              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                                                              [DO NOT PUBLISH]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
