United States v. Leslie Duppins, Jr. , 343 F. App'x 401 ( 2009 )


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  •                                                           [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FILED
    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
    ________________________ ELEVENTH CIRCUIT
    Aug. 5, 2009
    No. 08-15668                 THOMAS K. KAHN
    Non-Argument Calendar                CLERK
    ________________________
    D. C. Docket No. 08-00085-CR-ORL-31DAB
    UNITED STATES OF AMERICA,
    Plaintiff-Appellant,
    versus
    LESLIE DUPPINS, JR.,
    Defendant-Appellee.
    ________________________
    Appeal from the United States District Court
    for the Middle District of Florida
    _________________________
    (August 5, 2009)
    Before CARNES, WILSON and ANDERSON, Circuit Judges.
    PER CURIAM:
    The United States appeals the 120-month sentence imposed on Leslie
    Duppins, Jr. for two counts of possession with intent to distribute cocaine base, in
    violation of 21 U.S.C. § 841(a)(1), (b)(1)(C), and two counts of possession with
    intent to distribute five grams or more of cocaine base, in violation of 21 U.S.C.
    § 841(a)(1), (b)(1)(B)(iii). On appeal, the government argues that the district court
    erred in refusing to qualify Duppins as a career offender by concluding that
    Duppins’s prior conviction for fleeing or attempting to elude a police officer under
    Fla. Stat. § 316.1935(1) (2004) is not a “crime of violence” under the career
    offender guideline, U.S.S.G. § 4B1.1(a).
    We review a district court’s application and interpretation of the Sentencing
    Guidelines de novo. United States v. Wilkes, 
    464 F.3d 1240
    , 1242 (11th Cir.
    2006). A crime is a “crime of violence” under the career offender guideline if it is
    punishable by imprisonment for a term exceeding one year under state or federal
    law and “(1) has as an element the use, attempted use, or threatened use of physical
    force against the person of another, or (2) is burglary of a dwelling, arson, or
    extortion, involves use of explosives, or otherwise involves conduct that presents a
    serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a). A crime
    “otherwise involves conduct that presents a serious potential risk of physical injury
    to another” if it is “roughly similar, in kind as well as in degree of risk posed” to
    the enumerated crimes. Begay v. United States, __ U.S. __,
    128 S. Ct. 1581
    , 1585
    2
    (2008).
    In United States v. Harrison, we held that a violation of § 316.1935(2) is not
    a “violent felony” under the Armed Career Criminal Act (“ACCA”). 
    558 F.3d 1280
    , 1296 (11th Cir. 2009). Because we use the same analysis to determine
    whether a crime is a “crime of violence” under the career offender guideline or a
    “violent felony” under the ACCA, Harrison is controlling.1 See United States v.
    Archer, 
    531 F.3d 1347
    , 1350 n.1 (11th Cir. 2008) (“The Supreme Court’s Begay
    decision regarding the ACCA is instructive here because of the similar definitions
    of a ‘crime of violence’ in the Guidelines and of a ‘violent felony’ in [the]
    ACCA.”).
    Upon review of the record and consideration of the parties’ briefs, we
    discern no reversible error. In light of Harrison, addressing a similar provision of
    the same code section, the district court did not err in concluding that Duppins’s
    prior conviction for fleeing or attempting to elude a police officer under Fla. Stat.
    § 316.1935(1) is not a “crime of violence” within the meaning of the career
    offender guideline under U.S.S.G. § 4B1.2(a).2 Harrison is controlling.
    1
    Harrison was published after the briefs were filed in this appeal, but each party
    submitted Harrison as supplemental authority.
    2
    We need not address whether a more serious crime under § 316.1935, using
    language regarding driving at high speeds and demonstrating “a wanton disregard for the safety
    of persons or property,” would qualify as a “crime of violence.” See Fla. Stat. § 316.1935(3)
    (2004).
    3
    Accordingly, we affirm.
    AFFIRMED.3
    3
    The government’s request for oral argument is denied.
    4
    

Document Info

Docket Number: 08-15668

Citation Numbers: 343 F. App'x 401

Judges: Anderson, Carnes, Per Curiam, Wilson

Filed Date: 8/5/2009

Precedential Status: Non-Precedential

Modified Date: 8/2/2023