                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-4449


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

WILLIAM TRAVIS WARREN, JR.,

                Defendant - Appellant.



Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh.   Terrence W. Boyle,
District Judge. (5:08-cr-00293-BO-1)


Submitted:   May 11, 2010                   Decided:   June 18, 2010


Before NIEMEYER and SHEDD, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Michael W. Patrick, Chapel Hill, North Carolina, for Appellant.
George E. B. Holding, United States Attorney, Anne M. Hayes,
Jennifer P. May-Parker, Assistant United States Attorneys,
Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             William Travis Warren, Jr., appeals from the 160-month

sentence     imposed    after    he    pleaded    guilty    to    possession         of   a

firearm and ammunition by a felon.                The district court enhanced

Warren’s     sentence    based    on    application        of    the   Armed        Career

Criminal Act (ACCA).            One of the three qualifying convictions

used   to    support    application      of    the   enhancement         was    a    North

Carolina     conviction    under       N.C.   Gen.   Stat.       § 20-141.5         (Lexis

Nexis 2007) for fleeing to elude arrest with a motor vehicle

with   two     aggravating       factors.         Warren        argues     that      this

conviction was not a qualifying predicate felony because it was

not a crime of violence.          Finding no error, we affirm.

             Although Warren initially filed an objection to the

presentence     report      (PSR)      regarding      the       fleeing        to    elude

conviction, he chose not to continue his objection to the use of

this conviction for ACCA purposes at sentencing.                           Thus, this

issue is reviewed for plain error.               United States v. Hughes, 401

F.3d 540, 547 (4th Cir. 2005).                   Under the plain error test,

United States v. Olano, 507 U.S. 725, 732-37 (1993), a defendant

must show that (1) error occurred; (2) the error was plain; and

(3) the     error   affected     his    substantial    rights.           Id.    at    732.

Even   when    these     conditions      are     satisfied,       this     court      may

exercise its discretion to notice the error only if the error

“seriously      affect[s]       the     fairness,      integrity          or        public

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reputation of judicial proceedings.”                    Id. (internal quotation

marks omitted).

              A    defendant     is     an   armed     career      criminal       when   he

violates      18    U.S.C.     § 922(g)(1)        (2006)     and    has    three     prior

convictions for violent felonies or serious drug offenses.                               18

U.S.C.   § 924(e)(1)          (2006);    U.S.      Sentencing      Guidelines       Manual

§ 4B1.4(a) (2008).            A violent felony is one that “has as an

element the use, attempted use, or threatened use of physical

force against the person of another,” “is burglary, . . . or

otherwise     involves       conduct     that     presents    a    serious       potential

risk     of        physical      injury       to      another.”             18      U.S.C.

§ 924(e)(2)(B)(i)-(ii)           (2006).         In   reviewing     a     lower    court’s

determination that a defendant is an armed career criminal as

defined by the ACCA, we review factual findings for clear error

and legal conclusions de novo.                   United States v. Wardrick, 350

F.3d 446, 451 (4th Cir. 2003) (citing United States v. Brandon,

247 F.3d 186, 188 (4th Cir. 2001)).

              Warren    claims        that   the      district      court     erred      in

accepting the probation officer’s determination that his prior

North Carolina felony conviction for eluding arrest with a motor

vehicle with two aggravating factors was a violent felony in

light of Begay v. United States, 128 S. Ct. 1581, 1585 (2008)

(holding that a crime of violence under the “otherwise” clause

in 18 U.S.C. § 924(e) (2006) must be “roughly similar, in kind

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as well as in degree of risk posed,” to the enumerated crimes).

Warren contends that fleeing to elude arrest by motor vehicle is

not sufficiently similar to the enumerated qualifying felonies

to be considered a violent felony and that, using a categorical

approach, see United States v. Pierce, 278 F.3d 282, 286 (4th

Cir.   2002),       no   conviction         under       the     North      Carolina            statute

should be considered a violent felony for ACCA purposes.                                            A

violation of N.C. Gen. Stat. § 20-141.5 is a Class I misdemeanor

unless two or more aggravating factors listed in subsection (b)

are present, in which case the offense is a Class H felony.

Warren’s      conviction        for    eluding         arrest      with    a    motor          vehicle

included two aggravating factors: speeding in excess of fifteen

miles per hour and driving recklessly.

              Here,      because        the      blue       light     statute             at     issue

“criminalizes        conduct       that     could      be     ‘generally        committed’          in

multiple      ways,      some      violent       and     some      not,    the        categorical

approach is inapplicable.”                    United States v. Bethea, ___ F.3d

___,   2010    WL     1695608,        at    *2    (4th      Cir.    Apr.       27,    2010)       (No.

09-4333) (quoting Chambers v. United States, 129 S. Ct. 687, 690

(2009)).        Therefore,         the      court       uses    a    modified-categorical

approach,     in    which     “a      court      is    entitled     to     review         ‘charging

documents      filed     in     the    court      or     conviction,        or       []    recorded

judicial      acts       of     that       court,’       to     determine            whether      the

defendant’s crime ‘necessarily’ constituted the type of generic

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conduct    that       would    implicate    the     ACCA.”    Bethea,     2010    WL

1695608, at *2 (quoting Shephard v. United States, 544 U.S. 13,

20 (2005)).

            North Carolina’s blue light statute includes “at least

one form of conduct that is and one form of conduct that is not

an ACCA predicate;” therefore the court may review the charging

documents       and    judicial     records    to    determine    if   Warren    was

convicted of “generic conduct that would constitute a violent

felony.”    Id.       “[A]fter Begay, a residual-clause predicate crime

must (1) present a serious potential risk of physical injury

similar in degree to the enumerated crimes of burglary, arson,

extortion, or crimes involving the use of explosives; and (2)

involves the same or similar kind of ‘purposeful, violent, and

aggressive’ conduct as the enumerated crimes.”                   United States v.

Dismuke, 593 F.3d 582, 591 (7th Cir. 2010) (quoting Begay, 128

S. Ct. at 1584-85).

            We join the Fifth, Sixth, Seventh, and Tenth Circuits

and hold that vehicular fleeing involves an act of defiance of

the law and a likely potential face-to-face confrontation at the

conclusion of pursuit and therefore a risk of physical injury

similar    in    degree       to   the   enumerated    offenses    exists.       See

Dismuke, 593 F.3d at 592; United States v. Wise, 597 F.3d 1141,

1146-47 (10th Cir. 2010);            United States v. Young, 580 F.3d 373,

377-78 (6th Cir. 2009); United States v. Harrimon, 568 F.3d 531,

                                           5
536 (5th Cir. 2009). But see United States v. Tyler, 580 F.3d

722, 725 (8th Cir. 2008); United States v. Harrison, 558 F.3d

1280, 1294 (11th Cir. 2009) (fleeing to elude arrest, without

high speed or recklessness, does not carry same level of risk as

enumerated offenses).             The criminalized behavior included in the

North    Carolina          statute’s       aggravating            factors     presents       a

sufficient risk of significant physical injury similar in degree

to the enumerated crimes.

              The second part of the modified-categorical approach

requires      that      the   court   find     that    North       Carolina’s      crime    of

vehicular fleeing, as it applies to Warren with the aggravating

factors,      involves          conduct    that       is     similarly        violent      and

aggressive to burglary, arson, extortion, or crimes that involve

the   use     of    explosives.         See    Begay,       128    S.   Ct.   at   1584-85;

Bethea, 2010 WL 1695608 at *3, Dismuke, 593 F.3d at 591.                                   “If

the conduct encompassed by [the] fleeing statute is violent and

aggressive         in   th[e]    generic      sense,       then   the   requirements        of

Begay are satisfied and the conviction was properly counted as a

violent felony.”              Dismuke, 593 F.3d at 594.                 The violent and

aggressive conduct must only carry the potential for violence

and physical injury to another, but does not require intent to

cause such injury.            See Chambers, 129 S. Ct. at 692.

              We conclude that Warren’s crime of intentional fleeing

to    elude    arrest,        coupled      with    the      aggravating        factors     of

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speeding in excess of fifteen miles above the posted speed limit

and reckless driving, is similarly violent and aggressive as the

residual clause enumerated crimes.                    See Begay, 128 S. Ct. at

1584-85.       Accord Dismuke, 593 F.3d at 593-94; Wise, 597 F.3d at

1146-47;       Harrimon,    568    F.3d    at    534-35,     Young,     580   F.3d    at

377-78; United States v. LaCasse, 567 F.3d 763, 767 (6th Cir.

2009).     Therefore, the court did not plainly err in applying the

enhancement.

                We   therefore     affirm       the   sentence    imposed     by     the

district    court.         We   dispense    with      oral   argument    because     the

facts    and    legal   contentions        are   adequately      presented     in    the

materials      before   the      court    and    argument     would     not   aid    the

decisional process.

                                                                              AFFIRMED




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