United States v. Askew

384 F. App'x 504
CourtCourt of Appeals for the Seventh Circuit
DecidedJuly 8, 2010
DocketNo. 09-2846
StatusPublished
Cited by5 cases

This text of 384 F. App'x 504 (United States v. Askew) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Askew, 384 F. App'x 504 (7th Cir. 2010).

Opinion

ORDER

The district court sentenced Kenneth Askew to 240 months’ imprisonment for his convictions for possessing an unregistered sawed-off shotgun and possession of a firearm by a felon. The advisory Guidelines range associated with that sentence was based, in part, on the court’s conclusion that Askew’s previous felony conviction under Minnesota law for fleeing an officer in a motor vehicle is a crime of violence under the Guidelines. Askew appeals, claiming that conclusion was erroneous. We affirm.

I.

A jury convicted Kenneth Askew of possessing an unregistered sawed-off shotgun, 26 U.S.C. § 5861(d), and possessing a firearm as a felon, 18 U.S.C. § 922(g)(1). The presentence investigation report (PSR) set a base offense level of 26 under § 2K2.1(a)(l) of the Guidelines based on his two previous crime-of-violence felony convictions: one for burglary and kidnap-ing,1 and the other for fleeing an officer in a motor vehicle in violation of Minnesota Statutes § 609.487 subdivision 3. The PSR calculated a total offense level of 32 and a criminal history category of VI, which resulted in an advisory Guidelines range of 210-240 months.2

[506]*506Askew did not object to any portion of the PSR. At sentencing, the district court adopted the PSR’s Guidelines calculations and sentenced him to 240 months’ imprisonment. Askew appeals, arguing that the district court erred in concluding that his felony conviction for fleeing an officer in a motor vehicle qualifies as a crime of violence under the Guidelines.

II.

Our review of a district court’s conclusion that a defendant’s previous felony offense is a crime of violence under the Guidelines is ordinarily de novo. United States v. Clinton, 591 F.3d 968, 972 (7th Cir.2010). Here, however, our review is only for plain error because Askew forfeited any objection to the district court’s Guidelines calculations by failing to raise it below. United States v. Macedo, 406 F.3d 778, 789 (7th Cir.2005). Under that standard, he must demonstrate there was (1) an error (2) that was plain (3) that affected his substantial rights. United States v. Sawyer, 521 F.3d 792, 796 (7th Cir.2008). If he establishes these three things, we have discretion to correct the error if it “seriously affected the fairness, integrity or public reputation of judicial proceedings.” Id. (quotation marks omitted).

Under § 2K2.1(a)(l), a base offense level of 26 applies to Askew’s offenses of conviction if he already has “at least two felony convictions of ... a crime of violence.” Askew does not dispute that his previous felony conviction for burglary and kidnap-ing was for a crime of violence. But he argues that his earlier felony conviction for fleeing from an officer in a motor vehicle does not qualify as a crime of violence.

Under § 2K2.1(a)(l), “crime of violence” has the meaning given that term in § 4B1.2(a).3 U.S.S.G. § 2K2.1, cmt. n. 1. According to § 4B 1.2(a),

[t]he term “crime of violence” means 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 Minnesota statute under which Askew was convicted provides that

[wjhoever by means of a motor vehicle flees or attempts to flee a peace officer who is acting in the lawful discharge of an official duty, and the perpetrator knows or should reasonably know the same to be a peace officer, is guilty of a felony and may be sentenced to imprisonment for not more than three years and one day or to payment of a fine of not more than $5,000, or both.

Minn.Stat. § 609.487 subdv. 3. The definition of “flee” from § 609.487 subdivision 3 is provided by § 609.487 subdivision 1: “the term ‘flee’ means to increase speed, extinguish motor vehicle headlights or taillights, refuse to stop the vehicle, or use other means with intent to attempt to elude a peace officer following a signal given by any peace officer to the driver of a motor vehicle.” Thus, to be convicted under Minnesota Statutes § 609.487 subdivision 3, a defendant must have used a [507]*507motor vehicle intending to attempt to elude a person he knows (or reasonably should know) is a peace officer lawfully performing an official duty after a peace officer has signaled the driver of the motor vehicle.

A conviction under that statute is punishable by more than one year imprisonment, as § 4B 1.2(a) requires. But the offense does not have as an element the use (or attempted or threatened use) of physical force against another person, § 4B1.2(a)(l), nor is it one of the enumerated offenses from § 4B1.2(a)(2). Therefore, in order to be considered a crime of violence, the offense must fit within the residual clause of § 4B1.2(a)(2): it must “otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another.”

To determine whether an offense comes within that residual clause, we employ a categorical approach, which means that we ordinarily “look only to the fact of conviction and the statutory definition of the prior offense” and do not consider the “particular facts disclosed by the record of conviction.”4 James v. United States, 550 U.S. 192, 202, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (quotation marks and citations omitted); accord United States v. Woods, 576 F.3d 400, 403 (7th Cir.2009). In other words, “we consider the offense generieally, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.” Begay v. United States, 553 U.S. 137, 141, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008).

The conduct covered by the statutory elements of the predicate offense must, in the typical case, be similar both in kind and in degree of risk posed as the conduct encompassed by the offenses listed in § 4B1.2(a)(2). Id. at 143, 128 S.Ct. 1581; Dismuke, 593 F.3d at 594. In other words, the predicate crime must “(1) present a serious potential risk of physical injury similar in degree to the enumerated crimes of burglary, arson, extortion, or crimes involving the use of explosives; and (2) involve the same or similar kind of ‘purposeful, violent, and aggressive’ conduct as the enumerated crimes.” Dismuke, 593 F.3d at 591.

[508]*508The first requirement is satisfied here.

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Bluebook (online)
384 F. App'x 504, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-askew-ca7-2010.