Defendant Melvin Spells was convicted by a jury on three counts stemming from a robbery of a Papa Johns Pizza restaurant. While Spells challenges the sufficiency of the evidence on appeal, the main thrust of this appeal involves Spells’s sentencing. The district court, in sentencing Spells, found that he was an armed career criminal under 18 U.S.C. § 924(e)(1), based on what it deemed to be prior “violent felonies,” as well as a career offender under U.S.S.G. § 4B1.1. Spells was then sentenced to 346 months’ imprisonment — 262 months, concurrent, on Counts 1 and 3, with a consecutive sentence of 84 months on Count 2. In addition to challenging the sufficiency of the evidence, Spells appeals the court’s findings that he was an armed career criminal and a career offender, as well its imposition of a 262 month sentence on Count 1, when the statutory maximum sentence on that Count was 240 months. For the following reasons, we affirm the district court’s judgment on all grounds, except for the 262 month sentence on Count 1, and order a limited remand for the district court to correct this error.
I. Background
On May 9, 2006, a three count indictment was filed against Spells with respect to an alleged robbery of a Papa Johns Pizza on June 13, 2005. The indictment charged Spells with: (1) robbery affecting interstate commerce in violation of 18 U.S.C. § 1951(a); (2) brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and (3) being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). A two day jury trial then commenced on September 25, 2006.
At trial, the jury heard testimony from Larry Jenkins, the employee working at *745 Papa Johns on the day of the robbery. Jenkins testified that at 5:00 PM, a customer came in, wearing a blue shirt and baseball cap, and started talking about sports with him for at least five minutes before ordering a Coke. Jenkins placed the customer’s money in the register and then, when he lifted his head, found that the customer was pointing a black handgun at his chest. The customer demanded the money from the register, but was not satisfied with what Jenkins proceeded to give him. The customer, after demanding more money, put his gun down and reached into the drawer himself. Then the customer ran out the door into a brown colored van, at which point Jenkins called the police. At trial, Jenkins identified the customer as Spells.
A second Papa Johns employee, Gregory Fleetwood, was also present during the robbery and testified at Spells’s trial. At the time of the robbery, Fleetwood was approximately fifteen feet from the counter, cutting pizzas. Fleetwood’s testimony largely corroborated Jenkins account of the events and description of the robber, although Fleetwood believed the gun was silver in color and recalled the entire time the robber was in the restaurant as lasting only about two minutes.
Deputy Paul Ziliak then testified that after hearing a dispatch about the robbery, he spotted a brown van in the parking lot of the strip mall where the robbery occurred and activated his lights and siren. The driver of the van, who Deputy Ziliak identified at trial as Spells, did not stop the van, but instead exited the vehicle shirtless while it was still moving, and was almost struck by the Deputy’s squad car as he ran away. John Mark Archer, a canine officer, testified to receiving a dispatch put out by Ziliak when Spells had fled the van, and apprehending Spells shortly thereafter. Ziliak then testified to what was found in the van — a shirt matching the description given by Jenkins and $107 in cash. Later that evening, when Detective Scott Scheid searched the van, he testified that he found a loaded 9 millimeter handgun underneath the floor mat between the two front seats and live rounds of ammunition in the vehicle.
On the second day of trial, the jury unanimously found Spells guilty on all three counts. The case then proceeded to sentencing on January 17, 2007. The Pre-sentence Investigation Report (“PSR”) and accompanying sentencing recommendation advised that Spells be sentenced to 362 months’ imprisonment. As is relevant to this appeal, the PSR placed Spells’s statutory minimum sentence under Count 3 (felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1)) at 15 years, see 18 U.S.C. § 924(e)(1), rather than a statutory maximum sentence of 10 years, see 18 U.S.C. § 924(a)(2), on the basis of what it deemed to be three prior violent felony convictions under the Armed Career Criminals Act. According to the PSR, these prior convictions also translated to sentencing enhancements under the Guidelines. The PSR recommended that Spells’s offense level be increased from 24 to 32 because, by having at least two prior violent felony convictions, he was a “career offender” under U.S.S.G. § 4B1.1. Additionally, the PSR’s determination that Spells was an “armed career criminal” resulted in Spells’s offense level being increased to 34, under U.S.S.G. § 4B1.4. Spells’s designation as a career offender and armed career criminal also resulted in his criminal history category being placed at VI.
The three prior offenses deemed to be violent felonies in the PSR had been prosecuted in Indiana state court in 2001. The first conviction was for Resisting Law Enforcement, a Class D felony. The PSR *746 relied upon a probable cause affidavit in order to provide details of the crime — that Spells sped away from law enforcement after he was spotted driving without a safety belt and was apprehended after he left the vehicle on foot. Both of the other felonies were robbery convictions prosecuted jointly. One of the robberies occurred on March 26, 2001, and the other occurred on April 10, 2001.
At the sentencing hearing, Spells raised two objections to the PSR. He first objected to his designation as an “armed career criminal,” claiming there was no grand jury determination as to whether his prior convictions arose from separate occasions under 18 U.S.C. § 924(e), but this objection was overruled by the court. Spells’s second objection involved a point of clarification on the resisting law enforcement conviction, and was dropped by Defendant based on the probation officer’s response. Having quickly dismissed Spells’s objections, the district court then, with respect to the Guidelines, “adopt[ed] [the PSR’s] formulation as [his] own.” The court then went on to explain why Spells’s criminal history and total offense level under the Guidelines had been raised. The court detailed that Spells’s criminal history category was increased from IV to VI based on his designation as a “career offender” and an “armed career criminal.” When discussing the “career offender” designation, the district court asked Spells if he understood what that designation meant and if that had been discussed with his attorney, to which Spells responded, ‘Tes.” Similarly, when discussing Spells’s designation as an “armed career criminal,” the district court stated to Spells, “So it’s because of your serious prior convictions that you’ve wound up in this very high criminal history category. Do you understand that?” Spells responded, ‘Tes.” The court then proceeded to look at the § 3558(a) sentencing factors, and ultimately sentenced Spells to a within Guidelines sentence of 262 months, concurrent on Counts 1 and 3, and 84 months on Count 2, running consecutively. This brought Spells’s total sentence to 346 months.
The next week, Spells filed a Motion to Correct Sentence. In the motion, he argued that the district court had erred in sentencing him to 262 months, concurrent on Counts 1 and 3, when the statutory maximum sentence for Count 1 under 18 U.S.C. § 1951(a) was 20 years, or 240 months. The district court denied the motion, adopting the Government’s reasoning in its response, which, referencing U.S.S.G. § 5G1.2(d), claimed that no sentencing error had occurred because Counts 1 and 3 were imposed consecutively. This appeal followed.
II. Discussion
The focus of Spells’s appeal concerns his sentence, where he makes the following claims: (1) that the district court improperly characterized his prior conviction for resisting law enforcement as a “violent felony” for purposes of the Armed Career Criminal Act; (2) that he was improperly designated a “career offender” because his two prior robbery convictions should only be counted as one conviction under U.S.S.G. § 4A1.2; and (3) that the district court erred in sentencing him to a sentence exceeding the statutory maximum on Count 1. Before addressing these sentencing issues, however, we first turn our attention to Spells’s challenge to the sufficiency of the evidence.
A. Sufficiency of the Evidence
Spells faces a “ ‘nearly insurmountable’ hurdle” in challenging the sufficiency of the evidence for his conviction.
United States v. Jong Hi Bek,
In appealing this issue, Spells briefly mentions the disparity between Jenkins’s and Fleetwood’s testimony concerning the length of time the “customer” was in the restaurant, whether a conversation between Jenkins and the “customer” preceded the robbery, and a dispute as to whether the gun was black or silver. The central piece of evidence, however, on which Spells rests his claim, is that in the top front of his mouth, he sports six permanent gold teeth. Spells points out that Jenkins made no mention of this distinctive feature during either his initial report of the robbery or at trial, and argues that this fact, when coupled with other contradictions in Jenkins’s testimony, undermines his eye-witness identification of Spells. Despite its creativity, this “gold tooth” theory fails, since it ultimately does little more than ask this Court to revisit the jury’s credibility determinations regarding Jenkins’s testimony, something this Court will not do. Furthermore, the Government’s case against Spells did not rest solely on Jenkins’s testimony. Fleet-wood corroborated much of Jenkins’s testimony, and the search of Spells’s van turned up further evidence of the crime. For these reasons, Spells’s sufficiency of the evidence challenge fails.
B. Armed Career Criminal
Spells’s appeal is primarily focused on whether his prior conviction for resisting law enforcement constituted a “violent felony,” which led to his designation as an armed career criminal. It is first necessary, however, to determine whether we can properly hear this claim, since the issue was not raised before the district court. The Government argues that Spells has waived this claim, thus precluding review by this Court, while Spells contends that the issue has only been forfeited and is therefore still subject to review for plain error.
See United States v. Harris,
When this claim was first appealed and briefed to this Court, the waiver/forfeiture distinction presented a close question, requiring this Court to determine whether Spells’s failure to object could be seen as part of a sound strategic decision, and thus done intentionally.
Compare United States v. Brodie,
Under the Armed Career Criminal Act, the statutory minimum sentence for a felon convicted of unlawfully possessing a firearm in violation of 18 U.S.C. § 922(g)(1) is increased to fifteen years if the convict has three prior convictions that qualify as “a violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1); compare with 18 U.S.C. § 924(a)(2) (without “armed career criminal” designation, statutory maximum sentence for a violation of 18 U.S.C. § 922(g) is 10 years). The statute, in turn, defines a “violent felony” as:
any crime punishable by imprisonment for a term exceeding one year, ... that—
(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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another,
18 USCS § 924(e)(2)(B) (emphasis added). The issue before this Court is whether Spells’s prior conviction in Indiana state court for Resisting Law Enforcement, a Class D felony, falls within the residual clause in § 924(e)(2)(B)(ii).
Before turning to the substance of whether Spells’s prior conviction constituted a “violent felony,” however, we first note the procedures courts are to follow in making this determination. In evaluating whether a crime constitutes a “violent felony,” courts are instructed to examine “the crime of conviction, not the defendant’s actual conduct or the details of the proceedings in state court.”
United States v. Perkins,
In this case, the Indiana statute for Resisting Law Enforcement that Spells was convicted under is a divisible statute. The law first provides the elements for the misdemeanor offense of resisting law enforcement:
(a) A person who knowingly or intentionally:
(1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer’s duties;
(2) forcibly resists, obstructs, or interferes with the authorized service or execution of a civil or criminal process or order of a court; or
(3) flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer’s siren or emergency lights, identified himself or herself and ordered the person to stop;
commits resisting law enforcement, a Class A misdemeanor, except as provided in subsection (b).
Ind.Code § 35-44-3-3(a). The statute then goes on to provide the circumstances under which the offense becomes a Class D felony:
(b) The offense under subsection (a) is a:
(1) Class D felony if:
(A) the offense is described in subsection (a)(3) and the person uses a vehicle to commit the offense; or
(B) while committing any offense described in subsection (a), the person draws or uses a deadly weapon, inflicts bodily injury on or otherwise *750 causes bodily injury to another person, or operates a vehicle in a manner that creates a substantial risk of bodily injury to another person;
Ind.Code § 35 — 44—3—3(b). Spells claims that the district court failed to properly determine which subsection of this statute he was convicted under. Whether such a procedural violation occurred is only of significance if certain Class D felony violations of Indiana’s Resisting Law Enforcement offense would not constitute a “violent felony.”
See United States v. Thigpen,
The substantive question, then, for this Court to address, is whether fleeing a law enforcement officer, in a vehicle, qualifies as a “violent felony” under the residual clause found in 18 USCS § 924(e)(2)(B)(ii) of the Armed Career Criminal Act, which applies to:
any crime punishable by imprisonment for a term exceeding one year, ... that—
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another;
18 USCS § 924(e)(2)(B) (emphasis added). In focusing upon this residual clause, the Supreme Court had previously instructed courts to determine “whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.”
James v. United States,
— U.S. —,
In
Howze,
this Court focused its inquiry-on the “serious potential risk of physical injury to another,” characterizing the
Bryant
decision as reflecting a conclusion that escape from custody “holds the potential for violence during attempted recaptures,” and observing with respect to flight in a vehicle, that “Collisions between fleeing vehicles and pedestrians or others who get in the way are common.”
Id.
The reasoning in
Howze,
particularly when coupled with
Bryant’s
holding that “every escape involves ‘a serious potential risk of physical injury to another,’ ”
Bryant,
At issue in
Begay
was whether New Mexico’s DUI statute, which made it “unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state,” N.M. Stat. § 66-8-102(A), or for “a person to drive a vehicle in this state if the person has an alcohol concentration of eight one hundredths or more in the person’s blood or breath within three hours of driving the vehicle and the alcohol concentration results from alcohol consumed before or while driving the vehicle,” N.M. STAT. § 66-8-102(B), fell under the residual clause in 18 U.S.C. § 924(e)(2)(B)(ii).
Begay,
The question for this Court, then, is whether fleeing an officer in a vehicle is sufficiently similar to burglary, arson, extortion, or the use of explosives, to constitute a “violent felony.” The Court’s reasoning in distinguishing DUI from the enumerated offenses in clause (ii) guides our inquiry in this case. In
Begay,
the Court noted that all the listed offenses “typically involve purposeful, ‘violent,’ and ‘aggressive’ conduct.”
Id.
at 1586 (citing
United States v. Begay,
*752
Based on the Court’s reasoning, we find that fleeing an officer, in a vehicle, in violation of Ind.Code § 35 — 44^-3—3(b)(1)(A), constitutes a “violent felony.” That offense criminalizes using a vehicle to “knowingly or intentionally ... flee[ ] from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer’s siren or emergency lights, identified himself or herself and ordered the person to stop.” IND.Code § 35-44-3-3(b)(1)(A); § 35-44-3-3(a)(3). The primary distinction the Supreme Court relied upon to distinguish drunk driving from the enumerated crimes in § 924(e)(2) (B) (ii) — the strict liability nature of DUI — does not exist with respect to Indiana’s fleeing statute. The Indiana law specifically provides that the flight must be done “knowingly or intentionally,” thus ensuring that the law is only violated when an individual makes a “purposeful” decision to flee from an officer. Additionally, such conduct, when committed with a vehicle, is inherently “aggressive,” despite Indiana law’s absence of a requirement that the conduct endanger others.
Compare
Ind.Code § 35-44-3-3(b)(l)(A),
with
wis. Stat. § 346.04(3) (requiring that the flight include “willful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle, or the traffic officer or other vehicles or pedestrians”). Taking flight calls the officer to give chase, and aside from any accompanying risk to pedestrians and other motorists, such flight dares the officer to needlessly endanger himself in pursuit. Moreover, the inquiry in
Begay
ultimately sought to determine whether the prior conviction made it more likely that the “offender is the kind of person who might deliberately point the gun and pull the trigger.”
Begay,
C. Career Offender Designation
Spells also argues that the district court improperly found him to be a “career offender” under the Guidelines. U.S.S.G. § 4B1.1. A defendant is designated 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.
U.S.S.G. § 4Bl.l(a). Spells does not contest that his “instant offense of conviction” or his prior convictions for robbery under Indiana law constituted “crimes of violence.” Instead, he argues that because his two robbery convictions were consolidated for sentencing, they were “related,” and thus should only be counted as a single prior conviction. See U.S.S.G. § 4B1.2(c) (stating that the “two prior felony convictions” needed to be designated a “career offender,” must be offenses counted separately under the terms of § 4Al.l(a), (b), or (c)).
The Government claims that Spells has waived this argument by failing to raise it before the district court. Even if we were to deem this claim only forfeited, however, and subject to review for plain error,
United States v. Harris,
D. 262 Month, Concurrent Sentence on Counts 1 and 3
Spells’s final claim is that the district court erred in sentencing him to “262 months, concurrent” on Counts 1 and 3, since the statutory maximum sentence for Count 1, robbery in violation of 18 U.S.C. § 1951(a), was 240 months. 18 U.S.C. § 1951(a) (violators of this statute “shall be ... imprisoned not more than twenty years”). The Government, in response to Spells’s Motion to Correct Sentence below, noted that Count 3 carried a statutory maximum sentence of life imprisonment, and then relied upon U.S.S.G. § 5G1.2(d) for the proposition that, in fact, “the [district] Court did not err in sentencing because the sentences were imposed consecutively.” The district court then denied Spells’s motion, stating that the Government’s response brief “reflected] the Court’s reasoning in structuring the sentence as imposed.” We review this application of the Guidelines
de novo. United States v. Samuels,
Despite the fact that this sentencing error is little more than a minor technicality, a limited remand is required in this case. The Guidelines recommended a sentence of 262-327 months on Counts 1 and 3, plus an 84 month consecutive sentence for Count 2. The district court chose to impose a sentence at the low end of the Guidelines. The 262 month sentence on Count 3 is unproblematic, since as an armed career criminal, the statutory maximum sentence for Spells’s violation of 18 U.S.C. § 922(g) was life imprisonment. 18 U.S.C. § 924(e)(1). On Count 1, however, 240 months imprisonment was the statutory maximum sentence that could be imposed, as Spells noted below.
In responding to Spells’s Motion to Correct Sentence, the Government, and subsequently the district court, incorrectly relied upon U.S.S.G. § 5G1.2(d) to explain the sentence. That provision states:
If the sentence imposed on the count carrying the highest statutory maximum is less than the total punishment, then the sentence imposed on one or more of the other counts shall run consecutively, but only to the extent necessary to produce a combined sentence equal to the total punishment. In all other respects, sentences on all counts shall run concurrently, except to the extent otherwise required by law.
U.S.S.G. § 5G1.2(d) (emphasis added). This first clause of this Guidelines provision reflects that it only applies when the recommended sentence under the Guidelines
exceeds
the highest statutory maximum.
See, e.g., United States v. Hernandez,
Instead, U.S.S.G. § 5G1.2(c) explains that, “[i]f the sentence imposed on the count carrying the highest statutory maximum is adequate to achieve the total punishment, then the sentences on all counts shall run concurrently, except to the extent otherwise required by law.” This is the provision applicable here, since the statutory maximum sentence of life imprisonment under Count 3 covers the Guidelines recommended sentence of 262 months on Counts 1 and 3. 5 On appeal, the Government has apparently conceded that this is the proper approach, now arguing that “[t]he [district] court effectively sentenced Spells to 240 months on Count One and 262 months on Count Three to run concurrently.” A limited remand is necessary to allow the district court to clarify for the record if this is, in fact, what it “effectively” sought to do at sentencing.
III. Conclusion
For the foregoing reasons, we Affirm the judgment of the district court in all respects, except for the district court’s sentence of 262 months concurrent on Counts 1 and 3, and order a limited Remand for the district court to clarify this sentence in accord with the statutory maximum of 240 months on Count 1.
Notes
. This Court treats "the career offender guideline and the Armed Career Criminal Act as ‘interchangeable.’ ”
United States v. Rosas,
. In Howze, the defendant pled guilty to violating Wis. Stat. § 346.04(3), which read:
No operator of a vehicle, after having received a visual or audible signal from a traffic officer, or marked police vehicle, shall knowingly flee or attempt to elude any traffic officer by willful or wanton disregard of such signal so as to interfere with or endanger the operation of the police vehicle, or the traffic officer or other vehicles or pedestrians, nor shall the operator increase the speed of the operator’s vehicle or extinguish the lights of the vehicle in an attempt to elude or flee.
United States v. Howze,
. The survey compiled a table regarding the “Extent of firearm use during current offense for State and Federal prison inmates possessing a firearm, 1997.” Bureau of Justice Statistics, U.S. Department of Justice, Survey of Inmates in State and Federal Correctional Facilities: Firearm Use by Offenders 11, Table 14 (Nov.2001), http://www.ojp.usdoj.gov/bjs/pub/ pdi/fuo.pdf. According to the survey, 73.2% of state inmates, and 46.2% of federal inmates had “brandished” or "displayed” their firearm. Id. Additionally, 18.9% of all state inmates convicted of possessing a firearm had brandished or displayed the weapon to "get away,” compared with 11.6% of all federal inmates. Id. This means that of those state inmates who had brandished or displayed their firearm, 25.8% had done so to “get away,” compared with 25.1% of federal inmates. Offenders characterized as brandishing or displaying a firearm also may have “discharged” the weapon to "get away,” see id. ("Percents of subtotals do not add to totals because inmates may have used a firearm in more than one way.”), but the data provided did not offer a way to compute that figure.
. Because we have determined that Ind.Code § 35 — 44—3—3(b)(1)(A) is a "violent felony,” and Spells does not contest that designation’s applicability to § 35-44-3-3(b)(l)(B), it was unnecessary for the district court to examine which portion of Indiana’s "divisible” statute for Class D felonies Spells was convicted under. Therefore, we need not determine whether the district court impermissibly consulted materials beyond those approved by the Supreme Court in Shepard.
Spells also contends that finding general flight statutes to fall under § 924(e)(2)(B)(ii)’s residual clause raises certain constitutional concerns. In his initial brief to this Court, Spells argued that issues regarding separation-of-powers and the void-for-vagueness doctrine arose from the lack of a requirement that crimes falling under the residual clause in § 924(e)(2)(B)(ii) bear a relationship to the enumerated offenses in that subsection.
Be-gay,
although not addressing these constitutional matters, held that a nexus needed to exist between the enumerated and residual crimes, thus providing the general analytic framework Spells sought. Spells also raises an
Apprendi
challenge, arguing that the Sixth Amendment requires that a jury determine whether his prior conviction involved the requisite "serious potential risk of physical injury” to constitute a "violent felony.” This Court, however, has repeatedly rejected such claims, in light of the Supreme Court’s decision in
Almendarez-Torres v. United States,
. The Comments to the Guidelines explain this in more detail:
Usually, at least one of the counts will have a statutory maximum adequate to permit imposition of the total punishment as the sentence on that count. The sentence on each of the other counts will then be set at the lesser of the total punishment and the applicable statutory maximum, and be made to run concurrently with all or part of the longest sentence. If no count carries an adequate statutory maximum, consecutive sentences are to be imposed to the extent necessary to achieve the total punishment.
U.S.S.G. § 5G1.2 cmt. 1.