                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                               Nos. 08-1246 / 09-1894
                                    ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      *    Appeals from the United States
      v.                              *    District Court for the Western
                                      *    District of Missouri.
Dorian W. Richardson,                 *
                                      *    [PUBLISHED]
           Defendant - Appellant.     *
                                 ___________

                              Submitted: July 8, 2009
                                 Filed: September 23, 2009
                                  ___________

Before WOLLMAN, MURPHY, and MELLOY, Circuit Judges.
                         ___________

PER CURIAM.

       In two separate cases, Dorian W. Richardson pleaded guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). In each case, he pleaded
guilty pursuant to a plea agreement containing an appeal waiver. In each case, a
separate sentencing judge1 determined that a prior felony conviction for eluding police
in violation of Kansas Statutes Annotated § 8-1568 was a qualifying “crime of
violence” pursuant to U.S. Sentencing Guideline §§ 4B1.2(a), resulting in enhanced
Guideline ranges pursuant to § 2K2.1. Richardson ultimately received separate

      1
       The Honorable Scott O. Wright and The Honorable Fernando J. Gaitan, United
States District Judges for the Western District of Missouri.
within-Guidelines-range sentences of 56 months’ imprisonment, to be served
concurrently.

       Subsequent to his sentencing, the Supreme Court issued its opinion in Begay
v. United States, 128 S. Ct. 1581 (2008), clarifying the test to be used in determining
whether a prior felony conviction qualifies as predicate “violent felony” conviction
pursuant to 18 U.S.C. § 924(e)(2)(B).2 Relying on Begay, Richardson appeals arguing
that his prior Kansas conviction for eluding police is not a crime of violence because
it does not involve the type of purposeful conduct required to make a non-enumerated
predicate offense similar in kind to the enumerated offenses. He also argues that his
appeal waivers do not preclude him from asserting his Begay-related claim.

       We need not address the appeal-waiver issue because, even assuming the
waiver does not preclude the present appeal, Richardson is not entitled to relief. In
United States v. Hudson, ___ F.3d ___, No. 08-3240, 2009 WL 2525581 (8th Cir.
August 20, 2009), our court applied Begay and held that a felony conviction for
“resisting or interfering with arrest” in violation of Missouri Revised Statutes
§ 575.150.1 qualified as “crime of violence” pursuant to § 4B1.2(a)(2). Hudson, 2009
WL 2525581 at *2. We held that, because the Missouri offense only rose to the level
of a felony offense if there was “a substantial risk of serious physical injury or death
to any persons,” the substantial risk requirement of U.S.S.G. § 4B1.2(a)(2) was
satisfied. Id. We further held that, “knowingly fleeing a police officer who is
attempting to make an arrest is purposeful conduct that falls within the ‘otherwise
involves’ clause of § 4B1.2(a)(2) as construed in Begay.” Id.




      2
       We have interpreted Begay as applicable in the context of U.S.S.G.
§§ 2K2.1(a) and 4B1.2(a) regarding the determination of whether a prior felony
conviction qualifies as predicate “crime of violence.” See United States v. Williams,
537 F.3d 969, 971 (8th Cir. 2008).

                                          -2-
       We believe that Hudson controls in this instance given the similarity between
the Missouri statute at issue in Hudson and the Kansas statute in Richardson’s case.
As with the Missouri statute in Hudson, Kansas Statutes Annotated § 8-1568 only
rises to the level of a felony in the presence of one or more qualifying risk factors.
See Kan. Stat. Ann. § 08-1568 (b)(1)(A)-(E). Richardson, in fact, was convicted of
a felony for “fleeing or attempting to elude a police officer” because he was involved
in a high speed chase that resulted in a motor vehicle accident involving other
vehicles. Id. § 08-1568(b)(1)(D) (“is involved in any motor vehicle accident . . .”).
Looking specifically at subsection (b)(1)(D), the conduct criminalized by the Kansas
statute “categorically involves a substantial risk of physical injury ‘in the ordinary
case.’” Hudson, 2009 WL 2525581 at *2 (quoting James v. United States, 550 U.S.
192, 208 (2007)). Accordingly, the “serious risk” requirement of § 4B1.2(a)(2) is
satisfied.

       Further, as with the Missouri statute, the conduct criminalized by the Kansas
statute includes “flee[ing] or attempt[ing] to elude a pursuing police vehicle.” Kan.
Stat. Ann. § 8-1568 (a). Our holding that “knowingly fleeing a police officer who is
attempting to make an arrest is purposeful conduct that falls within the ‘otherwise
involves’ clause of § 4B1.2(a)(2)” is, therefore, directly applicable, and Richardson’s
prior conviction is for an offense that qualifies as a “crime of violence.” Hudson,
2009 WL 2525581 at *2.

      In light of our present holding, all pending motions in these consolidated
appeals are denied as moot, and we affirm the judgments of the district court.
                       ______________________________




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