USA v. Andre Antonio Jackson, No. 13-12229 (11th Cir. 2014)

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Case: 13-12229 Date Filed: 01/02/2014 Page: 1 of 5 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________________ No. 13-12229 Non-Argument Calendar ________________________ D.C. Docket No. 1:12-cr-20914-WPD-4 UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ANDRE ANTONIO JACKSON, a.k.a. Dre, Defendant-Appellant. ________________________ Appeal from the United States District Court for the Southern District of Florida ________________________ (January 2, 2014) Before TJOFLAT, WILSON and JORDAN, Circuit Judges. PER CURIAM: Andre Antonio Jackson appeals his sentence of 144-months imprisonment, imposed after he pled guilty to conspiracy to possess with intent to distribute crack Case: 13-12229 Date Filed: 01/02/2014 Page: 2 of 5 cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. At sentencing, the district court found that Jackson qualified as a career offender under U.S.S.G. § 4B1.1(a) and enhanced his sentence accordingly. Jackson argues that the district court erred in sentencing him as a career offender because his prior conviction under Florida Statutes § 316.1935(1) for fleeing or attempting to elude law enforcement is not a crime of violence as defined by U.S.S.G. § 4B1.2(a). The Sentencing Guidelines require enhanced sentences for defendants that qualify as career offenders. See U.S.S.G. § 4B1.1(b). To be deemed a career offender, a defendant must, among other things, have at least two prior felony convictions of either a crime of violence or a controlled substance offense. Id. at § 4B1.1(a). A crime of violence is any offense, state or federal, that and fits into one of three categories found in § 4B1.2(a) and is punishable by a term of imprisonment in excess of one year. United States v. Chitwood, 676 F.3d 971, 975 (11th Cir.), cert. denied, 133 S. Ct. 288 (2012). Here, the relevant category of crimes, often referred to as residual clause crimes, id., involves conduct that presents a serious potential risk of physical injury to another, U.S.S.G. § 4B1.2(a)(2). We review de novo whether a prior conviction qualifies as a crime of violence under the Sentencing Guidelines. Chitwood, 676 F.3d at 975 (internal quotation marks omitted). In determining whether a prior offense qualifies as a 2 Case: 13-12229 Date Filed: 01/02/2014 Page: 3 of 5 crime of violence, we apply a categorical approach, looking no further than the fact of conviction and the statutory definition of the prior offense. United States v. Lockley, 632 F.3d 1238, 1240 (11th Cir. 2011) (internal quotation marks omitted). Under this approach, 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. Chitwood, 676 F.3d at 975 76 (internal quotation marks omitted). Inclusion is justified when an offense creates as much risk of physical injury as one of the crimes enumerated in § 4B1.2(a). Id. at 979. Our inquiry is also guided by cases interpreting the residual clause of the Armed Career Criminal Act [(ACCA)], 18 U.S.C. § 924(e), because the § 4B1.2 definition of crime of violence and ACCA s definition of violent felony are substantially the same. Id. at 975 n.2. The Supreme Court held that a defendant s prior conviction under an Indiana law prohibiting knowing and intentional flight from a police officer was a violent felony for purposes of the ACCA. Sykes v. United States, 564 U.S. __, 131 S. Ct. 2267, 2274, 2277 (2011). The Court compared vehicle flight to burglary and arson and determined that it posed a comparable risk to those crimes because it intentional[ly] release[s] . . . a destructive force and creates a confrontation leading to violence. Id. at 2273 74. Importantly, the Court found that vehicle flight poses such risks even when the fleeing criminal drives in a relatively safe 3 Case: 13-12229 Date Filed: 01/02/2014 Page: 4 of 5 manner. See id. The risk of danger inherent in vehicle flights arises from the legitimate and lawful force police may use to end the confrontation created by the decision to flee. See id. at 2273 74. This court has held that vehicle flight in violation of [Florida Statutes] § 316.1935(2) qualifies as a violent felony under the [ACCA]. United States v. Petite, 703 F.3d 1290, 1301 (11th Cir.), cert. denied 134 S. Ct. 182 (2013). In Petite, we stressed that the Supreme Court made it clear that [r]isk of violence is inherent to vehicle flight. Id. at 1295 (alteration in original) (internal quotation marks omitted). Accordingly, we held that vehicle flight, even without any reckless driving on the part of the offender, poses a substantial risk of injury to persons and property by provoking a dangerous confrontational response from [the] officer. See id. at 1301. Jackson argues that his conviction for fleeing or attempting to elude law enforcement under Florida Statutes § 316.1935(1) does not qualify as a crime of violence. We disagree. After careful review of the record and relevant case law, we conclude that a conviction under § 316.1935(1) is a crime of violence within U.S.S.G. § 4B1.2(a). Like the statutes in Sykes and Petite, § 316.1935(1) makes it a felony for the operator of a vehicle to flee from a law a law enforcement officer after being ordered to stop. See id. at 1294 95. Since vehicle flight inherently poses a 4 Case: 13-12229 Date Filed: 01/02/2014 Page: 5 of 5 substantial risk of injury similar to the risk posed by the crimes of burglary and arson, id. at 1301, we hold that a conviction under Florida Statutes § 316.1935(1) qualifies as a crime of violence for the purposes of U.S.S.G. § 4B1.1(a). Accordingly, we affirm. AFFIRMED. 5

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