                                                                          FILED
                    UNITED STATES COURT OF APPEALS                         OCT 24 2011

                                                                       MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                       U.S . CO U RT OF AP PE A LS




UNITED STATES OF AMERICA,                       No. 07-30465

              Plaintiff - Appellee,             D.C. No. CR-06-60130-HO
                                                District of Oregon,
  v.                                            Eugene

JONATHAN BRADLEY PETERSON,
                                                ORDER
              Defendant - Appellant.



Before: HAWKINS, FISHER, and BYBEE, Circuit Judges.




       The Memorandum Disposition filed October 27, 2009, is hereby ordered

WITHDRAWN.

       Appellee's petition for panel rehearing, filed November 10, 2009, is

DENIED as moot.
                                                                            FILED
                            NOT FOR PUBLICATION                                OCT 24 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 07-30465

              Plaintiff - Appellee,              D.C. No. CR-06-60130-HO

  v.
                                                 MEMORANDUM *
JONATHAN BRADLEY PETERSON,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael R. Hogan, District Judge, Presiding

                        Argued and Submitted July 15, 2011
                                Portland, Oregon

Before: HAWKINS, FISHER, and BYBEE, Circuit Judges.

       Jonathan Peterson appeals the district court's imposition of a career offender

sentence enhancement pursuant to section 4B1.1(a) of the U.S. Sentencing

Guidelines. Peterson argues that the district court improperly determined that his

prior Oregon state convictions for vehicle flight pursuant to Or. Rev. Stat.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
y 811.540(1)(b)(A) were 'crimes of violence' under the modified categorical

approach of Taylor v. United States, 495 U.S. 575, 602 (1990). We have

jurisdiction under 28 U.S.C. y 1291 and affirm.

      In Syµes v. United States, 131 S. Ct. 2267 (2011), the Court held that

Indiana's felony vehicle flight statute categorically qualifies as a 'violent felony'

for purposes of the residual clause of the Armed Career Criminal Act, 18 U.S.C.

y 924(e)(2)(B). Because cases interpreting the term 'violent felony' are

controlling as to whether a particular offense constitutes a 'crime of violence'

under the Guidelines as well, see United States v. Coronado, 603 F.3d 706, 709

(9th Cir. 2010), and because we have held that there is no material distinction

between the Indiana and Oregon vehicle flight statutes, United States v. Snyder,

643 F.3d 694, 699 (9th Cir. 2011), we must affirm Peterson's sentence.

      Imposing a career offender sentence does not violate Peterson's due process

right, even though he was not on notice that his prior convictions were

categorically crimes of violence at the time he committed the underlying offense in

2006. In 2006, the law put him on notice that his conduct subjected him to the

career offender enhancement under the modified categorical approach. See United

States v. Kelly, 422 F.3d 889, 895 (9th Cir. 2005). Because our decision today--

that the categorical approach applies--is not so materially different as to be


                                           2
prejudicial to Peterson in formulating a defense at sentencing, affirming his

sentence is not a violation of due process. Peterson's request to remand this case to

the district court for resentencing and consideration of a downward departure is

denied.

      AFFIRMED.




                                          3
