U.S. v. McCall

• Decision Date: 05 November 2007
• Docket Number: No. 06-2993.,06-2993.
• Citation: 507 F.3d 670
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy Jerome McCALL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

507 F.3d 670

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

No. 06-2993.

United States Court of Appeals, Eighth Circuit.

Submitted: April 12, 2007.

Filed: November 5, 2007.

Felicia A. Jones, fpd, argued, St. Louis, MO, on the brief, for Appellant.

Keith D. Sorrell, ausa, Argued, Cape Girardeau, MO, on the brief, for Appellee.

Before LOKEN, Chief Judge, BYE and RILEY, Circuit Judges.

LOKEN, Chief Judge.

After Timothy McCall pleaded guilty to one count of being a felon in possession of a firearm, the district court sentenced him to the minimum fifteen-year sentence mandated for a felon-in-possession offender who has three prior "violent felony" convictions. See 18 U.S.C. §§ 922(g)(1), 924(e)(1). McCall appealed, arguing that his three prior Missouri convictions for driving while intoxicated were not violent felony convictions. We concluded that violating the statute in question, Mo.Rev.Stat. § 577.010.1, by driving while intoxicated constitutes a violent felony conviction. However, because the Supreme Court of Missouri has construed the statute to include causing a vehicle to function by merely starting its engine, we held that the statutory offense is "overinclusive," that is, it includes conduct that is not a violent felony within the meaning of 18 U.S.C. § 924(e)(2)(B). Accordingly, we remanded for a determination of whether McCall's guilty plea convictions were violent felonies. United States v. McCall, 439 F.3d 967 (8th Cir.2006) (en banc) (McCall I). On remand, the district court¹ again determined that McCall's driving-while-intoxicated offenses were violent felony convictions. McCall appeals the resulting fifteen-year sentence. We review de novo whether a prior offense constitutes a violent felony. United States v. Kirkland, 450 F.3d 804, 806 (8th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 420, 166 L.Ed.2d 297 (2006). After oral argument, the Supreme Court filed its opinion in James v. United States, ___ U.S. ___, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), which may alter somewhat the legal landscape. Applying James to the prior convictions here at issue, we affirm.

Section 924(e)(2)(B)(ii) defines "violent felony" as including "any crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." The Supreme Court first construed this provision in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Taylor raised the question whether the defendant's prior Missouri convictions for second-degree burglary fell within the explicit inclusion of "burglary" in § 924(e)(2)(B)(ii). The Court concluded that Congress intended the generic meaning of burglary. State burglary laws vary substantially. To determine whether a particular state offense is generic burglary, the Court adopted a "formal categorical approach" that focuses on the statutory definition of the offense, rather than on the particular facts underlying the defendant's conviction. 495 U.S. at 602, 110 S.Ct. 2143.

Under this categorical approach, some state statutes are overinclusive. In such cases, the Court held, the government may use a prior conviction for enhancement if the charging paper and the jury instructions "actually required the jury to find all the elements of generic burglary. . . ." 495 U.S. at 602, 110 S.Ct. 2143. In Shepard v. United States, 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Court applied this modified categorical approach to prior convictions by guilty plea, holding that whether a violation of an overinclusive statute was generic burglary must be the determined by reviewing "the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or . . . some comparable judicial record of this information."

In McCall I, we considered felony convictions for driving-while-intoxicated. Unlike burglary, this is not an enumerated offense, so the question was whether it fell within the "otherwise involves" residual provision in § 924(e)(2)(B)(ii). Following briefing and oral argument in this second appeal, the Supreme Court applied the "otherwise involved" provision in James, concluding that a Florida felony conviction for attempted burglary, though not an enumerated offense, fell within the residual provision. Our task is to determine whether the Court's analysis in James undermines any portion of our otherwise controlling analysis in McCall I.

In McCall I, we first concluded that the focus of § 924(e) is on the elements of an offense, not the facts of a particular conviction. Therefore, for a state law offense to fall within the "otherwise involves" provision, "the inherent potential for harm must be present, if not in every violation, at least in a substantial portion of the circumstances made criminal by the statute." 439 F.3d at 971-72. James is consistent with this aspect of our analysis. See 127 S.Ct. at 1597 ("the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another"). We then concluded that "a felony conviction for driving while intoxicated presents a serious potential risk of physical injury to another and is therefore a violent felony under the `otherwise involves' provision." 439 F.3d at 972. James of course addressed a different offense, attempted burglary. But we see nothing in the Court's analysis that casts doubt on our conclusion that driving while intoxicated falls within the otherwise involves provision. See 127 S.Ct. at 1594-97.

McCall I then addressed the issue raised by the Supreme Court of Missouri's construction of the driving-while-intoxicated offense. The statute is entitled "Driving while intoxicated." It provides: "A person commits the crime of `driving while intoxicated' if he operates a motor vehicle while in an intoxicated or drugged condition." Mo.Rev.Stat. § 577.010.1 (boldface in original). However, another statute defines "operates" as "physically driving or operating a motor vehicle." Mo. Rev.Stat. § 577.001.1. In Cox v. Director of Revenue, 98 S.W.3d 548, 550-51 (Mo. banc 2003), the Court construed Mo.Rev.Stat. § 577.001.1 as applying both to "driving" a vehicle and to "operating" a vehicle by starting its engine. Because the latter type of conduct may not present a serious potential risk of physical injury to another — for example, "the inebriated car owner who recognizes his impaired condition and turns on the engine of a parked vehicle to keep warm while sobering," 439 F.3d at 973 — we concluded the Missouri offense is overinclusive and remanded for a determination of whether McCall's prior guilty plea convictions involved driving a vehicle. For this determination, we instructed the district court to apply the Supreme Court's modified categorical analysis, looking only at charging documents, plea agreements, and other parts of the judicial record appropriate to the "truncated inquiry" mandated by Shepard. 439 F.3d at 974.

James casts some doubt on this part of our analysis. Consistent with Taylor, the Court in James first rejected petitioner's contention that an offense is not a violent felony unless all cases pose a serious risk of physical injury to another:

James' argument also misapprehends Taylor's categorical approach. We do not view that approach as requiring that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony . . . . As long as an offense is of a type that, by its nature, presents a serious potential risk of injury to another, it satisfies the requirements of § 924(e)(2)(B)(ii)'s residual provision.

127 S.Ct. at 1597. But that was not the end of the Court's analysis in James because the Florida statute went beyond Taylor's definition of generic burglary to include attempted burglaries of dwelling curtilages and conveyances. The Court considered the first question on the merits, concluding that attempted burglary of a dwelling's curtilage, as narrowly defined under state law, did not "so mitigate[] the risk presented by attempted burglary as to take the offense outside the scope of clause (ii)'s residual provision." 127 S.Ct. at 1600. The Court did not consider the second question because the state court record established that James was convicted of attempted burglary of a dwelling, not a conveyance. 127 S.Ct. at 1599 n. 7.

The critical question is how the Court would have proceeded if the record of the prior conviction required it to consider the second question and if it concluded that attempted burglary of a conveyance does not present a serious potential risk of injury to another. Would it have directed the trial court, as we did in McCall I, to apply the modified categorical approach of Taylor and Shepard and determine whether the state court record reveals whether James was convicted of the violent felony component of an overinclusive statute? Adherence to the precedent of Taylor would seem to call for that result when dealing with attempts to commit an enumerated offense like burglary. But the Court might have departed from this aspect of the Taylor analysis when applying the residual provision, instead engaging in a quantitative assessment of whether most violations of the statute involve attempted burglaries of dwellings and therefore all prior convictions are violent felonies. The difference in approach could be very significant in applying the otherwise involves residual provision to broadly worded state offenses.

In Taylor, the Court expressed great reluctance to engage in fact-intensive analysis of prior convictions in applying 18 U.S.C. § 924(e). 495 U.S. at...