                                                                        FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 5, 2011
                                      PUBLISH                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                   UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellant,
       v.                                                 No. 10-3023
 KENNON D. THOMAS,

             Defendant - Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                 (D.C. NO. 2:09-CR-20040-MLB-1)


James A. Brown, Assistant United States Attorney, (Lanny D. Welch, United
States Attorney, with him on the brief), District of Kansas, Topeka, Kansas, for
Plaintiff - Appellant.

Jeff Griffith, Derby, Kansas, for Defendant - Appellee.


Before KELLY, BALDOCK, and HARTZ, Circuit Judges.


HARTZ, Circuit Judge.


      The sole issue on appeal is whether the Kansas offense of eluding a police

officer is a “crime of violence” under the United States Sentencing Guidelines

(USSG). The district court ruled that the offense was not a crime of violence and
the government appeals. We reverse because that ruling is contrary to the

Supreme Court’s recent decision in Sykes v. United States, 131 S. Ct. 2267

(2011).

I.    BACKGROUND

      On March 26, 2009, Defendant Kennon D. Thomas was indicted in the

United States District Court for the District of Kansas for possessing a firearm

after having been convicted of a crime punishable by imprisonment for a term

exceeding one year. See 18 U.S.C. § 922(g)(1). The indictment stated that he

had twice been convicted in Wyandotte County, Kansas, of eluding a police

officer. On August 31, 2009, Defendant pleaded guilty to the offense.

      The presentence investigation report (PSR) determined that Defendant’s

base offense level was 24 because he had committed the federal offense after

“sustaining two felony convictions involving a crime of violence.” Aplt. App.,

Vol. II at 5; see USSG § 2K2.1(a)(2). The two convictions had been for

violations of Kan. Stat. Ann. § 8-1568 (1998), which stated:

      (a) Any driver of a motor vehicle who willfully fails or refuses to
      bring such driver’s vehicle to a stop, or who otherwise flees or
      attempts to elude a pursuing police vehicle or police bicycle, when
      given visual or audible signal to bring the vehicle to a stop, shall be
      guilty [of an offense]. The signal given by the police officer may be
      by hand, voice, emergency light or siren. The officer giving such
      signal shall be in uniform, prominently displaying such officer’s
      badge of office, and the officer’s vehicle or bicycle shall be
      appropriately marked showing it to be an official police vehicle or
      police bicycle.
      (b) Any driver who violates the provisions of subsection (a) and who:

                                        -2-
            (1) commits any of the following during a police pursuit:
                    ...
                   (B) drives around tire deflating devices placed by a
                   police officer;
                   ...
                   (E) commits five or more moving violations; or
            (2) is attempting to elude capture for the commission of any
            felony, shall be guilty [of a felony].

Defendant pleaded guilty to violations of the statute in 2005 and 2008. The 2005

information to which he pleaded charged:

      [Defendant] did unlawfully and willfully fail or refuse, while
      operating a motor vehicle, to bring the vehicle to a stop, or did
      otherwise flee or attempt to elude a pursuing police vehicle, having
      been given visual or audible signals to do so by a uniformed police
      officer, and that the defendant attempted to elude capture for a
      felony.

Aplt. App., Vol. I at 29 (emphasis added). The 2008 information charged:

      [Defendant] did unlawfully and willfully fail or refuse, while
      operating a motor vehicle, to bring the vehicle to a stop, or did
      otherwise flee or attempt to elude a pursuing police vehicle, having
      been given visual or audible signals to do so by a uniformed police
      officer, and in the course of such police pursuit: did drive around
      tire-deflating devices placed by a police officer . . . .

                          OR, IN THE ALTERNATIVE

      [D]id unlawfully and willfully fail or refuse, while operating a motor
      vehicle, to bring the vehicle to a stop, or did otherwise flee or
      attempt to elude a pursuing police vehicle, having been given visual
      or audible signals to do so by a uniformed police officer, and in the
      course of such police pursuit: committed five or more moving
      violations.

Id. at 33 (emphasis added). The record does not indicate which of these

alternative grounds was the basis of Defendant’s 2008 plea.

                                        -3-
      Defendant objected to the categorization of his two prior felonies as crimes

of violence. At the sentencing hearing the district court agreed with Defendant,

resulting in his base offense level being 14. See USSG § 2K2.1(a)(6), cmt. 3. He

received a two-level reduction for acceptance of responsibility, see id. § 3E1.1(a),

giving him a total offense level of 12. Because of his criminal-history category of

VI, his guideline sentencing range was 30 to 37 months. The court imposed a

sentence of 33 months’ incarceration.

II.   DISCUSSION

      “Whether a prior conviction qualifies as a ‘crime of violence’ under the

Guidelines is a legal question that we examine de novo.” United States v.

McConnell, 605 F.3d 822, 824 (10th Cir. 2010). The term crime of violence is

defined by the sentencing guidelines as:

      [A]ny offense under federal or state law, punishable by imprisonment
      for a term exceeding one year, that—
             (1) has as an element the use, attempted use, or threatened use
             of physical force against the person of another, or
             (2) is burglary of a dwelling, arson, or extortion, involves use
             of explosives, or otherwise involves conduct that presents a
             serious potential risk of physical injury to another.

USSG § 4B1.2(a). 1 Whether an offense is a crime of violence turns on the

elements of the offense for which the defendant was convicted, not the particular

conduct of the defendant. See United States v. Wise, 597 F.3d 1141, 1144 (10th


      1
       There is no dispute that Defendant’s prior convictions were “punishable by
imprisonment for a term exceeding one year.”

                                           -4-
Cir. 2010). Ordinarily, to determine what the elements are, we need look only at

the language of the statute under which the defendant was convicted. See id. But

some statutory offenses can be committed in more than one way. In that event we

must examine the charging document or other conclusive source (such as a plea

agreement or plea colloquy) to determine in which of the alternative ways the

defendant was charged with committing the offense; once that is determined, we

consider only the elements that must be established to convict of that alternative.

See id.

      The offense of eluding a police officer does not have any of the elements

set forth in USSG § 4B1.2(a)(1), nor is it one of the crimes enumerated in §

4B1.2(a)(2). Consequently, it is a crime of violence only if it satisfies the residual

clause of § 4B1.2(a)(2)—that is, if it “otherwise involves conduct that presents a

serious potential risk of physical injury to another.”

      The language of the residual clause also appears in the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e), which sets minimum sentences for

firearms offenders who have been convicted of “violent felonies.” The definition

of violent felony is:

      [A]ny crime punishable by imprisonment for a term exceeding one
      year, or any act of juvenile delinquency involving the use or carrying
      of a firearm, knife, or destructive device that would be punishable by
      imprisonment for such term if committed by an adult, that—
             (i) has as an element the use, attempted use, or threatened use
      of physical force against the person of another; or


                                          -5-
            (ii) is burglary, arson, or extortion, involves use of explosives,
      or otherwise involves conduct that presents a serious potential risk of
      physical injury to another.

Id. § 924(e)(2)(B) (emphasis added). Because of this commonality of language in

the residual clauses of the ACCA and USSG § 4B1.2(a), we have consistently

interpreted them identically. See Wise, 597 F.3d at 1145; United States v. Tiger,

538 F.3d 1297, 1298 (10th Cir. 2008) (overruling circuit precedent that felony

DUI is a crime of violence in light of Supreme Court decision that felony DUI is

not a violent felony).

      Thus, in deciding whether the Kansas offense of eluding a police officer is

a crime of violence, we rely on the Supreme Court’s holding that the Indiana

offense of resisting law enforcement by fleeing in a vehicle is a violent felony

under the ACCA’s residual clause. In Sykes the statute at issue was Indiana Code

§ 35-44-3-3 (2004), which stated:

      (a) A person who knowingly or intentionally:
           ...
             (3) flees from a law enforcement officer after the officer has,
             by visible or audible means, identified himself and ordered the
             person to stop;
      commits resisting law enforcement, a Class A misdemeanor, except
      as provided in subsection (b).
      (b) The offense under subsection (a) is a:
             (1) Class D felony if:
                    (A) the offense is described in subsection (a)(3) and the
                    person uses a vehicle to commit the offense.

Sykes was convicted under § 35-44-3-3(b)(1)(A) for using a vehicle to flee after a

police officer ordered him to stop. See Sykes, 131 S. Ct. at 2271.

                                         -6-
      The Supreme Court reasoned that Sykes’s offense “present[ed] a serious

potential risk of physical injury to another,” because “[w]hen a perpetrator defies

a law enforcement command by fleeing in a car, the determination to elude

capture makes a lack of concern for the safety of property and persons of

pedestrians and other drivers an inherent part of the offense,” id. at 2273, and the

vehicular escape creates a strong likelihood that police officers will pursue and

create an even more dangerous situation, see id. The Court noted statistical

studies indicating that vehicular flight is more dangerous to police and bystanders

than burglary or arson, two of the felonies specifically enumerated in both the

ACCA definition of violent felony and the sentencing-guidelines definition of

crime of violence. See id. at 2274–75. And the Court stated that the Indiana

offense was not excluded from the residual clause by the exception set forth in

Begay v. United States, 553 U.S. 137 (2008), for “strict liability, negligence, and

recklessness crime[s]” even when they present serious risks of physical injury,

Sykes, 131 S. Ct. at 2276; it explained that the Indiana statute had the “stringent

mens rea requirement” that the defendant act “knowingly or intentionally.” Id. at

2275 (internal quotation marks omitted).

      Sykes controls the decision in this case. The elements of Sykes’s offense

and Defendant’s offenses are identical in all relevant respects. Sykes was

convicted of using a vehicle to “flee[] from a law enforcement officer after the

officer ha[d], by visible or audible means, identified himself and ordered the

                                          -7-
person to stop,” Ind. Code § 35-44-3-3; and Defendant twice pleaded guilty to

“fail[ing] or refus[ing], while operating a motor vehicle, to bring the vehicle to a

stop, or . . . otherwise flee[ing] or attempt[ing] to elude a pursuing police vehicle,

having been given visual or audible signals to do so by a uniformed police

officer,” Aplt. App., Vol. I at 29, 33. Thus, Defendant and Sykes were each

convicted of fleeing in a motor vehicle from a police officer who was readily

identifiable as a police officer and who visibly or audibly signaled him to stop.

Sykes’s conduct was “knowing[] or intentional[],” Ind. Code § 35-44-3-3(a);

Defendant’s was “willful[],” Kan. Stat. Ann. § 8-1568(a), a comparable mens rea

standard, see State v. Coyote, 1 P.3d 836, 842 (Kan. 2000) (the terms intentional,

knowing, willful, purposeful, and on purpose “are meant to be synonymous”).

The principal difference between the offenses is that Defendant’s offenses

required additional elements to make them felonies. The additional element in

2005 was that he was attempting to elude capture for commission of a felony; the

additional element in 2008 was either that he drove around a tire-deflating device

or that he committed five or more moving violations during his flight. These

additional elements hardly made Defendant’s offenses less likely to cause

physical injury to another. If Sykes’s offense was a violent felony, Defendant’s

two offenses must have been crimes of violence. Accordingly, we reverse the

decision below. We note that our decisions in McConnell, 605 F.3d at 829–30

(violation of Kan. Stat. Ann. § 8-1568 is a crime of violence), and Wise, 597 F.3d

                                          -8-
at 1148 (Utah offense of failure to obey police command to stop is a crime of

violence), remain good law.

III.   CONCLUSION

       We REVERSE and REMAND to the district court for resentencing

consistent with this opinion.




                                        -9-
