                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 10a0681n.06

                                            No. 09-5756

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                            FILED
                                                                                        Nov 04, 2010
United States of America,                            )                            LEONARD GREEN, Clerk
                                                     )
       Plaintiff-Appellee,                           )
                                                     )
v.                                                   )   ON APPEAL FROM THE UNITED
                                                     )   STATES DISTRICT COURT FOR THE
Donald Noah,                                         )   WESTERN DISTRICT OF TENNESSEE
                                                     )
       Defendant-Appellant.                          )
                                                     )
                                                     )



BEFORE:        Merritt, Rogers, and Kethledge, Circuit Judges.

       MERRITT, Circuit Judge. The Armed Career Criminal Act defines a “violent felony” as

follows:

                (B) the term “violent felony” means any crime punishable by imprisonment
       for a term exceeding one year, or any act of juvenile delinquency involving the use
       or carrying of a firearm, knife, or destructive device that would be punishable by
       imprisonment for such term if committed by an adult, 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 . . . .

18 U.S.C. § 924(e)(2)(B). Defendant Donald Noah pled guilty to one count of possessing a firearm

after being convicted of a felony in violation of 18 U.S.C. § 922(g). He was sentenced under the
No. 09-5756
United States v. Noah

Armed Career Criminal Act and received the mandatory 180-month sentence. 18 U.S.C. § 924(e)(1).

On appeal, Noah disputes that a prior conviction for Intentionally Evading Arrest in an Automobile

is a class of felony under Tennessee law that satisfies the definition of a “violent felony” under the

Armed Career Criminal Act. He, therefore, argues that this prior conviction should not count as one

of the three prior violent crimes necessary to trigger the mandatory minimum sentence under the Act.

Because the intentional act of fleeing in a car in this case involves “conduct that presents a serious

potential risk of physical injury to another,” we agree with the district court that the prior felony

should count as a “violent felony” for purposes of the Armed Career Criminal Act, and we affirm

the judgment of the district court.

        An offense qualifies as a “violent felony” under the residual clause of § 924(e)(2)(B)(ii)—one

that “otherwise involves conduct that presents a serious potential risk of physical injury to

another”—if it is “roughly similar, in kind as well as in degree of risk posed,” to the enumerated

offenses. Begay v. United States, 553 U.S. 137, 143 (2008) (construing the definition of “violent

felony” contained in the Armed Career Criminal Act). To be counted as a prior violent felony,

therefore, a crime must be similar to the listed offenses not only in degree of risk posed, but also in

the sense that it involves “purposeful, violent, and aggressive conduct.” Begay, 553 U.S. at 144-45.

        The indictment in this case states that Noah “unlawfully and intentionally” fled from an

officer after being signaled to stop, “thereby creating a risk of death or injury to third parties.” That

offense would be a Class D felony under the Tennessee statute. See Tenn. Code Ann. § 39-16-




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No. 09-5756
United States v. Noah

603(b)(3).1 Noah now argues that he pled guilty to a Class E felony, which does not include the

element of creating risk to others. See id. He says that the judgment for his conviction is ambiguous

because the judge crossed out “E” and circled “D.” We disagree. We think the Tennessee judge

plainly intended to mark the conviction as a Class D violation. Noah created a risk of death or

injury to others while intentionally fleeing from an officer. This conduct clearly meets the Begay

requirements of presenting a “serious potential risk of physical injury,” as well as involving the same

or similar kind of “purposeful, violent, and aggressive” conduct as the enumerated crimes of

burglary, arson, extortion, or the use of explosives. Begay, 553 U.S. at 140-41.

       The Supreme Court has granted certiorari in a case from the Seventh Circuit involving the

use of a conviction under Indiana’s fleeing law enforcement statute as a prior violent felony for

purposes of the Armed Career Criminal Act. United States v. Sykes, 598 F.3d 334 (7th Cir. 2010),

cert. granted, No. 09-11311, 2010 WL 2345244 (U.S. Sept. 28, 2010). The case holds that a statute,

like the one in the instant case, criminalizes a “violent felony” as a categorical matter. Sykes agrees

with cases from the Fifth and Tenth Circuits. United States v. Harrimon, 568 F.3d 531, 536 (5th Cir.

2009); United States v. West, 550 F.3d 952, 971 (10th Cir. 2008). One case from the Eleventh

Circuit is in conflict with these cases. United States v. Harrison, 558 F.3d 1280 (11th Cir. 2009).

Regardless of the outcome of Sykes in the Supreme Court, the outcome of the instant case is likely



       1
         Tenn. Code Ann. § 39-16-603(b)(3) states: “A violation of subsection (b) is a Class E felony
unless the flight or attempt to elude creates a risk of death or injury to innocent bystanders or other
third parties, in which case a violation of subsection (b) is a Class D felony.”



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United States v. Noah

to stand due to the language found in Noah’s indictment. See Taylor v. United States, 495 U.S. 575,

602 (1990); Shepard v. United States, 544 U.S. 23, 26 (2005). Given the Supreme Court’s prior

interpretations of the Armed Career Criminal Act, Noah’s prior conviction for fleeing in his car after

officers instructed him to stop carries the requisite “serious potential risk of physical injury to

another” and is the type of “purposeful, violent, and aggressive conduct” that qualifies it as a prior

violent felony for purposes of sentencing under the Armed Career Criminal Act.

       For the foregoing reasons, the judgment of the district court is affirmed.




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