                      RECOMMENDED FOR FULL-TEXT PUBLICATION
                           Pursuant to Sixth Circuit Rule 206
                                  File Name: 09a0199p.06

               UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                 _________________


                                             X
                         Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                              -
                                              -
                                              -
                                                  No. 06-2212
          v.
                                              ,
                                               >
                                              -
                      Defendant-Appellant. -
 DANIEL LEE LACASSE,
                                              -
                                             N
               On Remand from the United States Supreme Court.
                 No. 06-00008—R. Allan Edgar, District Judge.
                              Argued: September 13, 2007
                            Decided and Filed: June 4, 2009
              Before: NORRIS, GIBBONS, and ROGERS, Circuit Judges.

                                   _________________

                                       COUNSEL
ARGUED: Sarah Emily Henderson, CASSELMAN & HENDERSON PC, Marquette,
Michigan, for Appellant. Maarten Vermaat, ASSISTANT UNITED STATES ATTORNEY,
Marquette, Michigan, for Appellee. ON BRIEF: Sarah Emily Henderson, CASSELMAN
& HENDERSON PC, Marquette, Michigan, for Appellant. Maarten Vermaat, ASSISTANT
UNITED STATES ATTORNEY, Marquette, Michigan, for Appellee.
                                   _________________

                                        OPINION
                                   _________________

        ALAN E. NORRIS, Circuit Judge. This case returns to us on remand from the
United States Supreme Court, LaCasse v. United States, 129 S. Ct. 992 (2009), with
instructions to reconsider our prior judgment in light of Begay v. United States, 128 S. Ct.
1581 (2008), and Chambers v. United States, 129 S. Ct. 687 (2009). We have done so and
conclude that neither Begay nor Chambers alters our earlier holding that Michigan’s “fleeing
and eluding” statute, Mich. Comp. Laws, § 750.479a, qualifies as a violent felony under the



                                             1
No. 06-2212          United States v. LaCasse                                           Page 2


Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). United States v. LaCasse,
253 F. App’x 553, 556 (6th Cir. 2007).

                                               I.

        Defendant Daniel Lee LaCasse challenges the sentence imposed after he pleaded
guilty to being a felon in possession of a firearm. 18 U.S.C. § 922(g). He contends that the
district court erred when it enhanced his sentence under the ACCA based upon three prior
convictions for either drug offenses or violent felonies. He argues that the definition of
“violent felony” renders the ACCA void for vagueness or, in the alternative, that his prior
conviction under Michigan’s “fleeing and eluding” statute, Mich. Comp. Laws, § 750.479a,
does not qualify as a violent felony. Because neither Begay nor Chambers took up the
question of whether the ACCA is void for vagueness, we do not revisit the issue here and
instead rely upon the reasoning set forth in our prior opinion. LaCasse, 253 F. App’x at 556.

        Defendant pleaded guilty to a single-count indictment for being a felon in possession
of a firearm. 18 U.S.C. § 922(g)(1). The plea agreement left open the possibility that
defendant could be subject to the enhanced penalties of the ACCA, which provides for a
minimum sentence of fifteen years of incarceration for felons who have three previous
convictions for a “violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). Among
other things, that term includes “burglary, arson, or extortion, involves the use of explosives,
or otherwise involves conduct that presents a serious potential risk of physical injury to
another . . . .” 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added).

         With respect to defendant’s prior fleeing and eluding conviction, the agreement
reads as follows:

                In 2001, the Defendant was convicted in the 41st Circuit Court,
        Menominee County, Michigan, of fleeing and eluding a police officer in the
        3rd degree, in violation of Mich. Comp. L. § 750.479a(3), with a sentencing
        enhancement for being a habitual offender, in violation of Mich. Comp. L.
        § 769.11(1)(a). The Defendant received a sentence of 3 to 10 years for this
        offense. This offense is punishable by up to 10 year[s] in prison and
        qualifies as a “crime punishable by imprisonment for a term exceeding one
        year,” as that phrase is defined in Title 18, United States Code, Section
        921(a)(20).
No. 06-2212          United States v. LaCasse                                            Page 3


        Prior to sentencing, defense counsel filed a memorandum arguing that the fleeing and
eluding conviction does not constitute a crime of violence for purposes of the ACCA.
Counsel repeated her position at the sentencing hearing and also contended that the
definition of “violent felony” was unconstitutionally void for vagueness. The district court
rejected both of these positions before sentencing defendant to 188 months of imprisonment.

                                               II.

        This court reviews de novo the legal question of whether a prior conviction
constitutes a “crime of violence” under the ACCA. United States v. Martin, 378 F.3d 578,
580 (6th Cir. 2004). We undertake that task again, this time mindful of the guidance
provided in the Court’s two most recent opinions on the issue.

        In our prior decision, we relied primarily on Martin, supra, which held that
Michigan’s fleeing and eluding statute represents a crime of violence for purposes of the
analogous career offender enhancement of the Sentencing Guidelines, U.S.S.G. §§ 4B1.1,
4B1.2. Both the ACCA and the Guidelines define “crime of violence” in part as “involv[ing]
conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a)(2); see United States v. Ford, 560 F.3d 420, 421 (6th
Cir. 2009) (applying the ACCA analysis to USSG § 4B1.1). In Martin this court concluded
that a third-degree fleeing and eluding conviction constitutes a crime of violence because the
additional factors required to raise the offense to third-degree from fourth-degree – to wit,
if the violation results in a collision or accident, or if a portion of the violation occurred in
a 35 miles-per-hour or less speed zone – satisfy the requirement that the offense presents a
“serious potential risk of physical injury.” 378 F.3d at 583-84.

        While the district court discussed the underlying facts of the case during the
sentencing hearing, it ultimately made clear that it based its holding on the categorical
approach taken by this court in Martin. Defendant takes the position that, because the
fleeing and eluding statute can be violated without giving rise to any serious potential risk
of physical harm to another, it cannot be categorically considered a crime of violence.

        At first glance, the Court’s recent opinions would appear to support defendant’s
argument. In Begay, the Court held that driving under the influence of alcohol was not a
No. 06-2212          United States v. LaCasse                                               Page 4


“violent felony” as defined by the ACCA. 128 S. Ct. at 1583. In doing so, it acknowledged
that the crime of driving under the influence included potential serious risks. Id. at 1588.
However, the Court went on to make clear that degree of risk was but one factor in the
calculus; the “way or manner” in which the risk is produced factors into whether the offense
constitutes a crime of violence under the ACCA. Id. at 1586. If it involves “purposeful,
violent, and aggressive conduct,” then a crime more likely represents the kind of offense that
the ACCA is designed to address, namely, those in which possession of a gun represents a
“special danger.” Id. at 1586-87. With these observations in mind, the Court explained why
driving under the influence fell outside of that category of crime:

        [S]tatutes that forbid driving under the influence, such as the statute before
        us, typically do not insist on purposeful, violent, and aggressive conduct;
        rather, they are, or are most nearly comparable to, crimes that impose strict
        liability, criminalizing conduct in respect to which the offender need not
        have had any criminal intent at all. . . . [A] drunk driver may very well drink
        on purpose. But this Court has said that, unlike the example crimes, the
        conduct for which the drunk driver is convicted (driving under the influence)
        need not be purposeful or deliberate.
                When viewed in terms of the Act’s basic purposes, this distinction
        matters considerably. As suggested by its title, the Armed Career Criminal
        Act focuses upon the special danger created when a particular type of
        offender – a violent criminal or drug trafficker – possesses a gun. In order
        to determine which offenders fall into this category, the Act looks to past
        crimes. This is because an offender’s criminal history is relevant to the
        question whether he is a career criminal, or, more precisely, to the kind or
        degree of danger the offender would pose were he to possess a gun.
Id. (citations omitted).

        How closely does Michigan’s “fleeing and eluding” statute resemble driving under
the influence? Both require the offender to be driving a motor vehicle. Both undeniably
involve “conduct that presents a serious potential risk of physical injury to another.” If
anything, driving under the influence may pose a greater potential risk of physical injury.
Despite these similarities, the offenses contain critical differences, at least as viewed through
the lens of Begay. First, fleeing and eluding is distinguishable with respect to intent: the
offender makes a conscious decision to flee rather than to stop his vehicle as requested by
a police officer. Unlike driving under the influence, this is not a strict liability or status crime
that “need not be purposeful or deliberate.” Id. at 1587. Moreover, fleeing and eluding
No. 06-2212          United States v. LaCasse                                              Page 5


involves aggressive conduct; the offender is attempting to outrun a police cruiser either in
a low speed-limit area or in a manner that results in a collision or an accident. Mich. Comp.
Laws § 750.479a(3).

        In our view, these distinctions are given added force by Chambers. In that case, the
Court concluded that “failure to report” for penal confinement was not a “violent felony”
under the ACCA. Chambers, 129 S.Ct. at 689. Of particular interest to us is the manner in
which the Court distinguished failure to report from other sections of the Illinois statute that
involved escape:

        [W]e believe that a failure to report (as described in the statutory provision’s
        third, fourth, fifth, and sixth phrases) is a separate crime, different from
        escape (the subject matter of the statute’s first and second phrases), and from
        the potentially less serious failure to abide by the terms of home confinement
        (the subject of the final phrase). The behavior that likely underlies a failure
        to report would seem less likely to involve a risk of physical harm than the
        less passive, more aggressive behavior underlying an escape from custody.
        See Begay v. United States, 553 U.S. ----, ----, 128 S.Ct. 1581, 1586, 170
        L.Ed.2d 490 (2008).
Id. at 691. Because “failure to report” represents a “form of inaction,” the Court concluded
that it did not represent the kind of purposeful, violent, or aggressive conduct primarily
targeted by the ACCA. Id. at 692. What is fleeing and eluding but an attempt to escape?
It is certainly not a form of inaction and, for that reason, we read Chambers to stand, albeit
tacitly, for the proposition that an attempt to escape from law enforcement officials may
represent a “violent felony” under the ACCA because it includes aggressive conduct that
“presents a serious risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B)(ii).

        Our conclusion is not affected by this court’s recent holding that a “walkaway
escape” under Kentucky law does not constitute a “violent felony” in the wake of Chambers.
Ford, 560 at 426. In Ford, we stressed that walkaway offenses “do not involve the same
type of ‘purported, violent, and aggressive’ conduct that the listed crimes of violence do.”
Id. at 425. By contrast, as explained above, the fleeing and eluding statute at issue here
involves “aggressive” conduct that “presents a serious potential risk of physical injury” to
another.
No. 06-2212      United States v. LaCasse     Page 6


                                       III.

      The judgment is affirmed.
