Submitted November 16, 2015
Appeal from United States District Court for the Western District of Missouri - Kansas City.
For United States of America, Plaintiff - Appellee: Jess E. Michaelsen, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Kansas City, MO.
Leonard S. Ellis, Defendant - Appellant, Pro se, Atlanta, GA.
For Leonard S. Ellis, Defendant - Appellant: Ronna Ann Holloman-Hughes, Assistant Federal Public Defender, FEDERAL PUBLIC DEFENDER'S OFFICE, Kansas City, MO.
Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges. SHEPHERD, Circuit Judge, dissenting in part.
COLLOTON, Circuit Judge.
Leonard Ellis pleaded guilty to unlawful possession of a firearm as a previously convicted felon, in violation of 18 U.S.C. § § 922(g)(1) and 924(a)(2). The district court sentenced him to sixty-one months' imprisonment. Ellis reiterates on appeal a claim of procedural error at sentencing that was rejected by the district court. He also advances two new challenges to the sentence that are raised for the first time in this court. We conclude that the district court ruled correctly on the first argument, and that neither of the forfeited arguments establishes a plain error warranting relief. We therefore affirm the judgment.
At sentencing, the district court calculated an advisory sentencing range for Ellis. Under U.S.S.G. § 2K2.1, the base offense level for an offender convicted as a felon in possession of a firearm depends in part on his criminal history. If Ellis sustained a prior felony conviction for a crime of violence, then his base offense level is 20. Without a prior conviction for a crime of violence, his base offense level would be 14. The district court found that Ellis's prior felony conviction for resisting arrest by fleeing, in violation of Mo. Rev. Stat. § 575.150, was a " crime of violence" within the meaning of U.S.S.G. § 4B1.2(a) and applied the higher offense level. Given a base offense level of 20, a three-level reduction for acceptance of responsibility, and a criminal history category of VI, the court determined an advisory sentencing range of 51 to 63 months' imprisonment. After considering the factors set forth in 18 U.S.C. § 3553(a), the court sentenced Ellis to 61 months.
Ellis objected to the district court's finding on the ground that his prior offense of conviction for resisting arrest by fleeing in Missouri is not categorically a crime of violence. The district court relied on the residual clause of § 4B1.2(a)(2), which defines " crime of violence" to include any offense that " otherwise involves conduct that presents a serious potential risk of physical injury to another." Ellis contends that a person can violate § 575.150 by " fleeing from [an] officer," and that some violations--such as merely fleeing on foot--would not present a sufficient risk of injury to be crimes of violence.
In United States v. Hudson, 577 F.3d 883 (8th Cir. 2009), however, this court held that a felony violation of § 575.150 is categorically a crime of violence. Because one
element of a felony violation requires proof that the defendant's flight created a " substantial risk of serious physical injury," we concluded that the offense necessarily " presents a serious potential risk of physical injury to another" within the meaning of § 4B1.2(a)(2). Id. at 885-86; accord United States v. Hollis, 447 F.3d 1053, 1054-55 (8th Cir. 2006) (per curiam). Any flight that does not present a substantial risk of serious injury constitutes only a misdemeanor under the ...