United States v. James Rogers , 481 F. App'x 250 ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0838n.06
No. 08-6181
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
UNITED STATES OF AMERICA, ) Aug 06, 2012
) LEONARD GREEN, Clerk
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
JAMES ROGERS, ) THE WESTERN DISTRICT OF
) TENNESSEE
Defendant-Appellant. )
)
)
Before: GRIFFIN and KETHLEDGE, Circuit Judges, and CARR, District Judge.*
KETHLEDGE, Circuit Judge. This court previously affirmed James Rogers’s sentence for
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Rogers had appealed his
sentence in part because the district court assigned him a base offense level of 20 after concluding
that Rogers’s previous conviction under Tenn. Code Ann. § 39-16-603(b)(1) was a “crime of
violence.” See U.S.S.G. § 2K2.1(a)(4)(A). That provision of the Tennessee code makes it a “Class
E felony” for “any person, while operating a motor vehicle . . . to intentionally flee or attempt to
elude any law enforcement officer, after having received any signal from the officer to . . . stop.”
Id. Rogers argued that his conviction for this “Class E felony” did not qualify as a “prior crime of
violence.” He noted that this Class E felony is different from another provision of the statute that
*
The Honorable James G. Carr, Senior United States District Judge for the Northern District
of Ohio, sitting by designation.
No. 08-6181
United States v. Rogers
punishes, as a “Class D felony,” vehicular flight that “creates a risk of death or injury to innocent
bystanders or other third parties.” Id. at (b)(3). Citing the omission of that language from the
definition of a Class E felony, Rogers contended that a Class E felony does not qualify as a crime
of violence, because crimes of violence must “present[] a serious potential risk of physical injury to
others.” See U.S.S.G. § 4B1.2(a)(2). (The statutory definition of the offense, rather than the facts
of a particular crime, determine whether an offense is a crime of violence. See United States v.
Bartee, 529 F.3d 357, 359 (6th Cir. 2008).) We rejected his argument and affirmed his sentence.
See United States v. Rogers, 594 F.3d 517, 521 (6th Cir. 2010) (mem.).
The Supreme Court thereafter held that violation of an Indiana statute, which prohibits the
use of a vehicle to flee after an officer orders the offender to stop, is a “violent felony.” Sykes v.
United States, 131 S. Ct. 2267, 2271 (2011). Unlike Tennessee’s statute, the Indiana statute imposes
the same punishment on an offender who flees “‘in a manner that creates a substantial risk of bodily
injury to another person.’” Id. at 2276 (citation omitted). But the Court specifically reserved the
question presented here: Whether an ordinary vehicle-flight offense would still qualify as a violent
felony if it carries a less severe penalty than another vehicle-flight offense that includes, as an
element, a substantial risk of harm. Id. at 2227. Thus, the Supreme Court vacated our decision in
this case and remanded it to us for further consideration. Rogers v. United States, 131 S. Ct. 3018(2011).
Another panel of this court has since decided that the Class E felony for which Rogers was
previously convicted qualifies as a violent felony under the Armed Career Criminal Act. See United
States. v. Doyle, 678 F.3d 429 (6th Cir. 2012). The “definitions of ‘violent felony’ under the ACCA
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No. 08-6181
United States v. Rogers
and a ‘crime of violence’ under” the Guidelines “should be interpreted in a consistent manner.”
Bartee, 529 F.3d at 363. Thus, we are bound by Doyle, and adhere to our previous decision that
Rogers’s Class E felony is a crime of violence.
The district court’s judgment is affirmed.
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