Filed: Jun. 18, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4449 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM TRAVIS WARREN, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:08-cr-00293-BO-1) Submitted: May 11, 2010 Decided: June 18, 2010 Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam op
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-4449 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. WILLIAM TRAVIS WARREN, JR., Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. Terrence W. Boyle, District Judge. (5:08-cr-00293-BO-1) Submitted: May 11, 2010 Decided: June 18, 2010 Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opi..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-4449
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIAM TRAVIS WARREN, JR.,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (5:08-cr-00293-BO-1)
Submitted: May 11, 2010 Decided: June 18, 2010
Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Michael W. Patrick, Chapel Hill, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
William Travis Warren, Jr., appeals from the 160-month
sentence imposed after he pleaded guilty to possession of a
firearm and ammunition by a felon. The district court enhanced
Warren’s sentence based on application of the Armed Career
Criminal Act (ACCA). One of the three qualifying convictions
used to support application of the enhancement was a North
Carolina conviction under N.C. Gen. Stat. § 20-141.5 (Lexis
Nexis 2007) for fleeing to elude arrest with a motor vehicle
with two aggravating factors. Warren argues that this
conviction was not a qualifying predicate felony because it was
not a crime of violence. Finding no error, we affirm.
Although Warren initially filed an objection to the
presentence report (PSR) regarding the fleeing to elude
conviction, he chose not to continue his objection to the use of
this conviction for ACCA purposes at sentencing. Thus, this
issue is reviewed for plain error. United States v. Hughes, 401
F.3d 540, 547 (4th Cir. 2005). Under the plain error test,
United States v. Olano,
507 U.S. 725, 732-37 (1993), a defendant
must show that (1) error occurred; (2) the error was plain; and
(3) the error affected his substantial rights.
Id. at 732.
Even when these conditions are satisfied, this court may
exercise its discretion to notice the error only if the error
“seriously affect[s] the fairness, integrity or public
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reputation of judicial proceedings.” Id. (internal quotation
marks omitted).
A defendant is an armed career criminal when he
violates 18 U.S.C. § 922(g)(1) (2006) and has three prior
convictions for violent felonies or serious drug offenses. 18
U.S.C. § 924(e)(1) (2006); U.S. Sentencing Guidelines Manual
§ 4B1.4(a) (2008). A violent felony is one that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another,” “is burglary, . . . or
otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(i)-(ii) (2006). In reviewing a lower court’s
determination that a defendant is an armed career criminal as
defined by the ACCA, we review factual findings for clear error
and legal conclusions de novo. United States v. Wardrick, 350
F.3d 446, 451 (4th Cir. 2003) (citing United States v. Brandon,
247 F.3d 186, 188 (4th Cir. 2001)).
Warren claims that the district court erred in
accepting the probation officer’s determination that his prior
North Carolina felony conviction for eluding arrest with a motor
vehicle with two aggravating factors was a violent felony in
light of Begay v. United States, 128 S. Ct. 1581, 1585 (2008)
(holding that a crime of violence under the “otherwise” clause
in 18 U.S.C. § 924(e) (2006) must be “roughly similar, in kind
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as well as in degree of risk posed,” to the enumerated crimes).
Warren contends that fleeing to elude arrest by motor vehicle is
not sufficiently similar to the enumerated qualifying felonies
to be considered a violent felony and that, using a categorical
approach, see United States v. Pierce, 278 F.3d 282, 286 (4th
Cir. 2002), no conviction under the North Carolina statute
should be considered a violent felony for ACCA purposes. A
violation of N.C. Gen. Stat. § 20-141.5 is a Class I misdemeanor
unless two or more aggravating factors listed in subsection (b)
are present, in which case the offense is a Class H felony.
Warren’s conviction for eluding arrest with a motor vehicle
included two aggravating factors: speeding in excess of fifteen
miles per hour and driving recklessly.
Here, because the blue light statute at issue
“criminalizes conduct that could be ‘generally committed’ in
multiple ways, some violent and some not, the categorical
approach is inapplicable.” United States v. Bethea, ___ F.3d
___, 2010 WL 1695608, at *2 (4th Cir. Apr. 27, 2010) (No.
09-4333) (quoting Chambers v. United States,
129 S. Ct. 687, 690
(2009)). Therefore, the court uses a modified-categorical
approach, in which “a court is entitled to review ‘charging
documents filed in the court or conviction, or [] recorded
judicial acts of that court,’ to determine whether the
defendant’s crime ‘necessarily’ constituted the type of generic
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conduct that would implicate the ACCA.” Bethea, 2010 WL
1695608, at *2 (quoting Shephard v. United States,
544 U.S. 13,
20 (2005)).
North Carolina’s blue light statute includes “at least
one form of conduct that is and one form of conduct that is not
an ACCA predicate;” therefore the court may review the charging
documents and judicial records to determine if Warren was
convicted of “generic conduct that would constitute a violent
felony.” Id. “[A]fter Begay, a residual-clause 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)
involves the same or similar kind of ‘purposeful, violent, and
aggressive’ conduct as the enumerated crimes.” United States v.
Dismuke,
593 F.3d 582, 591 (7th Cir. 2010) (quoting
Begay, 128
S. Ct. at 1584-85).
We join the Fifth, Sixth, Seventh, and Tenth Circuits
and hold that vehicular fleeing involves an act of defiance of
the law and a likely potential face-to-face confrontation at the
conclusion of pursuit and therefore a risk of physical injury
similar in degree to the enumerated offenses exists. See
Dismuke, 593 F.3d at 592; United States v. Wise,
597 F.3d 1141,
1146-47 (10th Cir. 2010); United States v. Young,
580 F.3d 373,
377-78 (6th Cir. 2009); United States v. Harrimon,
568 F.3d 531,
5
536 (5th Cir. 2009). But see United States v. Tyler, 580 F.3d
722, 725 (8th Cir. 2008); United States v. Harrison,
558 F.3d
1280, 1294 (11th Cir. 2009) (fleeing to elude arrest, without
high speed or recklessness, does not carry same level of risk as
enumerated offenses). The criminalized behavior included in the
North Carolina statute’s aggravating factors presents a
sufficient risk of significant physical injury similar in degree
to the enumerated crimes.
The second part of the modified-categorical approach
requires that the court find that North Carolina’s crime of
vehicular fleeing, as it applies to Warren with the aggravating
factors, involves conduct that is similarly violent and
aggressive to burglary, arson, extortion, or crimes that involve
the use of explosives. See Begay, 128 S. Ct. at 1584-85;
Bethea, 2010 WL 1695608 at *3,
Dismuke, 593 F.3d at 591. “If
the conduct encompassed by [the] fleeing statute is violent and
aggressive in th[e] generic sense, then the requirements of
Begay are satisfied and the conviction was properly counted as a
violent felony.”
Dismuke, 593 F.3d at 594. The violent and
aggressive conduct must only carry the potential for violence
and physical injury to another, but does not require intent to
cause such injury. See
Chambers, 129 S. Ct. at 692.
We conclude that Warren’s crime of intentional fleeing
to elude arrest, coupled with the aggravating factors of
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speeding in excess of fifteen miles above the posted speed limit
and reckless driving, is similarly violent and aggressive as the
residual clause enumerated crimes. See Begay, 128 S. Ct. at
1584-85. Accord
Dismuke, 593 F.3d at 593-94;
Wise, 597 F.3d at
1146-47;
Harrimon, 568 F.3d at 534-35,
Young, 580 F.3d at
377-78; United States v. LaCasse,
567 F.3d 763, 767 (6th Cir.
2009). Therefore, the court did not plainly err in applying the
enhancement.
We therefore affirm the sentence imposed by the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
AFFIRMED
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