           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals

                                    No. 14-50299
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                        December 29, 2014
                                                                             Lyle W. Cayce
UNITED STATES OF AMERICA,                                                         Clerk


                                                 Plaintiff-Appellee

v.

CHRISTOPHER MICHAEL HORNYAK, also known as Christopher Hornyak,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:13-CR-485


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Christopher Michael Hornyak appeals from his conviction of possession
of a firearm by a convicted felon. He contends that his conviction of evading
arrest or detention using a motor vehicle under section 38.04 of the Texas
Penal Code did not qualify as a violent felony for purposes of the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e). He further contends that the residual
clause of the ACCA, which provides that an offense qualifies as a violent felony


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
                                 No. 14-50299

if it “involves conduct that presents a serious potential risk of physical injury
to another,” § 924(e)(2)(B)(ii), is unconstitutionally vague and should be found
void for vagueness. Hornyak concedes that his arguments are foreclosed, but
he raises them to preserve them for further review, and he requests
reexamination of United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009), in
which we held that a conviction under § 38.04 qualifies as a violent felony, in
light of Sykes v. United States, 131 S. Ct. 2267 (2011). The Government moves
for summary affirmance of Hornyak’s conviction, as all of his contentions are
foreclosed.
      In Harrimon, we held that a § 38.04(b)(1) offense is a violent felony under
the ACCA because “fleeing by vehicle poses a serious risk of injury to others.”
Harrimon, 568 F.3d at 532-33, 536 (considering substantively identical version
of § 38.04 to that at issue in this case). We have held in several unpublished
opinions that Sykes validated our decision in Harrimon. See United States v.
Spann, 562 F. App’x 237, 238 (5th Cir.), cert. denied, 135 S. Ct. 220 (2014);
United States v. Hoover, 548 F. App’x 300, 301 (5th Cir. 2013), cert. denied, 134
S. Ct. 1804 (2014); United States v. Standberry, 546 F. App’x 381, 382 (5th Cir.
2013); United States v. McCullough, 475 F. App’x 983, 983 (5th Cir. 2012);
United States v. Williams, 466 F. App’x 390, 391 (5th Cir. 2012); United States
v. Tubbs, 446 F. App’x 705, 706 (5th Cir. 2011). We also have rejected the
arguments that the Texas statute for evading arrest with a vehicle is not a
violent felony because it can be committed by fleeing in any vehicle, not just a
motor vehicle, and that Sykes overruled Harrimon because it emphasized the
use of a motor vehicle. See Spann, 562 F. App’x at 238; Standberry, 546 F.
App’x at 382. Moreover, we have rejected the argument that the Texas offense
of evading arrest might not constitute a violent felony because Texas law
imposes different penalties based on the degree of risk posed by a defendant’s



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conduct. See United States v. Holston, 471 F. App’x 308, 309 (5th Cir. 2012);
United States v. Whitfield, 451 F. App’x 415, 416 (5th Cir. 2011). Finally, the
Supreme Court has rejected the argument that the residual clause of the ACCA
is unconstitutionally vague. United States v. Gore, 636 F.3d 728, 742 (5th Cir.
2011) (citing James v. United States, 550 U.S. 192, 210 n.6 (2007)).
      “It is a firm rule of this circuit that in the absence of an intervening
contrary or superseding decision by this court sitting en banc or by the United
States Supreme Court, a panel cannot overrule a prior panel’s decision.” Burge
v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999). Hornyak’s
contentions thus are foreclosed.
      AFFIRMED. Motion for summary affirmance GRANTED. Motion for
extension of time to file a brief DENIED.




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