*

The Honorable James G. Carr, Chief United States District Judge for the Northern District of

Ohio, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0027p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellee,

v.

JAMES ROGERS,

 Defendant-Appellant.

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No. 08-6181

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 07-20364-001—Jon Phipps McCalla, Chief District Judge.

Argued: December 3, 2009

Decided and Filed: February 8, 2010 

Before: GRIFFIN and KETHLEDGE, Circuit Judges; CARR, Chief District Judge.*

_________________

COUNSEL

ARGUED: Mary Catherine Jermann-Robinson, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Memphis, Tennessee, for Appellant. G. Kirby May, ASSISTANT

UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF:

Mary Catherine Jermann-Robinson, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Memphis, Tennessee, for Appellant. G. Kirby May, ASSISTANT

UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. 

_________________

OPINION

_________________

KETHLEDGE, Circuit Judge. James Rogers pled guilty to being a felon in

possession of a firearm, 18 U.S.C. § 922(g), and now challenges his sentence. Because

1
No. 08-6181 United States v. Rogers Page 2

the district court correctly calculated Rogers’s advisory range under the Sentencing

Guidelines, we affirm.

I.

In May 2007, Memphis police received reports that stolen vehicles were stored

outside Rogers’s home. They responded by sending a confidential informant to the

property. Upon returning, the informant said he had seen a stolen Chevrolet Corvette

there. He added that Rogers had a pistol with him and was about to leave the residence

as a passenger in a white pickup truck.

The officers stopped the vehicle as it pulled away from Rogers’s home, and

arrested him pursuant to an outstanding warrant from Mississippi. Upon searching the

vehicle, they found a loaded .22-caliber pistol. Rogers admitted the gun was his.

Soon thereafter, Rogers’s live-in girlfriend consented to a search of Rogers’s

home. Officers found the stolen Corvette in a shed at the rear of Rogers’s property, and

also found parts from a stolen Chevrolet Blazer in Rogers’s garage. They later found the

Blazer’s hull, with its vehicle identification number removed, at another residence on the

same street.

Rogers had a long criminal record, including several convictions for state felony

offenses. Federal prosecutors therefore charged him with being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g). He pled guilty to the charge.

Using the 2007 version of the Sentencing Guidelines, the district court assigned

Rogers a base-offense level of 20 because he had committed a prior “crime of violence.”

See U.S.S.G. § 2K2.1(a)(4)(A). The court added a four-level enhancement under

U.S.S.G. § 2K2.1(b)(6), finding that Rogers had possessed the firearm “in connection

with another felony offense.” The court then applied a three-level downward adjustment

for acceptance of responsibility. The resulting total offense level of 21 and Rogers’s

criminal history category of VI yielded an advisory range under the Guidelines of 77 to

96 months’ imprisonment. The district court overruled Rogers’s objections to the
No. 08-6181 United States v. Rogers Page 3

calculation of his base-offense level and the § 2K2.1(b)(6) enhancement, and sentenced

him to 86 months’ imprisonment.

This appeal followed.

II.

A.

Rogers first argues that the district court erred in assigning him a base-offense

level of 20 because he committed his felon-in-possession offense after “sustaining one

felony conviction of . . . a crime of violence.” U.S.S.G. § 2K2.1(a)(4)(A). We review

de novo the district court’s conclusion that a particular offense qualifies as a crime of

violence. See United States v. Bass, 315 F.3d 561, 564-65 (6th Cir. 2002).

The Guidelines define “crime of violence” to include any felony that “has as an

element the use, attempted use, or threatened use of physical force against the person of

another” or “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.” U.S.S.G. § 4B1.2(a). An offense qualifies as a crime of violence under the

residual clause—i.e., as one that “otherwise involves conduct that presents a serious

potential risk of physical injury to another”—if it is “roughly similar, in kind as well as

in degree of risk posed,” to the enumerated offenses. Begay v. United States, 553 U.S.

137, 128 S. Ct. 1581, 1585 (2008) (construing the definition of “violent felony”

contained in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii)); see also

United States v. Bartee, 529 F.3d 357, 363 (6th Cir. 2008) (observing that the Armed

Career Criminal Act’s definition of “violent felony” and the Guidelines’ definition of

“crime of violence” are construed in a consistent manner, and applying Begay to the

latter). Thus, the crime must be similar to the listed offenses not only in the degree of

risk posed but also in the sense that it involves “purposeful, violent, and aggressive

conduct.” Begay, 128 S. Ct. at 1586.

In determining whether a particular offense meets this standard, we begin with

a “categorical approach,” which “look[s] only to the fact of conviction and the statutory
No. 08-6181 United States v. Rogers Page 4

definition—not the facts underlying the offense.” Bartee, 529 F.3d at 359. When the

prior conviction was entered via a guilty plea, we may also look to “the terms of the

charging document, the terms of a plea agreement or transcript of colloquy between

judge and defendant in which the factual basis for the plea was confirmed by the

defendant, or to some comparable judicial record of this information.” Shepard v.

United States, 544 U.S. 13, 26 (2005); see also Bartee, 529 F.3d at 359.

Based on the record before us, Rogers’s criminal history contains two candidate

offenses: a conviction for reckless endangerment with a deadly weapon, see Tenn. Code.

Ann. § 39-13-103, and a conviction for evading arrest in a motor vehicle. See id. § 39-

16-603(b)(1). Both convictions were entered via guilty pleas and arose out of a single

incident in which Rogers sped away from a traffic stop, nearly hitting a police officer

with his vehicle.

The district court held that the reckless-endangerment conviction fit into the

residual clause of § 4B1.2(a). That conclusion was correct under this court’s case law

at the time of Rogers’s sentencing hearing, see United States v. Rutledge, 33 F.3d 671,

674 (6th Cir. 1994), but was rendered incorrect by our subsequent decision in United

States v. Baker, 559 F.3d 443, 453 (6th Cir. 2009). The government does not dispute the

point. Accordingly, we hold that Rogers’s reckless-endangerment conviction was not

a crime of violence.

That leaves Rogers’s conviction for evading arrest. The statute under which

Rogers was convicted makes it a felony “for any person, while operating a motor vehicle

on any street, road, alley or highway[,] . . . to intentionally flee or attempt to elude any

law enforcement officer, after having received any signal from the officer to bring the

vehicle to a stop.” Tenn. Code Ann. § 39-16-603(b)(1). Although this court has not

specifically addressed whether § 39-16-603 describes a crime of violence, we recently

held in United States v. Young, 580 F.3d 373 (6th Cir. 2009), that a similarly worded

Michigan statute does. See id. at 381. The statute there made it a crime for a driver,

when directed to stop by a police officer, to “willfully fail to obey” by “attempting to

flee or elude[,]” among other things. Mich. Comp. Laws § 257.602a(1). We reasoned
No. 08-6181 United States v. Rogers Page 5

that a conviction under this statute involves purposeful, aggressive, and violent conduct,

and “poses a serious potential risk of physical injury to others.” Young, 580 F.3d at 377-

78.

Young governs here. The Tennessee offense’s requirement of intentional conduct

is, for our purposes, no different than the Michigan statute’s requirement of willful

conduct. And the Tennessee offense’s actus reus—“flee[ing] or attempt[ing] to

elude”—is indistinguishable from that of the Michigan statute, which criminalizes

“attempting to flee or elude.” Rogers’s evading-arrest offense was therefore a crime of

violence.

That conclusion holds regardless of whether Rogers’s evading-arrest offense was

a Class E or a more serious Class D felony under Tennessee law. The record is

ambiguous on this point, and Rogers is correct that only the Class D felony requires a

showing that the defendant’s conduct “create[d] a risk of death or injury to innocent

bystanders or other third parties.” Tenn. Code Ann. § 39-16-603(b)(3). But whether or

not a defendant’s flight poses a risk to third parties, it will “nearly always pose a

substantial danger to . . . pursuing officers.” Young, 580 F.3d at 378; see also United

States v. Harrimon, 568 F.3d 531, 536 (5th Cir. 2009) (noting the “marked likelihood

of pursuit and confrontation” associated with fleeing from the police in a motor vehicle).

Moreover, for an offense to qualify as a crime of violence, it need only create a “serious

potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (emphasis added).

“[O]ffenders typically attempt to flee by any means necessary,” Young, 580 F.3d at 378,

and in the ordinary case, “an offender fleeing from an attempted stop or arrest will not

hesitate to endanger others” in order to escape. Harrimon, 568 F.3d at 536. As a

categorical matter, the decision to flee thus carries with it the requisite potential risk,

even if the resulting chase does not escalate so far as to create the actual risk of death or

injury that would make it a Class D felony under Tennessee law. Contrary to Rogers’s

suggestion, therefore, we need not remand the case to sort out this issue.

Finally, Rogers appears to argue that, since both of his candidate offenses arose

from the same conduct, we ought to consider their elements in pari materia for purposes
No. 08-6181 United States v. Rogers Page 6

of determining whether they are crimes of violence. Thus, Rogers says, evading arrest

cannot be a crime of violence because the dangerousness of his conduct was already an

element of his reckless-endangerment conviction. The short answer to this argument is

that we reject its premise: That one offense posed a serious potential risk of injury does

not mean that another offense based on the same conduct cannot. Moreover, the

required risk need not itself be an element of the offense; instead, the elements must only

describe conduct that in turn creates that risk. For the reasons already stated, Rogers’s

evading-arrest conviction meets that test.

B.

Rogers separately argues that the district court erred in applying a four-level

enhancement under § 2K2.1(b)(6) of the Guidelines. That enhancement is appropriate

if the district court finds by a preponderance of the evidence that the defendant “used or

possessed [a] firearm . . . in connection with another felony offense.” U.S.S.G.

§ 2K2.1(b)(6); United States v. Gates, 461 F.3d 703, 708 (6th Cir. 2006). In this context,

we review the district court’s factual findings for clear error. See United States v. Burke,

345 F.3d 416, 426-27 (6th Cir. 2003).

Here, the district court concluded that Rogers operated a motor-vehicle chop

shop at his residence, specifically finding that Rogers had stored parts from the stolen

Chevrolet Blazer there in order to resell them later. The record amply supports those

findings; and they were in turn sufficient to establish a violation of Tennessee’s Motor

Vehicle Chop Shop Act, which makes it a felony to “knowingly own, operate or conduct

a chop shop.” Tenn. Code Ann. § 55-5-203(a)(1); see also id. § 55-5-202(1) (defining

“[c]hop shop” to include any “premises where one . . . or more persons knew, or should

have known, that they were engaged in . . . storing any motor vehicle or motor vehicle

component part that was obtained by theft, or any other unlawful means to . . . [s]ell or

dispose of the motor vehicle or motor vehicle component part”). Indeed, Rogers does

not seriously dispute that his conduct fell within the terms of the Tennessee statute.

The issue, then, is whether Rogers possessed the gun in connection with his

felony chop-shop offense. A firearm is possessed in connection with another offense if
No. 08-6181 United States v. Rogers Page 7

it “facilitated, or had the potential of facilitating” the other offense. U.S.S.G. § 2K2.1,

Application Note 14(A). To justify a § 2K2.1(b)(6) enhancement, therefore, the

government need only “establish that there was a nexus between the firearm and the

other felony offense that is more than coincidental.” United States v. Huffman, 461 F.3d

777, 788 (6th Cir. 2006).

Rogers contends that the government failed to meet this burden, emphasizing that

he was arrested with the gun as he traveled away from his home. But the record shows

that Rogers had possessed the gun at home, since he had just left there when he was

arrested with it and the confidential informant said that Rogers had the gun with him

when he left. Rogers’s residence, of course, is where the chop shop was; and the district

court found that the gun had the potential to facilitate Rogers’s offense when he

possessed it there. The court reasoned that chop-shop customers are by definition not

law-abiding; that Rogers could not call the police if a transaction turned violent, or if a

customer decided to steal his parts rather than pay for them; and that Rogers’s gun

helped protect against those dangers, thereby facilitating his illegal operation. One

might agree with those findings, or not—but in our judgment they were not clearly

erroneous.

The district court’s judgment is affirmed.