Case: 13-10413      Document: 00512595448         Page: 1    Date Filed: 04/14/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                              United States Court of Appeals
                                                                                       Fifth Circuit

                                                                                     FILED
                                    No. 13-10413                                 April 14, 2014
                                  Summary Calendar
                                                                                Lyle W. Cayce
                                                                                     Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff–Appellee,

v.

LUCIAN LEE SPANN,

                                                 Defendant–Appellant.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 3:12-CR-126-1


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Lucian Lee Spann pleaded guilty to being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). His sentence was enhanced under
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because the
district court determined that Spann had at least three prior convictions for
either violent felonies or serious drug offenses. He received a 184-month prison
term. Relying on National Federation of Independent Business v. Sebelius, 132


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 13-10413

S. Ct. 2566 (2012) (National Federation), Spann contends that 18 U.S.C.
§ 922(g)(1) exceeds Congress’s power under the Commerce Clause. Spann
argues that § 922(g)(1) is unconstitutional as applied because his factual
resume did not state that his possession of the firearm was an economic
activity and failed to reflect that he was engaged in the relevant market at the
time of the regulated conduct. He also contends that § 922(g)(1) is facially
unconstitutional because National Federation interprets the Commerce Clause
to mandate that “Congress may regulate only ongoing economic activity,” and
his possession of a firearm purchased many years ago does not qualify.
      We review Spann’s arguments de novo. United States v. Kay, 

, 440 (5th Cir. 2007). This court rejected Spann’s arguments regarding
National Federation in United States v. Alcantar, 

, 145-46 (5th
Cir. 2013), cert. denied, 

(Mar. 24, 2014) (No. 13-8792).
      Spann also argues that the Texas offense of evading arrest using a
vehicle in violation of Texas Penal Code § 38.04(b)(1)(B) is not a violent felony
for purposes of the ACCA. He contends that his evading arrest conviction did
not constitute a violent felony because the Texas offense can be committed by
fleeing in any vehicle, not just a motor vehicle. He argues that because in Sykes
v. United States, 

(2011), the Supreme Court emphasized the
importance of the use of a motor vehicle during flight, this court should
reconsider United States v. Harrimon, 

, 536 (5th Cir. 2009), which
held that the Texas offense of evading arrest with a vehicle was a violent felony
under the ACCA because “fleeing by vehicle poses a serious risk of injury to
others.”    We review de novo the district court’s “legal conclusions
underlying the district court’s application of the ACCA.” United States v.
Fuller, 

, 278 (5th Cir. 2006). In Sykes, the Supreme Court held
that an Indiana conviction for resisting law enforcement through felonious



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                                  No. 13-10413

vehicle flight was a violent felony under § 924(e)(2)(B)(ii)’s residual 

. The Supreme Court noted that this decision was consistent with
decisions of various circuit courts including this court’s decision in Harrimon.

We have rejected the arguments that the Texas statute is not a
violent felony because it can be committed by fleeing in any vehicle, not just a
motor vehicle, and that Sykes overruled Harrimon because it emphasized the
use of a motor vehicle during flight. See United States v. Standberry, 546 F.
App’x 381, 382 (5th Cir. 2013). Because Sykes did not overrule Harrimon
either explicitly or implicitly, we are bound by our decision in Harrimon. 

evading arrest conviction is Spann’s third qualifying conviction for the
armed career criminal enhancement, we do not address whether Spann’s
robbery conviction is a violent felony under the ACCA. See 18 U.S.C. § 924(e).
      Finally, Spann argues that the residual clause of the ACCA is
unconstitutionally vague and cites, inter alia, JUSTICE SCALIA’s dissent in
Sykes in support. See 

. As Spann concedes, however,
the Supreme Court has rejected the argument that the residual clause is
unconstitutionally vague. See United States v. Gore, 

, 742 (5th
Cir. 2011) (citing James v. United States, 

, 210 n.6 (2007)).
      AFFIRMED.




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