Swimming against the tide: the Eighth Circuit holds that fleeing a police officer in a motor vehicle is not a crime of violence.

• Author: Walsch, Nichole
• Position: Case note

United States v. Tyler, 580 F.3d 722 (8th Cir. 2009).

1. INTRODUCTION

   In 2009, the U.S. Court of Appeals for the Eighth Circuit held that the Minnesota offense of fleeing a peace officer in a motor vehicle is not a "crime of violence" for the purposes of the Federal Sentencing Guidelines. (1) Under the Federal Sentencing Guidelines (Sentencing Guidelines), a crime of violence is defined as any state or federal offense "punishable by imprisonment for a term exceeding one year" that involves the use of physical force against another person or that "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." (2) If the offender has two prior convictions for crimes of violence or controlled substances offenses, the court may consider the defendant a "career offender," (3) which could result in a much stiffer sentence. (4)

   The Eighth Circuit's holding that fleeing a peace officer in a motor vehicle is not a crime of violence is the minority position among circuits that have considered the issue. (5) Despite the overwhelming opposition to the Eighth Circuit's position, this Note argues that the Eighth Circuit reached the correct conclusion because the crime of fleeing an officer does not always present a serious risk of physical harm to others and because fleeing is not an inherently aggressive or violent act. Unfortunately, the court's focus on Minnesota's statutory language makes the United States v. Tyler decision of limited precedential value when interpreting the statutes of other states. Each state within the Eighth Circuit, including Missouri, has different statutory language that could lead courts to an opposite outcome. Such uncertainty makes it difficult for state court judges and attorneys to know when a defendant should be labeled as a career offender based on a conviction for fleeing a police officer in a motor vehicle. Therefore, the Eighth Circuit's focus on Minnesota's statutory language has the potential to create vast sentencing inequalities among defendants who commit similar crimes in different states. This disparity seems highly unfair and completely at odds with the purpose of the Sentencing Guidelines, which is to create uniform sentencing and to curtail judicial discretion. (6)

2. FACTS AND HOLDING

   Minnesota resident Gregory Scott Tyler had an unfortunate history of criminal activity. Tyler was convicted of fleeing a peace officer in a motor vehicle in June of 1998. (7) Officers conducted a routine traffic stop after they observed Tyler "driving a vehicle owned by an individual with an outstanding gross misdemeanor warrant and a revoked driving status." (8) Tyler drove off when the officers approached the vehicle, and the officers pursued. (9) During the pursuit, Tyler "dr[ove] at excessive speeds" and "failed to adhere to traffic signals and lights." (10) After losing control of the vehicle, Tyler skidded into a steel cemetery gate. (11) He then fled on foot and was apprehended by the police a short time later. (12) In addition to the 1998 conviction for fleeing a peace officer, Tyler also was convicted in 2000 of one count of first degree robbery and three counts of second degree robbery. (13) Then, Tyler pled guilty to one count of bank robbery under 18 U.S.C. [section] 2113(a) in February 2008.14

   There was no dispute in this case that bank robbery was a crime of violence or that Tyler's prior robbery convictions were also crimes of violence. (15) However, the presentence investigation report (PSR) (16) prepared prior to Tyler's sentencing hearing also classified his Minnesota conviction for fleeing a peace officer in a motor vehicle as a crime of violence. (17) On the basis of his prior convictions for fleeing a peace officer and burglary, the PSR "recommended that Tyler be sentenced as a career offender." (18) Tyler objected to his classification as a career offender on the ground that his underlying conviction for fleeing a peace office in a motor vehicle did not qualify as a crime of violence. (19)

   Despite Tyler's objection to the PSR, the district court determined that his prior conviction for fleeing a peace officer was a crime of violence. (20) The district court concluded that fleeing a peace officer involves "purposeful[,] violent[,] and aggressive conduct" because someone who is "willing to disregard or elude a peace officer who has told [him] to stop" is putting "anybody in close proximity in danger and it's an intentional, purposeful act." (21) After classifying Tyler as a career offender, the district court determined that his offense level was twenty-nine (22) and that he had a criminal history category of VI.23 Based on this determination, the district court concluded that the advisory sentencing range for Tyler's offense was between 151 and 188 months. (24) The district court stated that it would have sentenced Tyler to 170 months; however, the government moved for downward departure based on his "substantial assistance" to authorities. (25) The district court ultimately imposed a sentence of 120 months. (26)

   Tyler appealed his sentence, and the sole issue on appeal to the Eighth Circuit was whether a crime of violence includes fleeing a police officer in a motor vehicle under Minnesota's statutory definition of the crime. (27) The Eighth Circuit concluded, based on the statutory elements of the offense, that "Minnesota's crime of fleeing a peace officer in a motor vehicle does not constitute a 'crime of violence' under the Sentencing Guidelines" because the offense typically does not involve conduct that presents "a serious risk of physical injury to another or ... that is violent and aggressive." (28)

   The Eighth Circuit then held that the district court made a significant procedural error by designating Tyler a career offender and calculating his offense level and Sentencing Guidelines range according to that erroneous status. (29) Despite the fact that the district court actually sentenced Tyler below the improperly calculated range, the Eighth Circuit found that it could not determine what his sentence would have been if calculated correctly. (30) Therefore, because the court could not say that the error in calculation was harmless to Tyler, it vacated his sentence and remanded the matter for resentencing. (31)

3. LEGAL BACKGROUND

   1. Statutory Provisions of the Sentencing Guidelines and ACCA

      The Federal Sentencing Guidelines define a crime of violence as a state or federal offense, punishable by more than one year of imprisonment, that involves the use of physical force against another person or that "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." (32) Based on that definition, the Sentencing Guidelines label a defendant a career offender if

      (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. (33)

      Similarly, the Armed Career Criminals Act (ACCA) defines a "violent felony" as a "crime punishable by imprisonment for a term exceeding one year" that also either "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." (34) The ACCA imposes a fifteen-year mandatory prison term on an individual convicted of being a felon in possession of a firearm if that individual has "three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another." (35)

      Most of the applicable precedent cited by the Eighth Circuit in Tyler addresses the ACCA, which defines the term violent felony similarly to the Sentencing Guidelines' definition of crime of violence. The court noted that the two definitions are virtually identical, and therefore it is appropriate to apply the same test to both terms. (36) Other circuits appear to be in agreement that the definitions are nearly identical and that precedent regarding both provisions is interchangeable. (37)

   2. Supreme Court Decisions

      One of the foundational cases in interpreting the ACCA is Taylor v. United States, in which the United States Supreme Court determined how crimes enumerated in the ACCA should be defined. (38) Taylor claimed that his Missouri convictions for second-degree burglary did not present a risk of physical injury and therefore should not have counted as violent felonies for the purpose of enhancing his sentence. (39) Based on the legislative history and the express listing of burglary as a violent felony, the Court concluded that Congress intended the ACCA to apply to all burglaries, regardless of whether the specific circumstances presented a risk of physical injury. (40) The Court reasoned that if Congress had intended the ACCA to apply only to those burglaries that created a risk of physical injury, then it would not have enumerated the applicable crimes because dangerous burglaries already would have been covered by the residual clause. (41) The Court held that an offense constitutes burglary for purposes of the ACCA, regardless of its exact statutory (42) definition or label, as long as it contains the generic elements of burglary. The Court also held that sentencing courts should apply a formal categorical approach to the ACCA; thus, sentencing courts should look only to the statutory definitions of the prior offenses without considering the particular facts...