     Case: 09-50918 Document: 00511364336 Page: 1 Date Filed: 01/28/2011




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

                                                 FILED
                                                                          January 28, 2011
                                     No. 09-50918
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff - Appellee

v.

MICHAEL DU-SHONN BANKS, also known as Michael Dushonn Banks,

                                                   Defendant - Appellant


                    Appeal from the United States District Court
                         for the Western District of Texas
                              USDC No. 6:09-CR-41-1


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Michael Du-Shonn Banks pleaded guilty to one count of being a felon in
possession of a firearm. His resulting offense level, and 110-months sentence of
imprisonment, were based, in part, on his prior Texas conviction for evading
arrest with a motor vehicle, in violation of Texas Penal Code § 38.04, being
classified as a “crime of violence”, pursuant to Sentencing Guidelines
§§ 2K2.1(a)(2), 4B1.2(a)(2). Banks claims plain error concerning that crime-of
violence ruling.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
       Case: 09-50918 Document: 00511364336 Page: 2 Date Filed: 01/28/2011

                                   No. 09-50918

        As Banks concedes, he did not object to the offense level in district court;
therefore, this contention is reviewed only for plain error. E.g., Puckett v. United
States, 129 S. Ct. 1423, 1429 (2009). For reversible plain error, Banks must
show a clear or obvious error that affected his substantial rights. See id. If
Banks makes such a showing, we have discretion to correct the error and,
generally, will do so if it seriously affects the fairness, integrity, or public
reputation of judicial proceedings. See id.
        Banks maintains the crime does not meet the relevant definition of “crime
of violence” because it could theoretically be committed without presenting “a
serious potential risk of physical injury to another”, as required by Guideline
§ 4B1.2(a)(2).    This contention is foreclosed, however, by United States v.
Harrimon, 568 F.3d 531, 536-37 (5th Cir.), cert. denied, 130 S. Ct. 1015 (2009),
which held the same Texas offense (evading arrest with a motor vehicle) was a
“violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(2)(B). The residual clauses (“a serious potential risk of physical injury
to another”) in the definitions of “violent felony”, under the ACCA, and “crime
of violence”, under Guideline § 4B1.2(a)(2), are identical. United States v. Mohr,
554 F.3d 604, 609 (5th Cir.), cert. denied, 130 S. Ct. 56 (2009). Harrimon held
evading arrest with a motor vehicle is “purposeful, violent, and aggressive” and
“involves a serious potential risk of physical injury to others”. 568 F.3d at 534,
537.    Accordingly, the district court did not err by treating Banks’ prior
conviction as a “crime of violence” under Guideline § 4B1.2(a)(2). See United
States v. Mendoza, No. 09-10539, 2010 WL 4116881, *1 (5th Cir. 19 Oct. 2010)
(holding contention, that Texas conviction for evading arrest with a motor
vehicle is not a “crime of violence” under Guideline § 4B1.2, is foreclosed by
Harrimon); United States v. Petersen, 383 F. App’x 458, 459 (5th Cir. 2010),
petition for cert. filed, (21 Sep. 2010) (No. 10-6667) (also holding, as defendant
there conceded, such contention is foreclosed by Harrimon).
        AFFIRMED.

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