                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 12a0767n.06

                                             No. 09-5994                                     FILED
                                                                                         Jul 16, 2012
                            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.

         This court previously affirmed defendant Nicholas Bernard Fuller’s sentence for being a felon

in possession of a firearm. 18 U.S.C. § 922(g). Fuller argued that the district court erred in

calculating his Guidelines range because his prior Tennessee conviction for Class E evading arrest,

Tenn. Code Ann. § 39-16-603(b)(1), was not a “crime of violence” under U.S.S.G. § 2K2.1(a)(4)(A).

We disagreed and affirmed Fuller’s sentence. United States v. Fuller, 419 F. App’x 655 (6th Cir.

2011).

         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.
No. 09-5994
United States v. Fuller


                                                ***

       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 asserted that his

conviction for the less serious Class E felony required a finding that the offense was not a crime of

violence. We rejected this contention, as this court had previously addressed and rejected this

precise argument. Fuller, 419 F. App’x at 657 (citing United States v. Rogers, 594 F.3d 517, 521

(6th Cir. 2010)).

       Following the issuance of our opinion, the Supreme Court held that an Indiana conviction

for knowing or intentional flight from law enforcement is a “violent felony” under the Armed Career

Criminal Act (“ACCA”).1 Sykes v. United States, 131 S. Ct. 2267, 2270 (2011). In so holding, the

Court expressly reserved the issue presented by Fuller. See id. at 2277 (“The Government would go

further and deem it irrelevant . . . whether a crime is a lesser included offense even in cases where

that offense carries a less severe penalty than the offense that includes it. As the above discussion

indicates, however, the case at hand does not present the occasion to decide that question.”). In light

of this statement, the Supreme Court vacated our decision, and the decision in Rogers, and remanded

for further consideration. Fuller v. United States, 132 S. Ct. 755 (2011); Rogers v. United States,

131 S. Ct. 3018 (2011).



       1
         “A ‘crime of violence’ under the career-offender provision is interpreted identically to a
‘violent felony’ under [the] ACCA.” United States v. Young, 580 F.3d 373, 380 n.5 (6th Cir. 2009).

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


       Since the Supreme Court issued its decision in Sykes, this court has once again decided that

a Class E felony for Tennessee evading arrest qualifies as a violent felony under the ACCA. United

States v. Doyle, 678 F.3d 429, 433 (6th Cir. 2012). Because we are bound by Doyle, we adhere to

our previous decision that Fuller’s Class E felony for Tennessee evading arrest is a “crime of

violence.”

       The district court’s judgment is affirmed.




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