              Case: 12-12037     Date Filed: 09/05/2013    Page: 1 of 9


                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 12-12037
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket Nos. 1:08-cv-00239-SPM-GRJ,
                           1:05-cr-00047-SPM-GRJ-1


ALAN ELLIS GILLESPIE,

                                                            Petitioner-Appellant,

                                        versus

UNITED STATES OF AMERICA,

                                                            Respondent-Appellee.

                           ________________________

                    Appeal from the United States District Court
                        for the Northern District of Florida
                          ________________________

                                (September 5, 2013)

Before HULL, JORDAN and FAY, Circuit Judges.

PER CURIAM:

      Alan Ellis Gillespie, a federal prisoner, appeals through counsel the district

court’s denial of his motion to vacate, set aside, or correct sentence, filed under 28
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U.S.C. § 2255. We granted a certificate of appealability (“COA”) on the following

issues:

      (1) Whether Gillespie’s non-constitutional claim that he was
          improperly sentenced as an armed career criminal, pursuant to
          Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170
          L.Ed.2d 490 (2008), and United States v. Archer, 531 F.3d 1347
          (11th Cir. 2008), was cognizable under 28 U.S.C. § 2255

      (2) Whether the district court erred when it concluded that Gillespie’s
          prior Florida conviction for fleeing and attempting to elude a law
          enforcement officer, pursuant to Fla. Stat. § 316.1935(2), was a
          violent felony under the Armed Career Criminal Act (“ACCA”)

We affirm.

                                          I.

      Gillespie, a federal prisoner serving a 195-month sentence after pleading

guilty to possession of a firearm and ammunition by a convicted felon, proceeding

pro se, filed a § 2255 motion to vacate, set aside, or correct sentence. In support,

Gillespie alleged that he was erroneously sentenced as an armed career criminal

under the ACCA because two of his prior convictions were not violent felonies in

light of Begay and Archer. Specifically, he challenged his prior convictions for

carrying a concealed weapon and armed trespass.

      After the government’s response and Gillespie’s reply, a magistrate judge

ordered supplemental briefing by the parties regarding intervening decisions from

this court concerning the ACCA, and whether Gillespie would still qualify as an



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armed career criminal under the ACCA notwithstanding the challenged

convictions.

      Pursuant to the magistrate’s order, the government submitted a supplemental

response in which it waived non-retroactivity and procedural default as defenses,

and indicated that, under Archer, Gillespie’s prior conviction for carrying a

concealed weapon does not operate to enhance his sentence as an armed career

criminal. The government argued Gillespie’s criminal history shows that he has

been convicted of three or more felony offenses that qualify as violent felonies for

purposes of the ACCA enhancement. Specifically, the government identified

Gillespie’s prior convictions for grand theft auto, armed trespass, shooting into a

dwelling and a vehicle, and fleeing and attempting to elude a police officer. Thus,

Gillespie’s sentence was properly enhanced pursuant to the ACCA. Gillespie

replied that the government could not rely on any of his other prior convictions to

classify him as an armed career criminal.

      The magistrate recommended that the district court deny Gillespie’s § 2255

motion. He concluded Gillespie had three prior convictions that qualified as

violent felonies under the ACCA: (1) shooting into a dwelling and a vehicle,

(2) armed trespass, and (3) fleeing and attempting to elude an officer. Gillespie

had conceded that two of these convictions—shooting into a dwelling and a

vehicle and armed trespass—were violent felonies under the ACCA. See Sykes v.


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United States, 564 U.S. __, __, 131 S.Ct. 2267, 2273, 180 L.Ed.2d 60 (2011)

(holding fleeing police officers in a vehicle was a violent felony under the ACCA).

Thus, Gillespie was not entitled to relief under § 2255 because he was sentenced

properly as an armed career criminal.

      Over Gillespie’s objections, the district court adopted the magistrate’s report

and recommendation and denied Gillespie’s § 2255 motion.

                                          II.

      In reviewing a district court’s denial of a § 2255 motion, we review findings

of fact for clear error and questions of law de novo. United States v. McKay, 657

F.3d 1190, 1195 (11th Cir. 2011), cert. denied, 133 S.Ct. 112 (2012). The scope of

review in a § 2255 appeal is limited to issues specified in the COA. Murray v.

United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998). We are bound by a prior

panel opinion until the opinion’s holding is overruled or undermined to the point of

abrogation by the Supreme Court or by this Court sitting en banc. Archer, 531

F.3d at 1352.

      Under the ACCA, a defendant qualifies for the mandatory minimum

sentence of 15 years of imprisonment as an armed career criminal if he has at least

3 prior convictions “for a violent felony or a serious drug offense, or both,

committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). A

“violent felony” is defined as any felony punishable by more than one year that


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“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. § 924(e)(2)(B)(i). A crime

may qualify as a violent felony under the ACCA’s residual clause if it “involves

conduct that presents a serious potential risk of physical injury to another,” and is

roughly similar—in kind as well as in the degree of risk posed—to the enumerated

offenses of burglary, arson, extortion, and crimes involving explosives. 18 U.S.C.

§ 924(e)(2)(B)(ii); Begay, 553 U.S. at 143-44, 128 S.Ct. at 1585-86.

      Florida law provides that a person commits the third-degree felony of simple

vehicle flight when he “willfully flees or attempts to elude a law enforcement

officer in an authorized law enforcement patrol vehicle, with agency insignia and

other jurisdictional markings prominently displayed on the vehicle, with siren and

lights activated.” Fla. Stat. § 316.1935(2); United States v. Petite, 703 F.3d 1290,

1292 (11th Cir.), petition for cert. filed (U.S. Jun. 13, 2013). Simple vehicle flight

carries a maximum sentence of five years of imprisonment. Fla. Stat.

§ 775.082(3)(d); Petite, 703 F.3d at 1293. It is a lesser included offense of the next

subsection of the Florida statute, which provides:

      (3) Any person who willfully flees or attempts to elude a law
      enforcement officer in an authorized law enforcement patrol vehicle,
      with agency insignia and other jurisdictional markings prominently
      displayed on the vehicle, with siren and lights activated, and during
      the course of the fleeing or attempted eluding:




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             (a) Drives at high speed, or in any manner which demonstrates
             a wanton disregard for the safety of persons or property,
             commits a felony of the second degree. . .

             (b) Drives at high speed, or in any manner which demonstrates
             a wanton disregard for the safety of persons or property, and
             causes serious bodily injury or death to another person,
             including any law enforcement officer involved in pursuing or
             otherwise attempting to effect a stop of the person's vehicle,
             commits a felony of the first degree. . .

Fla. Stat. § 316.1935(3); Petite, 703 F.3d at 1293. Aggravated vehicle flight

carries a maximum sentence of either 15 or 30 years of imprisonment, depending

on whether the offender causes serious bodily injury or death to another person.

Fla. Stat. §§ 316.1935(3); 775.082(3)(b)-(c).

      We initially held that a conviction under § 316.1935(2) was not a violent

felony for purposes of enhanced sentencing under the ACCA. United States v.

Harrison, 558 F.3d 1280, 1296 (11th Cir. 2009), abrogated by Sykes, 564 U.S.

at   , 131 S.Ct. at 2277, as recognized in Petite, 703 F.3d at 1299. However, the

Supreme Court later examined a similar Indiana vehicle flight statute, Ind. Code

§ 35-44-3-3, and held that “[f]elony vehicle flight is a violent felony for purposes

of ACCA.” Sykes, 564 U.S. at        , 131 S.Ct. at 2270-72, 2277. The Court held

that the crime fell within the residual clause of § 924(e)(2)(B)(ii) because it

categorically presents a serious potential risk of physical injury to another. Id.

at   , 131 S.Ct. at 2272. The risk is comparable to that posed by arson and

burglary, the crime’s closest analogs among the enumerated offenses. Id at __, 131
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S.Ct. at 2273. When a person chooses to defy 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.” Id. Thus, the risk of violence is inherent to vehicle flight, as the

offense is initiated and terminated by confrontation with law enforcement, and the

intervening pursuit creates a high risk of crashes. Id at __, 131 S.Ct. at 2274.

      Relevant to this appeal, the Court discussed the significance of the Indiana

statute’s differentiation between types of fleeing. Id at __, 131 S.Ct. at 2276.

Sykes’s offense, under subsection (b)(1)(A) of the Indiana statute, criminalizes

flight in which the offender uses a vehicle, while subsection (b)(1)(B) criminalizes

flight in which the offender “‘operates a vehicle in a manner that creates a

substantial risk of bodily injury to another person.’” Id. (quoting Ind. Code § 35-

44-3-3(b)(1)(B)). The Court rejected Sykes’s argument that the statute was

structured this way because the Indiana legislature “did not intend subsection

(b)(1)(A)’s general prohibition on vehicle flight to encompass the particular class

of vehicle flights that subsection (b)(1)(B) reaches.” Id.

      In Sykes, the Supreme Court expressly stated that it was addressing a conflict

among the circuits that included our opinion in Harrison, and then decided against

Harrison and the other circuits that held that fleeing from a law enforcement

officer in a vehicle does not constitute a violent felony. Id. at    , 131 S.Ct.


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at 2272, 2277. In Petite, we held that a conviction under § 316.1935(2) constitutes

a violent felony under the ACCA. Petite, 703 F.3d at 1292, 1301. We expressly

stated that our prior holding in Harrison, that such a conviction was not a violent

felony, had been “undermined to the point of abrogation” by Sykes. Id. at 1299.

We rejected Petite’s argument that his case was distinguishable from Sykes

because, unlike the Indiana statute at issue in Sykes, Florida has increased penalties

for different levels of vehicle flight. Id. at 1299-1301. Although aggravated

vehicle flight in violation of § 316.1935(3) presents a greater level of risk than

simple vehicle flight under § 316.1935(2), we concluded both statutes criminalize

the same basic conduct of intentional vehicle flight, which is an inherently risky

offense. Id. at 1300-01.

      In light of our decision in Petite, Gillespie’s argument—that his prior

conviction for simple vehicle flight in violation of § 316.1935(2) does not qualify

as a violent felony under the ACCA—is foreclosed on appeal. See Petite, 703 F.3d

at 1292, 1301; Archer, 531 F.3d at 1352. Gillespie attempts to distinguish this case

by arguing that § 316.1935(2), unlike the Indiana vehicle flight statute at issue in

Sykes, provides for escalating degrees of punishment depending on whether the

defendant created a risk of harm. We squarely rejected that argument and

concluded that each section of § 316.1935 criminalizes the same basic conduct of




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intentional vehicle flight, which is an inherently risky offense. See Petite, 703 F.3d

at 1299-1301.

      Gillespie further suggests that his case is distinguishable because he was

convicted under an earlier version of § 316.1935(2) than the one at issue in Petite.

However, he does not explain how the two versions were materially different.

Regardless, Gillespie does not suggest that the version of § 316.1935 under which

he was convicted did not punish intentional vehicle flight, which we have held is

an inherently risky offense that qualifies as a violent felony under the ACCA. See

id. Because Gillespie’s ACCA challenge is foreclosed by Petite, it is unnecessary

for us to consider whether such a challenge is cognizable under § 2255. The

government has waived the defenses of procedural default and non-retroactivity.

      AFFIRMED.




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