United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), and Chambers v. United States, ___ U.S. ___, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), yields the conclusion that a conviction under Section 316.1935(3)(a) of Florida's penal code qualifies as a "crime of violence" for Section 2K2.1(a)(4)(A) purposes, and, accordingly, we affirm.

I.

On November 23, 2006, Anthony Harris fled from the police while driving his car at a speed of 70 to 80 miles per hour, ultimately crashing his car into a tree and causing serious injury to his passenger. Harris was charged in Pinellas County, Florida, with fleeing from a law enforcement officer under Fla. Stat. § 316.1935(3)(a), which provides that

(3) [a]ny person who willfully flees or attempts to elude a law enforcement officer in an authorized law enforcement patrol vehicle, with agency insignia and other jurisdictional markings prominently displayed on the vehicle, with siren and lights activated, and during the course of the fleeing or attempted eluding:

(a) Drives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property, commits a felony of the second degree. . . .

Fla. Stat. § 316.1935. Harris pled nolo contendere to the Section 316.1935(3)(a) charge on May 27, 2007, and was convicted. On March 20, 2008, Anthony Harris was charged with and pled guilty, in the United States District Court for the Middle District of Florida, to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The Presentence Investigation Report ("PSI") recommended a base offense level of 20, counting Harris's earlier conviction under Fla. Stat. § 316.1935(3)(a) as a "crime of violence" under U.S.S.G. § 2K2.1(a)(4)(A).

At the sentencing hearing, Harris objected to the PSI's categorization of his 2006 Florida conviction for fleeing and eluding as being a crime of violence under the Sentencing Guidelines. Harris argued that under Begay and United States v. Archer, 531 F.3d 1347 (11th Cir.2008), fleeing and eluding should no longer be classified as a "crime of violence" under the Sentencing Guidelines. The district court disagreed, observing that the Eleventh Circuit had, in a case squarely on point, previously held that a Fla. Stat. § 316.1935(3) conviction was a crime of violence under the United States Sentencing Guidelines in United States v. Orisnord, 483 F.3d 1169, 1183 (11th Cir.2007). While Supreme Court law governing the analysis of crimes of violence had changed in the interim, the district court found that it was bound by Orisnord unless and until the Eleventh Circuit held otherwise. (Hr'g Trans. Sentencing at 11, Oct. 3, 2008). We take this opportunity to reiterate that Fla. Stat. § 316.1935(3)(a) still qualifies as a "crime of violence" under the Sentencing Guidelines.

II.

We review de novo whether a defendant's prior conviction qualifies as a "crime of violence" under the Sentencing Guidelines. United States v. Llanos-Agostadero, 486 F.3d 1194, 1196 (11th Cir. 2007); United States v. Ivory, 475 F.3d 1232, 1233-34 (11th Cir.2007).

Under U.S.S.G. § 2K2.1(a)(4)(A), felons receive a base level of 20 if they committed the firearm offense "subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." The Sentencing Guidelines, in turn, define a "crime of violence" as

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a). The crime at issue here, a violation of Fla. Stat. § 316.1935(3)(a), falls under the residual provision of the career offender guideline for a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another."

In Orisnord, we squarely held that a violation of Fla. Stat. § 316.1935(3)(a) qualifies as a crime of violence for the U.S.S.G. § 4B1.2 career offender enhancement. 483 F.3d at 1183. In that case, a defendant with a prior felony conviction for fleeing and eluding law enforcement officers under Fla. Stat. § 316.1935(3)(a) argued that the district court had improperly characterized this conviction as a crime of violence for sentencing purposes. We concluded, however, that "[t]he dangerous circumstances surrounding a person's attempt to flee from law enforcement coupled with the person's operation of a motor vehicle," along with the fact that the defendant was "deliberately disobeying a law enforcement officer," made it all the more likely that there would be "an inevitable, escalated confrontation with the officer when [the defendant] is finally apprehended." Orisnord, 483 F.3d at 1182-83. Accordingly, we found that a "potential risk of physical injury to another," as is required by U.S.S.G. § 4B1.2, was clearly present. Id. at 1182.

Shortly following Orisnord, the Supreme Court elaborated on the definition of a "violent felony" for the purposes of predicate offenses under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(i)-(ii), in a trilogy of cases: James, Begay, and Chambers. Although James, Begay, and Chambers each addressed sentencing "violent felonies" under the ACCA, the analysis that the Supreme Court employed in those cases is instructive here. Indeed, determining whether a crime constitutes a "violent felony" under the ACCA involves an inquiry strikingly similar to that in determining whether a conviction is a "crime of violence" under U.S.S.G. § 4B1.1(a), inasmuch as "the definitions for both terms are virtually identical." United States v. Taylor, 489 F.3d 1112, 1113 (11th Cir.2007); compare 18 U.S.C. § 924(e)(2)(B)(ii) (violent felony means any crime punishable by a year of imprisonment, that involves "burglary, arson, or extortion . . . or otherwise involves conduct that presents a serious potential risk of physical injury to another") with U.S.S.G. § 4B1.2(a)(2) (a crime of violence includes a crime punishable by a year of imprisonment that includes "burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another"). The examples of the crimes listed in the two sections are the same; and the residual clause in each — "otherwise involves conduct that presents a potential risk of physical injury to another" — is identical.

Not surprisingly, we have utilized the Supreme Court's framework outlined in Begay to assess crimes of violence under the Sentencing Guidelines. See Archer, 531 F.3d at 1350 n. 1 ("The Supreme Court's Begay decision regarding the ACCA is instructive here because of the similar definitions of a `crime of violence' in the Guidelines and of a `violent felony' in ACCA."); see also id. at 1352 ("This court has repeatedly read the definition of a `violent felony' under § 924(e) of the Armed Career Criminal Act as `virtually identical' to the definition of a `crime of violence' under U.S.S.G. § 4B1.2.").

A review of the Supreme Court's opinions in James, Begay, and Chambers does not yield a result different from the one we reached in Orisnord — that fleeing at high speed or with wanton disregard for the safety of persons or property is a crime of violence. First, in James, the Supreme Court reiterated that federal courts should employ a "categorical approach" to determine whether a predicate offense qualifies as a violent felony under the residual provision of the ACCA. Under this approach, courts 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." James, 550 U.S. at 202, 127 S.Ct. 1586 (quoting Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (internal citations omitted)).¹ The test for whether a particular statutory provision qualifies as a "violent felony" was explained this way: "whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another." Id. at 208, 127 S.Ct. 1586. The Supreme Court, in James, evaluated the quantum of risk posed by an attempted burglary, and determined that the crime qualified as a violent felony under 18...