USA v. Ellis Members, No. 09-1572 (7th Cir. 2010)
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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 25, 2010* Decided May 26, 2010 Before WILLIAM J. BAUER, Circuit Judge MICHAEL S. KANNE, Circuit Judge ILANA DIAMOND ROVNER, Circuit Judge No. 09-1572 UNITED STATES OF AMERICA, Plaintiff-Appellee, Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. v. No. 1:08-CR-00093-001 ELLIS MEMBERS, Defendant-Appellant. Sarah Evans Barker, Judge. ORDER Ellis Members was convicted of possession of a firearm by a felon, see 18 U.S.C. § 922(g)(1), and sentenced to 110 months imprisonment. On appeal he challenges whether his prior Indiana conviction for resisting law enforcement, see IND. C ODE § 35-44-33(b)(1)(A), qualifies as a crime of violence under the guidelines. At the time of sentencing, circuit precedent was against him, see United States v. Spells, 537 F.3d 743, 752 (7th Cir. 2008), cert. denied, 129 S. Ct. 2379 (2009), but Members hoped that we would reconsider in * After examining the briefs and the record, we have concluded that oral argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. A PP. P. 34(a)(2)(C). No. 09-1572 Page 2 light of an Eleventh Circuit case that holds a similar Florida statute is not a violent felony under the Armed Career Criminal Act ( ACCA ), 18 U.S.C. § 924 (e)(2)(B), see United States v. Harrison, 558 F.3d 1280 (11th Cir. 2009). After briefing finished in this case, however, we reaffirmed our holding that § 35-44-3-3(b)(1)(A) is a violent felony. See United States v. Sykes, 598 F.3d 334 (7th Cir. 2010). Because Members s case is indistinguishable from Sykes and Spells, we affirm the sentence. Members does not contest that he was convicted of resisting law enforcement using a vehicle, a Class D felony. See IND. C ODE § 35-44-3-3(b)(1)(A). The district court classified the prior conviction as a crime of violence as defined in § 4B1.2(a) of the sentencing guidelines and used it to increase Members s base offense level to 20. See U.S.S.G. § 2K2.1(a)(4). Although Members argues that we should follow the Eleventh Circuit s lead in Harrison and hold that § 35-44-3-3(b)(1)(A) is not a violent crime, we rejected that argument in Sykes. In Sykes, the defendant had a prior felony conviction for a violation of the same Indiana statute § 35-44-3-3(b)(1)(A) that was at issue in Spells and that is again before us in this case. Sykes, 598 F.3d at 335. After applying the three-step analysis established in Begay v. United States, 553 U.S. 137 (2008), we reaffirmed our holding in Spells and concluded that resisting law enforcement involves the type of purposeful, violent and aggressive behavior that makes it similar in kind to the crimes listed in the ACCA. Sykes, 598 F.3d at 337. We considered the reasoning in Harrison but explained that we saw no new facts or circumstances that convinced us to overturn our precedent. Id. at 337-38. Accordingly, because we use a modified categorical approach in designating violent offenses, Begay, 553 U.S. at 141, Members s case falls squarely under Sykes and Spells. That his challenges arises under the guidelines rather than the ACCA is of no import because the two provisions at issue employ the same language and are interpreted alike. See United States v. Billups, 536 F.3d 574, 579 n.1 (7th Cir. 2008). Having twice determined that a violation of § 35-44-3-3(b)(1)(A) qualifies as a violent felony, we can find no error in the district court s decision to increase Members s base-offense level under § 2K2.1(a)(4) based on his prior conviction for resisting law enforcement. For the foregoing reasons, we AFFIRM the sentence imposed by the district court.
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