United States v. Marcus Sykes ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3624
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
M ARCUS S YKES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:08-cr-00095-LJM-KPF-1—Larry J. McKinney, Judge.
A RGUED D ECEMBER 11, 2009—D ECIDED M ARCH 12, 2010
Before B AUER, R IPPLE and K ANNE, Circuit Judges.
B AUER, 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 en-
hanced 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.
2 No. 08-3624
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 at-
tempting 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 § 35-44-3-3(b)(1)(A). Sykes ob-
jected to the enhancement. He argued that a convic-
tion 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 enforce-
ment is a violent felony under the ACCA is a legal con-
clusion we review de novo. United States v. Samuels, 521
F.3d 804, 815 (7th Cir. 2008). On appeal, Sykes acknowl-
edges our holding in Spells that fleeing law enforcement
No. 08-3624 3
under Ind. Code § 35-44-3-3(b)(1)(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 mini-
mum prison sentence for anyone convicted under
18 U.S.C. § 922(g)(1), if that person has previously been
convicted of two or more violent felonies. 18 U.S.C.
§ 924(e)(1). A violent felony 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, 128 S.Ct. 1581 (2008). Begay requires us
to first “categorize” the conduct proscribed by making a
4 No. 08-3624
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, No. 08-1693, 2010 WL 292671, at *5
(7th Cir. Jan. 27, 2010). Once we have identified the con-
duct involved in a typical commission of the predicate
crime, we then employ a two-step analysis to deter-
mine 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 explo-
sives. Dismuke, 2010 WL 292671, at *6. 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 require-
ments, 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)(1)(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 cate-
gorical approach for ascertaining whether an offense is
a violent felony under the ACCA. Applying this frame-
No. 08-3624 5
work to Indiana’s statute, we held that “fleeing an officer,
in a vehicle, in violation of Ind. Code § 35-44-3-3(b)(1)(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, 2010 WL
292671, at *10-11. We next held in Spells that resisting law
enforcement in a vehicle under Indiana law typically
involves conduct that is “purposeful, violent and aggres-
sive” 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 court in Begay rea-
soned, 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 out-
come by the offender. See Begay, 128 S.Ct. at 1587-88;
Spells, 537 F.3d at 752. This is true despite the fact that
6 No. 08-3624
a predicate offense may not require that an offender actu-
ally 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 enumer-
ated crimes all create a likelihood of violent confronta-
tion 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, 2010 WL 292671, at *9, 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 distin-
guished the conduct characterizing DUI with that charac-
terizing 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 consti-
tutes 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 required mental culpability above reck-
lessness or negligence. See id. (reckless polluting, negligent
No. 08-3624 7
release of pollutants into sewer system, reckless tam-
pering with consumer products and inattentive
seamen who cause serious accidents). Similarly, we
followed this framework in Spells when we distin-
guished 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 United States v.
Chambers, 129 S.Ct. 687, 691 (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
does not simply fail to appear before authorities, but
affirmatively eludes police custody by choosing to
continue driving rather than pull over. See Spells, 537
F.3d at 752. Thus Spells is still good law because it cor-
rectly applied Begay’s “purposeful, violent and aggres-
sive,” requirement, and its reasoning has been implicitly
affirmed in Chambers.
In the case at bar, Sykes urges us to overrule that holding
and follow the Eleventh Circuit, which held that the
offense of fleeing from police in a vehicle is not a
violent felony under ACCA. United States v. Harrison, 558
F.3d 1280, 1295 (11th Cir. 2009). However, “[w]hile we
carefully and respectfully consider the opinions of our
8 No. 08-3624
sister circuits, we certainly do not defer to them.” Atchison,
Topeka & Santa Fe Ry. Co. v. Pena, 43 F.3d 437, 443 (7th Cir.
1994) (quoting Colby v. J.C. Penney Co., Inc., 811 F.2d 1119,
1123 (7th Cir. 1987)). Stare decisis requires that we
adhere to our previous holdings unless we feel “obliged to
bring [Spells’] opinion[ ] into line with experience and
facts newly ascertained.” Vasquez v. Hillery, 474 U.S. 254,
266 (1986) (quoting Burnett v. Coronado Oil & Gas Co., 285
U.S. 393, 412 (1932) (Brandeis, J., dissenting)). The mere
existence of Spells “becomes a reason for adhering to
[its] holding[ ] in subsequent cases,” Midlock v. Apple
Vacations W., Inc., 406 F.3d 453, 457 (7th Cir. 2005), espe-
cially when those cases are directly on point, as here.
While the doctrine is not rigid, it is also “not a noodle.”
Bethesda Home & Lutheran Serv’s. v. Born, 238 F.3d 853,
858 (7th Cir. 2001). We need articulable reasons for over-
ruling precedent—e.g. it might be unsound in principle
or unworkable in practice. Garcia v. San Antonio Metro.
Transit Auth., 469 U.S. 528, 546 (1985). On the other hand,
when parties and/or citizens widely rely on a particular
decision, the interests of stability, predictability and
respect for the courts may counsel against overruling
a particular case. Hilton v. S.C. Pub. Rys Comm’n, 502 U.S.
197, 202 (1991).
We adhere today to our approach in Spells because it is
neither unworkable nor unsound. First of all, this case
is factually and legally indistinguishable from Spells. The
categorical approach that guides this case prohibits us
from considering anything other than the ACCA and
the statutory language of the predicate offense. Our
decision here rests upon the same underlying facts—a
No. 08-3624 9
prior conviction under Ind. Code § 35-44-3-3(b)(1)(A)—and
the same legal question: whether that prior conviction
is a violent felony under the ACCA’s residual clause.
Unfortunately for Sykes, his is not a case involving
“facts newly ascertained” nor an unsound or unworkable
precedent, and he offers no reason for us to depart from
precedent, save the existence of a contrary holding in
Harrison. In fact, although the Eleventh Circuit in
Harrison reached a different conclusion about whether
a prior conviction for resisting law enforcement is a
violent felony, that court followed the same categorical
approach outlined in Begay that we followed in Spells.
See Harrison, 558 F.3d at 1295. We simply reached dif-
ferent conclusions. This does not make the approach or
the result unworkable. Additionally, unlike the Eleventh
Circuit, the Fifth, Sixth and Tenth Circuits have all agreed
with our reasoning in Spells. See United States v. Harrimon,
568 F.3d 531, 536 (5th Cir. 2009); United States v. Young, 580
F.3d 373, 378 (6th Cir. 2009); United States v. West, 550
F.3d 952, 971 (10th Cir. 2008); cf. United States v. Rivers,
No. 09-4336, 2010 WL 668928, at *5 (4th Cir. Feb. 25, 2010)
(South Carolina’s fleeing statute is not a violent felony
because it criminalizes “a broad swath of unintentional
conduct.”).
We also note that our recent holding in United States
v. Woods, 576 F.3d 400, 412-13 (7th Cir. 2009), does not
change our analysis of this case. In Woods, we addressed
whether a prior conviction under Illinois involuntary
manslaughter law was a violent felony for purposes of
the ACCA. But Woods does not control our decision
here. Our holding in that case turned on the fact that
10 No. 08-3624
the mens rea required for a conviction of the predicate
crime was recklessness, while the ACCA’s residual
clause only counts “purposeful” crimes as violent felonies.
Id. at 412-13. In contrast, Ind. Code § 35-44-3-3(b)(1)(A)
is a purposeful crime as we recognized in Spells, 537
F.3d at 752, and again in Dismuke, 2010 WL 292671, at *7-8.
Finally, we reject the idea, raised in passing in Sykes’
brief, that the district court erred in failing to make a
factual finding that his underlying conviction was of
the felony variety under Ind. Code § 35-44-3-3(b)(1)(A),
rather than a conviction for a lesser crime under some
other part of the statute. In Woods, we addressed the
question of how to apply the categorical approach in
situations where the statute is divisible, in that it
punishes conduct that is a violent felony, as well as
conduct that is not. 576 F.3d at 403-07. In such cases,
we follow a modified categorical approach that permits
the court to look at a limited set of additional mate-
rials in order to determine under which portion of the
statute the defendant was convicted. Id. at 404-05(quoting United States v. Smith, 544 F.3d 781, 786-87 (7th
Cir. 2009)). The court may look to a charging document,
the terms of a plea agreement or transcript of a
colloquy between the judge and defendant in which the
factual basis for the plea was confirmed. Resort to these
documents is only permitted for the limited purpose of
properly categorizing the predicate offense by deter-
mining under which part of a divisible statute a
defendant was convicted. The court may not consider
the “particular facts underlying the defendant’s con-
viction.” Id. at 404. Even assuming Sykes properly pre-
No. 08-3624 11
served and raised this issue, (which he did not), Woods
is not applicable because there is no doubt as to which
portion of Indiana’s statute that Sykes was convicted
because it was separately numbered and was clearly
identified in the PSR. The PSR stated that Sykes’ convic-
tion was for the Class D felony variety of resisting law
enforcement under Ind. Code § 35-44-3-3(b)(1)(A),
and provided the factual basis for the conviction.
This particular portion of the statute is not divisible. It
can only be violated when a person “knowingly or inten-
tionally . . . flees from a law enforcement officer after
the officer has . . . identified himself or herself and ordered
the person to stop . . . and the person uses a vehicle to
commit the offense . . . .” Ind. Code § 35-44-3-3(b)(1)(A).
Sykes did not object to the PSR in the district court and
therefore waived any such argument here unless he can
show plain error. United States v. Caban, 962 F.2d 646, 650
(7th Cir. 1992). See also Fed. R. Crim. P. 32(i)(3)(A) (district
court “may accept any undisputed portion of the
presentence report as a finding of fact”). We find no
error here plain or otherwise, not only because Sykes
provides no reasons to support such a finding, but
because he essentially admitted to the felony conviction
at sentencing. See Tr. of Sentencing at 4, United States v.
Sykes, 1:08-CR-95 (S.D. Ind. Oct. 8, 2008). When asked
by the district court if he had any objections to the PSR,
Sykes’ attorney did not object to the characterization
of the prior conviction as being under Ind. Code § 35-44-3-
3(b)(1)(A). He only objected to characterization of
Sykes’ prior conviction as a violent felony under the
ACCA, so that he could pursue that argument on ap-
peal. The issue is waived.
12 No. 08-3624
III. CONCLUSION
For the reasons set forth above, fleeing police in a
vehicle in violation of Ind. Code § 35-44-3-3(b)(1)(A) is
sufficiently similar to ACCA’s enumerated crimes in
kind, as well as the degree of risk posed, and counts as
a violent felony under ACCA. We affirm.
3-12-10