U.S. v. McCall, 04-1143.

• Decision Date: 04 February 2005
• Docket Number: No. 04-1143.,04-1143.
• Parties: UNITED STATES of America, Appellee, v. Timothy Jerome McCALL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

397 F.3d 1028

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

No. 04-1143.

United States Court of Appeals, Eighth Circuit.

Submitted: September 13, 2004.

Filed: February 4, 2005.

Felicia A. Jones, argued, St. Louis, MO, for appellant.

Keith D. Sorrell, argued, Asst. U.S. Atty., Cape Girardeau, MO, for appellee.

Before RILEY, LAY, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

We are again asked whether a felony conviction for driving while intoxicated (DWI) is a violent felony under the Armed Career Criminal Act of 1984 (ACCA). 18 U.S.C. § 924(e)(2)(B)(ii) (defining violent felony as a felony involving "conduct that presents a serious potential risk of physical injury to another"). Concluding a felony DWI conviction is a violent felony, the district court sentenced Timothy McCall (McCall) as an armed career criminal under the ACCA based on his conviction for felon in possession of a firearm and three felony DWI convictions. We reverse.

I. Background

McCall was indicted in April 2003 for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The indictment also charged McCall with being an armed career criminal, in violation of 18 U.S.C. § 924(e), based on McCall's three felony DWI convictions. McCall pled guilty to being a felon in possession of a firearm. The presentence investigation report (PSR) recommended an offense level of 30. This level was based on an enhanced sentence under the ACCA for McCall's three felony DWI convictions, as well as a three-level reduction for acceptance of responsibility. See U.S.S.G. § 4B1.4(b)(3)(B) (setting an offense level of 33 for an armed career criminal under the ACCA), 3E1.1(a)-(b) (providing a three-level reduction for acceptance of responsibility). The PSR also calculated McCall's criminal history category at level V. Based on the mandatory fifteen year minimum term of imprisonment set by the ACCA, 18 U.S.C. § 924(e)(1), an offense level of 30, and a criminal history category of V, the PSR stated the sentencing range under the United States Sentencing Guidelines (Guidelines) was between 180 and 188 months' imprisonment.

At sentencing, the district court considered whether McCall's three felony DWI convictions mandated he be sentenced as an armed career criminal. The district court addressed whether a felony DWI conviction is a violent felony under the ACCA, i.e., whether a felony DWI "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The district court concluded this language "clearly indicates that the consideration is whether there is a risk of injury to others, and clearly this type of offense [i.e., felony DWI] poses a risk to others who may be on the highways or byways within the state." Finding McCall's felony DWI convictions were violent felonies under the ACCA, the district court sentenced McCall to the mandatory minimum of 180 months' imprisonment, as well as five years of supervised release. Arguing that the district court erroneously held McCall's felony DWI convictions are violent felonies, McCall appeals, requesting he "be resentenced without the application of 18 U.S.C. § 924(e)."

II. Discussion

The ACCA mandates any person who violates 18 U.S.C. § 922(g), which McCall admittedly did, and has three previous convictions for a violent felony shall be "imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1). Congress defined a violent felony as a felony involving "conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). Section 4B1.4 of the Guidelines implements the ACCA. In deciding this appeal, we review de novo the district court's determination that a felony DWI constitutes a violent felony under the ACCA. United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir.2002).

In United States v. Jernigan, 257 F.3d 865 (8th Cir.2001), we declined to decide whether a DWI not resulting in injury was a crime of violence under § 4B1.2(a). In our ruling, we discussed cases from two other circuits. We noted that the Seventh Circuit "held that a felony assault conviction for causing serious bodily injury while driving under the influence of alcohol was a crime of violence for career offender purposes[,] ... because `[d]runk driving is a reckless act that often results in injury, and the risks of driving while intoxicated are well-known.'" Id. at 866 (quoting United States v. Rutherford, 54 F.3d 370, 376 (7th Cir.1995)). In Jernigan we recognized that the Seventh Circuit in Rutherford decided a felony DWI is a crime of violence under the Guidelines and noted that Judge Easterbrook concurred only in the result. Judge Easterbrook chose not to address the general issue of whether a felony DWI conviction is a crime of violence, because the crime actually involved serious bodily injury. Id.

We also discussed United States v. DeSantiago-Gonzalez, 207 F.3d 261 (5th Cir.2000), in which "the Fifth Circuit followed the majority in Rutherford and held that DWI is a crime of violence for purposes of [U.S.S.G. § 4B1.2(a)], because `the very nature of the crime of DWI presents a `serious risk of physical injury' to others, and makes DWI a crime of violence.'" Jernigan, 257 F.3d at 866 (quoting DeSantiago-Gonzalez, 207 F.3d at 264). Although we recognized a DWI "presents a well-known risk of an automobile accident," we were content to follow Judge Easterbrook's concurrence in Rutherford, holding the crime of which the defendant had been convicted was a crime of violence because the conduct underlying the offense actually resulted in serious injury to another person. Id. at 867. The court left "for another day the issue presented in DeSantiago-Gonzalez — whether a DWI offense that does not result in injury or death is a crime of violence." Id. This issue has now been resolved.

In United States v. Walker, 393 F.3d 819 (8th Cir.2005), we decided that a felony DWI is not a violent felony under the ACCA. An individual is a career offender under U.S.S.G. § 4B1.1(a) if he has two felony convictions for a crime of violence. The Guidelines define a crime of violence to include "conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). It is no surprise that the definition of a crime of violence in § 4B1.2 mirrors the definition of a violent felony in the ACCA. In 1989, the definition of a crime of violence under § 4B1.2 was amended, and the current definition "is derived from 18 U.S.C. § 924(e) [i.e., the ACCA]." U.S.S.G. app. C, amend. 268 (1989).

McCall contends that the language of 18 U.S.C. § 16(b) is analogous to § 924(e). While the Supreme Court held in Leocal v. Ashcroft, ___ U.S. ___, 125 S.Ct. 377, 383, 160 L.Ed.2d 271 (2004), that §§ 16(b) and 4B1.2(a) are linguistically different, the Court cited language from then Chief Judge Breyer's opinion in United States v. Doe, 960 F.2d 221 (1st Cir.1992), determining DWI not to be a crime of violence under § 16(b):

[T]o read the statute ... to cover firearm possession [ ] would also bring within the statute's scope a host of other crimes that do not seem to belong there. To include possession [of a firearm], one would have to focus on the risk of direct future harm that present conduct poses. But, how could one then exclude, say, drunken driving or unlawful transportation of hazardous chemicals or other risk-creating crimes very unlike the burglary, arson, extortion, and explosives use that the statute mentions? There is no reason to believe that Congress meant to enhance sentences based on, say, proof of drunken driving convictions. Rather, we must read the definition in light of the term to be defined, `violent felony,' which calls to mind a tradition of crimes that involve the possibility of more closely related, active violence.

Id. at 225 (emphasis added); Walker, 393 F.3d 842, 848-49. "This passage addresses the exact language under consideration here, albeit in 18 U.S.C. § 924(e) rather than in U.S.S.G. § 4B1.2." Id.

McCall argues that DWI is not a crime of violence that "otherwise involves conduct that presents a serious potential risk of physical injury to another" under § 4B1.2(a)(2). McCall is correct. As we said in Walker:

The otherwise clause of § 4B1.2(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.

Walker, 393 F.3d 842, 845. This conclusion is "reinforced by the legislative history of the statute from which the guideline is derived." Id. at 846. DWI is not similar to the crimes listed in § 4B1.2(a)(2), therefore, "under the rule of ejusdem generis, [DWI] is not encompassed by the general language that follows." Id. at 848.

For the foregoing reasons we conclude a felony DWI is not a violent felony under the ACCA. Therefore, we reverse the district court's judgment and sentence.

RILEY, Circuit Judge, concurring.

Based on the controlling effect of recent precedent of this circuit, see United States v. Walker, 393 F.3d 819, 828 (8th Cir.2005) (holding that operating a motor vehicle while intoxicated does not constitute a crime of violence under U.S.S.G. § 4B1.2(a)), I must concur in the result reached in this case. If not bound by precedent, I would hold a felony conviction for driving while intoxicated (DWI) is a violent felony under the plain language contained in the Armed Career Criminal Act of 1984 (ACCA). 18 U.S.C. § 924(e)(2)(B)(ii) (defining violent felony as a felony involving "conduct that presents a serious potential risk of physical injury to another"); see also U.S.S.G. § 4B1.2(a)(2) (...