United States v. Ferruccio Frison

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0686n.06
Case No. 11-5279
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Jun 28, 2012
UNITED STATES OF AMERICA, ) LEONARD GREEN, Clerk
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE WESTERN
FERRUCCIO FRISON, ) DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
)
_______________________________________ )
BEFORE: BATCHELDER Chief Judge; MARTIN and KETHLEDGE, Circuit Judges.
ALICE M. BATCHELDER, Chief Judge. Appellant Ferruccio Frison appeals his
sentence, claiming that the district court erred by treating his prior conviction under Tennessee law
for Class E felony evading arrest as a “violent felony” for purposes of the Armed Career Criminal
Act (“ACCA”). Because this Court found in United States v. Doyle, 678 F.3d 429 (6th Cir. 2012),
that such convictions do qualify as violent felonies under the ACCA, we AFFIRM Frison’s
sentence.
I.
Frison pled guilty to violating 18 U.S.C. § 922(g) by being a felon in possession of a firearm.
He had previously been convicted of a Class E felony under Tennessee’s law against evading arrest
in a motor vehicle, Tenn. Code Ann. § 39-16-603. The Presentence Investigation Report treated that
conviction as one for a crime of violence and recommended that, under U.S.S.G. § 2K2.1(a)(4),
Frison’s base offense level be increased. Frison objected to this recommendation, pointing out that
No. 11-5279, United States v. Frison
the Tennessee law specified two types of criminal vehicular evasion: the Class E felony for simply
evading arrest in a motor vehicle and the stricter Class D felony status (and punishment) for those
evasions that also “create[] a risk of death or injury to innocent bystanders or other third parties[.]”
Tenn. Code Ann. § 39-16-603(b)(3). Thus, he reasoned, his Class E felony conviction was for a
crime that did not include a serious potential risk to others and, accordingly, could not be considered
a violent felony under the ACCA. See 18 U.S.C. § 924(e)(2)(B) (defining “violent felony”). Frison
admitted that his construction of the state statute had been directly rejected in United States v.
Rogers, 594 F.3d 517, 521 (6th Cir. 2010), but preserved the issue because he believed that the
Supreme Court might vacate Rogers in the then-pending case, Sykes v. United States, 131 S. Ct. 2267
(2011).
Frison’s prediction was accurate. While Sykes concluded that a very similar motor-vehicle-
evasion conviction was a violent felony under the ACCA, the Indiana statute it construed treated
both simple vehicular evasion and vehicular evasion that posed a serious risk to others the same for
purposes of punishment. 131 S. Ct. at 2277. The Court reserved judgment on whether, under a
statutory scheme that punished simple evasion less than serious-risk evasion, simple evasion would
qualify as a violent felony for ACCA purposes. Id. Because the statutory scheme in Rogers was
precisely the type which the Court declined to consider, the Court remanded Rogers for consideration
of whether it was consistent with the reasoning in Sykes. Rogers v. United States, 131 S. Ct. 3018
(2011) (mem.).
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No. 11-5279, United States v. Frison
Frison, of course, was sentenced before the Supreme Court decided Sykes, and the district
court properly followed Rogers, counted his vehicular evasion conviction as a violent felony under
the ACCA, and gave Frison the enhanced sentence that the ACCA mandated. Frison now asks this
Court to exercise its de novo review over his sentence, United States v. Flores, 477 F.3d 431, 434
(6th Cir. 2007), and remand for resentencing in light of Sykes.
II.
The Rogers court has not yet issued a post-remand decision. But in the meantime, this Court
decided United States v. Doyle, which addressed essentially the same question presented by both
Rogers and Frison’s appeal. Doyle, 678 F.3d at 431. Doyle concluded that Rogers was correctly
decided, that it was consistent with this Court’s earlier decision in United States v. Young, 580 F.3d
373 (6th Cir. 2009), cert. denied, 130 S. Ct. 1723 (2010), and that Sykes fully supports Rogers’s
conclusion. Doyle, 678 F.3d at 435.
Frison has not identified any particular in which Doyle (or, for that matter, Rogers) is
distinguishable from his case, nor do we see one. Because Doyle is a prior published decision of this
Court that squarely and directly rejects Frison’s sole argument on appeal, we are bound to apply it
here. See Sixth Circuit Rule 206(c) (“Reported panel opinions are binding on subsequent panels.”);
accord United States v. Lucido, 612 F.3d 871, 876 (6th Cir. 2010).
III.
Accordingly, we AFFIRM Frison’s sentence.
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