                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 11a0245n.06
                                                                                             FILED
                                             No. 09-5994
                                                                                        Apr 18, 2011
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )
        Plaintiff-Appellee,                                )         ON APPEAL FROM THE
                                                           )         UNITED STATES DISTRICT
                v.                                         )         COURT FOR THE WESTERN
                                                           )         DISTRICT OF TENNESSEE
NICHOLAS BERNARD FULLER,                                   )
                                                           )
        Defendant-Appellant.                               )
                                                           )



BEFORE: NORRIS, ROGERS, and GRIFFIN, Circuit Judges.

        GRIFFIN, Circuit Judge.

        Defendant-appellant Nicholas Bernard Fuller pleaded guilty to being a felon in possession

of a firearm and was sentenced to 37 months of imprisonment. On appeal, Fuller challenges his

sentence, asserting that the district court erred in calculating his Guidelines range. Finding no error,

we affirm.

                                                   I.

        In October 2008, a federal grand jury returned a one-count indictment charging Fuller with

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). On March 20, 2009,

Fuller pleaded guilty to the charge.

        Prior to sentencing, a presentence investigation report (“PSR”) was compiled. The PSR

recommended a base offence level of 14, pursuant to U.S.S.G. § 2K2.1(a)(6), and a criminal history
No. 09-5994
United States v. Fuller


category of IV, based upon 8 criminal history points. The PSR then afforded a two-level reduction

for acceptance of responsibility, U.S.S.G. § 3E1.1(a), yielding a total offense level of 12, and an

advisory Guidelines range of 21-27 months of imprisonment.

        The government objected to the PSR’s Guidelines calculation, asserting that Fuller’s base

offense level should be increased as a result of his prior conviction for evading arrest in violation of

Tennessee Code Annotated § 39-16-603(b)(1). Specifically, the government contended that this

prior conviction constituted a “crime of violence,” requiring a base offense level of 20 pursuant to

U.S.S.G. § 2K2.1(a)(4)(A).

        At sentencing, the district court sustained the government’s objection and applied a base

offense level of 20. Granting a three-level reduction for acceptance of responsibility, the district

court determined that Fuller’s total offense level was 17, rendering a Guidelines range of 37-46

months of imprisonment. The court thereafter imposed a sentence of 37 months. Fuller timely

appealed.

                                                   II.

        As his sole claim on appeal, Fuller asserts that the district court erred in assigning him a base-

offense level of 20 pursuant to U.S.S.G. § 2K2.1(a)(4)(A), contending that his prior conviction for

evading arrest does not constitute a crime of violence. We do not agree.1




        1
        The conclusion that an offense constitutes a “crime of violence” under the sentencing
Guidelines is a question of law reviewed de novo. United States v. Bass, 315 F.3d 561, 564-65 (6th
Cir. 2002).

                                                  -2-
No. 09-5994
United States v. Fuller


       “It is a well-established rule of this circuit that one panel cannot overrule the holding of

another panel, absent an intervening inconsistent opinion from the U.S. Supreme Court.” Lewis v.

Humboldt Acquisition Corp., — F.3d — , No. 09-6381, 2011 WL 906433, at *1 (6th Cir. Mar. 17,

2011). In this case, the claim of error presented by Fuller is identical to that addressed and resolved

by this court in United States v. Rogers, 594 F.3d 517 (6th Cir. 2010). In Rogers, the defendant, like

Fuller, had a prior conviction for evading arrest in violation of Tennessee Code Annotated § 39-16-

603(b)(1). Id. at 520. Applying the “categorical approach,” the Rogers court held that this offense

is properly characterized as a crime of violence because it involves intentional conduct creating a

serious potential risk of physical harm to others. Id. at 521.2

       Fuller contends that his conviction for evading arrest does not constitute a crime of violence

because he was convicted of a “Class E” felony rather than a “Class D” felony. The Tennessee

evading arrest statute provides in relevant part:

       (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 the officer to bring the
       vehicle to a stop.

                                                    ***




       2
         In determining whether an offense constitutes a crime of violence under the sentencing
Guidelines, we utilize the “categorical approach,” which requires that we “look only to the fact of
conviction and the statutory definition - not the facts underlying the offense - to determine whether
that definition supports a conclusion that the conviction was for a crime of violence.” United States
v. Bartee, 529 F.3d 357, 359 (6th Cir. 2008).

                                                 -3-
No. 09-5994
United States v. Fuller


        (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)(1), (b)(3). Relying upon this language, Fuller contends that his

conviction for the less serious Class E felony requires a finding that the offense is not a crime of

violence. However, Rogers addressed this very issue, holding that evading arrest under Tenn. Code

Ann. § 39-16-603(b) constitutes a crime of violence “regardless of whether [the] evading-arrest

offense was a Class E or a more serious Class D felony[.]” 594 F.3d at 521. We held that “the

decision to flee . . . carries with it the requisite potential risk [to constitute a crime of violence], even

if the resulting chase does not escalate so far as to create the actual risk of death or injury that would

make it a Class D felony under Tennessee law.” Id.

        The holding of Rogers controls, and this panel lacks authority to overrule it. Salmi v. Sec’y

of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985). Indeed, Fuller does not attempt to

distinguish the facts of Rogers from those presented here, nor does he cite any contrary and

intervening Supreme Court authority. See Lewis, 2011 WL 906433, at *1. Therefore, in accordance

with Rogers, we affirm the district court’s holding that Tennessee’s Class E felony for evading arrest

while operating a motor vehicle is a “crime of violence” under the sentencing Guidelines.

                                                    III.

        For the reasons stated above, we affirm.




                                                    -4-
