FILED

United States Court of Appeals

Tenth Circuit

May 19, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.

JASON C. McCONNELL,

Defendant-Appellant.

No. 09-3036

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE

 DISTRICT OF KANSAS 

(D.C. No. 2:07-CR-20029-001-JWL-1)

Melody Evans, Assistant Federal Public Defender (Cyd Gilman, Federal Public

Defender, with her on the brief), Topeka, Kansas, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Lanny D. Welch, United States

Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.

Before HENRY, ANDERSON and TYMKOVICH, Circuit Judges.

HENRY, Circuit Judge.
-2-

Jason McConnell pleaded guilty to one count of possessing a firearm after

conviction of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). In

calculating the advisory range of sentences under the United States Sentencing

Guidelines (USSG), the district court determined that Mr. McConnell’s prior

Kansas conviction for fleeing and eluding a law enforcement officer under Kan.

Stat. Ann. § 8-1568 constituted a “crime of violence” under USSG § 4B1.2. The

court granted Mr. McConnell a downward variance from the advisory Guidelines

range and imposed a sentence of 48 months’ imprisonment.

Mr. McConnell now argues that the district court erred in characterizing his

Kansas fleeing and eluding conviction as a “crime of violence.” Although he

concedes that in United States v. West, 550 F.3d 952 (10th Cir. 2008), this court 

upheld that characterization of a similar Utah offense, he maintains that the

Supreme Court’s subsequent decision in Chambers v. United States, 129 S. Ct. 687

(2009), has overruled the principal holding of West. We are not persuaded, and we

therefore affirm Mr. McConnell’s sentence.

I. BACKGROUND

In March 2007, a grand jury indicted Mr. McConnell on one count of

possessing a firearm after conviction of a felony, in violation of 18 U.S.C. §§

922(g)(1) and 924(a)(2). In June 2008, Mr. McConnell pleaded guilty to this

charge without a plea agreement. 
-3-

The presentence report applied USSG § 2K2.1(a)(4)(A), which provides for

a base offense level of 20 “if the defendant committed any part of the instant

offense subsequent to sustaining one felony conviction of either a crime of

violence or a controlled substance offense.” The report concluded that Mr.

McConnell’s prior conviction under Kan. Stat. Ann. § 8-1568 for fleeing or

eluding a police officer constituted a “crime of violence.” It then recommended a

two-point increase in the offense level because the firearm that Mr. McConnell

possessed was stolen, see USSG § 2K2.1(b)(4), and subtracted three levels for

acceptance of responsibility, see USSG § 3E1.1(a). These calculations yielded an

adjusted offense level of 19. With a criminal history category of VI, Mr.

McConnell’s advisory Guidelines range was 63 to 78 months. 

Mr. McConnell objected to the presentence report’s determination that his

Kansas state conviction for eluding a law enforcement officer was a “crime of

violence” under § 2K2.1(a)(4)(A). Invoking Begay v. United States, 553 U.S. 137

(2008), and Chambers, 129 S. Ct. 687, he argued that the Kansas conviction did

not present a serious potential risk of physical injury to another. In his view, the

presentence report should have applied a base offense level of 14, resulting in an

advisory Guidelines range of 33 to 41 months. He requested a sentence of 33

months’ imprisonment. 

At the sentencing hearing, the district court overruled Mr. McConnell’s 

objection, relying on this circuit’s decision in West, 550 F.3d 952. The court
-4-

explained that “the West case is very much on point with ours in terms of the

particular statute under Utah law, so it really couldn’t have more application.” 

Rec. vol. 3, at 29 (Tr. of Jan 26, 2009 Sent’g Hr’g). The court rejected Mr.

McConnell’s argument that the Supreme Court’s decision in Chambers overruled

West. Id. at 29-30. 

The district court then imposed a sentence of 48 months’ imprisonment,

reflecting a downward variance from the advisory Guidelines range. Id. at 31-35. 

In support of the variance, it reasoned that “[Mr. McConnell’s] Criminal History

Category VI and the consequences of assessing the eluding crime as a crime of

violence, in fact, do overstate both the danger to the community that Mr.

McConnell presents and his likelihood to reoffend.” Id. at 33.

II. DISCUSSION

Mr. McConnell now argues that the district court erred in characterizing his

prior Kansas state conviction for eluding a law enforcement officer as a “crime of

violence” under USSG § 2K2.1(a)(4)(A). He maintains that the statute at issue,

Kan. Stat. Ann. § 8-1568, does not require proof of “any violent elements,” and

that “[t]here are numerous ways to violate this statute without posing a significant

risk of physical harm.” Aplt’s Br. at 9 (internal quotation marks omitted). Mr.

McConnell observes that, even though he was charged with being involved in a

motor vehicle accident or intentionally causing damage to property while
-5-

attempting to elude a pursuing police vehicle, “[u]nder this charge, [he] could have

accidently, recklessly damaged his own vehicle when he did not respond to police

signals to stop.” Aplt’s Br. at 10-11. In his view, the offense conduct was not

intentional or purposeful. Id. at 11.

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. Charles,

576 F.3d 1060, 1066 (10th Cir. 2009). In interpreting the Guidelines, “we look at

the language in the guideline itself, as well as at the interpretative and explanatory

commentary to the guideline provided by the Sentencing Commission.” Id.

(internal quotation marks omitted). “Commentary to the Guidelines ‘is

authoritative unless it violates the Constitution or a federal statute, or is

inconsistent with, or a plainly erroneous reading of, that guideline.’” Id. (quoting

United States v. Torres-Ruiz, 387 F.3d 1179, 1181 (10th Cir. 2004)).

A. USSG § 2K2.1(a)(4)(A) adopts the definition of a “crime of violence” set

forth in USSG §4B1.2(a).

Section 2K2.1(a)(4) establishes a base offense level of 20 if the defendant

has formally been convicted of a “crime of violence.” The commentary to that

provision explains that “[c]rime of violence” has the meaning given that term in §

4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.” USSG § 2K2.1

cmt. n.1. 
-6-

In turn, the phrase “crime of violence” is defined in USSG § 4B1.2(a) as:

any 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. 

The accompanying commentary adds that

“Crime of violence” includes murder, manslaughter,

kidnapping, aggravated assault, forcible sex offenses,

robbery, arson, extortion, extortionate extension of credit,

and burglary of a dwelling. Other offenses are included as

“crimes of violence” if (A) that offense has as an element

the use, attempted use, or threatened use of physical force

against the person of another, or (B) the conduct set forth

(i.e., expressly charged) in the count of which the

defendant was convicted involved use of explosives

(including any explosive material or destructive device) or,

by its nature, presented a serious potential risk of physical

injury to another.

Id. cmt. n.1. 

Here, the parties agree that Mr. McConnell’s prior fleeing-and-eluding

conviction in a Kansas court does not have as an element “the use, attempted use,

or threatened use of physical force against the person of another” under §

4B1.2(a)(1) and is not one of the specifically listed offenses under § 4B1.2(a)(2)
-7-

or the accompanying commentary. Thus, the dispute concerns whether Mr.

McConnell’s Kansas conviction “otherwise involves conduct that presents a

serious potential risk of physical injury to another” and is therefore a “crime of

violence.” See USSG § 4B1.2(a)(2). 

B. In determining whether Mr. McConnell’s Kan. Stat. Ann. § 8-1568 fleeingand-eluding conviction constitutes a “crime of violence” under USSG §

4B1.2(a)(2), this court applies a modified categorical approach.

In determining whether a conviction qualifies as a “crime of violence” under

§ 4B1.2, “we apply a categorical approach that looks to the words of the statute

and judicial interpretations of it, rather than to the conduct of any particular

defendant convicted of that crime.” United States v. Wise, 597 F.3d 1141, 1144

(10th Cir. 2010). “[I]f the statute encompasses both conduct that would qualify as

a crime of violence and conduct that would not, we employ a modified categorical

approach.” Id. We examine “the statutory elements, the defendant’s charging

documents, plea agreement and colloquy (if any), and the uncontested facts found

by the district judge to determine whether the particular defendant’s conduct

violated the portion of the statute that is a crime of violence.” Id.; see also

Charles, 576 F.3d at 1067-69 (applying the modified categorical approach and

remanding for further findings). This approach does not involve a subjective

inquiry into the facts of the case; instead, we seek to determine “which part of the

statute was charged against the defendant and, thus, which portion of the statute to
-8-

examine on its face.” United States v. Sanchez-Garcia, 501 F.3d 1208, 1211 (10th

Cir. 2007) (internal quotation marks and citation omitted).

Here, as noted above, Mr. McConnell was convicted of violating Kan. Stat.

Ann. § 8-1568, which provides, in part, that:

(a) (1) Any driver of a motor vehicle who willfully fails

or refuses to bring such driver’s vehicle to a stop for a

pursuing police vehicle or police bicycle, when given visual

or audible signal to bring the vehicle to a stop, shall be

guilty as provided by subsection (c)(1), (2) or (3).

(2) Any driver of a motor vehicle who willfully

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 as

provided by subsection (c)(1), (2) or (3).

. . . .

(b) 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, and who:

(1) Commits any of the following during a police

pursuit: (A) Fails to stop for a police road block; (B) drives

around tire deflating devices placed by a police officer; (C)

engages in reckless driving as defined by K.S.A. 8-1566

and amendments thereto; (D) is involved in any motor

vehicle accident or intentionally causes damage to

property; or (E) commits five or more moving violations;

or

(2) is attempting to elude capture for the commission

of any felony, shall be guilty as provided in subsection

(c)(4).
-9-

(c) (1) Violation of subsection (a), upon a first

conviction is a class B nonperson misdemeanor.

(2) Violation of subsection (a), upon a second

conviction is a class A nonperson misdemeanor.

(3) Violation of subsection (a), upon a third or

subsequent conviction is a severity level 9, person felony.

(4) Violation of subsection (b) is a severity level 9,

person felony.

. . . .

(emphasis added).

Because the statute contains multiple subsections describing conduct

presenting arguably different “potential risk[s] of physical injury to another,” see

USSG § 4B1.2, we employ the modified categorical approach to determine “which

part of the statute was charged against [Mr. McConnell].” Sanchez-Garcia, 501

F.3d at 1211 (internal quotation marks and citation omitted). We note that the

the state court information alleged that:

[O]n or about August 6th, 2003, defendant[] Jason

McConnell 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 was involved in a motor vehicle

accident or did intentionally cause damage to property in

violation of K.S.A. 8-1568 (Eluding a Police Officer,

Severity Level 9, Person Felony).

Aplt’s Supp. Rec., vol. 1, at 1 (Information, filed Oct, 7, 2003). We must therefore

determine whether those admitted allegations “otherwise involve[d] conduct that
-10-

presents a serious potential risk of physical injury to another” under USSG §

4B1.2(a)(2). 

C. Under our precedent, Mr. McConnell’s Kan. Stat. Ann. § 8-1568

conviction for fleeing and eluding a police officer is a “crime of violence”

under USSG §§ 2K2.1(a)(4) and 4B1.2(a)(2).

To determine whether Mr. McConnell’s § 8-1568 fleeing-and-eluding

conviction constitutes a “crime of violence,” we engage in a two-part inquiry. 

First, we consider “whether the offense ‘presents a serious potential risk of

physical injury to another,’ as required by the text of § 4B1.2.” Wise, 597 F.3d at

1144 (quoting USSG § 4B1.2(a)(2)). Second, “we must determine whether the

offense is ‘roughly similar, in kind as well as degree of risk posed,’ to the

enumerated crimes in § 4B1.2(a)(2), namely, burglary, arson, extortion, or crimes

involving explosives.” Id. (quoting Begay, 128 S. Ct. at 1585). A crime is

“‘roughly similar’” to the crimes listed in § 4B1.2(a)(2) if it “‘typically involve[s]

purposeful, violent, and aggressive conduct.’” Id. (quoting Begay, 128 S. Ct. at

1586) (alteration in Wise). 

This two-part inquiry is derived from the Supreme Court’s decision in

Begay. There, the Court held that a state conviction for driving under the

influence of alcohol (DUI) was not a “violent felony” under the Armed Career

Criminal Act provision that defines that term in a manner nearly identical to the
1

 Under the ACCA: 

 [T]he term “violent felony” means any crime punishable by

imprisonment or 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 

(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.

18 U.S.C. § 924(e)(2)(B).

Thus, the only difference between § 924(e)(2)(B)(ii)’s residual definition of

a violent felony and USSG § 4B1.2(a)’s corresponding definition is that the latter

lists “burglary of a dwelling” rather than “burglary” as an example of an offense that

“presents a serious potential risk of physical injury to another.” 

-11-

Guideline definition of “crime of violence” at issue here. See 18 U.S.C. §

924(e)(2)(B).1

 

The Supreme Court “assume[d] the lower courts were right in concluding

that DUI involves conduct that ‘presents a serious potential risk of physical injury

to another,’” 553 U.S. at 141 (quoting 18 U.S.C. § 924(e)(2)(B)(ii)), but it

concluded that the offense was nevertheless not a “violent felony” because “the

provision’s listed examples . . . illustrate the kinds of crimes that fall within the

statute’s scope,” and “[t]heir presence indicates that the statute covers only similar

crimes, rather than every crime that ‘presents a serious potential risk of physical

injury to another’ ” Id. at 142 (quoting § 924(e)(2)(B)(ii)) (emphasis in Begay). 
-12-

In the Court’s view, to constitute a “violent felony” under the ACCA’s definition,

the offense must be “roughly similar, in kind as well as in degree of risk posed, to

the [statutory] examples themselves.” Id. at 143. “DUI differs from the example

crimes–burglary, arson, extortion, and crimes involving the use of explosives–in at

least one pertinent, and important, respect. The listed crimes all typically involve

purposeful, violent, and aggressive conduct.” Id. (internal quotation marks and

citation omitted). In contrast, the DUI statute did not require purposeful, violent,

and aggressive conduct to sustain a conviction. 

As Mr. McConnell acknowledges, we have applied this two-part inquiry

from Begay to a statute that resembles the one at issue here. In United States v.

West, 550 F.3d 952 (10th Cir. 2008), we held that a Utah conviction for failing to

stop at a police officer’s command was a “violent felony” under the ACCA and §

924(e)(2)(B)(ii)’s residual clause. 550 F.3d at 960. The Utah statute provided that

An operator who receives a visual or audible signal from a

peace officer to bring the vehicle to a stop may not: 

(i) operate the vehicle in willful or wanton disregard of the

signal so as to interfere with or endanger the operation of

any vehicle or person; or 

(ii) attempt to flee or elude a peace officer by vehicle or

other means. 

550 F.3d at 960-61 (quoting Utah Code § 41-6a-210(1(a)).
-13-

We first concluded that “prior convictions for eluding and evading police, at

least when they involve a vehicle, should . . . categorically be deemed to present a

serious potential risk of physical injury to another.” 550 F.3d at 964. In support

of this conclusion, we cited cases that drew analogies between convictions for

eluding police and convictions for escaping from police custody. We invoked a

Tenth Circuit decision holding that “under the ACCA and the United States

Sentencing Guidelines, escape is always a violent crime.” Id. at 963 (quoting

United States v. Springfield, 196 F.3d 1180, 1185 (10th Cir. 1999), overruling

recognized by United States v. Shipp, 589 F.3d 1084, 1090 n.3 (10th Cir. 2009)).

We further noted that the driver’s evading or eluding police officers will generally

involve a deliberate choice to disobey the officer’s signal. “‘This disobedience

poses the threat of a direct confrontation between the police officer and the

occupants of the vehicle, which, in turn, creates a potential for serious physical

injury to the officer, other occupants of the vehicle, and even bystanders.’” Id. at

964 (quoting United States v. James, 337 F.3d 387, 391 (10th Cir. 2008)).

We then concluded that a conviction under the Utah statute would, in the

ordinary case, involve violent, aggressive and purposeful conduct. “Like burglary,

and even more like escape, the offense of failing to stop at the command of a

police officer will typically lead to a confrontation with the officer being

disobeyed.” Id. at 970. The offense conduct is also “likely to lead, in the ordinary
-14-

case, to a chase or at least to an effort by police to apprehend the perpetrator.” Id.

Moreover, “[w]illfully disregarding an officer’s signal is purposeful conduct under

the ACCA.” Id. at 971. 

Importantly, we expressly stated that our characterization of the Utah

offense was not dependent on circuit precedent that “‘under the ACCA and the

United States Sentencing Guidelines, escape is always a violent felony.’” Id. at

963 (quoting Springfield, 196 F.3d at 1185). We noted that the Supreme Court had

granted certiorari in Chambers to decide whether an escape conviction was a

violent felony under the ACCA but explained that “[e]ven if the Supreme Court

concludes that an escape conviction does not categorically present a serious

potential risk of physical injury to another, we would conclude that a Utah

conviction for failing to obey an officer’s command would categorically present a

serious potential risk of physical injury to another.” Id. at 963 n.9. Chambers’s

treatment of escape convictions would not apply to a fleeing-and-eluding

conviction because “[s]uch a conviction under Utah law will always involve the

use of a motor vehicle. It will always involve an overt, rather than covert,

disobedience of an officer’s command and will occur directly in the officer’s

presence. And it will likely occur in the presence of innocent and unsuspecting

bystanders.” Id.
-15-

Mr. McConnell’s contention that his Kansas fleeing and eluding conviction

is not a “crime of violence” under USSG § 4B1.2(a) is contravened by our holding

in West. Although West involved the ACCA’s characterization of a prior offense

as a “violent felony,” while this case involves the Guidelines’ definition of a

“crime of violence,” the nearly identical language in those two provisions allows

us to consider precedent involving one in construing the other. See West, 550 F.3d

at 960 n.5. Moreover, the Utah statute at issue in West and the Kansas statute

defining Mr. McConnell’s prior offense both involve the disregard of an officer’s

signal or the attempt to flee or elude an officer. Compare West, 550 F.3d at 961

(quoting Utah Code § 41-6a-210(1)(a)) with Kan. Stat. Ann. § 8-1568(b). Mr.

McConnell’s conviction also included an additional component indicating further

risk of serious physical injury–he was “involved in any motor vehicle accident or

intentionally cause[d] damage to property.” See Kan. Stat. Ann. § 8-

1568(b)(1)(D). Thus, West’s observations about the potential risk of physical

injury resulting from the commission of the Utah offense and West’s conclusion

that a conviction under the Utah statute will ordinarily involve violent, aggressive,

and purposeful conduct are equally applicable here. 

In his appellate brief, Mr. McConnell does not suggest otherwise. Instead,

he contends, the Supreme Court’s subsequent decision in Chambers overruled

West’s holding that a conviction under the Utah statute regarding failure to stop or
-16-

fleeing or eluding a peace officer, Utah Code § 41-6a-210(1)(a), constituted a

“crime of violence” under the ACCA.

In Chambers, the Court considered an Illinois conviction for failing to

report to a penal institution. It held that failure to report is not a “violent felony”

under the ACCA, 18 U.S.C. § 924(e)(1), because “it does not involve conduct that

presents a serious potential risk of physical injury to another.” 129 S. Ct. at 691

(internal quotation marks and citation omitted). In reaching that conclusion,

Chambers implicitly overruled precedents in many circuits, including the Tenth,

that all escape crimes are necessarily “violent felonies” and “crimes of violence”

under the ACCA and the Guidelines. As we have noted, West cited this overruled

line of cases. See 550 F.3d at 963-64; see also United States v. Shipp, 589 F.3d

1084, 1090 n.3 (10th Cir. 2009) (recognizing that Chambers “requires us to

disregard our prior precedent [including West] characterizing escape as a per se

‘violent felony’ under the ACCA”). 

Although Chambers does overturn West’s observation that “under the ACCA

and the . . . Sentencing Guidelines, escape is always a violent felony,” West 550

F.3d at 963 (quoting Springfield, 196 F.3d at 1185), West’s characterization of

fleeing and eluding convictions remains good law. In fact, our recent decision in

Wise reaches that very conclusion.

In Wise, we noted several important distinctions between the failure-toreport conviction in Chambers and the failure-to-stop conviction at issue in West.
-17-

First, a failure-to-report offense involves “a form of inaction,” while the Utah

statute at issue in West requires deliberate action–either (a) willfully or wantonly

disregarding a police officer’s signal or (b) attempting to flee or elude a police

officer. Wise, 597 F.3d at 1146 (internal quotation marks omitted). Second, in

contrast to the failure to report, the conduct addressed by the Utah statute occurs

in the presence of a police officer. Third, a violation of the Utah statute is “far

more likely to endanger third parties.” Id. Fourth, in contrast to the statute at

issue in Chambers, the requirement that a violation of the Utah statute occur in the

presence of a police officer poses the threat of a confrontation, which in turn

creates a potential for serious injury. Id. at 1147. Thus, “the Supreme Court’s

holding [in Chambers] that failure-to-report escape crimes are not crimes of

violence does not undermine this court’s conclusion in West that a violation of the

Utah failure-to-stop statute is a crime of violence.” Id. 

West and Wise are controlling. Those decisions establish that the district

court properly concluded that Mr. McConnell’s conviction under Kan. Stat. Ann. §

8-1568 is a “crime of violence” under USSG §§ 2K2.1(a)(4)(A) and 4B1.2(a). 

Additionally, as we observed in West, although there is a split of authority, the

decisions of a majority of other circuits that have considered the issue since

Chambers are in accord. See United States v. Dismuke, 593 F.3d 582, 596 (7th

Cir. 2010) (concluding that (1) “Wisconsin's vehicular-fleeing crime satisfies

Begay’s ‘violent and aggressive’ requirement[;]” (2) “[the defendant’s] fleeing
-18-

conviction was therefore properly classified as a violent felony for purposes of the

ACCA[;]” and that (3) even though “the Eighth and the Eleventh Circuits have

reached the opposite conclusion, we think our colleagues in the Fifth, Sixth, and

Tenth Circuits have the better of the argument”) (citations omitted); United States

v. Richardson, 581 F.3d 824, 825 (8th Cir. 2009) (per curiam) (holding that a

conviction under Kan. Stat. Ann. § 8-1568 (b)(1)(D) categorically involves a

serious risk of physical injury in the ordinary case and is thus a “crime of

violence” under USSG § 4B1.2(a)(2)); United States v. Young, 580 F.3d 373, 381

(6th Cir. 2009) (holding that a conviction under Michigan’s fleeing-and-eluding

statute is a violent felony under the ACCA); United States v. Harrimon, 568 F.3d

531, 537 (5th Cir.) (holding that a Texas conviction for fleeing by vehicle is a

violent felony under the ACCA), cert. denied, 130 S. Ct. 1015 (2009). But see

United States v. Tyler, 580 F.3d 722, 725 (8th Cir. 2009) (holding that fleeing a

peace officer in a vehicle under Minnesota law is not a crime of violence under the

Guidelines and observing that the statute at issue criminalized behavior that is

“neither violent nor aggressive, such as merely “extinguishing motor vehicle

headlights or taillights”) (alteration, internal quotation marks and citation

omitted); United States v. Harrison, 558 F.3d 1280, 1294, 1301 (11th Cir. 2009)

(holding that willful fleeing under Florida law is not a violent felony under the

ACCA and “reject[ing] the notion that all willful fleeing crimes should be treated
-19-

equally, especially where the Florida statute differentiates between types of willful

fleeing”).

III. CONCLUSION

Because the district court properly concluded that Mr. McConnell’s prior

conviction for violating Kan. Stat. Ann. § 8-1568 by fleeing or eluding a police

officer constituted a “crime of violence” under USSG §§ 2K2.1(a)(4)(A) and

4B1.2(a), we AFFIRM his sentence. Appellant’s motion to supplement the record

on appeal is GRANTED.