United States v. Houston, 471 F. App'x 308

Holston pleaded guilty to conspiracy to possess with intent to distribute at least 1,000 kilograms of marijuana (count 1) and conspiracy to launder money (count 3).
The district court enhanced his sentence under the career offender Guideline, U.S.S.G. § 4B1.1, based on at least two prior qualifying felonies.
Holston was sentenced to 262 months for count 1 and 240 months for count 3, with five years of supervised release for count 1 and three years for count 3, running concurrently.
Holston challenges his sentence, arguing his 2003 Texas offense of evading arrest or detention using a vehicle (§ 38.04) was not a crime of violence.
The Government moves for summary affirmance, or in the alternative, for an extension of time to file a brief.
The court reviews the district court’s interpretation or application of the Guidelines de novo and relies on § 4B1.2(a)(2) defining crime of violence.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §38.04(b)(1) is a crime of violence under §4B1.2(a)(2).	Harrimon controls; fleeing by vehicle poses serious risk, so it is a crime of violence.	Holston argues the decision should be based on actual conduct and that Harrimon may be incorrect.	Harrimon forecloses Holston; the offense is a crime of violence.

United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009) (fleeing by vehicle constitutes a violent felony under ACCA and, by extension, §4B1.2(a)(2))
United States v. Moore, 635 F.3d 774 (5th Cir. 2011) (treats ACCA and §4B1.2 similarly; reaffirmation of approach)
Burge v. Parish of St. Tammany, 187 F.3d 452 (5th Cir. 1999) (panel cannot overrule prior panel decisions absent en banc or Supreme Court change)
Sykes v. United States, 131 S. Ct. 2267 (Supreme Court 2011) (discusses limitations on open questions about violent felonies when penalties depend on risk)
United States v. Cisneros-Gutierrez, 517 F.3d 751 (5th Cir. 2008) (standard of review for Guidelines interpretations is de novo)