United States v. Nicholas Fuller , 472 F. App'x 401 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0767n.06
No. 09-5994 FILED
Jul 16, 2012
UNITED STATES COURT OF APPEALS
LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE WESTERN
) DISTRICT OF TENNESSEE
NICHOLAS BERNARD FULLER, )
)
Defendant-Appellant. )
)
BEFORE: NORRIS, ROGERS, and GRIFFIN, Circuit Judges.
GRIFFIN, Circuit Judge.
This court previously affirmed defendant Nicholas Bernard Fuller’s sentence for being a felon
in possession of a firearm. 18 U.S.C. § 922(g). Fuller argued that the district court erred in
calculating his Guidelines range because his prior Tennessee conviction for Class E evading arrest,
Tenn. Code Ann. § 39-16-603(b)(1), was not a “crime of violence” under U.S.S.G. § 2K2.1(a)(4)(A).
We disagreed and affirmed Fuller’s sentence. United States v. Fuller, 419 F. App’x 655 (6th Cir.
2011).
The Tennessee evading arrest statute provides in relevant part:
(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.
No. 09-5994
United States v. Fuller
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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), (b)(3). Relying upon this language, Fuller asserted that his
conviction for the less serious Class E felony required a finding that the offense was not a crime of
violence. We rejected this contention, as this court had previously addressed and rejected this
precise argument. Fuller, 419 F. App’x at 657 (citing United States v. Rogers, 594 F.3d 517, 521
(6th Cir. 2010)).
Following the issuance of our opinion, the Supreme Court held that an Indiana conviction
for knowing or intentional flight from law enforcement is a “violent felony” under the Armed Career
Criminal Act (“ACCA”).1 Sykes v. United States, 131 S. Ct. 2267, 2270 (2011). In so holding, the
Court expressly reserved the issue presented by Fuller. See id. at 2277 (“The Government would go
further and deem it irrelevant . . . whether a crime is a lesser included offense even in cases where
that offense carries a less severe penalty than the offense that includes it. As the above discussion
indicates, however, the case at hand does not present the occasion to decide that question.”). In light
of this statement, the Supreme Court vacated our decision, and the decision in Rogers, and remanded
for further consideration. Fuller v. United States, 132 S. Ct. 755 (2011); Rogers v. United States,
131 S. Ct. 3018 (2011).
1
“A ‘crime of violence’ under the career-offender provision is interpreted identically to a
‘violent felony’ under [the] ACCA.” United States v. Young, 580 F.3d 373, 380 n.5 (6th Cir. 2009).
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No. 09-5994
United States v. Fuller
Since the Supreme Court issued its decision in Sykes, this court has once again decided that
a Class E felony for Tennessee evading arrest qualifies as a violent felony under the ACCA. United
States v. Doyle, 678 F.3d 429, 433 (6th Cir. 2012). Because we are bound by Doyle, we adhere to
our previous decision that Fuller’s Class E felony for Tennessee evading arrest is a “crime of
violence.”
The district court’s judgment is affirmed.
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