NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 12a0838n.06
No. 08-6181
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. J AMES ROGERS, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED ST ATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TENNESSEE

Be fore : GRI FF I

N and KE THL EDGE, Circuit Judges, a nd CARR, Dist rict Judge. *
KETHL EDGE, Circuit J udg e. This court previously aff irmed J ames Roge rs’s sentenc e for being a felon in possession of a firea rm in violation of 18 U.S.C. § 922(g ). Roge rs had appea led his

sentenc e in pa

rt beca use the district c ourt assig ned him a base offe nse leve l of 20 afte r concluding that Roge rs’s previous conviction under Tenn. Code Ann. § 3 9 -1 6 -603(b)(1) was a “cr ime of violence.” See U.S.S.G. § 2K2.1(a )(4) (A). That provision of the Tenne ssee code makes it a “Class
E felony ” for “any person, wh i l e o p erating a motor vehicle

. . . to intentionally flee or attempt to elude an y law enforce ment office r, after having rece ived any signa l from the office r t o . . . stop.” Id. Roge rs ar g ued that his conviction for this “ Class E felony ” did not qualify as a “prior crime of violence.” He noted that this C lass E felony is differe nt from another provision of t he st atute that

The Honora

ble J ames G. Carr, Senior United States District J udg e for the Norther n District * of Ohio, sitting by

desig nation.No. 08-6181

United States v. Roge rs punishes, as a “C l as s D felony ,” vehicular flight t hat “crea tes a risk of death or i njury to innocent by sta n d er s o r other third parties.” Id. at (b)( 3). Citi ng the omission of that lang uag e from the definition of a Class E felony , Roge rs contended t hat a Class E felony does not qualify as a crime of violence, beca

use crimes of violence must “pre sent[] a serious potential risk of phy sical injury to others.” See U.S.S.G. § 4B1.2( a)( 2). (The statutory definition of the off

ense, r ather

than the fac ts

o f a particula

r crime, deter

mine whether an offe nse is a crime of violence. See United States v. Bartee , 529 F.3d 357, 359 (6th Cir. 2008).) W e re jected his a

rg ument and af

firmed his sentenc e. See U nited States v. Rogers , 594 F.3d 517, 521 ( 6th Cir. 2010) (mem.). The Supreme Court therea fter he ld that violation of an I ndiana statute, which prohibits the

use of a vehicle to flee afte r an office r orders the offe nder to stop, is a “violent felony .” Syke s v. United States , 131 S. Ct. 2267, 2271 (2011). Unlike Tenne ssee’ s statute, the I ndiana statute imposes the same punishment on an offe nder who flee s “‘in a manner that cre ates a substantial risk of bodily injury to another person.’ ” Id. at 2276 (citation omitted). But the Court specific ally rese rved the question prese nted here : Whether an ordinary vehicle- flig ht offe nse would still qualify as a violent felony if it car

ries a less sever e penalty than another vehicle- flig ht offe nse that includes, as an element, a

substantial risk of harm. Id. at 2227. Thus, the Supreme Court vac ated our decision in this c ase and rema

nded it to us f

or further consideration. Rogers v. United States , 131 S. Ct. 3018 (2011). Another panel of this c ourt has since decide d that the Class E felony for which Roge rs was previously convicted qualifies as a violent felony under the Armed Caree r Criminal Act. See United
States. v. Doyle , 678 F.3d 429 (6th Cir. 2012). The “def initions of ‘violent felony ’ under the ACCA -2-No. 08-6181

United States v. Roge rs

an d a ‘c ri me of violence’ under” the Guidelines “should be interpre ted in a consistent manner .”
Bartee , 529 F.3d at 363. Thus, we are bound by Doyle , and adhe re t o o ur previous decision that Roge rs’s Class E fe lony

is a crime of

violence. The district cour

t’s judgme nt is affirmed.

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