Eleventh Circuit Reaffirms Prior Holding that a Prior Conviction for Fleeing and Eluding a Law Enforcement Officer Qualifies as a Violent Felony

In United States v. Smith, No. 12-14842 (Feb. 11, 2014), the Eleventh Circuit reconsidered its opinion in United States v. Smith, 518 F. App’x 774 (11th Cir. 2013) after the judgment was vacated and remanded by the United States Supreme Court in light of its recent holding in United States v. Descamps, 133 S. Ct. 2276 (2013). The court concluded that Descamps did not affect the district court’s qualification of Smith’s prior conviction for fleeing and eluding a law enforcement officer as a violent felony, and it affirmed Smith’s sentence.

Defendant Smith’s case arose out of a conviction for knowingly possessing a firearm and ammunition, for which he was sentenced to 180 months of imprisonment under the Armed Career Criminal Act. The district court sentenced Smith after ruling that Smith’s prior conviction of fleeing and eluding a police officer was a violent felony. The Eleventh Circuit affirmed Smith’s sentence on appeal. One month after the court’s decision, the Supreme Court held in Descamps that a court may not apply the “modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements,” but instead must look only to the actual elements of the conviction in determining whether a crime is violent under the Armed Career Criminal Act (See Descamps, 133 S. Ct. at 2282).

Because the district court applied the modified categorical approach in determining whether Smith’s prior conviction was a violent felony, the court reviewed Smith’s sentence de novo to determine whether a fleeing and eluding a police officer qualifies as a violent felony under the Armed Career Criminal Act. Smith argues that because an offender could violate Fla. Stat. § 316.1935(2) by fleeing on foot, it would not be a categorically violent crime under the statute. In interpreting the statute, the court referenced many reasons showing that section 316.1935(2) prohibited vehicular flight. Among other explanations, it noted that the location of the statute was in Title XXIII of the Florida Statutes, which regulates “Motor Vehicles,” that punishment for violation of the statute would result in “revocation of the offender’s driver’s license,” and that the standard jury instruction in Florida requires “the prosecution must prove that the offender fled or attempted to elude an officer while operating a motor vehicle.” Florida case law additionally supported that the relevant section prohibited only vehicular flight. Thus, under the categorical approach the violation of the statute in attempting to flee or elude a law enforcement officer would constitute a violent felony.

Alternatively, the court held that a felon attempting to flee and elude a law enforcement officer is categorically a violent felony, whether he fled on foot or in a vehicle.

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