     Case: 12-50827       Document: 00512217779         Page: 1     Date Filed: 04/23/2013




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

                                                                            FILED
                                                                           April 23, 2013
                                     No. 12-50827
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk




UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,

versus

LEE ANTHONY STANDBERRY,

                                                  Defendant-Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                                No. 1:12-CR-131-1




Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*


       Lee Standberry pleaded guilty to being a felon in possession of a firearm


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-50827

in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to a 180-
month term of imprisonment, the mandatory minimum under the Armed Career
Criminal Act (“ACCA”), after determining that he had three convictions “for a
violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1); see U.S.S.G.
§ 4B1.4. Standberry challenges his sentence, claiming that the Texas offense of
evading arrest or detention using a vehicle in violation of Texas Penal Code
§ 38.04(a) and (b)(1) was not a violent felony for purposes of the ACCA. The gov-
ernment moves for summary affirmance or, in the alternative, for an extension
of time to file a brief.
      A defendant convicted under § 922(g) who has three previous convictions
of violent felonies or serious drug offenses occurring on different occasions shall
be imprisoned for not less than fifteen years. § 924(e)(1). Section 924(e)(2)(B)
defines “violent felony” as a crime 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.”
§ 924(e)(2)(B)(i), (ii). This court conducts a de novo review of the “legal conclu-
sions underlying the district court’s application of the ACCA.” United States v.
Fuller, 453 F.3d 274, 278 (5th Cir. 2006).
      In United States v. Harrimon, 568 F.3d 531, 532-33, 536 (5th Cir. 2009),
we held that a § 38.04(b)(1) offense is a violent felony under the ACCA because
“fleeing by vehicle poses a serious risk of injury to others.” Harrimon forecloses
Standberry’s contention that his offense was not a violent felony.
      Standberry maintains, as he did in the district court, that his Texas con-
viction of evading arrest with a vehicle does not constitute a violent felony for
purposes of the ACCA because the Texas offense can be committed by fleeing in
any vehicle, not just a motor vehicle. He contends that because in Sykes v.
United States, 131 S. Ct. 2267 (2011), the Court emphasized the importance of
the use of a motor vehicle during flight, this court should reconsider Harrimon

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                                  No. 12-50827

in the light of Sykes, which, he argues, implicitly overruled Harrimon. In Harri-
mon, we acknowledged the possibility that the vehicle involved in the Texas
evading arrest offense need not be an automobile. Harrimon, 568 F.3d at 535
(“Fleeing by vehicle is also violent: the use of a vehicle, usually a car, to evade
arrest or detention typically involves violent force which the arresting officer
must in some way overcome.”). In Sykes, 131 S. Ct. at 2270, 2277, the Court held
that a conviction under Indiana’s 2004 vehicle-flight law constituted a violent
felony under the ACCA. Standberry has not demonstrated that Sykes overruled
Harrimon, either explicitly or implicitly.
      Standberry avers that the residual clause of the ACCA is unconstitution-
ally vague and cites, inter alia, the dissent in Sykes in support. See Sykes, 131
S. Ct. at 2287 (“[T]he clause is too vague to yield ‘an intelligible principle[.]’”)
(Scalia, J., dissenting). As Standberry concedes, however, the Supreme Court
has rejected the argument that the residual clause is unconstitutionally vague.
United States v. Gore, 636 F.3d 728, 742 (5th Cir. 2011) (citing James v. United
States, 550 U.S. 192, 210 n.6 (2007)).
      The judgment of sentence is AFFIRMED. The government’s motion for
summary affirmance or, in the alterative, for an extension of time to file a brief
is DENIED.




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