United States v. Patton ( 2012 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 1, 2012
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-3248
v. (D.C. No. 2:10-CR-20040-KHV-2)
(D. Kansas)
SHAWN L. PATTON,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, O’BRIEN, and HOLMES, Circuit Judges.
Defendant Shawn Patton pleaded guilty in the United States District Court
for the District of Kansas to possession of a firearm by a convicted felon. See
18 U.S.C. §§ 922(g)(1), 924(a)(2). The district court sentenced him to 180
months’ imprisonment under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e), after determining that he had three prior convictions for violent felonies.
On appeal he challenges his sentence on the ground that the Kansas offense of
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
attempted fleeing or eluding a police officer is not a violent felony. We have
jurisdiction under 28 U.S.C. § 1291 and affirm. Our precedent undermines his
challenge.
I. DISCUSSION
The ACCA sets a minimum sentence of 15 years’ imprisonment for one
convicted under 18 U.S.C. § 922(g) who has three prior convictions for violent
felonies. See 18 U.S.C. § 924(e)(1). Defendant argues that he did not have three
such convictions because his prior Kansas conviction for attempting to flee or
elude a police officer, see Kan. Stat. Ann. § 8-1568(b)(1)(C) (1998), was not for a
violent felony. We review de novo the legal determination that a state conviction
qualifies as a violent felony. See United States v. West, 550 F.3d 952, 959 (10th
Cir. 2008).
The statute violated by Defendant states:
(a) Any driver of a motor vehicle who willfully fails or refuses to
bring such driver’s vehicle to a stop, or who otherwise flees or
attempts to elude a pursuing police vehicle or police bicycle, when
given visual or audible signal to bring the vehicle to a stop, shall be
guilty as provided by [certain subsections]. . . .
(b) Any driver who violates the provisions of subsection (a) and who:
(1) Commits any of the following during a police pursuit: (A) Fails
to stop for a police road block; (B) drives around tire deflating
devices placed by a police officer; (C) engages in reckless driving as
defined by K.S.A. 8-1566 and amendments thereto; (D) is involved in
any motor vehicle accident or intentionally causes damage to
property; or (E) commits five or more moving violations; . . .
(2) . . . shall be guilty as provided in subsection (c)(4).
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Kan. Stat. Ann. § 8-1568(a)–(b) (1998). Defendant was convicted of attempting
to flee or elude a police officer and engaging in reckless driving. See id.
§ 8-1568(b)(1)(C). Under Kansas law, reckless driving is “driv[ing] any vehicle
in willful or wanton disregard for the safety of persons or property.” Id.
§ 8-1566(a) (1989).
The ACCA defines violent felony as:
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) (emphasis added). The sole issue before us is whether
the Kansas offense comes under the language of the residual clause of
§ 924(e)(2)(B)(ii) as a felony “involv[ing] conduct that presents a serious
potential risk of physical injury to another.” The quoted language also appears in
§ 4B1.2(a)(2) of the Sentencing Guidelines (which defines crime of violence), and
we have “consistently interpreted” that language “identically” in both provisions.
United States v. Thomas, 643 F.3d 802, 805 (10th Cir. 2011). See also United
States v. McConnell, 605 F.3d 822, 828 (10th Cir. 2010) (“[T]he nearly identical
language in those two provisions allows us to consider precedent involving one in
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construing the other.”). Opinions applying one provision’s language are virtually
binding precedent in applying the identical language of the other.
Such precedent governs here. In Thomas we held that a conviction under
either Kan. Stat. Ann. § 8-1568(b)(1)(B) or § 8-1568(b)(1)(E) is a crime of
violence under USSG § 4B1.2 because it “involve[d] conduct that presents a
serious potential risk of physical injury to another.” See Thomas, 643 F.3d at
805–06 (internal quotation marks omitted). We relied on the Supreme Court’s
holding in Sykes v. United States, 131 S. Ct. 2267 (2011), that the Indiana offense
of knowingly or intentionally using a vehicle to flee from a police officer is a
violent felony under the residual clause of the ACCA. See id. We reasoned that
the principal difference between the statute in Sykes and the Kansas statute is that
the Kansas statute requires one of the five additional elements listed in subsection
(b). See id. at 806. The additional elements at issue in that case (driving around
a tire-deflating device or committing five or more moving violations), however,
“hardly made Defendant’s offenses less likely [than the offense in Sykes] to cause
physical injury to another.” Id. at 806. The same is true here. Defendant’s
reckless driving in “willful or wanton disregard for the safety of persons or
property,” Kan. Stat. Ann. § 8-1566(a), did not make his offense less likely to
cause physical injury to another than would the Indiana offense addressed in
Sykes.
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Defendant attempts to distinguish Thomas on the ground that Defendant,
unlike the defendant in Thomas, was convicted of merely attempting to flee. But
in opinions addressing a Utah offense similar to the one Defendant was convicted
of, we held that attempting to flee satisfies the residual clauses of both USSG
§ 4B1.2(a) and 18 U.S.C. § 922(e)(2)(B)(ii). See United States v. Wise, 597 F.3d
1141, 1144, 1146 (10th Cir. 2010) (“‘attempt[ing] to flee or elude a peace officer
by vehicle or other means’” after receiving a signal to stop is a crime of violence
under USSG § 4B1.2(a)(2)); United States v. West, 550 F.3d 952, 969–71 (10th
Cir. 2008) (conviction under same Utah statute is a violent felony under
§ 924(e)(2)).
II. CONCLUSION
We AFFIRM the judgment of the district court.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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