     Case: 11-50230     Document: 00511675997         Page: 1     Date Filed: 11/25/2011




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

                                                                            FILED
                                                                        November 25, 2011
                                     No. 11-50230
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee

v.

SANDY DEWAYNE WHITFIELD,

                                                  Defendant-Appellant


                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 7:10-CR-270-1


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Sandy Dewayne Whitfield appeals the sentence imposed following his
guilty plea conviction for felony possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). He argues that the district court erred in determining his base
offense level pursuant to United States Sentencing Guidelines § 2K2.1(a)(4)
because his prior Texas conviction for evading detention using a vehicle was not
a “crime of violence” for purposes of U.S.S.G. § 4B1.2(a). He concedes that his
argument is foreclosed by our precedent in United States v. Harrimon, 568 F.3d

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 11-50230

531 (5th Cir. 2009); however, he contends that the Supreme Court’s decision in
Sykes v. United States, 131 S. Ct. 2267 (2011), “casts doubt on the validity of
current case law” and “may affect this Court’s precedent.”
      We review the district court’s interpretation and application of the
Sentencing Guidelines de novo and its findings of fact for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). In Harrimon, we
held that the Texas offense of evading detention with a vehicle is a violent felony
under the residual clause of the Armed Career Criminal Act (ACCA) because it
“involves a serious potential risk of physical injury to others.” Harrimon, 568
F.3d at 534, 536-37. The relevant residual definitions of “violent felony” under
the ACCA and “crime of violence” under § 4B1.2(a)(2) are interchangeable.
See United States v. Moore, 635 F.3d 774, 776 (5th Cir. 2011).
      In Sykes, the Supreme Court held that a conviction under Indiana’s 2004
felony vehicle flight law constituted a violent felony under the ACCA because it
created “a serious potential risk of physical injury to another.” Sykes, 131 S. Ct.
at 2273, 2277. The Court rejected Sykes’s argument that because Indiana Code
§ 35-44-3-3(b)(1)(B) separately “criminalize[d] flight in which the offender
‘operate[d] a vehicle in a manner that create[d] a substantial risk of bodily injury
to another person,’” it must not have intended for § 35-44-3-3(b)(1)(A)’s general
prohibition against vehicle flight “to encompass the particular class of vehicle
flights that § 35-44-3-3(b)(1)(B) reache[d].” Id. at 2276. The Court found
significant that Indiana treated “violations of subsections (b)(1)(A) and (b)(1)(B)
as crimes of the same magnitude,” noting that they were both class D felonies
and that they carried the same range of punishment. Id.
      Whitfield argues that flight using a vehicle under the Texas statute is not
a crime of violence because, unlike the 2004 Indiana statute, the Texas statute
does not separately criminalize vehicle flight that causes a substantial risk of
serious bodily injury, and it provides for different sentences depending on
whether or not the vehicle flight caused another person to suffer serious bodily

                                         2
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                                      No. 11-50230

injury. See TEX. PENAL CODE § 38.04(b)(1) and (b)(2)(B) (2003).1 Specifically, he
reasons that because he was convicted under the state jail felony section of the
Texas statute, which carries a lesser punishment than the third degree felony
section of the statue, requiring that another person suffer serious bodily injury,
his crime was not a violent felony under the ACCA and therefore not a crime of
violence under § 4B1.2.
      The Sykes decision in not dispositive of the issue raised by Whitfield. In
Sykes, the Court compared two subsections of the Indiana statute that imposed
the same punishment for using a vehicle during flight and therefore both
involved creating a substantial risk of bodily injury to another. Sykes, 131 S. Ct.
at 2276. The Court expressly declined to consider whether a vehicular flight
provision is not a crime of violence under the ACCA when the offense carries a
less severe penalty than a greater offense that includes it. See id. at 2277; see
also id. at 2293 (Kagan, J., dissenting). “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). As Whitfield’s argument remains foreclosed by our decision in
Harrimon, the district court did not err in overruling his objection to its finding
that he had a prior crime of violence for purposes of § 4B1.2(a). His sentence is
AFFIRMED.




      1
          Whitfield committed the Texas offense in 2003.

                                             3
