United States v. Ellis Members ( 2010 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 25, 2010*
Decided May 26, 2010
Before
WILLIAM J. BAUER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
ILANA DIAMOND ROVNER, Circuit Judge
No. 09-1572
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Southern District of Indiana,
Indianapolis Division.
v.
No. 1:08-CR-00093-001
ELLIS MEMBERS,
Defendant-Appellant. Sarah Evans Barker,
Judge.
ORDER
Ellis Members was convicted of possession of a firearm by a felon, see 18 U.S.C.
§ 922(g)(1), and sentenced to 110 months’ imprisonment. On appeal he challenges whether
his prior Indiana conviction for resisting law enforcement, see IND. C ODE § 35-44-3-
3(b)(1)(A), qualifies as a crime of violence under the guidelines. At the time of sentencing,
circuit precedent was against him, see United States v. Spells, 537 F.3d 743, 752 (7th Cir.
2008), cert. denied, 129 S. Ct. 2379 (2009), but Members hoped that we would reconsider in
*
After examining the briefs and the record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P.
34(a)(2)(C).
No. 09-1572 Page 2
light of an Eleventh Circuit case that holds a similar Florida statute is not a violent felony
under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924 (e)(2)(B), see United States
v. Harrison, 558 F.3d 1280 (11th Cir. 2009). After briefing finished in this case, however, we
reaffirmed our holding that § 35-44-3-3(b)(1)(A) is a violent felony. See United States v.
Sykes, 598 F.3d 334 (7th Cir. 2010). Because Members’s case is indistinguishable from Sykes
and Spells, we affirm the sentence.
Members does not contest that he was convicted of resisting law enforcement using
a vehicle, a Class D felony. See IND. C ODE § 35-44-3-3(b)(1)(A). The district court classified
the prior conviction as a crime of violence as defined in § 4B1.2(a) of the sentencing
guidelines and used it to increase Members’s base offense level to 20. See U.S.S.G.
§ 2K2.1(a)(4). Although Members argues that we should follow the Eleventh Circuit’s lead
in Harrison and hold that § 35-44-3-3(b)(1)(A) is not a violent crime, we rejected that
argument in Sykes. In Sykes, the defendant had a prior felony conviction for a violation of
the same Indiana statute—§ 35-44-3-3(b)(1)(A)—that was at issue in Spells and that is again
before us in this case. Sykes, 598 F.3d at 335. After applying the three-step analysis
established in Begay v. United States, 553 U.S. 137 (2008), we reaffirmed our holding in Spells
and concluded that resisting law enforcement involves the type of “purposeful, violent and
aggressive” behavior that makes it similar in kind to the crimes listed in the ACCA. Sykes,
598 F.3d at 337. We considered the reasoning in Harrison but explained that we saw no new
facts or circumstances that convinced us to overturn our precedent. Id. at 337-38.
Accordingly, because we use a modified categorical approach in designating violent
offenses, Begay, 553 U.S. at 141, Members’s case falls squarely under Sykes and Spells. That
his challenges arises under the guidelines rather than the ACCA is of no import because the
two provisions at issue employ the same language and are interpreted alike. See United
States v. Billups, 536 F.3d 574, 579 n.1 (7th Cir. 2008). Having twice determined that a
violation of § 35-44-3-3(b)(1)(A) qualifies as a violent felony, we can find no error in the
district court’s decision to increase Members’s base-offense level under § 2K2.1(a)(4) based
on his prior conviction for resisting law enforcement.
For the foregoing reasons, we AFFIRM the sentence imposed by the district court.