U.S. v. Moore, 04-8091.

• Citation: 420 F.3d 1218
• Decision Date: 30 August 2005
• Docket Number: No. 04-8091.,04-8091.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Larry Allen MOORE, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

420 F.3d 1218

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

No. 04-8091.

United States Court of Appeals, Tenth Circuit.

August 30, 2005.

Submitted on the briefs:¹ Raymond P. Moore, Federal Public Defender, and Robert R. Rogers, Assistant Federal Public Defender, Cheyenne, WY, for Defendant-Appellant.

Matthew H. Mead, United States Attorney, and Steven K. Sharpe, Assistant United States Attorney, Cheyenne, WY, for Plaintiff-Appellee.

Before EBEL, McKAY and HENRY, Circuit Judges.

EBEL, Circuit Judge.

This appeal requires us to decide whether a Nevada felony conviction for Driving Under the Influence ("DUI") is a "crime of violence" as defined in the United States Sentencing Guidelines. U.S. Sentencing Guidelines Manual, § 4B1.2 (2003). The district court determined that it is and accordingly increased Defendant-Appellant Larry Allen Moore's base offense level pursuant to USSG § 2K2.1(a)(4)(A). We agree that felony driving under the influence is a crime of violence under USSG § 4B1.2. However, because the particular statute Moore was convicted under is ambiguous to the extent it could penalize some nonviolent, non-driving conduct, we REMAND with instructions to the district court to evaluate this issue after determining what conduct was actually penalized in this case.

BACKGROUND

Pursuant to a plea agreement, Defendant-Appellant Larry Allen Moore ("Moore") pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2).

After accepting the plea, the district court ordered that a Presentence Investigation Report ("PSR") be prepared. The PSR noted that Moore has a prior Nevada felony conviction for Driving Under the Influence ("DUI") in 1995. The Nevada DUI statute Moore was convicted under read:

It is unlawful for any person who:

(a) Is under the influence of intoxicating liquor;

(b) Has 0.10 percent or more by weight of alcohol in his blood; or

(c) Is found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have 0.10 percent or more by weight of alcohol in his blood,

to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access.

Nev.Rev.Stat. § 484.379(1) (1995). Moore's 1995 conviction was a felony because it was his "third or subsequent offense within 7 years." Id. § 484.3792(1)(c).

In the case at bar, the PSR deemed this prior conviction to be a "crime of violence" as defined in USSG § 4B1.2. This resulted in an enhancement in Moore's base offense level pursuant to USSG § 2K2.1(a)(4)(A). Moore objected, arguing that a DUI is not a "crime of violence" under USSG § 4B1.2. At sentencing, the district court overruled Moore's objection and sentenced him to 41 months' imprisonment, 36 months' supervised release, and a fine of $500.

Moore filed a timely Notice of Appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.

DISCUSSION

The issue before this court is whether a Nevada felony DUI is a crime of violence under USSG § 4B1.2.² "Whether a statute defines a `crime of violence' for purposes of USSG § 4B1.2 is a question of statutory construction, which we review de novo." United States v. Vigil, 334 F.3d 1215, 1218 (10th Cir.2003); see also United States v. Doe, 398 F.3d 1254, 1257 (10th Cir.2005).

To determine whether Moore's prior DUI conviction is a predicate crime of violence under § 4B1.2, "we are limited to examining the statutory elements of the crime, but if ambiguity exists under the statute we can look beyond the statute to certain records of the prior proceeding . . . ." United States v. Zamora, 222 F.3d 756, 764 (10th Cir.2000) (quotation marks, citation omitted). For example, where a statute is ambiguous (i.e., reaches different types of conduct) and a defendant's conviction followed a jury trial, the court may look to charging documents and jury instructions to determine if the actual offense the defendant was convicted of qualifies as a crime of violence. Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Where the statute is ambiguous and the defendant was convicted by a guilty plea, the court can review the charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented. Shepard v. United States, ___ U.S. ___, ___, 125 S.Ct. 1254, 1257, 161 L.Ed.2d 205 (2005).

In this case, we are asked to decide whether a conviction under Nev.Rev.Stat. § 484.379(1), which makes it unlawful "to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access" while intoxicated, is a crime of violence under USSG § 4B1.2. Under this guideline,

[t]he 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.

USSG § 4B1.2(a). In addition, relevant commentary to this section provides:

"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as "crimes of violence" if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.

Id. § 4B1.2(a), cmt. n. 1.

We hold that felony driving under the influence is a crime of violence under USSG § 4B1.2. This follows from the plain language of the guideline, which encompasses offenses "involv[ing] conduct that presents a serious potential risk of physical injury to another." Id. § 4B1.2(a)(2) (emphasis added). Driving while intoxicated clearly presents a "serious potential risk of physical injury to another" and therefore is a crime of violence under § 4B1.2(a)(2).

Other circuits have reached this conclusion in analogous cases. E.g., United States v. Rutherford, 54 F.3d 370, 371-72, 376-77 (7th Cir.1995) (holding that assault conviction for "driving a motor vehicle under the influence of alcohol and causing serious bodily injury to the person of another with the motor vehicle" qualified as a crime of violence under USSG § 4B1.2(a)); United States v. DeSantiago-Gonzalez, 207 F.3d 261, 262, 264 (5th Cir.2000) (holding that misdemeanor offense of "driving while intoxicated" constitutes a crime of violence under USSG § 4B1.2(a)).

However, we acknowledge that the Eighth Circuit has recently reached a different conclusion in United States v. Walker, 393 F.3d 819 (8th Cir.2005), where that court held that Iowa's felony Operating While Intoxicated ("OWI") offense is not a crime of violence under USSG § 4B1.2. Id. at 828. In Walker, the court reasoned that "[w]here 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. After emphasizing the guidelines' use of the phrase "or otherwise involves conduct that presents a serious potential risk of physical injury to another," see USSG § 4B1.2(a) (emphasis added), and examining the relevant legislative history, the court limited USSG § 4B1.2(a)(2)'s coverage to crimes posing a serious risk of physical injury that are similar in nature to burglary of a dwelling, arson, extortion, and the use of explosives. Walker, 393 F.3d at 824-25. Because OWI is not similar to these listed offenses, and does not fit within the "ordinary meaning" of the phrase "crime of violence," the Eight Circuit concluded OWI is not a crime of violence under USSG § 4B1.2(a)(2). Walker, 393 F.3d at 825.

While we see some force to this argument, we ultimately disagree with it. At the outset, the analysis in Walker ignores the more flexible articulation of § 4B1.2's "crime of violence" definition explained in its commentary section. See USSG § 4B1.2, cmt. n. 1. There, this "or otherwise" language is removed, and the inclusion of offenses with conduct posing a serious potential risk of physical injury is de-linked from any preceding specific sequence of offenses. Id. Instead, the commentary gives a long list of crimes of violence ranging from murder to kidnapping to extortion and then, in a separate sentence, explains that "[o]ther 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 involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another." Id.

Moreover, our prior cases interpreting this broad "serious potential risk of physical injury" language in § 4B1.2 have not necessarily required any similarity to burglary, arson, extortion, or the use of explosives. See, e.g., United States v. Rowland, 357 F.3d 1193, 1197-98 (10th Cir.2004) (affirming "crime of violence" classification under § 4B1.2 where "Oklahoma's statutory definition of sexual battery presents the `serious possibility[ ] of risk of physical injury'") (citation omitted) (alteration in original); cf. Vigil, 334 F.3d at 1223-24 (concluding risk of injury "inherent" in Colorado's...