U.S. v. McCall

• Citation: 439 F.3d 967
• Decision Date: 15 March 2006
• Docket Number: No. 04-1143.,04-1143.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Jerome McCALL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

439 F.3d 967

UNITED STATES of America, Plaintiff-Appellee, v. Timothy Jerome McCALL, Defendant-Appellant.

No. 04-1143.

United States Court of Appeals, Eighth Circuit.

Submitted: September 14, 2005.

Filed: March 15, 2006.

Counsel who presented argument on behalf of the appellant was Felicia A. Jones of St. Louis, MO.

Counsel who presented argument on behalf of the appellee was Keith D. Sorrell, AUSA, of Cape Girardeau, MO.

Before LOKEN, Chief Judge, LAY, WOLLMAN, ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, and BENTON, Circuit Judges, en banc.

LOKEN, Chief Judge.

Timothy J. McCall pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court imposed the fifteen-year minimum prison sentence mandated by 18 U.S.C. § 924(e)(1) for a § 922(g)(1) offender who has three prior "violent felony" convictions. McCall appeals, arguing that the district court erred in concluding that his three prior felony convictions for driving while intoxicated in Missouri were violent felonies that trigger the § 924(e) enhancement. This issue requires us to construe and apply the definition of "violent felony" found in § 924(e)(2)(B)(ii):

(B) the term "violent felony" means 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 .... (Emphasis added.)

A panel of this court reversed the fifteen-year sentence, United States v. McCall, 397 F.3d 1028 (8th Cir. 2005), concluding that it was bound by a prior panel's decision that felony DWI offenses are not "crimes of violence" under an identically worded "otherwise involves" provision in U.S.S.G. § 4B1.2(a)(2). See United States v. Walker, 393 F.3d 819 (8th Cir. 2005). We granted the government's petition for rehearing en banc to consider de novo whether a felony DWI conviction in Missouri is a violent felony under the "otherwise involves" provision in § 924(e)(2)(B)(ii). We conclude that felony driving while intoxicated is a violent felony. However, because the Missouri felony DWI offense includes non-driving conduct as well, we remand for further sentencing proceedings at which the government may seek to prove that McCall's prior convictions were driving offenses, using the limited universe of evidence permitted by Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

I.

Many decisions of this court and our sister circuits have construed the "otherwise involves" provision in 18 U.S.C. § 924(e)(2)(B)(ii) since the provision was enacted as part of the Armed Career Criminal Act of 1984. The question recurs frequently and has a significant impact on an offender's sentence. The statute was designed to implement an important principle of federal sentencing — violent career criminals who possess firearms should be severely punished. But the legislative history reviewed by the Supreme Court in Taylor, 495 U.S. at 581-90, 110 S.Ct. 2143, demonstrates that Congress struggled to define the types of violent felonies that should trigger the sentence enhancement. Subsection 924(e)(2)(B)(i) used language taken directly from the definition of a "crime of violence" in 18 U.S.C. § 16(a) — a crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another." But subsection 924(e)(2)(B)(ii), which added categories of violent or dangerous property crimes to the universe of violent felonies, used an odd structural amalgam — "is burglary ... or otherwise involves conduct that presents a serious potential risk of physical injury to another." Thus, the first question in construing the "otherwise involves" provision is to determine whether its focus is on the statutory elements of a prior conviction, or on the facts ("conduct") underlying that conviction.

In Taylor, the Supreme Court held that the enumerated crime "burglary" in § 924(e)(2)(B)(ii) means "`burglary' [in] the generic sense in which the term is now used in the criminal codes of most States." 495 U.S. at 598, 110 S.Ct. 2143. To determine whether a defendant's prior conviction was for generic burglary, and therefore was a violent felony, the Court adopted a "formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions." Id. at 600, 110 S.Ct. 2143.

The language of the first operative clause in § 924(e)(2)(B)(ii) — "is burglary, arson, or extortion" — almost commands use of a formal categorical approach in determining what offenses are included within these enumerated crimes. But the language of the provision here at issue — "otherwise involves conduct" — suggests that the facts underlying a particular offense may be relevant. The Supreme Court did not answer this question in Taylor, see 495 U.S. at 600 n. 9, 110 S.Ct. 2143, and our prior panel opinions have been inconsistent. Compare United States v. Mincks, 409 F.3d 898, 899-900 (8th Cir. 2005) (reviewing only the statutory elements), with United States v. Johnson, 326 F.3d 934, 937 (8th Cir. 2003) (reviewing the underlying facts).

Like our sister circuits, we resolve this troubling ambiguity by adopting the formal categorical approach of Taylor in construing the "otherwise involves" provision in § 924(e)(2)(B)(ii). As the Court noted in Taylor, § 924(e)(1) "refers to `a person who ... has three previous convictions' for — not a person who has committed — three previous violent felonies." 495 U.S. at 600, 110 S.Ct. 2143 (emphasis added). This is textual evidence that the statute "generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense." Id. at 602, 110 S.Ct. 2143. Moreover, a contrary interpretation that focused on the underlying facts would embroil sentencing courts "in an elaborate factfinding process regarding the defendant's prior offenses," Taylor, 495 U.S. at 601, 110 S.Ct. 2143, and might raise serious Sixth Amendment concerns, see Shepard, 125 S.Ct. at 1262-63. Therefore, to determine whether a prior conviction was a violent felony within the meaning of the "otherwise involves" provision in § 924(e)(2)(B)(ii), the sentencing court must first determine whether the elements of that prior crime involved or described conduct that "necessarily entails a serious potential risk of physical injury." United States v. Montgomery, 402 F.3d 482, 488 (5th Cir. 2005).¹

II.

We must next consider the decision in Walker, endorsed by the dissent, that the "otherwise involves" provision should be limited to violent crimes of "active aggression" that are similar to the crimes enumerated in § 924(e)(2)(B)(ii). In reaching this conclusion, the panel in Walker relied on two canons of statutory construction, noscitur a sociis and ejusdem generis; fragments of the legislative history reviewed in greater depth in Taylor; dicta in the First Circuit's decision in United States v. Doe, 960 F.2d 221 (1992); and the Supreme Court's recent interpretation of 18 U.S.C. § 16(b) in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). We conclude that this analysis is unpersuasive.

In Leocal, the Court construed § 16(b), which defines a "crime of violence" as a felony which, "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." The Court held that the plain language of § 16(b), the same language Congress used in § 924(e)(2)(B)(i), limits that statute to "violent, active crimes" because the word "used" incorporates a mens rea component and thus requires that an offender's conduct be more than "merely accidental or negligent." 543 U.S. at 11, 125 S.Ct. 377. By contrast, as the Leocal opinion noted, id. at 10 n. 7, 125 S.Ct. 377, the "otherwise involves" provision in § 924(e)(2)(B)(ii) is not so limited. It focuses on "conduct that presents a serious potential risk of physical injury to another," not on the intent of the offender. See United States v. Sperberg, 432 F.3d 706, 2005 WL 3455832, *2 (7th Cir. Dec. 19, 2005); United States v. Scott, 413 F.3d 839, 840 (8th Cir. 2005). When a statute's plain language is this clear, it is controlling, without regard to contrary hints in the legislative history and without the need to refer to the canons of noscitur a sociis and ejusdem generis. See United States v. Vig, 167 F.3d 443, 447-49 (8th Cir. 1999); United States v. Smith, 35 F.3d 344, 346 (8th Cir. 1994).

If we look beyond the plain language of the statute, the legislative history of § 924(e)(2)(B)(ii) described in Taylor undermines Walker's reliance on interpretative canons. Taylor explained that the enumerated crimes and the word "otherwise" were added to the "involves conduct" language. The form of the addition made the "otherwise involves" provision look like a catchall when in fact it was initially the operative provision. See 495 U.S. at 586-87, 110 S.Ct. 2143. Adding the enumerated crimes served the obvious purpose of including all prior convictions for those crimes (burglary, arson, extortion, use of explosives), regardless of whether they present a serious potential risk of physical injury. Id. at 597, 110 S.Ct. 2143. Given this drafting sequence, it is wrong to infer that Congress intended to limit the "otherwise involves" provision to offenses that are similar to the enumerated add-ons.

For these reasons, though we give due regard to contrary dicta in Doe which cautioned against construing the "otherwise involves" provision to include risk-creating crimes "that do not seem to belong there," 960 F.2d at...