                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 05-5013



UNITED STATES OF AMERICA,

                                                 Plaintiff - Appellee,

           versus


RICKY DALE CHRISTIAN,

                                                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of Virginia, at Big Stone Gap. James P. Jones, Chief
District Judge. (CR-05-8)


Argued:   November 29, 2006                 Decided:   January 24, 2007


Before WILLIAMS and KING, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: David Lynn Harmon, Bristol, Virginia, for Appellant.
Jennifer Rebecca Bockhorst, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for
Appellee.   ON BRIEF: John L. Brownlee, United States Attorney,
Roanoke, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

     Ricky Dale Christian appeals his sentence in the Western

District of Virginia for stealing firearms from a firearm business,

being in possession of a stolen firearm, and being a felon in

possession of a firearm.       Christian contends on appeal that the

district court erred in calculating his sentence by concluding that

his two prior convictions for “felony evading arrest” in Tennessee

constitute crimes of violence under the United States Sentencing

Guidelines (the “U.S.S.G.” or the “Guidelines”).               As explained

below, we affirm.



                                     I.

     Christian was indicted on April 4, 2005, for stealing firearms

from the business of a federal firearms licensee, in violation of

18 U.S.C. § 922(u), possession of a stolen firearm, in violation of

18 U.S.C. § 922(j), and possession of a firearm by a convicted

felon, in violation of 18 U.S.C. § 922(g)(1).         He pleaded guilty to

all three charges without a plea agreement on June 20, 2005.                In

preparation   for   the   sentencing      hearing,   the   Probation     Office

prepared a Presentence Investigation Report (the “PSR”).               The PSR

determined that Christian had two prior convictions for crimes of

violence,   which   enhanced   his   base    level   offense   to   24    under

U.S.S.G. § 2K2.1(a)(2). Christian received an additional two-level

enhancement under U.S.S.G. § 2K2.1(b)(4) because he had stolen the


                                     2
firearms,   but   he   then    received      a   three-level    reduction    for

acceptance of responsibility under U.S.S.G. § 3E1.1, making his

total offense level 23.

     During his sentencing hearing on September 27, 2005, Christian

objected to his base offense level of 24, maintaining that his two

prior convictions for “felony evading arrest” in Tennessee were not

crimes of violence as defined in U.S.S.G. § 4B1.2(a)(2).                      In

considering this issue, the court heard evidence from the probation

officer   regarding    these    prior       convictions   and   admitted    into

evidence relevant state court documents.1              The documents showed

that Christian was convicted under Tennessee law for a July 26,

1997, felony evading arrest (the “Class D felony”). The Indictment

for that conviction alleged that:

     RICKY D. CHRISTIAN on or about July 26, 1997 . . . ,
     while operating a motor vehicle on a street in Kingsport,
     Tennessee, did unlawfully, feloniously, knowingly and
     intentionally flee from a person known to him to be a law
     enforcement officer, attempting to arrest the said RICKY
     D. CHRISTIAN, after having received a signal from said
     offer to stop the vehicle and in so fleeing did create a
     risk of injury and death to innocent bystanders and other
     third parties, in violation of Tennessee Code Annotated,
     Section 39-16-603, a Class D felony.




     1
      The state court documents admitted into evidence and
considered by the sentencing court are the Indictment and judgment
order for the first such offense, and the Information and judgment
order for the second offense.

                                        3
J.A. 44.2        Under Tennessee law, a Class D felony has, as an

element, the creation of risk of injury or death.           See Tenn. Code

Ann. § 39-16-603(b).         The state court documents in evidence also

showed that Christian was convicted under Tennessee law for an

October 4, 1997, felony evading arrest (the “Class E felony”). The

Information for that conviction alleged that:

     RICKY D. CHRISTIAN on or about October 4, 1997, . . . ,
     did unlawfully, feloniously and intentionally, while
     operating a motor vehicle on a public street, flee from
     Officer Ken Harr, a law enforcement officer, after having
     received a signal from the said officer to stop the
     vehicle, in violation of Tennessee Code Annotated,
     Section 39-16-603, a Class E felony.

J.A. 37.    Under Tennessee law, a Class E felony does not have, as

an element, the creation of risk of injury or death.              See Tenn.

Code Ann. § 39-16-603(b).            Christian did not deny, during his

sentencing hearing, that he had these two prior felony convictions.

Instead,    he    objected    only    to   the   classification   of   these

convictions as crimes of violence under the Guidelines.

     The district court rejected Christian’s objection to the

classification of these offenses as crimes of violence and adopted

the PSR’s recommendation on his base offense level. The court then

found Christian to have a total offense level of 23 with a criminal




     2
      Citations to “J.A.         ” refer to the Joint Appendix filed in
this appeal.

                                       4
history category of V.    Christian’s advisory Guidelines range was

84 to 100 months, and the court sentenced him to 100 months.3

     Christian   has   timely   noted    this   appeal,   and   we   possess

jurisdiction pursuant to 28 U.S.C. § 1291.



                                   II.

     Christian asserts on appeal that the district court erred in

its calculation of his advisory Guidelines range. Specifically, he

maintains that the district court erred in determining that his two

prior convictions for felony evading arrest in Tennessee constitute

crimes of violence under the Guidelines.           Because resolution of

Christian’s   appeal    involves   the     legal   application       of   the

Guidelines, we review this contention of error de novo. See United

States v. Dickerson, 77 F.3d 774, 775 (4th Cir. 1996).




     3
      If the court had concluded that Christian had no prior felony
convictions for crimes of violence under the Guidelines, his base
offense level would have been 12 instead of 24.       See U.S.S.G.
§ 2K2.1(a). With his two-level enhancement for having stolen the
firearms and his three-level reduction for acceptance of
responsibility, Christian’s total base offense level would have
been 11 instead of 23. Given his criminal history category of V,
his advisory Guidelines range would have been 24-30 months instead
of 84-100 months. If the court had concluded that Christian had
only one prior felony conviction for a crime of violence, his base
offense level would have been 20 instead of 24.       See U.S.S.G.
§ 2K2.1(a).     With his two-level enhancement and three-level
reduction, Christian’s total base offense level would have been 19
instead of 23.    Given his criminal history category of V, his
advisory Guidelines range would have been 57-71 months instead of
84-100 months.

                                    5
                                   III.

                                    A.

     Under U.S.S.G. § 2K2.1(a)(2), a defendant, such as Christian,

having   been    convicted    of   unlawful    receipt,   possession,   or

transportation of firearms or ammunition, receives a base offense

level of 24 “if the defendant committed any part of the instant

offense subsequent to sustaining at least two felony convictions of

either a crime of violence or a controlled substance offense.” The

Guidelines have defined a crime of violence as

     any offense under federal or state law, punishable by
     imprisonment for a term exceeding one year, that —

           (1)   has as an element the use, attempted use,
                 or threatened use of physical force
                 against the person of another, or

           (2)   is burglary of a dwelling, arson, or
                 extortion, involves use of explosives, or
                 otherwise involves conduct that presents
                 a serious potential risk of physical
                 injury to another.

U.S.S.G. § 4B1.2(a).         The commentary to section 4B1.2 of the

Guidelines indicates that other crimes not listed within this

definition can be considered crimes of violence if “the conduct set

forth (i.e., expressly charged) in the count of which the defendant

was convicted . . . by its nature, presented a serious potential

risk of physical injury to another.”          U.S.S.G. § 4B1.2, comment.

(n.1).   Thus, a felony conviction is a crime of violence if one of

the elements of the crime involves the use of physical force, if

the conviction is for one of the specific offenses listed in

                                     6
U.S.S.G § 4B1.2(a)(2), or if the conviction “otherwise involves

conduct that presents a serious potential risk of physical injury

to another” (the “otherwise clause”).             U.S.S.G. § 4B1.2(a).

     As pertinent to this appeal, Christian was convicted in 1998

on two separate felony evading arrest offenses under Tennessee law.

The Tennessee statute, in relevant part, provides that:

     (b)(1)          It is unlawful for any person, while operating
                     a motor vehicle on any street, road, alley or
                     highway in this state, to intentionally flee
                     or attempt to elude any law enforcement
                     officer, after having received any signal from
                     such officer to bring the vehicle to a stop.

           . . . .

           (3)       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.

Tenn. Code Ann. § 39-16-603(b).                Because Christian’s two prior

convictions for felony evading arrest are not specifically listed

in the Guidelines as crimes of violence and neither conviction has,

as a statutory element, the use of physical force against another,

a sentencing court could only consider them to be crimes of

violence     if   they    satisfy   the       otherwise   clause   of   U.S.S.G.

§ 4B1.2(a)(2).




                                          7
                                          B.

     In    order    to    properly   determine       whether       a    prior   offense

satisfied the otherwise clause, a court must conduct a two-part

inquiry.    See United States v. Johnson, 246 F.3d 330, 333 (4th Cir.

2001); United States v. Dickerson, 77 F.3d 774, 776 (4th Cir.

1996).    First, the court must “consider the indictment pertaining

to the offense of which the defendant was convicted” to determine

if the conviction involves a serious potential risk of injury to

others.     Johnson, 246 F.3d at 333.             In so doing, the court must

“confine    its    factual      inquiry    to    those     facts   charged      in   the

indictment.”       Dickerson, 77 F.3d at 776 (internal quotation marks

omitted).     Second, if a court cannot “glean the circumstances

surrounding the defendant’s commission of the crime from the

indictment,”       it    must   determine       “whether    that       crime,   in   the

abstract, involves conduct that presents a serious potential risk

of physical injury to another.”                 Id. (internal quotation marks

omitted).    With regard to Christian’s Class D felony, a court can

readily determine that this conviction involves a serious potential

risk of injury to another by examining the face of the indictment.

The indictment clearly indicates that an element of the Class D

felony, as charged, involved a serious potential risk of injury to

another, as it specifically alleges that “in so fleeing [Christian]

did create a risk of injury and death to innocent bystanders and

other third parties.”            J.A. 44.        Thus, the Class D felony is


                                           8
properly considered a crime of violence under the Guidelines, and

the district court did not err in its determination that this prior

conviction was a crime of violence.



                                C.

     On the other hand, the face of the Information on Christian’s

Class E felony does not clearly indicate whether this conviction

presented a serious potential risk of physical injury to another.

Thus, we must move to the second prong of the two-part inquiry

explained above, and examine the nature of the Class E felony

offense to determine if, in the abstract, this offense presents a

serious potential risk of injury to another.       See Dickerson, 77

F.3d at 776.   Under the second prong of the two-part inquiry, we

have recognized that, “[t]o constitute a crime of violence in the

abstract, ‘most, if not all, instances of an offense should involve

a serious potential risk of injury.’” Johnson, 246 F.3d at 333

(quoting United States v. Martin, 215 F.3d 470, 475 (4th Cir.

2000)).   Furthermore, when evaluating a prior offense under the

second prong, a court should also examine whether this type of

crime has been determined to be a violent felony, as the language

defining a crime of violence under U.S.S.G. § 4B1.2 is nearly

identical to (and materially indistinguishable from) that defining

a violent felony under 18 U.S.C. § 924(e)(2)(B).    See Johnson, 246

F.3d at 333; Martin, 215 F.3d at 474 n.4; Dickerson, 77 F.3d at


                                9
777.4       In addition, the same two-part inquiry must be used to

determine if a conviction falls within the otherwise clause for

both a crime of violence and a violent felony.     See, e.g., Martin,

215 F.3d at 474-75.      Relevant to this appeal, we have previously

concluded that the crime of failure to stop for a blue light

constitutes a violent felony under the otherwise clause of 18

U.S.C. § 924(e)(2)(B).     See United States v. James, 337 F.3d 387,

390 (4th Cir. 2003).5     In James we concluded that


        4
         Under 18 U.S.C. § 924(e)(2)(B), a violent felony is defined
as

        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.

(emphasis added).

        5
      In James, the crime of failure to stop for a blue light,
under South Carolina law, involves a defendant who, while driving
a vehicle, disobeys a police officer’s signal to stop. See 337
F.3d at 390-91.       Similarly, Christian’s two prior felony
convictions for felony evading arrest, under Tennessee law, involve
a defendant who, while driving a vehicle, intentionally flees or
attempts to elude a police officer after receiving a signal to
stop. See Tenn Code Ann. § 39-16-603(b).

                                   10
     [m]ost cases of failing to stop for a blue light involve
     the deliberate choice by the driver to disobey the police
     officer’s signal. This disobedience poses the threat of
     a direct confrontation between the police officer and the
     occupants of the vehicle, which, in turn, creates a
     potential for serious physical injury to the officer,
     other occupants of the vehicle, and even bystanders.

Id. at 391.

     Christian maintains that our James decision is not applicable

here because the Tennessee statute specifically provides for two

different   felonies   for   evading    arrest,   the   distinction   being

dependent on whether the incident created “a risk of death or

injury to innocent bystanders or other third parties.”         Tenn Code.

Ann. § 39-16-603(b)(3).      Christian contends that if his Class E

felony actually involved the “risk of death or injury to innocent

bystanders or other third parties,” he would have instead been

convicted of a Class D felony.         Id.   Thus, he maintains that the

Class E felony cannot be considered a crime of violence.

     The Class D felony under the Tennessee statute, however, does

not include conduct as broad as that articulated by the definition

of a crime of violence in the Guidelines.          The Tennessee statute

provides that a defendant can only be convicted of a Class D felony

offense if he has actually created a “risk of death or injury to

innocent bystanders or other third parties,” Tenn Code Ann. § 39-

16-603(b)(3), while the Guidelines’ definition for a crime of

violence is broader, requiring that the prior conviction create “a

serious potential risk of physical injury to another.”           U.S.S.G.


                                   11
§ 4B1.2(a) (emphasis added).          Furthermore, the Tennessee statute

limits the Class D felony offense to a defendant who has created a

risk of injury to “innocent bystanders and other third parties.”

Tenn Code Ann. § 39-16-603(b).          The Guidelines’ definition of a

crime of violence, however, extends to a defendant who has created

a serious potential risk of injury to simply “another.”              U.S.S.G.

§ 4B1.2(a).    Because a defendant could be convicted for a Class E

felony under the Tennessee statute by committing an offense that

qualifies under the Guidelines’ definition of a crime of violence,

the Tennessee statute’s distinction between a Class D felony and a

Class E felony does not compel the conclusion that a Class E felony

should not be considered as creating a serious potential for risk

of injury to another.            Thus, Christian’s prior Class E felony

conviction must be evaluated to determine if, in the abstract, this

offense    would   present   a    serious   potential   risk   of   injury   to

another.

     In so evaluating the Class E felony offense, we must rely on

James, as it concluded that the failure to stop for a blue light

presents a serious potential risk of physical injury, under the

otherwise clause, for a violent felony. Given the nearly identical

definitions of a crime of violence (under the Guidelines) and a

violent felony (under 18 U.S.C. § 924(e)(2)(B) and the Guidelines),

our reasoning in James applies here.              We thus conclude that

Christian’s prior Class E felony conviction constitutes a crime of


                                       12
violence under the otherwise clause of U.S.S.G. § 4B1.2(a) because

the Class E felony is an offense that presents a serious potential

risk of physical injury to another.    The district court therefore

did not err in its determination that Christian’s prior Class E

felony conviction was a crime of violence in calculating his

sentencing range under the Guidelines.



                                 IV.

     Pursuant to the foregoing, we affirm Christian’s sentence as

imposed by the district court.


                                                           AFFIRMED




                                 13
