United States v. Askew

Citation: 384 F. App'x 504Docket: No. 09-2846

Court: Court of Appeals for the Seventh Circuit; July 8, 2010; Federal Appellate Court

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Kenneth Askew was sentenced to 240 months’ imprisonment for possessing an unregistered sawed-off shotgun and for being a felon in possession of a firearm. The advisory Guidelines range was influenced by the district court's determination that Askew's prior felony conviction for fleeing an officer in a motor vehicle constituted a crime of violence under the Guidelines. Askew, who did not contest the presentence investigation report (PSR) findings, appealed this conclusion.

The appellate court noted that its review of the district court’s classification of Askew’s prior felony as a crime of violence was typically de novo, but in this case, it was limited to reviewing for plain error due to Askew's failure to object during sentencing. To demonstrate plain error, Askew needed to establish that there was a clear mistake affecting his substantial rights.

The PSR assigned a base offense level of 26 based on two prior felony convictions, one being for burglary and kidnapping (undisputed as a crime of violence) and the other for fleeing a police officer. Under the U.S. Sentencing Guidelines, a crime of violence must involve the use or threat of physical force or present a serious potential risk of physical injury. Minnesota’s statute defines fleeing as actions taken to evade a peace officer, which could potentially involve endangering others.

In affirming the district court's ruling, the appellate court held that Askew's conviction for fleeing from an officer met the criteria for a crime of violence, thereby supporting the sentencing enhancement applied in his case.

To be convicted under Minnesota Statutes 609.487 subdivision 3, a defendant must have used a motor vehicle to intentionally evade a peace officer who has signaled them. This conviction can lead to imprisonment for over one year. However, the statute does not include the use or attempted use of physical force as an element, nor does it fall under the enumerated offenses in 4B1.2(a)(2). For it to qualify as a crime of violence, it must fit within the residual clause of that statute by involving conduct that presents a serious potential risk of physical injury to another. 

A categorical approach is used to determine this, focusing solely on the conviction and statutory definition rather than the specific circumstances of the offense. Thus, the offense is evaluated generally, and it must present a serious potential risk of physical injury similar to the risks associated with listed offenses like burglary or arson. The conduct of intentionally evading an officer with a vehicle meets the requirement of presenting such a risk, as it involves active defiance of law enforcement, likely leading to confrontations. 

While Minnesota's statute is broader than Wisconsin's fleeing statute discussed in Dismuke, it still presents a comparable risk of physical injury. This assessment aligns with the recent ruling in Sykes, which recognized a similar Indiana statute as a violent felony for its provision against knowingly fleeing from law enforcement using a vehicle.

The Fifth and Sixth Circuits have affirmed that motor vehicle fleeing statutes, where 'fleeing' is broadly defined, indicate a significant risk of physical injury akin to the crimes listed in 4B1.2(a)(2). Minnesota Statutes 609.487, subdivision 3, is deemed to pose a similar risk, as it involves purposeful, aggressive, and violent conduct. The offense requires specific intent to elude a peace officer, which fulfills the purposeful conduct requirement. Fleeing from an officer not only challenges authority but also typically involves aggressive behavior, as it invites police pursuit, potentially endangering both officers and the public. The act of fleeing is characterized by an active defiance, similar to escaping custody, and often leads to confrontations that carry a risk of violence. The use of a vehicle while fleeing introduces an element of violent force, endangering officers and bystanders alike. Recent case law supports the view that a decision to flee in a vehicle suggests a greater likelihood of resorting to violence if armed. Consequently, the conduct associated with Minnesota Statutes 609.487, subdivision 3, is recognized as a crime of violence under the residual clause of 4B1.2(a)(2), leading to the affirmation of the district court's judgment.

Askew's convictions for burglary and kidnapping, stemming from the same charging document and sentenced concurrently, are treated as a single prior felony conviction under the applicable Guidelines sections (4B1.2(c), 4B1.2, cmt. n. 3, and 4A1.2(a)(2)). Although the standard Guidelines range for a total offense level of 32 with a criminal history category of VI is 210-262 months, the district court capped Askew's sentence at 240 months due to statutory maximums set by 18 U.S.C. § 924(a)(2) and 26 U.S.C. § 5871. The terms 'crime of violence' and 'violent felony' are interpreted interchangeably, aligning with the Armed Career Criminal Act. The court employs a modified categorical approach for divisible statutes, but determined that Minnesota Statutes 609.487 subdivision 3, which addresses fleeing from a peace officer, is not divisible and encompasses only crimes of violence. Previous rulings established that intentional flights from law enforcement constitute violent felonies. The court acknowledges differing interpretations from the Eighth and Eleventh Circuits regarding motor vehicle fleeing convictions but declines to align with them, maintaining consistency with its prior decisions in Dismuke and Sykes.