After examining the briefs and the record, we have concluded that oral argument is *

unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP. P.

34(a)(2)(C).

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted May 25, 2010*

Decided May 26, 2010

Before

WILLIAM J. BAUER, Circuit Judge

MICHAEL S. KANNE, Circuit Judge

ILANA DIAMOND ROVNER, Circuit Judge

 

No. 09-1572

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ELLIS MEMBERS,

Defendant-Appellant.

Appeal from the United States District

Court for the Southern District of Indiana,

Indianapolis Division.

No. 1:08-CR-00093-001

Sarah Evans Barker,

Judge.

O R D E R

Ellis Members was convicted of possession of a firearm by a felon, see 18 U.S.C.

§ 922(g)(1), and sentenced to 110 months’ imprisonment. On appeal he challenges whether

his prior Indiana conviction for resisting law enforcement, see IND. CODE § 35-44-3-

3(b)(1)(A), qualifies as a crime of violence under the guidelines. At the time of sentencing,

circuit precedent was against him, see United States v. Spells, 537 F.3d 743, 752 (7th Cir.

2008), cert. denied, 129 S. Ct. 2379 (2009), but Members hoped that we would reconsider in

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 09-1572 Page 2

light of an Eleventh Circuit case that holds a similar Florida statute is not a violent felony

under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924 (e)(2)(B), see United States

v. Harrison, 558 F.3d 1280 (11th Cir. 2009). After briefing finished in this case, however, we

reaffirmed our holding that § 35-44-3-3(b)(1)(A) is a violent felony. See United States v.

Sykes, 598 F.3d 334 (7th Cir. 2010). Because Members’s case is indistinguishable from Sykes

and Spells, we affirm the sentence.

Members does not contest that he was convicted of resisting law enforcement using

a vehicle, a Class D felony. See IND. CODE § 35-44-3-3(b)(1)(A). The district court classified

the prior conviction as a crime of violence as defined in § 4B1.2(a) of the sentencing

guidelines and used it to increase Members’s base offense level to 20. See U.S.S.G.

§ 2K2.1(a)(4). Although Members argues that we should follow the Eleventh Circuit’s lead

in Harrison and hold that § 35-44-3-3(b)(1)(A) is not a violent crime, we rejected that

argument in Sykes. In Sykes, the defendant had a prior felony conviction for a violation of

the same Indiana statute—§ 35-44-3-3(b)(1)(A)—that was at issue in Spells and that is again

before us in this case. Sykes, 598 F.3d at 335. After applying the three-step analysis

established in Begay v. United States, 553 U.S. 137 (2008), we reaffirmed our holding in Spells

and concluded that resisting law enforcement involves the type of “purposeful, violent and

aggressive” behavior that makes it similar in kind to the crimes listed in the ACCA. Sykes,

598 F.3d at 337. We considered the reasoning in Harrison but explained that we saw no new

facts or circumstances that convinced us to overturn our precedent. Id. at 337-38.

Accordingly, because we use a modified categorical approach in designating violent

offenses, Begay, 553 U.S. at 141, Members’s case falls squarely under Sykes and Spells. That

his challenges arises under the guidelines rather than the ACCA is of no import because the

two provisions at issue employ the same language and are interpreted alike. See United

States v. Billups, 536 F.3d 574, 579 n.1 (7th Cir. 2008). Having twice determined that a

violation of § 35-44-3-3(b)(1)(A) qualifies as a violent felony, we can find no error in the

district court’s decision to increase Members’s base-offense level under § 2K2.1(a)(4) based

on his prior conviction for resisting law enforcement. 

For the foregoing reasons, we AFFIRM the sentence imposed by the district court.