U.S. v. Begay, 05-2253.

• Citation: 470 F.3d 964
• Decision Date: 12 December 2006
• Docket Number: No. 05-2253.,05-2253.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry BEGAY, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

470 F.3d 964

UNITED STATES of America, Plaintiff-Appellee, v. Larry BEGAY, Defendant-Appellant.

No. 05-2253.

United States Court of Appeals, Tenth Circuit.

December 12, 2006.

Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

David N. Williams, Assistant United States Attorney, (David C. Iglesias, United States Attorney, with him on the brief), Albuquerque, NM, for Plaintiff-Appellee.

Before LUCERO, HARTZ, and McCONNELL, Circuit Judges.

HARTZ, Circuit Judge.

Larry Begay was sentenced to 188 months' imprisonment after pleading guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court determined that each of Mr. Begay's three previous felony convictions for driving while intoxicated was a "violent felony" under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See United States v. Begay, 377 F.Supp.2d 1141 (D.N.M.2005). On appeal Mr. Begay contends that (1) felony driving while intoxicated is not a violent felony under the ACCA, and (2) the district court violated United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in concluding that it could not impose a sentence below the Guidelines range if a sentence within that range would be reasonable. We have jurisdiction under 28 U.S.C. § 1291 and hold that (1) felony driving while intoxicated is a violent felony under the ACCA, and (2) a district court may impose a sentence outside the Guidelines range even if a sentence within the range would be reasonable. Accordingly, we affirm in part, reverse in part, and remand for resentencing.

I. BACKGROUND

According to the presentence report (PSR), in September 2004 Mr. Begay threatened to shoot his sister, Annie Begay, with a rifle if she did not give him money. When she informed him that she did not have any money, he repeatedly pulled the trigger, but the rifle did not fire. The next morning she called the Navajo Department of Law Enforcement while he was asleep. Officers responded and found a .22 caliber rifle under a mattress inside his room.

Mr. Begay pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). According to the PSR, Mr. Begay had 12 previous convictions for driving while intoxicated (DWI). Three of these convictions were felonies under New Mexico law, which makes the fourth and each subsequent DWI conviction a felony. See N.M. Stat. Ann. § 66-8-102(G)-(J) (1978) ("Upon a fourth conviction pursuant to this section, an offender is guilty of a fourth degree felony and ... shall be sentenced to a term of imprisonment of eighteen months.... Upon a fifth conviction ... an offender ... shall be sentenced to a term of imprisonment of two years ...."). The district court determined that a felony DWI is a "violent felony" under the ACCA. With convictions for three such felonies, Mr. Begay was subject to a mandatory minimum sentence of 15 years' imprisonment under the ACCA, see 18 U.S.C. § 924(e)(1), and his offense level under the United States Sentencing Guidelines (USSG) was 34, see USSG § 4B1.4(a) ("A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal."); id. § 4B1.4(b)(3)(A) (setting offense level for armed career criminal at 34 "if the defendant used or possessed the firearm or ammunition in connection with ... a crime of violence"). A three-level downward adjustment for acceptance of responsibility, see id. § 3E1.1, combined with Mr. Begay's prior convictions, which placed him in criminal-history category VI, resulted in a sentencing range of 188 to 235 months.

At sentencing, Mr. Begay contended that the Guidelines range was higher than necessary to accomplish the goals set forth in the list of sentencing factors in 18 U.S.C. § 3553(a). He requested a sentence of 180 months, the minimum permitted under the ACCA. His counsel noted that Mr. Begay had been plagued by alcoholism "for the better part of his life," and that "he has almost no other conviction other than drinking and—while driving, and also, that his DWI cases do not—have not resulted in physical injury to another." R. Vol. III at 10. He also noted that Mr. Begay's father and brother had died in a car accident and Mr. Begay "had assumed almost completely the role of caretaker in the family compound.... He was responsible for taking care of all the livestock, for hauling wood and water for the family." Id. at 11. The district court considered each of the sentencing factors in 18 U.S.C. § 3553(a) and concluded that "in order for me to go below the guidelines, I have to make a finding that, under the sentencing factors, the sentence of 188 months is unreasonable." Id. at 15. The court continued:

Again, taking a look at the guidelines, the way they're formulated and how they apply, how the Sentencing Commission has formulated the calculation of the guidelines if the armed career criminal enhancement applies, I cannot make a finding that 188 months is unreasonable under 18 U.S.C., under the sentencing factors of 18 U.S.C. 3553(a).

Id. at 16. The court sentenced Mr. Begay to 188 months' imprisonment and adjourned.

II. DISCUSSION

A. Violent Felony

1.

The relevant portion of the ACCA definition of violent felony is:

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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 U.S.C. § 924(e)(2)(B) (emphasis added). To determine whether an offense is a "violent felony" under the ACCA, we follow the categorical approach set forth by the Supreme Court in 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); that is, we look only to the statutory definition of the crime. See United States v. Moore, 420 F.3d 1218, 1220 (10th Cir.2005). Mr. Begay's three felony convictions were for violations of N.M. Stat. Ann. § 66-8-102(A), which states: "It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state." Mr. Begay contends that this crime is not a "violent felony" under the ACCA. We review questions of statutory interpretation de novo. See Moore, 420 F.3d at 1220.

Mr. Begay argues that the "otherwise" clause in § 924(e)(2)(B)(ii) embraces only offenses "that present[ ] a serious potential risk of physical injury to another" in the same way as the specifically enumerated crimes—burglary, arson, extortion, or crimes involving explosives. Because DWI is dissimilar to these enumerated crimes, he concludes, it is not a violent felony under the ACCA.

Mr. Begay cites as authority the Eighth Circuit's opinion in United States v. Walker, 393 F.3d 819 (8th Cir.2005), overruled by United States v. McCall, 439 F.3d 967 (8th Cir.2006) (en banc). The issue in Walker was "whether Iowa's offense of Operating While Intoxicated (`OWI') is a `crime of violence' under the United States Sentencing Guidelines." 393 F.3d at 820. The district court had ruled that Mr. Walker was a career offender under USSG § 4B1.1(a), which provides that a defendant is a career offender if he "has at least two prior felony convictions of either a crime of violence or a controlled substance offense." The Guidelines definition of crime of violence appears in USSG § 4B1.2(a):

The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

(emphasis added). As Walker noted, "The portions of U.S.S.G. § 4B1.2 at issue are identical to the corresponding portions of 18 U.S.C. § 924(e)(2)(B), except that the guideline provision adds the phrase of a dwelling after the word burglary." Walker, 393 F.3d at 823. It then said, "Since the pertinent language is substantially identical, . . . we will construe [the] guideline language at issue to be consistent with the corresponding language in the [ACCA]." Id. at 823.

The court began its analysis of the definition as follows:

The "otherwise" clause of § 4B1.2[(a)](2) follows an enumeration of specific crimes: burglary of a dwelling, arson, extortion, and crimes that involve the use of explosives. Where general words follow specific words in a statutory enumeration, the established interpretative canons of noscitur a sociis and ejusdem generis provide that the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.

Id. at 824. This conclusion, the court stated, "is reinforced by the legislative history of the statute from which the guideline was derived," the ACCA. Id. After quoting two paragraphs from the relevant Report of the House Committee on the Judiciary, it observed:

For present purposes, the most important sentence of this lengthy quotation is the last one, which states that the legislation would add "burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person." . . . Thus, the legislative history reinforces the view that the intent of the "otherwise" clause in 18 U.S.C. § 924(e)(2)(B)(ii) was to encompass...