United States v. Nicholas Fuller , 419 F. App'x 655 ( 2011 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0245n.06
FILED
No. 09-5994
Apr 18, 2011
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.
Defendant-appellant Nicholas Bernard Fuller pleaded guilty to being a felon in possession
of a firearm and was sentenced to 37 months of imprisonment. On appeal, Fuller challenges his
sentence, asserting that the district court erred in calculating his Guidelines range. Finding no error,
we affirm.
I.
In October 2008, a federal grand jury returned a one-count indictment charging Fuller with
being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). On March 20, 2009,
Fuller pleaded guilty to the charge.
Prior to sentencing, a presentence investigation report (“PSR”) was compiled. The PSR
recommended a base offence level of 14, pursuant to U.S.S.G. § 2K2.1(a)(6), and a criminal history
No. 09-5994
United States v. Fuller
category of IV, based upon 8 criminal history points. The PSR then afforded a two-level reduction
for acceptance of responsibility, U.S.S.G. § 3E1.1(a), yielding a total offense level of 12, and an
advisory Guidelines range of 21-27 months of imprisonment.
The government objected to the PSR’s Guidelines calculation, asserting that Fuller’s base
offense level should be increased as a result of his prior conviction for evading arrest in violation of
Tennessee Code Annotated § 39-16-603(b)(1). Specifically, the government contended that this
prior conviction constituted a “crime of violence,” requiring a base offense level of 20 pursuant to
U.S.S.G. § 2K2.1(a)(4)(A).
At sentencing, the district court sustained the government’s objection and applied a base
offense level of 20. Granting a three-level reduction for acceptance of responsibility, the district
court determined that Fuller’s total offense level was 17, rendering a Guidelines range of 37-46
months of imprisonment. The court thereafter imposed a sentence of 37 months. Fuller timely
appealed.
II.
As his sole claim on appeal, Fuller asserts that the district court erred in assigning him a base-
offense level of 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(A), contending that his prior conviction for
evading arrest does not constitute a crime of violence. We do not agree.1
1
The conclusion that an offense constitutes a “crime of violence” under the sentencing
Guidelines is a question of law reviewed de novo. United States v. Bass, 315 F.3d 561, 564-65 (6th
Cir. 2002).
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No. 09-5994
United States v. Fuller
“It is a well-established rule of this circuit that one panel cannot overrule the holding of
another panel, absent an intervening inconsistent opinion from the U.S. Supreme Court.” Lewis v.
Humboldt Acquisition Corp., — F.3d — , No. 09-6381, 2011 WL 906433, at *1 (6th Cir. Mar. 17,
2011). In this case, the claim of error presented by Fuller is identical to that addressed and resolved
by this court in United States v. Rogers, 594 F.3d 517 (6th Cir. 2010). In Rogers, the defendant, like
Fuller, had a prior conviction for evading arrest in violation of Tennessee Code Annotated § 39-16-
603(b)(1). Id. at 520. Applying the “categorical approach,” the Rogers court held that this offense
is properly characterized as a crime of violence because it involves intentional conduct creating a
serious potential risk of physical harm to others. Id. at 521.2
Fuller contends that his conviction for evading arrest does not constitute a crime of violence
because he was convicted of a “Class E” felony rather than a “Class D” felony. 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.
***
2
In determining whether an offense constitutes a crime of violence under the sentencing
Guidelines, we utilize the “categorical approach,” which requires that we “look only to the fact of
conviction and the statutory definition - not the facts underlying the offense - to determine whether
that definition supports a conclusion that the conviction was for a crime of violence.” United States
v. Bartee, 529 F.3d 357, 359 (6th Cir. 2008).
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No. 09-5994
United States v. Fuller
(3) 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 contends that his
conviction for the less serious Class E felony requires a finding that the offense is not a crime of
violence. However, Rogers addressed this very issue, holding that evading arrest under Tenn. Code
Ann. § 39-16-603(b) constitutes a crime of violence “regardless of whether [the] evading-arrest
offense was a Class E or a more serious Class D felony[.]” 594 F.3d at 521. We held that “the
decision to flee . . . carries with it the requisite potential risk [to constitute a crime of violence], even
if the resulting chase does not escalate so far as to create the actual risk of death or injury that would
make it a Class D felony under Tennessee law.” Id.
The holding of Rogers controls, and this panel lacks authority to overrule it. Salmi v. Sec’y
of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). Indeed, Fuller does not attempt to
distinguish the facts of Rogers from those presented here, nor does he cite any contrary and
intervening Supreme Court authority. See Lewis, 2011 WL 906433, at *1. Therefore, in accordance
with Rogers, we affirm the district court’s holding that Tennessee’s Class E felony for evading arrest
while operating a motor vehicle is a “crime of violence” under the sentencing Guidelines.
III.
For the reasons stated above, we affirm.
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