U.S.A v. Sykes

• Citation: 598 F.3d 334
• Decision Date: 12 March 2010
• Docket Number: No. 08-3624.,08-3624.
• Parties: UNITED STATES of America,Plaintiff-Appellee, v. Marcus SYKES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

598 F.3d 334

UNITED STATES of America, Plaintiff-Appellee, v. Marcus SYKES, Defendant-Appellant.

No. 08-3624.

United States Court of Appeals

Seventh Circuit.

Argued Dec. 11, 2009.

Decided March 12, 2010.

As Amended March 22, 2010.

Matthew J. Rinka (argued), Office of the United States Attorney, Indianapolis, IN for Plaintiff-Appellee.

James C. McKinley (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Defendant-Appellant.

Before BAUER, RIPPLE and KANNE Circuit Judges.

BAUER, Circuit Judge.

Defendant Marcus Sykes pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. §§ 922(g)(1) and 924(e). The district court enhanced Sykes' sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii) having determined that he had previously been found guilty of three violent felonies. We affirm.

I. BACKGROUND

On July 22, 2008, Sykes pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1). He had been arrested for brandishing a gun while attempting to rob two people sitting in a parked car outside a liquor store in Indianapolis. Though Sykes aborted his robbery attempt, police saw him toss the gun aside and arrested him. Sykes pleaded guilty and the probation office issued a presentence report concluding that he was subject to a sentencing enhancement under the ACCA because he had three previous violent felony convictions—two convictions in 1996 for robbery and one in 2003 for resisting law enforcement, a Class D felony under Ind.Code § 35-44-33(b)(1)(A). Sykes objected to the enhancement. He argued that a conviction for resisting law enforcement in a vehicle under that provision of Indiana law is not a violent felony, despite our holding to the contrary in United States v. Spells, 537 F.3d 743, 753 (7th Cir.2008).

The district court rejected that argument, applied the enhancement and sentenced Sykes to 188 months in prison. He timely appealed.

II. DISCUSSION

Whether a prior conviction for resisting law enforcement is a violent felony under the ACCA is a legal conclusion we review de novo. United States v. Samuels, 521 F.3d 804, 815 (7th Cir.2008). On appeal Sykes acknowledges our holding in Spells that fleeing law enforcement under Ind Code § 35-44-3-3(b)(l)(A), counts as a violent felony under the ACCA's residual clause, 18 U.S.C. § 924(e)(2)(B)(ii). He contends, however, that we should abandon Spells and follow the Eleventh Circuit which recently held that a nearly identical Florida statute that punishes "fleeing law enforcement" is not a violent felony under the ACCA. United States v. Harrison, 558 F.3d 1280, 1292 (11th Cir.2009); cf. United States v. Tyler, 580 F.3d 722, 726 (8th Cir.2009) (holding that Minnesota's resisting statute, which required increased speed or reckless driving, is not a violent felony under the ACCA's residual clause). For the reasons discussed below, we decline to do so.

The ACCA mandates a fifteen-year mandatory minimum prison sentence for anyone convicted under 18 U.S.C. § 922(g)(1), if that person has previously been convicted of three or more violent felonies. 18 U.S.C. § 924(e)(1). A violentfelony 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).

Typically, our task would be to apply the categorical approach for determining whether a prior conviction is a violent felony, set out by the Supreme Court in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Begay requires us to first "categorize" the conduct proscribed by making a determination based on the statutory elements of the crime, as to what type of conduct characterizes the typical commission of the crime. Id. at 1586-87; United States v. Dismuke, 593 F.3d 582, 588-89 (7th Cir.2010). Once we have identified the conduct involved in a typical commission of the predicate crime, we then employ a two-step analysis to determine whether that typical violation is a violent felony under the ACCA. In the first step, we determine whether the conduct involves a similar degree of risk of serious bodily injury to others as the crimes listed in the ACCA—burglary, arson, extortion and the use of explosives. Dismuke, 593 F.3d 582, 589-90. Second, the typical predicate crime must also be similar in kind to the ACCA's enumerated crimes, meaning it must involve the same kind of "purposeful, violent and aggressive" behavior that shows "an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger." Spells, 537 F.3d at 751-52. When a predicate offense satisfies these requirements, it qualifies as a violent felony under the ACCA.

In "categorizing" Sykes' predicate crime we know, based on the presentence investigation report (PSR), and defense counsel's statements at sentencing and in the briefs, that he was convicted under Ind.Code § 35-44-3-3(b)(l)(A), a class D felony. Less than two years ago in Spells, we held that a conviction under this provision is a violent felony under the ACCA. 537 F.3d at 753. Decided after Begay, Spells followed the Supreme Court's categorical approach for ascertaining whether an offense is a violent felony under the ACCA. Applying this framework to Indiana's statute, we held that "fleeing an officer, in a vehicle, in violation of Ind. Code § 35-44-3-3(b)(l)(A), constitutes a violent felony." Id, at 752. We first decided that the act of fleeing an officer in a vehicle involves a "serious potential risk of physical injury" to others, a decision we impliedly endorsed in Dismuke, 593 F.3d 582, 594-95. We next held in Spells that resisting law enforcement in a vehicle under Indiana law typically involves conduct that is "purposeful, violent and aggressive" such that there is an increased likelihood that the "offender is the kind of person who would deliberately point [a] gun and pull the trigger." Spells, 537 F.3d at 752 (quoting Begay, 128 S.Ct. at 1587). Indiana's resisting statute criminalizes flight that is done "knowingly and intentionally, " which satisfies the requirement that the conduct be purposeful, in contrast to DUI, which is more like a strict liability offense. Id. at 751. In addition, besides daring a cop to endanger himself by giving chase, the act of fleeing police in a vehicle typically creates a risk of harm to other drivers and pedestrians, reflecting a degree of callousness that might lead a person to later pull the trigger on a gun. See id. at 751-52. The offender's purposeful decision to do something that is inherently likely to lead to violent confrontation is an aggressive, violent act. See id. The courtin Begay reasoned, as we did in Spells, that this combination of mental state and likelihood of confrontation with authorities is aggressive and violent because it is an invitation to, or acceptance of the potential violent outcome by the offender. See Begay, 128 S.Ct. at 1587-88; Spells, 537 F.3d at 752. This is true despite the fact that a predicate offense may not require that an offender actually endanger others through his flight. The example crimes listed in § 924(e)(2)(B)(ii) also do not require that the offender put others in danger for conviction. Begay, 128 S.Ct. at 1586 (burglary only requires an unlawful entry into a building with the intent to commit a crime). However, resisting law enforcement and the enumerated crimes all create a likelihood of violent confrontation and are "purposeful, violent and aggressive."

While Spells did not explicitly address the "violent" part of Begay's "purposeful violent and aggressive" test, see Dismuke, 593 F.3d 582, 593-94, its holding is good law and controls our case. In determining whether a felony violation of New Mexico's DUI statute was "violent and aggressive, " the Supreme Court in Begay simply distinguished the conduct characterizing DUI with that characterizing the ACCA's enumerated offenses of burglary, arson, extortion and the use of explosives. Begay, 128 S.Ct. at 1586. While the enumerated offenses are characterized by purposeful, violent and aggressive conduct, and show an increased likelihood that an offender would later pull the trigger on a gun, the Court considered DUI more like a strict liability offense that does not present that increased likelihood. Id. at 1587. The Supreme Court elaborated no further on what constitutes the type of "violent" conduct required under the ACCA, other than providing examples of other strict liability offenses it thought were akin to DUI. See id. It is significant to note that none of the example crimes the Court listed re quired mental culpability above recklessness or negligence. See id. (reckless polluting, negligent release of pollutants into sewer system, reckless tampering with consumer products and inattentive seamen who cause serious accidents). Similarly, we followed this framework in Spells when we distinguished Indiana's resisting law enforcement from DUI, and held that, unlike DUI, a person convicted of resisting law enforcement was much more likely to be someone labeled an "armed career criminal." Spells, 537 F.3d at 752-53. Furthermore, our holding in Spells is consistent with the Supreme Court's subsequent holding in Chambers v. U.S., 129 S.Ct. 687, 691, 172 L.Ed.2d 484 (2009), that escape from custody is a violent felony under the ACCA, whereas a "crime of inaction, " like failure to report to custody is not similarly purposeful, violent and aggressive. Id. at 692-93. A felony conviction for resisting law enforcement in Indiana is a crime of action more like escape than "failure to report, " a crime of inaction. Its knowing and intentional requirement means that a typical offender...