             Case: 13-11492    Date Filed: 10/01/2014   Page: 1 of 12


                                                                 [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 13-11492
                          ________________________

                           Agency No. A047-117-482



TREVARDO DERMONT DIXON,
a.k.a. Trevardo Darmonda Dixon,
a.k.a. Trevardo Darmont Dixon,
                                                                          Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,
                                                                        Respondent.

                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                           ________________________

                                (October 1, 2014)

Before WILSON, WILLIAM PRYOR and ROSENBAUM, Circuit Judges.

WILSON, Circuit Judge:

      Trevardo Dixon petitions for review of the dismissal, by the Board of

Immigration Appeals (BIA), of his appeal from the Immigration Judge’s (IJ) order
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of removal under 8 U.S.C. § 1227(a)(2)(A)(iii), which renders deportable “[a]ny

alien who is convicted of an aggravated felony at any time after admission.” An

aggravated felony is defined as “a crime of violence (as defined in section 16 of

Title 18 . . .) for which the term of imprisonment [is] at least one year.” 8 U.S.C. §

1101(a)(43)(F). On appeal, Dixon contends that his Florida state conviction for

aggravated fleeing, Fla. Stat. § 316.1935(4)(a), was not an aggravated felony. He

argues (1) that the sentence of five years’ imprisonment, which the Florida court

imposed after he violated his probation for his aggravated fleeing violation, was for

the probation violation rather than the original offense and, therefore, cannot count

as his sentence in order to satisfy the aggravated felony definition; and (2) that

aggravated fleeing is not categorically a crime of violence under 18 U.S.C. § 16(b)

because it does not involve a substantial risk that intentional violent force will be

used in the commission of the offense. We address Dixon’s arguments in turn.

The BIA reached the correct conclusion regarding both the sentence and the §

16(b) question. We accordingly deny the petition.

                                          I.

      We review questions of law de novo, including whether a conviction is an

aggravated felony. Accardo v. U.S. Att’y Gen., 634 F.3d 1333, 1335 (11th Cir.

2011). In considering a petition for review, we look to the decision of the BIA,

unless the BIA expressly adopts the IJ’s opinion or reasoning. Cole v. U.S. Att’y


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Gen., 712 F.3d 517, 523 (11th Cir.), cert. denied, 134 S. Ct. 158 (2013). Because

the BIA agreed with the IJ’s reasoning on the crime of violence issue, we review

both decisions on that issue. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th Cir.

2010).

                                         II.

      We first address Dixon’s claim that his five-year sentence could not be

counted as his sentence for his aggravated fleeing conviction in order to classify it

as an aggravated felony because it was imposed for the probation violation rather

than for the original offense. To be characterized as an aggravated felony under 8

U.S.C. § 1101(a)(43)(F), an offense must result in a sentence of imprisonment for

one year or more. Dixon cites Florida law that he claims supports his argument

that revocation of a sentence of probation, which results in a term of imprisonment,

is a sentence for a probation violation, not for the underlying crime that produced

the original sentence of probation. See Sanders v. State, 35 So. 3d 864 (Fla. 2010);

Roberts v. State, 644 So. 2d 81 (Fla. 1994) (per curiam); Gearhart v. State, 885 So.

2d 415 (Fla. Dist. Ct. App. 2004). Therefore, according to Dixon, there was no

term of imprisonment imposed, leaving that component of the definition of an

aggravated felony unmet.

      The precedent Dixon cites seemingly indicates that re-sentencing after a

probation violation is for the probation violation and not the underlying offense.


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See, e.g., Roberts, 644 So. 2d at 82 (“[T]he defendant is not being sentenced for

precisely the same conduct, and double jeopardy concerns do not come into play.”

(internal quotation marks omitted)). Nonetheless, Florida law clearly holds that the

sentence imposed after a probation violation is for the original, underlying offense.

See Peters v. State, 984 So. 2d 1227, 1239 (Fla. 2008) (“[T]his Court and others

have characterized probation revocation hearings as deferred sentencing

proceedings. Florida law explicitly reflects this characterization: if probation or

community control is revoked, the court is required to adjudge the probationer or

offender guilty of the offense charged and proven or admitted, unless the

probationer or offender has been previously adjudged guilty of the offense, and

impose any sentence which it might have originally imposed before placing the

defendant on probation or into community control.” (citations omitted)).

      The conduct of the proceedings here reflects this legal reality. When Dixon

was charged with aggravated fleeing, adjudication of guilt was stayed. After

Dixon was charged with second-degree murder, at the revocation hearing, Dixon

entered a plea of guilty to the underlying offenses, including aggravated fleeing,

and the judge ordered “that [Dixon] is hereby ADJUDICATED GUILTY of the

above crime(s),” referencing the underlying offenses. This follows the procedure

contemplated in Peters: “if probation or community control is revoked, the court is

required to adjudge the probationer or offender guilty of the offense charged and


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proven or admitted.” 984 So. 2d at 1239. Therefore, under relevant Florida law

and considering the factual circumstances of the proceedings related to Dixon’s

aggravated fleeing offense, the probation revocation and re-sentencing resulted in a

prison term of at least one year, in satisfaction of §1101(a)(43)(F).

                                         III.

      Dixon next argues that his Florida state conviction is not a crime of violence

as defined in § 16, a prerequisite for finding that the offense is an aggravated

felony under § 1227(a)(2)(A)(iii). According to § 16(a), a crime of violence is “an

offense that has as an element the use, attempted use, or threatened use of physical

force against the person or property of another.” 18 U.S.C. § 16(a). Section 16(b)

adds “any other offense that is a felony and that, by its nature, involves a

substantial risk that physical force against the person or property of another may be

used in the course of committing the offense.” 18 U.S.C. § 16(b). The

government alleges only that the § 16(b) definition is met.

      “To determine whether a state law offense qualifies as a crime of violence

for immigration purposes, we employ a categorical approach, looking to the

elements and the nature of the offense of conviction, rather than to the particular

facts relating to petitioner’s crime.” Cole, 712 F.3d at 527 (internal quotation

marks omitted). “[W]e are bound by the state supreme court’s interpretation of




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state law, including its determination of the elements of a crime.” Id. (internal

quotation marks omitted).

      Florida’s aggravated fleeing statute states that:

      Any person who, in the course of unlawfully leaving or attempting to
      leave the scene of a crash . . . having knowledge of an order to stop by
      a duly authorized law enforcement officer, willfully refuses or fails to
      stop in compliance with such an order, or having stopped in knowing
      compliance with such order, willfully flees in an attempt to elude such
      officer and, as a result of such fleeing or eluding:

      (a) Causes injury to another person or causes damage to any property
      belonging to another person, commits aggravated fleeing or
      eluding . . . .
Fla. Stat. § 316.1935(4)(a). The Florida Supreme Court, in drafting standard jury

instructions, has determined that it is an element of the offense that the defendant

either “willfully refused or failed to stop his . . . vehicle in compliance with the

order to stop” or “willfully fled in a vehicle in an attempt to elude the law

enforcement officer.” In re Standard Jury Instructions in Criminal Cases—Report

No. 2007-03, 976 So. 2d 1081, 1094 (Fla. 2008) (per curiam).

                                           A.

      We have not addressed whether a violation of Florida’s aggravated fleeing

statute qualifies as a crime of violence under § 16(b). Leocal v. Ashcroft, 543 U.S.

1, 125 S. Ct. 377 (2004), provides the framework for considering whether an

offense is a crime of violence under § 16. In that opinion, the Supreme Court

applied § 16 to a violation of Florida’s driving under the influence (DUI) statute,

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Fla. Stat. § 316.193(3)(c)(2). See id. at 4, 125 S. Ct. at 379. The Florida DUI

statute “makes it a third-degree felony for a person to operate a vehicle while under

the influence and, ‘by reason of such operation, cause serious bodily injury to

another.’” Id. at 7, 125 S. Ct. at 381 (quoting Fla. Stat. § 316.193(3)(c)(2)). “[I]t

requires proof of causation of injury, [but] not . . . proof of any particular mental

state.” Id. The Supreme Court granted certiorari to determine “whether state DUI

offenses similar to the one in Florida, which either do not have a mens rea

component or require only a showing of negligence in the operation of a vehicle,

qualify as a crime of violence.” Id. at 6, 125 S. Ct. at 380. The Court answered

that question in the negative.

      The Court first analyzed whether the DUI statute fell within § 16(a)’s

parameters. Id. at 8–10, 125 S. Ct. at 382. It focused on § 16(a)’s inclusion of the

word “use.” Id. The Court stated that, in context, “‘use’ requires active

employment” and rejected the proposition that it could encompass the accidental

use of physical force, such as “stumbling and falling into” another person. Id. at 9,

125 S. Ct. at 382 (“While one may, in theory, actively employ something in an

accidental manner, it is much less natural to say that a person actively employs

physical force against another person by accident.”). Thus, § 16(a)’s requirement

that physical force be used cannot embrace an offense that prohibits negligent or

accidental application of physical force. Section 316.193(3)(c)(2) therefore did not


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qualify as a crime of violence under § 16(a) because even negligent or accidental

conduct in causing the accident qualified to render someone culpable of aggravated

DUI under that statute. Id. at 9–10, 125 S. Ct. at 382.

       The Court then turned to § 16(b), the subsection at issue here, and decided

that the DUI offense was not a crime of violence under that definition, either. Id.

at 10, 125 S. Ct. at 382. Immediately after noting that § “16(b) sweeps more

broadly than § 16(a),” the Court rejected the notion that § 16(b) might “encompass

all negligent misconduct, such as the negligent operation of a vehicle.” Id. at 10–

11, 125 S. Ct. at 382–83 (“[W]e must give the language in § 16(b) an identical

construction, requiring a higher mens rea than the merely accidental or negligent

conduct involved in a DUI offense.”). “[Section 16(b)] simply covers offenses that

naturally involve a person acting in disregard of the risk that physical force might

be used against another in committing an offense.” Id. at 10, 125 S. Ct. at 383.

Thus, the risk § 16(b) contemplates is “the risk that the use of physical force

against another might be required in committing a crime.” Id.

      In other words, § 16(b)’s “substantial risk” language “relates to the use of

force, not to the possible effect of a person’s conduct. The risk that an accident

may occur when an individual drives while intoxicated is simply not the same

thing as the risk that the individual may ‘use’ physical force against another in

committing the DUI offense.” Id. at 10 n.7, 125 S. Ct. at 383 n.7 (citations


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omitted). Therefore, the increased likelihood of force being applied to third parties

is not sufficient to trigger § 16(b); there must be an augmentation of the risk that

the offender will actively employ physical force against a third party or the third

party’s property in committing the offense.

                                                 B.

       The issue to resolve with respect to section 316.1935(4)(a), then, is whether

it is an “offense[] that naturally involve[s] a person acting in disregard of the risk

that physical force might be used against another in committing an offense.” See

id. at 10, 125 S. Ct. at 383. The use of physical force cannot be merely accidental,

negligent, or even reckless. See United States v. Palomino Garcia, 606 F.3d 1317,

1336 (11th Cir. 2010); 1 see also Leocal, 543 U.S. at 13, 125 S. Ct. at 384

(expressly leaving the question of whether the reckless application of force to

another satisfies § 16’s use requirement). “The classic example is burglary . . .

not because the offense can be committed in a generally reckless way or because

someone may be injured, but because burglary, by its nature, involves a substantial

risk that the burglar will use force against a victim in completing the crime.”


       1
          Palomino is not binding on the § 16(b) question because § 16 was not at issue there.
However, it holds substantial sway because (1) the language in U.S.S.G.§ § 2L1.2, which was at
issue there, was identical to that in § 16(a); (2) it analyzed and used as a comparison the
language in § 16(a), relying on Leocal; and (3) the recklessness ruling applies to the construction
of the phrase “use of physical force,” which is the operative element in § 16(b) at issue here,
even if it is phrased differently. See id. at 1334–36; see also Leocal, 543 U.S. at 11, 125 S. Ct. at
383 (“[W]e must give the language in § 16(b) an identical construction, requiring a higher mens
rea than the merely accidental or negligent conduct involved in a DUI offense.”).
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Leocal, 543 U.S. at 10, 125 S. Ct. at 383. Applying the reasoning found in Leocal,

we have found crimes of violence under § 16(b) where the offense was pointing or

presenting a firearm at another, see Cole, 712 F.3d at 528, and attempting to

damage or disable an aircraft, see United States v. McGuire, 706 F.3d 1333, 1338

(11th Cir. 2013), but not where the offense was an extortionate extension of credit,

see Accardo, 634 F.3d at 1339. Also applying Leocal’s reasoning, we have found

that a definition mirroring that in § 16(b) was not met where the offense was being

a felon in possession of a firearm. See United States v. Johnson, 399 F.3d 1297,

1301–02 (11th Cir. 2005) (per curiam).

       The offense here is very similar to that at issue in Leocal. Both involve

unlawful operation of a motor vehicle that ultimately causes injury. Neither

associates any mens rea with the conduct that causes the injury, though both

require intent to commit the conduct that triggers an offense.2 Fleeing from police

may involve circumstances not present when someone gets behind the wheel after

having too much to drink, however. Someone actively fleeing might be more

desperate and is likelier to drive in an exceedingly reckless manner that can cause

injury to others or to their property. Nevertheless, even assuming that fleeing from



       2
          The DUI statute does not expressly mention this, but Florida law recognizes involuntary
intoxication as a defense to DUI in order to satisfy the requirement that “intent or knowledge is a
prerequisite whenever offenses carry substantial criminal sanctions, regardless of how criminal
statutes are worded.” Carter v. State, 710 So. 2d 110, 113 (Fla. Dist. Ct. App. 1998).
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the police is per se reckless, causing injury through reckless conduct is not

sufficient to satisfy § 16(b). See Palomino, 606 F.3d at 1336.

      Still, fleeing from police indicates that the individual fleeing is desperate.

See Sykes v. United States, 564 U.S. __, __, 131 S. Ct. 2267, 2273 (2011) (“The

felon’s conduct gives the officer reason to believe that the defendant has something

more serious than a traffic violation to hide.”). A desperate person is likelier to

resort to physical force to complete the objective of fleeing from police, which is

evading arrest and prosecution. See id. (“When a perpetrator defies a law

enforcement command by fleeing in a car, the determination to elude capture

makes a lack of concern for the safety of property and persons of pedestrians and

other drivers an inherent part of the offense.”). That is what separates it from

other, non-violent crimes, including DUI offenses. While any crime runs the risk

of “provo[cation of] the sort of confrontation that leads to the intentional use of

physical force,” Cole, 712 F.3d at 528, due to the fact that, upon detection, law

enforcement will confront the offender, fleeing is unique in that it indicates that

there is a “substantial risk” that the offender will use physical force. There is a

great likelihood “that the use of physical force against another might be required in

committing” the offense, Leocal, 543 U.S. at 10, 125 S. Ct. at 383, because an

individual who disregards an officer’s order is substantially more likely to use

physical force against an officer—and perhaps, civilian bystanders—when the


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officer attempts to halt the flight, see United States v. Sanchez-Ledezma, 630 F.3d

447, 450–51 (5th Cir. 2011).

      Of course, we do not think that any increase in the likelihood of physical

confrontation is sufficient to trigger § 16(b). If that were our standard, all felonies

would be crimes of violence because any time an individual violates the law, he

chances an encounter with law enforcement that may cause that individual to resort

to the use of physical force. Clearly, though, by fleeing from law enforcement, an

individual has already resorted to an extreme measure to avoid arrest, signaling

that he is likely prepared to resort to the use of physical force.

                                          IV.

      Consequently, the BIA correctly held that Dixon committed an aggravated

felony and thus was deportable under § 1227(a)(2)(A)(iii).

      PETITION DENIED.




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