United States v. Doyle

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0118p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 10-5075

v.

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Defendant-Appellant. -

DAVID EARL DOYLE,

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Appeal from the United States District Court

for the Western District of Tennessee at Jackson.

No. 07-10056-001—James D. Todd, District Judge.

Decided and Filed: May 4, 2012

Before: GRIFFIN and WHITE, Circuit Judges; WATSON, District Judge.*

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COUNSEL

ON BRIEF: M. Dianne Smothers, OFFICE OF FEDERAL PUBLIC DEFENDER,

Memphis, Tennessee for Appellant. James W. Powell, ASSISTANT UNITED STATES

ATTORNEY, Jackson, Tennessee for Appellee.

GRIFFIN, J., delivered the opinion of the court, in which WATSON, D. J.,

joined. WHITE, J. (pp. 12–18), delivered a separate dissenting opinion.

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OPINION

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GRIFFIN, Circuit Judge. Defendant David Earl Doyle appeals his sentence. The

issue is whether his prior conviction under Tennessee state law for Class E felony

evading arrest is a “violent felony” for purposes of the Armed Career Criminal Act

(“ACCA”). This court held in United States v. Rogers, 594 F.3d 517 (6th Cir. 2010),

*

The Honorable Michael H. Watson, United States District Judge for the Southern District of

Ohio, sitting by designation.

1

No. 10-5075 United States v. Doyle Page 2

that it was,1 but the Supreme Court vacated our judgment and remanded the case for

further consideration in light of its recent decision, Sykes v. United States, 131 S. Ct.

2267 (2011). See Rogers v. United States, 131 S. Ct. 3018 (2011) (mem.). For the

reasons that follow, we again hold that Class E felony evading arrest under Tennessee

law is a violent felony.

I.

On the morning of May 1, 2007, the Perry County Sheriff’s Office received a

complaint of a suspicious vehicle parked behind a church. Upon arriving at the church,

the deputies noticed Doyle in the driver’s seat of the vehicle and a woman in the

passenger’s seat. Both were asleep, and the vehicle was running. The deputies observed

a nine millimeter pistol in the pocket of the open driver’s side door and what appeared

to be a short-barreled, 20-gauge shotgun laying between the seats of the vehicle. After

removing the firearms, the deputies woke Doyle and the woman before arresting them

on various charges.

Two weeks later, a federal grand jury returned an indictment charging Doyle with

being a felon in possession of a firearm, 18 U.S.C. § 922(g); possession of a firearm

altered to have a barrel of less than eighteen inches in length, 26 U.S.C. §§ 5822,

5861(c), 5871; and possession of an unregistered firearm, 26 U.S.C. §§ 5822, 5861(d),

5871. Doyle pled guilty to the charges.

At sentencing, the district court ruled that Doyle was an “armed career criminal”

under the Guidelines because he had three prior convictions that qualified him for an

enhanced sentence under the ACCA: aggravated assault; burglary other than a

habitation; and a Class E felony of evading arrest. U.S.S.G. § 4B1.4(a); 18 U.S.C.

§ 924(e). His base offense level was set at 34. The district court granted a three-level

reduction for acceptance of responsibility. With an adjusted level of 31 and a criminal

1

Rogers held that the offense was a “crime of violence” under the Sentencing Guidelines, but an

identical analysis applies in determining whether an offense is a violent felony under the ACCA. United

States v. McMurray, 653 F.3d 367, 371 n.1 (6th Cir. 2011).

No. 10-5075 United States v. Doyle Page 3

history category of VI, Doyle’s Guidelines range was 188-235 months.2 The district

court granted Doyle a variance by sentencing him to the statutory mandatory minimum

of 180 months on count one, and 120 months on each of counts two and three, both to

run concurrent to the sentence imposed on count one. Doyle timely appealed.

II.

Doyle concedes that his previous convictions for aggravated assault, and for

burglary, qualify as violent felonies under the ACCA. Therefore, we need only

determine whether his prior conviction for Class E felony evading arrest is a violent

felony. We review the district court’s determination de novo. United States v. Flores,

477 F.3d 431, 434 (6th Cir. 2007).

A.

The United States Sentencing Guidelines provide that a defendant is to be

sentenced as an “armed career criminal” if he is subject to an enhanced sentence under

the ACCA. U.S.S.G. § 4B1.4(a). Persons convicted under 18 U.S.C. § 922(g) (e.g.,

felon possessing a firearm) who have three previous convictions for “violent felon[ies]

or . . . serious drug offense[s]” are subject to an enhanced sentence under the ACCA.

18 U.S.C. § 924(e)(1). A “violent felony” is “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 . . . .

Id. § 924(e)(2)(B) (emphasis added). The italicized portion is known as the “residual

clause.” See Sykes v. United States, 131 S. Ct. 2267, 2273 (2011). In Tennessee, a Class

E felony evading arrest offense does not have as an element the use, attempted use, or

2

Without the ACCA enhancement, Doyle’s adjusted offense level would have been 23, and his

criminal history category would have been V, resulting in a Guidelines range of 84-105 months.

No. 10-5075 United States v. Doyle Page 4

threatened use of physical force against another. Nor is it burglary, arson, or extortion,

and it does not involve the use of explosives. Therefore, Class E felony evading arrest

can be a violent felony only if it “otherwise involves conduct that presents a serious

potential risk of physical injury to another.” We employ a categorical approach to make

the determination.

Under this approach, we look only to the fact of conviction and the

statutory definition of the prior offense, and do not generally consider the

particular facts disclosed by the record of conviction. That is, we

consider whether the elements of the offense are of the type that would

justify its inclusion within the residual provision, without inquiring into

the specific conduct of this particular offender.

Id. at 2272 (quoting James v. United States, 550 U.S. 192, 202 (2007) (quotation marks

omitted) (emphasis in original). Further, we concern ourselves only with how an offense

is committed “in the ordinary case,” not how one commits it in “hypothesize[d,] unusual

cases in which even a prototypically violent crime might not present a genuine risk of

injury.” James, 550 U.S. at 208.

B.

The relevant Tennessee law provides:

(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.

***

(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), (3).

Doyle argues that, because he was convicted only of a Class E felony, which,

unlike the Class D variant, does not require that he “create[] a risk of death or injury to

innocent bystanders or other third parties,” his conviction necessarily falls outside the

No. 10-5075 United States v. Doyle Page 5

ACCA’s residual clause, which covers conduct that “presents a serious potential risk of

physical injury to another.” Based on the analysis in United States v. Christian, 214

F. App’x 337 (4th Cir. 2007) (per curiam), the district court rejected Doyle’s argument.

Shortly after Doyle was sentenced, this court issued its decision in United States v.

Rogers, 594 F.3d 517 (6th Cir. 2010), holding that a conviction under Tennessee law for

Class E felony evading arrest is a “crime of violence” under the Guidelines. Id. at 521.

Rogers relied on this court’s analysis in United States v. Young, 580 F.3d 373 (6th Cir.

2009), cert. denied, 130 S. Ct. 1723 (2010), and rejected the very argument Doyle makes

here. Doyle argues in his appellate brief that Rogers was wrongly decided. He does not,

however (and for good reason, we believe), attempt to distinguish Rogers – Rogers

discussed the precise issue in this case and is undistinguishable.

However, after the parties filed their appellate briefs in this case, the Supreme

Court vacated our judgment in Rogers and remanded the case for further consideration

in light of its recent decision Sykes v. United States, 131 S. Ct. 2267 (2011). See Rogers

v. United States, 131 S. Ct. 3018 (2011) (mem.). As of today, the original Rogers panel

has not issued a decision on remand, and, to our knowledge, no other panel of our court

has addressed the issue. Therefore, Sykes’s effect on our cases remains an open

question.

In Sykes, the Supreme Court considered whether an Indiana law prohibiting

drivers from knowingly or intentionally “flee[ing] from a law enforcement officer” was

a violent felony under the ACCA’s residual clause. 131 S. Ct. at 2270, 2273. One could

commit Class D felony flight – “knowingly or intentionally . . . flee[ing] from a law

enforcement officer after the officer has, by visible or audible means, identified himself

and ordered the person to stop” – in two primary ways: (1) by simply “us[ing] a vehicle

to commit the offense[,]” Ind. Code Ann. § 35-44-3-3(b)(1)(A); or (2) by “draw[ing] or

us[ing] a deadly weapon, inflict[ing] bodily injury on another person, or operat[ing] a

vehicle in a manner that creates a substantial risk of bodily injury to another person[,]”

id. § 35-44-3-3(b)(1)(B) (emphasis added). Sykes, 131 S. Ct. at 2271. Sykes was

convicted under subsection (b)(1)(A) simply because he used a vehicle to commit the

No. 10-5075 United States v. Doyle Page 6

offense. Id. He argued that, because he was not convicted of flight under subsection

(b)(1)(B), which requires that one “operat[e] a vehicle in a manner that creates a

substantial risk of bodily injury to another person,” his offense necessarily fell outside

the requirements of the residual clause. Id. at 2276; compare 18 U.S.C.

§ 924(e)(2)(B)(ii) (“or otherwise involves conduct that presents a serious potential risk

of physical injury to another” (emphasis added)). This essentially is the same argument

Doyle makes in the present case.

The Supreme Court rejected Sykes’s argument primarily because the two ways

to commit vehicle flight carried the same criminal liability – both were Class D felonies

punishable by six months to three years. Id. According to the Court, the parity in

punishment reflected a view that, because “serious and substantial risks are an inherent

part of [any] vehicle flight,” those risks “need not be proved separately . . . .” Id. at

2276; see also id. at 2283 (Thomas, J., concurring) (“[U]sing a vehicle to intentionally

flee is always a class D felony, without any need to prove risk.”). Therefore, that a

defendant was convicted under subsection (b)(1)(A) does not necessarily mean he did

not create a substantial risk of bodily harm to another person. To the contrary, it means

his conduct necessarily created such risk precisely because he used a vehicle to flee. See

id. at 2276. The Court reserved the question whether it matters under the residual clause

that “a crime is a lesser included offense . . . where that offense carries a less severe

penalty than the offense that includes it.” Id. at 2277; see id. at 2295 (Kagan, J.,

dissenting) (“[T]he Court reserves the question whether a vehicular flight provision like

subsection (b)(1)(A) is a [violent felony] under ACCA ‘where that offense carries a less

severe penalty than [a greater] offense that includes it.’”).

This appeal involves the type of state statute about which Sykes reserved

discussion, for Class E felony evading arrest is a lesser included offense of the Class D

version, State v. Stanton, No. M2003-03049-CCA-R3-CD, 2005 WL 639139, at *10

(Tenn. Crim. App. Mar. 17, 2005), and carries less criminal liability and potential for

punishment than the Class D version, compare Tenn. Code Ann. § 40-35-111(b)(4)-(5).

After a thorough review of the Sykes decision, we conclude that nothing in it casts doubt

No. 10-5075 United States v. Doyle Page 7

upon our holding in Rogers that Class E felony evading arrest under Tennessee law is

a crime of violence. Indeed, we find that Sykes further supports our conclusion that

Class E felony evading arrest is a violent felony under the ACCA.

Rogers relied on our earlier decision in Young, which involved a Michigan

statute materially similar to the Tennessee statute.3 In Young, we held that fleeing and

eluding under Michigan law was a crime of violence because it (1) posed a serious

potential risk of physical injury to others, and (2) involved the same kind of “purposeful,

violent, and aggressive conduct” as burglary, arson, extortion, or offenses involving the

use of explosives. Young, 580 F.3d at 377 (citing Begay v. United States, 553 U.S. 137,

144-45 (2008)). It was purposeful because the statute requires willful non-compliance;

it was aggressive because a deliberate attempt to flee or elude police is a “clear challenge

to the officer’s authority,” usually causes the officer to give chase, and “typically lead[s]

to a confrontation between the offender and the officer”; it was violent and sufficiently

risky because the entire purpose of intentional flight is to avoid detention or arrest by

means that nearly always pose a substantial danger to others, including pursuing officers.

Id. at 377-78.4

Rogers concluded that Young’s holding “govern[ed],” “regardless of whether

Rogers’s evading-arrest offense was a Class E or a more serious Class D felony under

Tennessee law.” Rogers, 594 F.3d at 521. We noted that, in two ways, the residual

clause covered a broader range of conduct than that necessary for a Class D felony.

3

The Michigan statute at issue in Young provided that:

A driver of a motor vehicle who is given . . . a . . . signal by a [police officer] . . .

directing the driver to bring his or her motor vehicle to a stop, and who willfully fails

to obey that direction . . . is guilty of a misdemeanor . . . .

Young, 580 F.3d at 376 (quoting Mich. Comp. Laws § 257.602a(1) (1996)). Commission of the offense

less than five years after a prior fleeing-and-eluding conviction is punishable as a felony. Id.

4

In light of Sykes, our application in Young of Begay’s “purposeful, violent, and aggressive” test

may have been redundant to our inquiry into risk. Sykes, 131 S. Ct. at 2275 (“In many cases the

purposeful, violent, and aggressive inquiry will be redundant with the inquiry into risk, for crimes that fall

within the former formulation and those that present serious potential risks of physical injury to others tend

to be one and the same.”); see also id. at 2277 (Thomas, J., concurring) (noting that the majority opinion

“impl[ies] that the ‘purposeful, violent, and aggressive’ test may still apply to offenses ‘akin to strict

liability, negligence, and recklessness crimes.’”); id. at 2285 (Scalia, J., dissenting) (same). Young’s

inquiry into the risk remains sound.

No. 10-5075 United States v. Doyle Page 8

First, whereas one must “create[] a risk of death or injury to innocent bystanders or other

third parties” to be convicted of a Class D felony, one need only create a “serious

potential risk of physical injury to another” for the crime to fall within the residual

clause, and one who commits a Class E felony does this “in the ordinary case[.]” Id.

Second, while the Class D version requires the creation of risk to “innocent bystanders

or other third parties,” a phrase that textually excludes pursuing officers,5 the residual

clause requires only that risk be posed to “another,” a term that logically includes

pursuing officers, and a Class E felony “nearly always” creates this risk. Id. “As a

categorical matter,” we concluded, “the decision to flee thus carries with it the requisite

potential risk, 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.

Sykes fully supports our holdings in Young and Rogers. To answer the question

before it, the Supreme Court in Sykes looked at the enumerated offenses in the residual

clause for guidance, and found that vehicular flight posed risks comparable to two listed

offenses:

When a perpetrator defies a law enforcement command by fleeing in a

car, the determination to elude capture makes a lack of concern for the

safety of property and persons of pedestrians and other drivers an

inherent part of the offense. Even if the criminal attempting to elude

capture drives without going at full speed or going the wrong way, he

creates the possibility that police will, in a legitimate and lawful manner,

exceed or almost match his speed or use force to bring him within their

custody. A perpetrator’s indifference to these collateral consequences

has violent – even lethal – potential for others. A criminal who takes

flight and creates a risk of this dimension takes action similar in degree

of danger to that involved in arson, which also entails intentional release

of a destructive force dangerous to others. This similarity is a beginning

point in establishing that vehicle flight presents a serious potential risk

of physical injury to another.

Another consideration is a comparison to the crime of burglary. Burglary

is dangerous because it can end in confrontation leading to violence. The

5

But cf. State v. Kelso, No. E2000–01602–CCA–R3–CD, 2001 WL 681313, at *3 (Tenn. Crim.

App. June 18, 2001) (“We need not reach the question whether pursuing law enforcement officers or

passengers who voluntarily accompany a driver are excluded from the categories of ‘innocent bystanders’

and ‘other third parties.’”).

No. 10-5075 United States v. Doyle Page 9

same is true of vehicle flight, but to an even greater degree. The attempt

to elude capture is a direct challenge to an officer’s authority. It is a

provocative and dangerous act that dares, and in a typical case requires,

the officer to give chase. The felon’s conduct gives the officer reason to

believe that the defendant has something more serious than a traffic

violation to hide.

Sykes, 131 S. Ct. at 2273 (internal citations omitted).

The Supreme Court further recognized that pursuing officers may consider

themselves duty bound to escalate their response to ensure the eluding party is

apprehended, and that when the pursuit ends, it is sometimes necessary for officers to

approach the vehicle with guns drawn to make an arrest. Id. at 2273-74. This expected

confrontation between suspect and police officer places property and persons at serious

risk of injury. Id. at 2274. Using unequivocal language, the Court further stated:

Risk of violence is inherent to vehicle flight. Between the confrontations

that initiate and terminate the incident, the intervening pursuit creates

high risks of crashes. It presents more certain risk as a categorical matter

than burglary. It is well known that when offenders use motor vehicles

as their means of escape they create serious potential risks of physical

injury to others. Flight from a law enforcement officer invites, even

demands, pursuit. As that pursuit continues, the risk of an accident

accumulates. And having chosen to flee, and thereby commit a crime,

the perpetrator has all the more reason to seek to avoid capture.

Unlike burglaries, vehicle flights from an officer by definitional necessity

occur when police are present, are flights in defiance of their instructions,

and are effected with a vehicle that can be used in a way to cause serious

potential risk of physical injury to another.

Id. at 2274 (citations omitted). Our reasoning in both Young and Rogers with respect to

the Michigan and Tennessee statutes, respectively, is consistent with, and fully supported

by, the Court’s analysis in Sykes of vehicular flight under Indiana law.

The dissent recognizes that “many types of vehicular flight from police will pose

a risk of injury to others equal to or greater than the risk posed by [burglary, extortion,

arson, and crimes involving the use of explosives],” but finds Class E felony evading

arrest categorically different from these types of flights because it only requires an

intentional refusal to stop when ordered to do so by police. Judge White believes that

No. 10-5075 United States v. Doyle Page 10

mere unwillingness to stop, without additional risky or evasive conduct, “does not, in the

ordinary case, ‘present[] a serious potential risk of physical injury to another.’” (quoting

18 U.S.C. § 924(e)(2)(B)(ii)). She relies on a distinction she sees in the cases between

Class E and Class D felony evading arrest convictions. In our view, however, these

cases demonstrate merely that conduct constituting Class D felony evading arrest will,

in the ordinary case, fall under the residual clause. We fail to see how they show that

conduct giving rise to a Class E felony conviction categorically does not “present[] a

serious potential risk of physical injury to another.”

The pattern that emerges clearly from these cases is that, provided a person’s

vehicular flight creates no actual risk of injury to others, or, if it does, creates it only in

relation to pursuing officers, the person can be guilty only of a Class E felony. See State

v. Turner, 193 S.W.3d 522, 525 (Tenn. 2006); e.g., State v. Winters, No.

M2009-01164-CCA-R3-CD, 2011 WL 1085101, at *1 (Tenn. Crim. App. Mar. 24, 2011)

(risk to officer); State v. Rogers, No. M2006-01339-CCA-R3-CD, 2007 WL 4245051,

at *1 (Tenn. Crim. App. Dec. 4, 2007) (same); State v. Burnette, No.

W2006-02092-CCA-R3-CD, 2007 WL 2822906, at *1-2 (Tenn. Crim. App. Sept. 28,

2007) (same); State v. Medford, No. W2002-00226-CCA-R3-CD, 2003 WL 22446575,

at *1 (Tenn. Crim. App. Oct. 21, 2003) (same); State v. Marable, No.

M1999-00576-CCA-R3-CD, 2001 WL 1028817, at *4 (Tenn. Crim. App. Sept. 7, 2001)

(same); State v. Johnson, No. W2000-00386-CCA-R3-CD, 2001 WL 721082, at *1-4

(Tenn. Crim. App. June 26, 2001) (same); State v. Gann, No. 01C01-9704-CC-00164,

1998 WL 265495, at *1-2 (Tenn. Crim. App. May 27, 1998) (same).

The residual clause, of course, is not so restricted; it covers conduct that creates

a serious potential risk of harm simply to “another,” a term that, to be sure, includes

pursuing police officers. Rogers, 594 F.3d at 522. Such potential risks to officers

always are present in vehicular-flight cases, even if actual risk of harm to third parties

is not, as officers must eventually confront those who have already once intentionally

disregarded their lawful authority. See Sykes, 131 S. Ct. at 2274 (noting that “[r]isk of

violence is inherent to vehicle flight,” and that such risk is created in part by

No. 10-5075 United States v. Doyle Page 11

“confrontations that initiate and terminate the incident”); id. (“Unlike burglaries, vehicle

flights from an officer by definitional necessity occur when police are present, are flights

in defiance of their instructions, and are effected with a vehicle that can be used in a way

to cause serious potential risks of physical injury to another.”); cf. James, 550 U.S. at

203 (noting that the “main risk of burglary arises . . . from the possibility of a face-to-

face confrontation between the burglar and a third party – whether an occupant, a police

officer, or a bystander – who comes to investigate”).

Finally, the dissent relies somewhat on the fact that the Supreme Court denied

certiorari in at least twenty vehicular-flight cases last term, but granted it and vacated the

judgment only in Rogers. We choose not to read too much into this fact. In our view,

it merely demonstrates the Supreme Court’s recognition that, of all the certiorari

petitions pending before it when Sykes was issued, only Rogers involved the type of state

statute about which the Court reserved decision and therefore believed deserved a second

look in light of Sykes.

III.

We have fully considered the effect of the Supreme Court’s recent decision in

Sykes. Nothing in the decision causes us to reconsider our holding in Rogers that Class

E felony evading arrest under Tennessee law, Tenn. Ann. Code § 39-16-603(b)(1), is a

violent felony under the ACCA. For these reasons, we affirm.

No. 10-5075 United States v. Doyle Page 12

________________

DISSENT

________________

HELENE N. WHITE, Circuit Judge, (dissenting). I respectfully dissent. I would

reverse the sentence and remand for resentencing without application of the Armed

Career Criminal provision of the Guidelines in light of Sykes v. United States, 131 S. Ct.

2267 (2011).

I

I agree with the majority that this appeal involves the type of state statute about

which Sykes reserved discussion – the Court specifically declined to address proper

interpretation of statutes like Tennessee’s, where the state both distinguishes between

simple vehicular flight and vehicular flight that poses a risk of injury to others, and

punishes the latter more harshly than the former. However, I do not agree that Sykes

supports that Class E felony evading arrest in Tennessee is a violent felony under the

ACCA.

The salience of the difference between Class E and Class D felony evading arrest

under Tennessee law is demonstrated by Tennessee cases. In State v. Turner,

193 S.W.3d 522, 525 (Tenn. 2006), the Tennessee Supreme Court held that for

conviction of Class D felony evading arrest, “[a]ll that need be shown is that the

defendant evaded arrest and that in so doing, he created the risk of death or injury.” The

court determined that the defendant’s conduct in fleeing from police at speeds reaching

50 to 60 miles per hour in a residential neighborhood, “passing a vehicle in a no-pass

zone and ignoring a four-way stop sign” was sufficient to sustain a conviction for Class

D evading arrest because “the defendant created a risk of death or injury to every driver

and pedestrian in his proximity as he operated his vehicle heedless of the traffic signals.”

Id. at 524-25. Thus, “[t]he Tennessee Supreme Court has held that proof establishing

that other motorists were on the street or that pedestrians were walking along a sidewalk

during a chase is sufficient to sustain a conviction for Class D felony evading arrest with

risk to others.” State v. Johnson, No. M2007-01644-CCA-R3-CD, 2009 WL 2567729,

No. 10-5075 United States v. Doyle Page 13

at *10 (Tenn. Crim. App. Aug. 18, 2009) (citing Turner, 193 S.W.3d at 525). Consistent

with this interpretation, in State v. Menifee, No. M2005-00708-CCA-R3-CD, 2006 WL

2206067, at *4 (Tenn. Crim. App. July 31, 2006), the Tennessee Court of Criminal

Appeals held that the defendant’s conduct in fleeing from police at a high rate of speed

while weaving in and out of traffic was sufficient to prove creation of the risk of death

or injury of others, thus moving the offense out of the definition of Class E evading

arrest and into the Class D felony. See also State v. White, No. M2005-01991-CCA-R3-

CD, 2006 WL 2956505, at *3 (Tenn. Crim. App. Oct. 13, 2006) (“The presence of other

vehicles on the street during the course of a high speed chase supports a finding that

Defendant’s conduct placed others in danger.”). Conviction of the Class D requires only

some sort of reckless driving on a public road and the presence of pedestrians or other

motorists.

The threshold for conviction of the Class E felony is even lower, and

contemplates an absence of a risk of injury to others. Mere failure to obey an officer’s

signal to stop, without more, satisfies only the elements of the Class E felony, and does

not, under Tennessee law, establish a risk to the safety of others. See State v. Calloway,

No. M2004-01118-CCA-R3-CD, 2005 WL 1307800, at *5 (Tenn. Crim. App. June 2,

2005) (“There is no evidence that Defendant's driving created any risk of death or injury

while he was crossing [the public roadway].”). The Class E crime covers only the least

risk-inducing examples of vehicular flight.

Sykes instructs us to find guidance in determining whether a particular offense

is a violent felony by comparing it to the “offenses enumerated in

§ 924(e)(2)(B)(ii)—burglary, extortion, arson, and crimes involving use of explosives.”

Sykes, 131 S. Ct. at 2273. As discussed in Sykes, many types of vehicular flight from

police will pose a risk of injury to others equal to or greater than the risk posed by these

offenses. I cannot say, however, that the risk inherent in Class E evading arrest in

Tennessee rises to this level. All that is required for conviction of Class E evading arrest

is that the defendant: “(a) was operating a motor vehicle on a street, road, alley, or

highway; (b) received a signal from a law enforcement officer to stop; (c) after receiving

No. 10-5075 United States v. Doyle Page 14

such signal, fled or attempted to elude the officer; and (d) acted intentionally.” State v.

Rogers, No. M2006-01339-CCA-R3-CD, 2007 WL 4245051, at *2 (Tenn. Crim. App.

Dec. 4, 2007). “What is determinative of the issue of whether [a defendant] was fleeing

the police is not his speed but, instead, the fact that he intentionally continued driving,

after having received a signal to stop . . . .” State v. Johnson, No.

W2000-00386-CCA-R3-CD, 2001 WL 721082, at *7 (Tenn. Crim. App. June 26, 2001).

Mere “unwilling[ness] to stop when signaled to do so by a law enforcement officer,” id.,

without any additional risky or evasive conduct, does not, in the ordinary case, “present[]

a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B).1

Further, on the same day the Supreme Court granted certiorari and summarily

vacated the Sixth Circuit’s judgment in Rogers, it denied certiorari in at least 20 other

cases raising the question whether convictions under state vehicular-flight statutes

constitute convictions of violent felonies.2 The majority of those cases involved

1

This conclusion is consistent with the Eleventh Circuit’s (pre-Sykes) analysis in United States

v. Harrison, 558 F.3d 1280 (11th Cir. 2009). There, the court considered whether third-degree vehicular

flight under Florida law was a violent felony. Id. at 1290 & n.16. The Florida statute distinguished

between simple vehicular flight and aggravated vehicular flight, with the latter defined as vehicular flight

where the fleeing person “drives at high speed, or in any manner which demonstrates a wanton disregard

for the safety of persons or property.” Id. (quoting Fla. Stat. § 316.1935(3)). Simple vehicular flight was

a misdemeanor and simple vehicular flight from a police officer who has activated his or her siren and

lights was a third-degree felony, while aggravated vehicular flight was a second-degree felony. Id. at

1291. The court determined that commission of the third-degree felony under the statute was not a “violent

felony” because “the nature of [such] crime, as ordinarily committed, does not involve the same high level

of risk. Neither high speed nor reckless driving is a statutory element of the Florida crime at issue here.”

Id. at 1294. The same logic applies here.

2

See United States v. Lee, 631 F.3d 1343 (11th Cir. 2011), cert. denied, 130 S. Ct. 3036 (June 20,

2011); United States v. Dismuke, 593 F.3d 582 (7th Cir. 2010), cert. denied, 131 S. Ct. 3018 (June 20,

2011); United States v. Dunson, 603 F.3d 1023 (7th Cir. 2010) (per curiam), cert. denied, 131 S. Ct. 3020

(June 20, 2011); Welch v. United States, 604 F.3d 408 (7th Cir. 2010), cert. denied, 131 S. Ct. 3019 (June

20, 2011); United States v. Womack, 610 F.3d 427 (7th Cir. 2010), cert. denied,131 S. Ct. 3020 (June 20,

2011); United States v. Malloy, 614 F.3d 852 (8th Cir. 2010), cert. denied, 131 S. Ct. 3023 (June 20, 2011);

United States v. Clay, 622 F.3d 892 (8th Cir. 2010), cert. denied, 131 S. Ct. 3023 (June 20, 2011); United

States v. McConnell, 605 F.3d 822 (10th Cir. 2010), cert. denied, 131 S. Ct. 3021 (June 20, 2011); United

States v. Wise, 597 F.3d 1141 (10th Cir. 2010), cert. denied, 131 S. Ct. 3020 (June 20, 2011); United States

v. Warren, 383 F. App’x 360 (4th Cir. 2010) (unpublished), cert. denied, 131 S. Ct. 3020 (June 20, 2011);

United States v. Petersen, 383 F. App’x 458 (5th Cir. 2010) (unpublished), cert. denied, 131 S. Ct. 3020

(June 20, 2011); United States v. Ramos, 376 F. App’x 457 (5th Cir. 2010) (unpublished), cert. denied, 131

S. Ct. 3019 (June 20, 2011); United States v. Noah, 401 F. App’x 54 (6th Cir. 2010) (unpublished), cert.

denied, 131 S. Ct. 3025 (June 20, 2011); United States v. Stephens, 393 F. App’x 340 (6th Cir. 2010)

(unpublished), cert. denied, 131 S. Ct. 3023 (June 20, 2011); United States v. Askew, 384 F. App’x 504

(7th Cir. 2010) (unpublished), cert. denied, 131 S. Ct. 3022 (June 20, 2011); United States v. Members,

376 F. App’x 633 (7th Cir. 2010) (unpublished), cert. denied, 131 S. Ct. 3019 (June 20, 2011); United

States v. Partee, 373 F. App’x 602 (7th Cir. 2010) (unpublished), cert. denied, 131 S. Ct. 3019 (June 20,

2011); United States v. Atkins, 379 F. App’x 762 (10th Cir. 2010) (unpublished), cert. denied, 131 S. Ct.

3022 (June 20, 2011); United States v. Ethingor, 388 F. App’x 858 (11th Cir. 2010) (unpublished), cert.

No. 10-5075 United States v. Doyle Page 15

convictions under statutory provisions that specify, as an element of the offense, that the

defendant’s flight from police actually created a risk of physical injury to others. See

Lee, 631 F.3d at 1347 (conviction under New Jersey statute making it a crime of the

second degree to flee from police in a vehicle “if the flight or attempt to elude creates

a risk of death or injury to any person” (quoting N.J. Stat. Ann. § 2C:29-2b); statute also

includes simple-vehicular-flight provision designated as lesser-degree crime); Dismuke,

593 F.3d at 590 (conviction under Wisconsin statute criminalizing vehicular flight from

police in a manner that “endanger[s] the operation of the police vehicle, or other traffic

officer or other vehicles or pedestrians” or where the fleeing vehicle operator

“increase[s] the speed of the operator’s vehicle or extinguish[es] the lights of the vehicle

in an attempt to elude or flee” (quoting Wis. Stat. § 346.04(3))); Partee, 373 F. App’x

at 603 (same); Welch, 604 F.3d at 417 (conviction under Illinois statute making fleeing

from a police officer an aggravated offense if the flight “(1) is at a rate of speed at least

21 miles per hour over the legal speed limit; (2) causes bodily injury to any individual;

(3) causes damage in excess of $300 to property; or (4) involves disobedience of 2 or

more official traffic control devices” (quoting 625 Ill. Comp. Stat. 5/11-204.1(a)));

Womack, 610 F.3d at 433 & n.7 (same); Malloy, 614 F.3d at 862, 865 (conviction under

Iowa vehicular-flight statute that makes it a class “D” felony to flee from law

enforcement “and in doing so exceed[] the speed limit by twenty-five miles per hour or

more” while simultaneously either “(1) committing another felony, (2) operating under

the influence of drugs or alcohol or possessing a controlled substance, or (3) injuring

[another] person” (citing Iowa Code § 321.279(3)(a)-(c))); Clay, 622 F.3d at 895

(conviction under Iowa statute making it an “aggravated misdemeanor” to flee police

while “exceed[ing] the speed limit by twenty-five miles per hour or more” (quoting Iowa

Code § 321.279(2))); McConnell, 605 F.3d at 826 (conviction under subsection of

Kansas vehicular-flight statute making it a felony to be “involved in any motor vehicle

accident or intentionally cause[] damage to property” while fleeing from police (quoting

Kan. Stat. Ann. § 8-1568(b)(1)(D)); statute also contains simple-vehicular-flight

denied, 131 S. Ct. 3022 (June 20, 2011); United States v. Harris, 586 F.3d 1283 (11th Cir. 2009), cert.

denied, 131 S. Ct. 3018 (June 20, 2011).

No. 10-5075 United States v. Doyle Page 16

provision designated as lesser grade of crime); Warren, 383 F. App’x at 363 (concluding

that the defendant’s “crime [under North Carolina law] of intentional fleeing to elude

arrest, coupled with the aggravating factors of speeding in excess of fifteen miles above

the posted speed limit and reckless driving,” is a violent felony); Stephens, 393 F. App’x

at 343 (conviction for fleeing and eluding in the third degree under Michigan law, which

requires that the driver “increas[e] the speed of the vehicle, extinguish[] the lights of the

vehicle, or otherwise attempt[] to flee,” and that the violation “result[] in a collision or

accident,” “occur in an area where the speed limit is 35 miles an hour or less” or that the

driver has a previous vehicular-flight conviction (quoting Mich. Comp. Laws

§ 750.479a(1), (3))); Askew, 384 F. App’x at 506-07 (conviction under Minnesota

vehicular-flight statute including in definition of “flee” “to increase speed [or] extinguish

motor vehicle headlights or taillights” (quoting Minn. Stat. § 609.487, subd. 1)); Atkins,

379 F. App’x at 764 (conviction under Colorado vehicular-eluding statute that includes

as element of the offense that the defendant must have “operate[d] his or her vehicle in

a reckless manner” (quoting Colo. Rev. Stat. § 18-9-116.5)); Harris, 586 F.3d at 1284

(conviction under Florida statute making it a second-degree felony to flee from police

by “[d]riv[ing] at high speed, or in any manner which demonstrates a wanton disregard

for the safety of persons or property” (quoting Fla. Stat. § 316.1935(3)(a))); Ethingor,

388 F. App’x at 861-62 (same).

A minority of cases involve statutes that target both simple and aggravated

vehicular flight, but that, as in the Indiana statute discussed in Sykes, treat both offenses

as equally serious and subject defendants to identical sentences for violation of either.

See Wise, 597 F.3d at 1143-44 (conviction under Utah statute making it crimes of equal

degree to fail to stop after a signal by a police officer either while operating a vehicle so

as “to interfere with or endanger the operation of any vehicle or person; or attempt to

flee or elude a peace officer by vehicle or other means” (quoting Utah Code Ann. § 41-

6a-210(1)(a))); Dunson, 603 F.3d at 1023 (discussing same Indiana statute at issue in

Sykes).

No. 10-5075 United States v. Doyle Page 17

To be sure, the denial of a petition for a writ of certiorari carries no precedential

effect. See Maryland v. Baltimore Radio Show, 338 U.S. 912, 919 (1950) (opinion of

Frankfurter, J., respecting denial of certiorari) (“[T]his Court has rigorously insisted that

[a denial of certiorari] carries with it no implication whatever regarding the Court’s

views on the merits of a case which it has declined to review.”); United States v. Carver,

260 U.S. 482, 490 (1923) (“The denial of a writ of certiorari imports no expression of

opinion upon the merits of the case . . . .”). However, it is worth recognizing that on the

same day the Supreme Court denied certiorari in at least 20 cases raising the question

whether convictions under state vehicular-flight statutes constituted violent felonies, but

granted certiorari and vacated for further consideration in light of Sykes in only one case,

Rogers, which turns on the same statutory provision at issue here. The salient difference

between those cases and both Rogers and this one is that the defendants there were

convicted under statutory provisions that either 1) clearly specified that the defendant’s

conduct must carry some heightened risk of injury to others, or 2) contained provisions

criminalizing both “simple” and “aggravated” vehicular flight, but treated both types as

equally serious offenses. In this case, Doyle was convicted under the simple-vehicular-

flight provision of Tennessee’s flight statute (Class E felony evading arrest), as

distinguished from the state’s aggravated-vehicular-flight provision that requires

“creat[ion of] a risk of death or injury to innocent bystanders or other third parties”

(Class D felony evading arrest). This distinction takes this case (and Rogers) out of the

holding of Sykes, as highlighted by the Court’s grant of certiorari and summary vacatur

in Rogers.3

Tennessee has distinguished between crimes of vehicular flight that create a risk

of injury to others (Class D felony) and crimes of vehicular flight that merely involve

intentional failure to follow a police request to stop (Class E felony). The two offenses

3

Among the cases in which the Supreme Court denied certiorari was United States v. Noah, 401

F. App’x 54 (6th Cir. 2010) (unpublished), cert. denied, 131 S. Ct. 3025 (June 20, 2011). There, the

defendant was convicted in Tennessee of Class D felony evading arrest. Doyle’s situation obviously

differs from the defendant’s in Noah because here Doyle was convicted of Class E felony evading arrest,

which lacks the risk-to-third-parties element. The court denied certiorari in Noah, but granted certiorari

and vacated in Rogers, which addresses the identical question presented here. This further underscores

that Doyle’s conviction of Class E felony evading arrest instead of the Class D crime is a distinction with

a significant difference.

No. 10-5075 United States v. Doyle Page 18

are classed as different degrees of crime, and are subject to different punishments. And

Class E felony evading arrest is a lesser-included offense of Class D felony evading

arrest. State v. Calloway, No. M2004-01118-CCA-R3-CD, 2005 WL 1307800, at *6

(Tenn. Crim. App. June 2, 2005). Doyle’s conviction of Class E felony evading arrest

thus falls squarely within the category of cases about which the Supreme Court reserved

decision in Sykes. Sykes, 131 S. Ct. at 2295 (Kagan, J., dissenting) (“[T]he Court

reserve[d] the question whether a vehicular flight provision . . . is a crime of violence

under ACCA ‘where that offense carries a less severe penalty than [a greater] offense

that includes it.’” (second and fourth alterations in original)).

The operative question, then, remains whether, “as a categorical matter, [Doyle’s

conviction] presents a serious potential risk of physical injury to another.” Id. at 2273

(maj. op.). This is a close question in light of Sykes, given its broad conclusion that

vehicular flight can create a risk of injury to others “[e]ven if the criminal attempting to

elude capture drives without going at full speed or going the wrong way.” Id. However,

given the ease with which Class D felony evading arrest can be proven in Tennessee

(requiring only some indication of recklessness plus the presence of pedestrians or other

motorists), Class E evading arrest is reserved for only the most innocuous types of

vehicular flight.4 In the particular context of the Tennessee statute, where the flight

element of the offense is established when the defendant “intentionally continue[s]

driving[] after having received a signal to stop,” Johnson, 2011 WL 721082, at *7, Class

E felony evading arrest does not rise to the level of a violent felony, as it typically covers

the mere knowing failure to obey a police order to stop, without any of the additional

risk contemplated by Tennessee’s Class D felony provision.

I would therefore hold that Doyle’s prior convictions under Tenn. Code Ann.

§ 39-16-603(b) do not constitute violent felonies and remand for resentencing without

application of the Armed Career Criminal provision.

4

It does not matter that Doyle’s actual conduct likely created a risk of injury to others (and that

he probably could have been charged with the Class D felony). Under the categorical approach, courts

“look only to the statutory definition of the prior offense, and . . . not . . . the particular facts disclosed by

the record of conviction.” Id. at 2272 (quoting James, 550 U.S. at 202).