United States v. Christopher Hornyak

588 F. App'x 384

• Court: Court of Appeals for the Fifth Circuit
• Decided: December 29, 2014
• Docket: 14-50299
• Status: Unpublished

Opinion

PER CURIAM: *

Christopher Michael Hornyak appeals from his conviction of possession of a firearm by a convicted felon. He contends that his conviction of evading arrest or detention using a motor vehicle under section 38.04 of the Texas Penal Code did not qualify as a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). He further contends that the residual clause of the ACCA, which provides that an offense qualifies as a violent felony if it “involves conduct that presents a serious potential risk of physical injury to another,” § 924(e)(2)(B)(ii), is unconstitutionally vague and should be found void for vagueness. Hornyak concedes that his arguments are foreclosed, but he raises them to preserve them for further review, and he requests reexamination of United States v. Harrimon, 568 F.3d 531 (5th Cir.2009), in which we held that a conviction under § 38.04 qualifies as a violent felony, in light of Sykes v. United States, - U.S. -, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). The Government moves for summary affirmance of Horn-yak’s conviction, as all of his contentions are foreclosed.

In Harrimon, we held that a § 38.04(b)(1) offense is a violent felony under the ACCA because “fleeing by vehicle poses a serious risk of injury to others.” Harrimon, 568 F.3d at 532-33, 536 (considering substantively identical version of § 38.04 to that at issue in this case). We have held in several unpublished opinions that Sykes validated our decision in Harri-mon. See United States v. Spann, 562 Fed.Appx. 237, 238 (5th Cir.), cert. denied, - U.S. -, 135 S.Ct. 220, 190 L.Ed.2d 168 (2014); United States v. Hoover, 548 Fed.Appx. 300, 301 (5th Cir.2013), cert. denied, - U.S. -, 134 S.Ct. 1804, 188 L.Ed.2d 769 (2014); United States v. Standberry, 546 Fed.Appx. 381, 382 (5th Cir.2013); United States v. McCullough, 475 Fed.Appx. 983, 983 (5th Cir.2012); United States v. Williams, 466 Fed.Appx. 390, 391 (5th Cir.2012); United States v. Tubbs, 446 Fed.Appx. 705, 706 (5th Cir.2011). We also have rejected the arguments that the Texas statute for evading arrest with a vehicle is not a violent felony because it can be committed by fleeing in any vehicle, not just a motor vehicle, and that Sykes overruled Harrimon because it emphasized the use of a motor vehicle. See Spann, 562 Fed.Appx. at 238; Standberry, 546 Fed.Appx. at 382. Moreover, we have rejected the argument that the Texas offense of evading arrest might not constitute a violent felony because Texas law imposes different penalties based on the degree of risk posed by a defendant’s conduct. See United States v. Holston, 471 Fed.Appx. 308, 309 (5th Cir.2012); United States v. Whitfield, 451 Fed.Appx. 415, 416 (5th Cir.2011). Finally, the Supreme Court has rejected the argument that the residual clause of the ACCA is unconstitutionally vague. United States v. Gore, 636 F.3d 728, 742 (5th Cir.2011) (citing James v. United States, 550 U.S. 192, 210 n. 6, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007)).

“It is a firm rule of this circuit that in the absence of an intervening contrary or superseding decision by this court sitting en banc or by the United States Supreme Court, a panel cannot overrule a' prior panel’s decision.” Burge v. Parish of St. Tammany, 187 F.3d 452, 466 (5th Cir.1999). Hornyak’s contentions thus are foreclosed.

AFFIRMED. Motion for summary affir-mance GRANTED. Motion for extension of time to file a brief DENIED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.