U.S. v. McGill, CRIM.A. 1:03CR283-T.

• Decision Date: 15 December 2004
• Docket Number: No. CRIM.A. 1:03CR283-T.,CRIM.A. 1:03CR283-T.
• Citation: 347 F.Supp.2d 1210
• Parties: UNITED STATES of America v. Russell Kim McGILL
• Court: U.S. District Court — Middle District of Alabama

347 F.Supp.2d 1210

UNITED STATES of America v. Russell Kim McGILL

No. CRIM.A. 1:03CR283-T.

United States District Court, M.D. Alabama, Southern Division.

December 15, 2004.

Joseph P. Van Heest, Attorney at Law, Montgomery, AL, for Defendant.

Kent B. Brunson, U.S. Attorney's Office, Montgomery, AL, for Plaintiff.

ORDER

MYRON H. THOMPSON, District Judge.

In this criminal case, the court is presented with several issues regarding the defendant's Presentence Investigation Report, including whether an Alabama felony conviction for driving under the influence of alcohol (DUI) constitutes a crime of violence under § 4B1.2 of the United States Sentencing Guidelines.

I.

Defendant Russell Kim McGill has been convicted of driving under the influence of alcohol in the State of Alabama several times, including two felony DUI convictions on April 9, 1995, and April 14, 1999. On February 11, 2003, law enforcement officers arrested him at his residence in Enterprise, Alabama, after they observed him removing a plastic container containing a substance that appeared to be methamphetamine from his pants pocket. Upon his arrest, the officers obtained both McGill's consent as well as a warrant to search his home, and found three operable shotguns in an "entertainment room" in his residence. McGill was subsequently charged with one count of being a felon in possession of a firearm, in violation of 18 U.S.C.A. § 922(g)(1).¹ He pled guilty to this offense on July 27, 2004, in a written plea agreement pursuant to Fed.R.Crim.P. 11(c)(1)(B).

McGill has two objections to the United States Probation Officer's calculation of his sentence under the Sentencing Guidelines. First, he objects to the probation officer's calculation of his base offense level as 24 pursuant to U.S.S.G. § 2K2.1(a)(2), based on the determination that he has sustained two prior felony convictions for a "crime of violence." McGill argues that his two felony DUI convictions do not qualify as "crimes of violence" under the Guidelines and that, therefore, his base offense level should instead be a 14, according to § 2K2.1(a)(6).

McGill's second objection is dependent on his first. He contends that because his two prior felony DUI convictions are not crimes of violence, his base offense level should be further reduced to a level six under U.S.S.G. § 2K2.1(b)(2), because his firearms were possessed solely for lawful sporting purposes.

For the reasons that follow, McGill's objections will be overruled.

A.

Section 2K2.1 of the Guidelines assigns base offense levels for various firearms possession offenses, including 18 U.S.C.A. § 922(g)(1). Subsection (a)(2) of § 2K2.1 states that a defendant's base offense level should be 24 "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of ... a crime of violence." According to Application Note 1 of the Commentary to § 2K2.1, "`crime of violence' has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2."

Section 4B1.2(a)(2), in turn, states that, "The term `crime of violence' means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... otherwise involves conduct that presents a serious potential risk of physical injury to another." Application Note 1 to § 4B1.2(a)(2) similarly provides that, "Other offenses are included as `crimes of violence' if ... the conduct set forth (i.e. expressly charged) in the count of which the defendant was convicted by its nature, presented a serious potential risk of physical injury to another."

Under Alabama law, 1975 Ala.Code § 32-5A-191(a)(2) & (h), DUI is a misdemeanor offense until a fourth or subsequent conviction, at which point it becomes a Class C felony punishable by imprisonment of not less than one year and one day.² McGill is a repeat DUI offender; he has sustained a total of five DUI convictions, the last two of which were felony convictions.³ The issue is thus whether the two felony DUI offenses committed by McGill in violation of Alabama law constitute "crimes of violence" such that, by their nature, they presented a serious potential risk of physical injury to another.

i.

In United States v. Rubio, 317 F.3d 1240 (11th Cir.2003), the Eleventh Circuit Court of Appeals held that a prior conviction for DUI causing serious bodily harm was a "crime of violence" within the meaning of § 4B1.2. In reaching this conclusion, the court relied heavily on its prior ruling in Le v. U.S. Atty. Gen., 196 F.3d 1352 (11th Cir.1999), in which it held that a conviction for DUI causing serious bodily injury was a "crime of violence" under 8 U.S.C.A. § 1101(a)(43)(F) (§ 101(a)(43)(F) of the Immigration and Naturalization Act ("INA")) and was therefore a ground for deportation.⁴ The court thus concluded in Rubio, "Based on our holding in Le, and the substantial similarity of the definition of `crime of violence' under the INA and the sentencing guidelines, we find that the offense of DUI causing serious bodily injury is a crime of violence under the sentencing guidelines." 317 F.3d at 1243.

On November 9, 2004, the United States Supreme Court expressly overruled Le in Leocal v. Ashcroft, 543 U.S. ___, 125 S.Ct. 377, ___ L.Ed.2d ___ (2004), holding that state DUI offenses which do not have a mens rea component, or require only a showing of negligence in the operation of a vehicle, do not qualify as "crimes of violence" warranting deportation under the INA. 543 U.S. at ___, 125 S.Ct. at 380.

The holding in Leocal is based largely on the specific language of the definitional statute, 18 U.S.C.A. § 16. Most relevant to McGill's case, the Court concluded that a conviction of DUI causing serious bodily injury does not qualify as a crime of violence under § 16(b) because the statute requires there to be a "substantial risk" that physical force might be actively "used" against another in the course of committing the offense. The Court reasoned that the statute does not apply to all conduct from which there is simply a substantial risk that harm will result; rather, § 16(b) relates "to the risk that the use of physical force against another might be required in committing a crime." 543 U.S. at ___, 125 S.Ct. at 383 (emphasis added).

In footnote seven of the opinion, the Court explicitly distinguished the Sentencing Guidelines' definition of "crime of violence," as used in § 4B1.2, from the definition contained in 18 U.S.C.A. § 16:

"Compare § 16(b) (requiring a `substantial risk that physical force against the person or property of another may be used'), with United States Sentencing Commission, Guidelines Manual § 4B1.2(a)(2)(Nov.2003) (in the context of a career offender sentencing enhancement, defining "crime of violence" as meaning, inter alia, `conduct that presents a serious potential risk of physical injury to another'). The risk that an accident may occur when an individual drives while intoxicated is simply not the same thing as the risk that the individual may `use' physical force against another in committing the DUI offense."

543 U.S. at ___, 125 S.Ct. 383, n. 7. Thus, the footnote all but states that the Court's holding in Leocal in no way implicates the § 4B1.2 definition of "crime of violence."

Based on the Supreme Court's reasoning in Leocal, this court concludes that the linguistic distinction between "a substantial risk that physical force against the person or property of another may be used," as provided in 18 U.S.C.A. § 16(b) (emphasis added), and "conduct that presents a serious potential risk of physical injury to another," as stated in U.S.S.G. § 4B1.2 (emphasis added), is significant. The § 16(b) definition of "crime of violence" employs both the words "force" and "used," which connote action and intent. In contrast, § 4B1.2 discusses a "crime of violence" in terms of conduct that merely "presents" a risk of "injury," which is more passive language suggesting that even negligent or reckless conduct likely qualifies.

The fact that in Rubio the Eleventh Circuit relied almost exclusively on Le and what it deemed to be "substantial similarities" between the § 16 and § 4B1.2 "crime of violence" definitions in Rubio does not change this analysis. First, the Supreme Court's explicit distinction between the two definitions in footnote seven of Leocal is sufficient to negate any previously perceived similarities by the Eleventh Circuit. Furthermore, a number of other circuit courts have held that various forms of DUI are "crimes of violence" under U.S.S.G. § 4B1.2 without relying by analogy on 18 U.S.C.A. § 16. See, e.g., United States v. Rutherford, 54 F.3d 370 (7th Cir.1995) (DUI causing serious injury); United States v. Jernigan, 257 F.3d 865, 866 (8th Cir.2001) (negligent homicide while driving under the influence); United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir.2000) (three convictions for misdemeanor DUI offenses); United States v. Farnsworth, 92 F.3d 1001, 1008-09 (10th Cir.1996) (killing a human being while driving under the influence).⁵ The Leocal decision does nothing to undermine the reasoning of these cases.

Nor does it matter that the DUI offenses committed by McGill did not result in bodily injury. While many of the circuits that have addressed the issue have done so in the context of determining whether a DUI causing some form of serious bodily injury is a "crime of violence" under § 4B1.2(a)(2), the cases make clear that it is the nature of the act of drunk driving itself, rather than any potential result that flows from the act, that renders felony DUI a "crime of violence" under the Sentencing Guidelines. As the Seventh Circuit explained in Rutherford, "To say that [the defendant's] conduct created a serious risk of injury because he in fact injured another person is nonsensical." 54 F.3d at 376. "Drunk driving is a reckless act, perhaps an act of gross recklessness. Any drunk...