Filed: Jan. 24, 2007
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-5013 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus RICKY DALE CHRISTIAN, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Chief District Judge. (CR-05-8) Argued: November 29, 2006 Decided: January 24, 2007 Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion.
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 05-5013 UNITED STATES OF AMERICA, Plaintiff - Appellee, versus RICKY DALE CHRISTIAN, Defendant - Appellant. Appeal from the United States District Court for the Western District of Virginia, at Big Stone Gap. James P. Jones, Chief District Judge. (CR-05-8) Argued: November 29, 2006 Decided: January 24, 2007 Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5013
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RICKY DALE CHRISTIAN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (CR-05-8)
Argued: November 29, 2006 Decided: January 24, 2007
Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: David Lynn Harmon, Bristol, Virginia, for Appellant.
Jennifer Rebecca Bockhorst, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for
Appellee. ON BRIEF: John L. Brownlee, United States Attorney,
Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Ricky Dale Christian appeals his sentence in the Western
District of Virginia for stealing firearms from a firearm business,
being in possession of a stolen firearm, and being a felon in
possession of a firearm. Christian contends on appeal that the
district court erred in calculating his sentence by concluding that
his two prior convictions for “felony evading arrest” in Tennessee
constitute crimes of violence under the United States Sentencing
Guidelines (the “U.S.S.G.” or the “Guidelines”). As explained
below, we affirm.
I.
Christian was indicted on April 4, 2005, for stealing firearms
from the business of a federal firearms licensee, in violation of
18 U.S.C. § 922(u), possession of a stolen firearm, in violation of
18 U.S.C. § 922(j), and possession of a firearm by a convicted
felon, in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty to
all three charges without a plea agreement on June 20, 2005. In
preparation for the sentencing hearing, the Probation Office
prepared a Presentence Investigation Report (the “PSR”). The PSR
determined that Christian had two prior convictions for crimes of
violence, which enhanced his base level offense to 24 under
U.S.S.G. § 2K2.1(a)(2). Christian received an additional two-level
enhancement under U.S.S.G. § 2K2.1(b)(4) because he had stolen the
2
firearms, but he then received a three-level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1, making his
total offense level 23.
During his sentencing hearing on September 27, 2005, Christian
objected to his base offense level of 24, maintaining that his two
prior convictions for “felony evading arrest” in Tennessee were not
crimes of violence as defined in U.S.S.G. § 4B1.2(a)(2). In
considering this issue, the court heard evidence from the probation
officer regarding these prior convictions and admitted into
evidence relevant state court documents.1 The documents showed
that Christian was convicted under Tennessee law for a July 26,
1997, felony evading arrest (the “Class D felony”). The Indictment
for that conviction alleged that:
RICKY D. CHRISTIAN on or about July 26, 1997 . . . ,
while operating a motor vehicle on a street in Kingsport,
Tennessee, did unlawfully, feloniously, knowingly and
intentionally flee from a person known to him to be a law
enforcement officer, attempting to arrest the said RICKY
D. CHRISTIAN, after having received a signal from said
offer to stop the vehicle and in so fleeing did create a
risk of injury and death to innocent bystanders and other
third parties, in violation of Tennessee Code Annotated,
Section 39-16-603, a Class D felony.
1
The state court documents admitted into evidence and
considered by the sentencing court are the Indictment and judgment
order for the first such offense, and the Information and judgment
order for the second offense.
3
J.A. 44.2 Under Tennessee law, a Class D felony has, as an
element, the creation of risk of injury or death. See Tenn. Code
Ann. § 39-16-603(b). The state court documents in evidence also
showed that Christian was convicted under Tennessee law for an
October 4, 1997, felony evading arrest (the “Class E felony”). The
Information for that conviction alleged that:
RICKY D. CHRISTIAN on or about October 4, 1997, . . . ,
did unlawfully, feloniously and intentionally, while
operating a motor vehicle on a public street, flee from
Officer Ken Harr, a law enforcement officer, after having
received a signal from the said officer to stop the
vehicle, in violation of Tennessee Code Annotated,
Section 39-16-603, a Class E felony.
J.A. 37. Under Tennessee law, a Class E felony does not have, as
an element, the creation of risk of injury or death. See Tenn.
Code Ann. § 39-16-603(b). Christian did not deny, during his
sentencing hearing, that he had these two prior felony convictions.
Instead, he objected only to the classification of these
convictions as crimes of violence under the Guidelines.
The district court rejected Christian’s objection to the
classification of these offenses as crimes of violence and adopted
the PSR’s recommendation on his base offense level. The court then
found Christian to have a total offense level of 23 with a criminal
2
Citations to “J.A. ” refer to the Joint Appendix filed in
this appeal.
4
history category of V. Christian’s advisory Guidelines range was
84 to 100 months, and the court sentenced him to 100 months.3
Christian has timely noted this appeal, and we possess
jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Christian asserts on appeal that the district court erred in
its calculation of his advisory Guidelines range. Specifically, he
maintains that the district court erred in determining that his two
prior convictions for felony evading arrest in Tennessee constitute
crimes of violence under the Guidelines. Because resolution of
Christian’s appeal involves the legal application of the
Guidelines, we review this contention of error de novo. See United
States v. Dickerson, 77 F.3d 774, 775 (4th Cir. 1996).
3
If the court had concluded that Christian had no prior felony
convictions for crimes of violence under the Guidelines, his base
offense level would have been 12 instead of 24. See U.S.S.G.
§ 2K2.1(a). With his two-level enhancement for having stolen the
firearms and his three-level reduction for acceptance of
responsibility, Christian’s total base offense level would have
been 11 instead of 23. Given his criminal history category of V,
his advisory Guidelines range would have been 24-30 months instead
of 84-100 months. If the court had concluded that Christian had
only one prior felony conviction for a crime of violence, his base
offense level would have been 20 instead of 24. See U.S.S.G.
§ 2K2.1(a). With his two-level enhancement and three-level
reduction, Christian’s total base offense level would have been 19
instead of 23. Given his criminal history category of V, his
advisory Guidelines range would have been 57-71 months instead of
84-100 months.
5
III.
A.
Under U.S.S.G. § 2K2.1(a)(2), a defendant, such as Christian,
having been convicted of unlawful receipt, possession, or
transportation of firearms or ammunition, receives a base offense
level of 24 “if the defendant committed any part of the instant
offense subsequent to sustaining at least two felony convictions of
either a crime of violence or a controlled substance offense.” The
Guidelines have defined a crime of violence as
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.
U.S.S.G. § 4B1.2(a). The commentary to section 4B1.2 of the
Guidelines indicates that other crimes not listed within this
definition can be considered crimes of violence if “the conduct set
forth (i.e., expressly charged) in the count of which the defendant
was convicted . . . by its nature, presented a serious potential
risk of physical injury to another.” U.S.S.G. § 4B1.2, comment.
(n.1). Thus, a felony conviction is a crime of violence if one of
the elements of the crime involves the use of physical force, if
the conviction is for one of the specific offenses listed in
6
U.S.S.G § 4B1.2(a)(2), or if the conviction “otherwise involves
conduct that presents a serious potential risk of physical injury
to another” (the “otherwise clause”). U.S.S.G. § 4B1.2(a).
As pertinent to this appeal, Christian was convicted in 1998
on two separate felony evading arrest offenses under Tennessee law.
The Tennessee statute, in relevant part, provides that:
(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
such 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). Because Christian’s two prior
convictions for felony evading arrest are not specifically listed
in the Guidelines as crimes of violence and neither conviction has,
as a statutory element, the use of physical force against another,
a sentencing court could only consider them to be crimes of
violence if they satisfy the otherwise clause of U.S.S.G.
§ 4B1.2(a)(2).
7
B.
In order to properly determine whether a prior offense
satisfied the otherwise clause, a court must conduct a two-part
inquiry. See United States v. Johnson, 246 F.3d 330, 333 (4th Cir.
2001); United States v. Dickerson,
77 F.3d 774, 776 (4th Cir.
1996). First, the court must “consider the indictment pertaining
to the offense of which the defendant was convicted” to determine
if the conviction involves a serious potential risk of injury to
others.
Johnson, 246 F.3d at 333. In so doing, the court must
“confine its factual inquiry to those facts charged in the
indictment.”
Dickerson, 77 F.3d at 776 (internal quotation marks
omitted). Second, if a court cannot “glean the circumstances
surrounding the defendant’s commission of the crime from the
indictment,” it must determine “whether that crime, in the
abstract, involves conduct that presents a serious potential risk
of physical injury to another.”
Id. (internal quotation marks
omitted). With regard to Christian’s Class D felony, a court can
readily determine that this conviction involves a serious potential
risk of injury to another by examining the face of the indictment.
The indictment clearly indicates that an element of the Class D
felony, as charged, involved a serious potential risk of injury to
another, as it specifically alleges that “in so fleeing [Christian]
did create a risk of injury and death to innocent bystanders and
other third parties.” J.A. 44. Thus, the Class D felony is
8
properly considered a crime of violence under the Guidelines, and
the district court did not err in its determination that this prior
conviction was a crime of violence.
C.
On the other hand, the face of the Information on Christian’s
Class E felony does not clearly indicate whether this conviction
presented a serious potential risk of physical injury to another.
Thus, we must move to the second prong of the two-part inquiry
explained above, and examine the nature of the Class E felony
offense to determine if, in the abstract, this offense presents a
serious potential risk of injury to another. See Dickerson, 77
F.3d at 776. Under the second prong of the two-part inquiry, we
have recognized that, “[t]o constitute a crime of violence in the
abstract, ‘most, if not all, instances of an offense should involve
a serious potential risk of injury.’”
Johnson, 246 F.3d at 333
(quoting United States v. Martin,
215 F.3d 470, 475 (4th Cir.
2000)). Furthermore, when evaluating a prior offense under the
second prong, a court should also examine whether this type of
crime has been determined to be a violent felony, as the language
defining a crime of violence under U.S.S.G. § 4B1.2 is nearly
identical to (and materially indistinguishable from) that defining
a violent felony under 18 U.S.C. § 924(e)(2)(B). See
Johnson, 246
F.3d at 333;
Martin, 215 F.3d at 474 n.4;
Dickerson, 77 F.3d at
9
777.4 In addition, the same two-part inquiry must be used to
determine if a conviction falls within the otherwise clause for
both a crime of violence and a violent felony. See, e.g.,
Martin,
215 F.3d at 474-75. Relevant to this appeal, we have previously
concluded that the crime of failure to stop for a blue light
constitutes a violent felony under the otherwise clause of 18
U.S.C. § 924(e)(2)(B). See United States v. James,
337 F.3d 387,
390 (4th Cir. 2003).5 In James we concluded that
4
Under 18 U.S.C. § 924(e)(2)(B), a violent felony is defined
as
any crime punishable by imprisonment for a term exceeding
one year, or any act of juvenile delinquency involving
the use or carrying of a firearm, knife, or destructive
device that would be punishable by imprisonment for such
term if committed by an adult, 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.
(emphasis added).
5
In James, the crime of failure to stop for a blue light,
under South Carolina law, involves a defendant who, while driving
a vehicle, disobeys a police officer’s signal to stop. See 337
F.3d at 390-91. Similarly, Christian’s two prior felony
convictions for felony evading arrest, under Tennessee law, involve
a defendant who, while driving a vehicle, intentionally flees or
attempts to elude a police officer after receiving a signal to
stop. See Tenn Code Ann. § 39-16-603(b).
10
[m]ost cases of failing to stop for a blue light involve
the deliberate choice by the driver to disobey the police
officer’s signal. This disobedience poses the threat of
a direct confrontation between the police officer and the
occupants of the vehicle, which, in turn, creates a
potential for serious physical injury to the officer,
other occupants of the vehicle, and even bystanders.
Id. at 391.
Christian maintains that our James decision is not applicable
here because the Tennessee statute specifically provides for two
different felonies for evading arrest, the distinction being
dependent on whether the incident created “a risk of death or
injury to innocent bystanders or other third parties.” Tenn Code.
Ann. § 39-16-603(b)(3). Christian contends that if his Class E
felony actually involved the “risk of death or injury to innocent
bystanders or other third parties,” he would have instead been
convicted of a Class D felony.
Id. Thus, he maintains that the
Class E felony cannot be considered a crime of violence.
The Class D felony under the Tennessee statute, however, does
not include conduct as broad as that articulated by the definition
of a crime of violence in the Guidelines. The Tennessee statute
provides that a defendant can only be convicted of a Class D felony
offense if he has actually created a “risk of death or injury to
innocent bystanders or other third parties,” Tenn Code Ann. § 39-
16-603(b)(3), while the Guidelines’ definition for a crime of
violence is broader, requiring that the prior conviction create “a
serious potential risk of physical injury to another.” U.S.S.G.
11
§ 4B1.2(a) (emphasis added). Furthermore, the Tennessee statute
limits the Class D felony offense to a defendant who has created a
risk of injury to “innocent bystanders and other third parties.”
Tenn Code Ann. § 39-16-603(b). The Guidelines’ definition of a
crime of violence, however, extends to a defendant who has created
a serious potential risk of injury to simply “another.” U.S.S.G.
§ 4B1.2(a). Because a defendant could be convicted for a Class E
felony under the Tennessee statute by committing an offense that
qualifies under the Guidelines’ definition of a crime of violence,
the Tennessee statute’s distinction between a Class D felony and a
Class E felony does not compel the conclusion that a Class E felony
should not be considered as creating a serious potential for risk
of injury to another. Thus, Christian’s prior Class E felony
conviction must be evaluated to determine if, in the abstract, this
offense would present a serious potential risk of injury to
another.
In so evaluating the Class E felony offense, we must rely on
James, as it concluded that the failure to stop for a blue light
presents a serious potential risk of physical injury, under the
otherwise clause, for a violent felony. Given the nearly identical
definitions of a crime of violence (under the Guidelines) and a
violent felony (under 18 U.S.C. § 924(e)(2)(B) and the Guidelines),
our reasoning in James applies here. We thus conclude that
Christian’s prior Class E felony conviction constitutes a crime of
12
violence under the otherwise clause of U.S.S.G. § 4B1.2(a) because
the Class E felony is an offense that presents a serious potential
risk of physical injury to another. The district court therefore
did not err in its determination that Christian’s prior Class E
felony conviction was a crime of violence in calculating his
sentencing range under the Guidelines.
IV.
Pursuant to the foregoing, we affirm Christian’s sentence as
imposed by the district court.
AFFIRMED
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