NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 8, 2010
July 8, 2010
Before
KENNETH F. RIPPLE, Circuit Judge
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 09‐2846
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff‐Appellee, Court for the Western District of
Wisconsin.
v.
No. 08 CR 170
KENNETH ASKEW,
Defendant‐Appellant. James T. Moody, Judge.
O R D E R
The district court sentenced Kenneth Askew to 240 months’ imprisonment for his
convictions for possessing an unregistered sawed‐off shotgun and possession of a firearm
by a felon. The advisory Guidelines range associated with that sentence was based, in part,
on the court’s conclusion that Askew’s previous felony conviction under Minnesota law for
fleeing an officer in a motor vehicle is a crime of violence under the Guidelines. Askew
appeals, claiming that conclusion was erroneous. We affirm.
No. 09‐2846 Page 2
I.
A jury convicted Kenneth Askew of possessing an unregistered sawed‐off shotgun,
26 U.S.C. § 5861(d), and possessing a firearm as a felon,
18 U.S.C. § 922(g)(1). The
presentence investigation report (PSR) set a base offense level of 26 under § 2K2.1(a)(1) of
the Guidelines based on his two previous crime‐of‐violence felony convictions: one for
burglary and kidnaping,1 and the other for fleeing an officer in a motor vehicle in violation
of Minnesota Statutes § 609.487 subdivision 3. The PSR calculated a total offense level of 32
and a criminal history category of VI, which resulted in an advisory Guidelines range of
210–240 months.2
Askew did not object to any portion of the PSR. At sentencing, the district court
adopted the PSR’s Guidelines calculations and sentenced him to 240 months’ imprisonment.
Askew appeals, arguing that the district court erred in concluding that his felony conviction
for fleeing an officer in a motor vehicle qualifies as a crime of violence under the Guidelines.
II.
Our review of a district court’s conclusion that a defendant’s previous felony offense
is a crime of violence under the Guidelines is ordinarily de novo. United States v. Clinton,
591 F.3d 968, 972 (7th Cir. 2010). Here, however, our review is only for plain error because
Askew forfeited any objection to the district court’s Guidelines calculations by failing to
raise it below. United States v. Macedo,
406 F.3d 778, 789 (7th Cir. 2005). Under that
standard, he must demonstrate there was (1) an error (2) that was plain (3) that affected his
substantial rights. United States v. Sawyer,
521 F.3d 792, 796 (7th Cir. 2008). If he establishes
these three things, we have discretion to correct the error if it “seriously affected the
fairness, integrity or public reputation of judicial proceedings.”
Id. (quotation marks
omitted).
1
Because Askew was convicted of two felonies (burglary and kidnaping) that were
contained in the same charging document and the sentences for those convictions were
imposed on the same day, under §§ 4B1.2(c), 4B1.2, cmt. n. 3, and 4A1.2(a)(2) of the Guidelines,
the sentences count as one prior sentence and the convictions thus count as one prior felony
conviction.
2
Although the usual Guidelines range for a total offense level of 32 and a criminal
history category of VI is 210–262 months, the district court concluded that the top end of
Askew’s range is capped at 240 months by
18 U.S.C. § 924(a)(2) and
26 U.S.C. § 5871, which set
10‐year statutory maximums for the offenses of conviction.
No. 09‐2846 Page 3
Under § 2K2.1(a)(1), a base offense level of 26 applies to Askew’s offenses of
conviction if he already has “at least two felony convictions of . . . a crime of violence.”
Askew does not dispute that his previous felony conviction for burglary and kidnaping was
for a crime of violence. But he argues that his earlier felony conviction for fleeing from an
officer in a motor vehicle does not qualify as a crime of violence.
Under § 2K2.1(a)(1), “crime of violence” has the meaning given that term in §
4B1.2(a).3 U.S.S.G. § 2K2.1, cmt. n.1. According to § 4B1.2(a),
[t]he term “crime of violence” means any offense under federal or state law,
punishable by imprisonment for a term exceeding one year, that (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.
The Minnesota statute under which Askew was convicted provides that
[w]hoever by means of a motor vehicle flees or attempts to flee a peace officer
who is acting in the lawful discharge of an official duty, and the perpetrator
knows or should reasonably know the same to be a peace officer, is guilty of a
felony and may be sentenced to imprisonment for not more than three years
and one day or to payment of a fine of not more than $5,000, or both.
Minn. Stat. § 609.487 subdv. 3. The definition of “flee” from § 609.487 subdivision 3 is
provided by § 609.487 subdivision 1: “the term ‘flee’ means to increase speed, extinguish
motor vehicle headlights or taillights, refuse to stop the vehicle, or use other means with
intent to attempt to elude a peace officer following a signal given by any peace officer to the
driver of a motor vehicle.” Thus, to be convicted under Minnesota Statutes § 609.487
subdivision 3, a defendant must have used a motor vehicle intending to attempt to elude a
person he knows (or reasonably should know) is a peace officer lawfully performing an
official duty after a peace officer has signaled the driver of the motor vehicle.
A conviction under that statute is punishable by more than one year imprisonment,
as § 4B1.2(a) requires. But the offense does not have as an element the use (or attempted or
3
We interpret “crime of violence” from § 4B1.2(a) the same way as “violent felony” in
18 U.S.C. § 924(e), which is a part of the Armed Career Criminal Act. United States v. Templeton,
543 F.3d 378, 380 (7th Cir. 2008). We use these terms interchangeably in this opinion.
No. 09‐2846 Page 4
threatened use) of physical force against another person, § 4B1.2(a)(1), nor is it one of the
enumerated offenses from § 4B1.2(a)(2). Therefore, in order to be considered a crime of
violence, the offense must fit within the residual clause of § 4B1.2(a)(2): it must “otherwise
involve[] conduct that presents a serious potential risk of physical injury to another.”
To determine whether an offense comes within that residual clause, we employ a
categorical approach, which means that we ordinarily “look only to the fact of conviction
and the statutory definition of the prior offense” and do not consider the “particular facts
disclosed by the record of conviction.”4 James v. United States,
550 U.S. 192, 202 (2007)
(quotation marks and citations omitted); accord United States v. Woods,
576 F.3d 400, 403 (7th
Cir. 2009). In other words, “we consider the offense generically, that is to say, we examine it
in terms of how the law defines the offense and not in terms of how an individual offender
might have committed it on a particular occasion.” Begay v. United States,
553 U.S. 137, 141
(2008).
4
We say “ordinarily” because in cases where the statute in question is “divisible”—i.e.,
describes multiple offense categories, some of which would be crimes of violence and some that
would not—we use a modified categorical approach. E.g., United States v. Dismuke,
593 F.3d
582, 589 (7th Cir. 2010). Under that approach, a court can look to a limited set of materials to
determine whether the defendant was convicted of a part of the statute that is a crime of
violence.
Id.
Assuming that Minnesota Statutes § 609.487 subdivision 3 describes multiple offense
categories, it is not divisible. In effect, section 609.487 subdivision 3 proscribes any use of a
motor vehicle with the intent to attempt to elude a person the perpetrator knows is a peace
officer following an officer’s signal to the driver of the vehicle. See
Minn. Stat. § 609.487 subdv.
1 (defining “flee” as “to increase speed, extinguish motor vehicle headlights or taillights, refuse
to stop the vehicle, or use other means with intent to attempt to elude a peace officer following
a signal given by any peace officer to the driver of a motor vehicle.”). We have previously
concluded that all intentional flights against the command of a police officer are violent
felonies, regardless of the manner or effects of fleeing. Welch v. United States,
604 F.3d 408,
423–25 (7th Cir. 2010). Therefore, and in light of our holding in this case, the Minnesota statute
is not divisible because it does not describe any crimes that are not crimes of violence. Cf.
United States v. Sykes,
598 F.3d 334, 339 (7th Cir. 2010) (noting indivisibility of Indiana’s motor
vehicle fleeing statute, which broadly proscribes “‘knowingly or intentionally . . . flee[ing] 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’” (quoting
Ind. Code §
35‐44‐3‐3(b)(1)(A))).
No. 09‐2846 Page 5
The conduct covered by the statutory elements of the predicate offense must, in the
typical case, be similar both in kind and in degree of risk posed as the conduct encompassed
by the offenses listed in § 4B1.2(a)(2). Id. at 143; Dismuke,
593 F.3d at 594. In other words,
the predicate crime must “(1) present a serious potential risk of physical injury similar in
degree to the enumerated crimes of burglary, arson, extortion, or crimes involving the use of
explosives; and (2) involve the same or similar kind of ‘purposeful, violent, and aggressive’
conduct as the enumerated crimes.” Dismuke,
593 F.3d at 591.
The first requirement is satisfied here. In order to violate § 609.487 subdivision 3, a
defendant must first receive a signal from an officer and then, flouting the officer’s
authority, use a motor vehicle with the intent of eluding the officer. As we recently
observed in Dismuke (relying on cases from three other circuits), such behavior presents a
serious potential risk of physical injury because it “involves active defiance of a law‐
enforcement officer, initiates a pursuit, and typically culminates in a face‐to‐face
confrontation between the officer and the suspect.”
593 F.3d at 592 n.3 (citing United States
v. Young,
580 F.3d 373, 377–78 (6th Cir. 2009); United States v. Harrimon,
568 F.3d 531, 536
(5th Cir. 2009); United States v. West,
550 F.3d 952, 969–71 (10th Cir. 2008)).
To be sure, the predicate offense in Dismuke was for a violation of Wisconsin Statute
§ 346.04(3), which proscribes fleeing an officer by means of increasing the speed of a motor
vehicle, and Minnesota Statutes § 609.487 subdivision 3 is comparatively much broader in
that it proscribes any means of fleeing a law‐enforcement officer using a motor vehicle. See
supra n.4. Nevertheless, the serious potential risk of physical injury posed by a typical
violation of such a broad statute is sufficiently similar in degree as the enumerated offenses
in § 4B1.2(a)(2) to be considered a crime of violence.
That conclusion parallels our recent holding in Sykes, where we held that an Indiana
statute that, similarly, broadly proscribes “‘knowingly or intentionally . . . flee[ing] 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’” was a violent
felony.
598 F.3d at 339 (quoting
Ind. Code § 35‐44‐3‐3(b)(1)(A)). In Sykes, we affirmed our
holding to the same effect from United States v. Spells,
537 F.3d 743 (7th Cir. 2008),
concerning the same Indiana statute. Id. at 337. Moreover, the Fifth and Sixth Circuits have
reached like conclusions in cases involving motor vehicle fleeing statutes where “fleeing” is
expansively defined. United States v. Rogers,
594 F.3d 517, 520–21 (6th Cir. 2010) (
Tenn.
Code Ann. § 39‐16‐603(b)(1)); Young,
580 F.3d at 376 (
Mich. Comp. Laws § 257.601a(1));
Harrimon,
568 F.3d at 533 n.2 (
Tex. Penal Code Ann. § 38.04(a), (b)(1)). We thus conclude
that the typical violation of Minnesota Statutes § 609.487 subdivision 3 poses a serious
potential risk of physical injury similar in degree to the crimes listed in § 4B1.2(a)(2).
No. 09‐2846 Page 6
We turn to the second requirement: that the conduct encompassed by the predicate
offense be similar in kind—i.e., be purposeful, aggressive, and violent—as the conduct
encompassed by the enumerated crimes. Askew concedes that § 609.487 subdivision 3 is a
purposeful offense. (Supp. Br. at 7.) And for good reason: specific intent is an element of
the crime.
Minn. Stat. § 609.487 subdv. 1 (defining “flee” as to use a motor vehicle “with
intent to attempt to elude a peace officer”); State v. Anderson,
468 N.W.2d 345, 346 (Minn. Ct.
App. 1991) (“The crime of fleeing a peace officer requires a specific intent to attempt to
elude the officer.” (citing
Minn. Stat. § 609.487 subdv. 3)). An intentional mental state
satisfies the purposeful requirement. E.g., Welch,
604 F.3d at 418.
The typical violation of § 609.487 subdivision 3 also involves aggressive conduct. An
offender who flees from the presence of an officer who has signaled him draws attention to
himself, challenges the officer’s authority, and invites pursuit. Id. at 424; Spells,
537 F.3d at
752 (“Taking flight calls the officer to give chase, and aside from any accompanying risk to
pedestrians and other motorists, such flight dares the officer to needlessly endanger himself
in pursuit.”) And as the Fifth Circuit has observed, “[t]his active defiance of an attempted
stop or arrest is similar to the behavior underlying an escape from custody, which, as the
Supreme Court noted in Chambers, is ‘less passive’ and ‘more aggressive’ than that likely
underlying failure to report.” Harrimon,
568 F.3d at 535 (quoting Chambers v. United States,
129 S. Ct. 687, 691 (2008)); accord Dismuke,
593 F.3d at 595 (discussing Chambers and quoting
Harrimon); see also Welch,
604 F.3d at 424.
Last, fleeing from an officer’s presence by vehicle involves violent conduct in the
run‐of‐the‐mill case. An offender’s act of fleeing ordinarily leads to confrontation with the
officer whose authority has been disregarded, an encounter often accompanied by risk of
violence. Dismuke,
593 F.3d at 595; Harrimon,
568 F.3d at 535. Moreover, the use of a vehicle
to accomplish that fleeing “involves violent force which the arresting officer must in some
way overcome.” Harrimon,
568 F.3d at 535. The eluding offender subjects to that force not
only the pursuing officers, but also any other motorists and bystanders who may be present.
Dismuke,
593 F.3d at 595; Harrimon,
568 F.3d at 535; West,
550 F.3d at 970. And just recently
in Welch, we reaffirmed our view that an offender’s purposeful decision to flee an officer in
a motor vehicle after having been told to stop “‘reflects that if that same individual were in
possession of a firearm and asked to stop by the police, he would have a greater propensity
to use that firearm in an effort to evade arrest.’”
604 F.3d at 425 (quoting Spells,
537 F.3d at
752). For these reasons, we conclude that the conduct encompassed by Minnesota Statutes §
609.487 subdivision 3 is also similar in kind as the conduct encompassed by the specific
crimes listed in § 4B1.2(a)(2).
III.
No. 09‐2846 Page 7
Having determined that a conviction under Minnesota Statutes § 609.487 subdivision
3 typically involves conduct that is similar both in kind and degree of risk posed as the
conduct underlying the specific crimes listed in § 4B1.2(a)(2), we therefore hold that it
qualifies as a crime of violence under the residual clause of § 4B1.2(a)(2).5 Accordingly, the
judgment of the district court is AFFIRMED.
5
We recognize here, as we did in Dismuke and Sykes, that the Eighth and Eleventh
Circuits see things differently when it comes to motor vehicle fleeing convictions. United States
v. Furqueron,
605 F.3d 612 (8th Cir. 2010); United States v. Johnson,
601 F.3d 869 (8th Cir. 2010);
United States v. Tyler,
580 F.3d 722 (8th Cir. 2009); United States v. Harrison,
558 F.3d 1280 (11th
Cir. 2009). Contra United States v. Hudson,
577 F.3d 883 (8th Cir. 2009). In fact, in Furqueron,
Johnson, and Tyler, the Eighth Circuit reached a different conclusion concerning the very
Minnesota statute at issue here. Askew asks that we part company with the Fifth, Sixth, and
Tenth Circuits and join the Eighth and Eleventh Circuits. We refused to do so in Dismuke and
Sykes, and absent a convincing reason for doing so here, we decline the invitation again.
