In the United States Court of Appeals For the Seventh Circuit
February 27, 2009; withdrawn March 2, 2009
UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
CHARLES T. DUNSON, DEFENDANT-APPELLANT.
Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:06-cr-0147-T/F-01-John Daniel Tinder, Judge.
SUBMITTED FEBRUARY 18, 2009
Before BAUER, RIPPLE, and KANNE, Circuit Judges.
Charles Dunson pleaded guilty to possessing a firearm as a felon. See 18 U.S.C. § 922(g)(1). The district court, over Dunson's objection, set a base offense level of 24 on the assumption that his prior Indiana conviction for fleeing a police officer in a vehicle, see IND. CODE §§ 35-44-3-3(a)(3), (b)(1)(A), is a conviction for a "crime of violence," see U.S.S.G. §§ 2K2.1(a)(2) & cmt. n.1, 4B1.2(a). The court sentenced Dunson to 110 months' imprisonment, below the guidelines range. Dunson now appeals.
Shortly after Dunson filed this appeal, we held in United States v. Spells, 537 F.3d 743, 752 (7th Cir. 2008), that the Indiana crime at issue is a "violent felony" for purposes of the Armed Career Criminal Act, see 18 U.S.C. §§ 924(e)(1), (2)(B)(ii). "Taking flight calls the officer to give chase," we reasoned, and "dares the officer to needlessly endanger himself in pursuit." Spells, 537 F.3d at 752. Our decision was informed by Begay v. United States, 128 S. Ct. 1581 (2008), and is not undermined by the Supreme Court's most recent application of Begay, see Chambers v. United States, 129 S. Ct. 687 (2009) (holding that passively failing to report for service of a criminal sentence is not a "violent felony"). Although Dunson was not sentenced as an armed career criminal, we interpret "violent felony" as used in § 2K2.1 the same way as "crime of violence" in § 924(e). See, e.g., United States v. Templeton, 543 F.3d 378, 380 (7th Cir. 2008). The district court thus properly classified Dunson's prior conviction for fleeing a police officer in a vehicle as a crime of violence.
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