U.S. v. Walker, 04-1815.

• Citation: 393 F.3d 819
• Decision Date: 06 January 2005
• Docket Number: No. 04-1815.,04-1815.
• Parties: UNITED STATES of America, Appellee, v. Ned WALKER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 819

393 F.3d 819

UNITED STATES of America, Appellee, v. Ned WALKER, Appellant.

No. 04-1815.

United States Court of Appeals, Eighth Circuit.

Submitted: November 19, 2004.

Filed: January 6, 2005.

Counsel who presented argument on behalf of the appellant was Wallace L. Taylor of Cedar Rapids, IA.

Counsel who presented argument on behalf of the appellee was Charles J. Williams, AUSA, Cedar Rapids, IA.

Before WOLLMAN and HEANEY, Circuit Judges, and HOLMES,¹ District Judge.

HOLMES, District Judge.

The issue in this case is whether Iowa's offense of Operating While Intoxicated ("OWI") is a "crime of violence" under the United States Sentencing Guidelines.

I.

Ned Walker entered a plea of guilty to a charge of conspiracy to distribute methamphetamine. The presentence investigation report stated that his base offense level was 24, which should be reduced three levels for acceptance of responsibility, leaving an offense level of 21. Walker had a total of 17 criminal history points, placing him in criminal history category VI, which would make Walker's sentencing range 77 to 96 months.

The government objected to the presentence investigation report, contending that Walker was a career offender because he had two prior predicate crimes of violence. One of the prior crimes was for attempted burglary in 1994, which Walker conceded was a "crime of violence." The other was an OWI offense in 1991 in Iowa, which Walker contended was not a "crime of violence." The district court made no findings of fact but held, as a legal matter, that OWI is a "crime of violence" as defined in U.S.S.G. § 4B1.2(a)(2). The two predicate crimes of violence — burglary and OWI — made Walker a career offender under U.S.S.G. § 4B1.1. With career offender status, Walker had a total offense level of 29, criminal history category VI, which has a sentencing range of 151 to 188 months. The district court sentenced Walker to 151 months.

We review the application of the sentencing guidelines de novo. United States v. Sun Bear, 307 F.3d 747, 750 (8th Cir.2002).

II.

OWI is not specifically named in U.S.S.G. § 4B1.2 as a crime of violence. The Supreme Court has held that we should look to the statutory definition of the prior offense, not to the underlying facts, to determine whether a prior conviction is a predicate offense. Taylor v. United States, 495 U.S. 575, 600-02, 110 S.Ct. 2143, 2159-60, 109 L.Ed.2d 607 (1990).² See also United States v. Smith, 171 F.3d 617, 620 (8th Cir.1999); United States v. Bauer, 990 F.2d 373, 374-75 (8th Cir.1993) (rejecting a defendant's argument under U.S.S.G. § 4B1.2 that the court should consider the underlying facts of the predicate offense); United States v. Whitfield, 907 F.2d 798, 800 (8th Cir.1990) (holding that 18 U.S.C. § 924(e) mandates a formal categorical approach looking only to the statutory definitions of the prior offenses, not to the underlying facts). The Application Notes to § 4B1.2 state, in pertinent part, that an offense is a crime of violence if "the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted ..., by its nature, presented a serious potential risk of physical injury to another." Most of that language was added in Amendment 268, along with the current version of § 4B1.2(a). It was amended by Amendment 433 in 1991 to include the language, i.e., expressly charged. These changes to the Application Notes apparently were made in response to cases holding that courts may look beyond the face of the indictment in determining whether a prior offense is a "crime of violence" under § 4B1.2(a)(2). United States v. Fitzhugh, 954 F.2d 253, 254 (5th Cir.1992). This Court stated in United States v. Wright, 957 F.2d 520, 522 (8th Cir.1992), that courts may examine the facts underlying the conviction when deciding whether an offense involves conduct that presents a serious potential risk of physical injury to another under U.S.S.G. § 4B1.2(a)(2). As noted in United States v. Rodriguez, 979 F.2d 138, 141 (8th Cir.1992), that statement in Wright was dicta. Wright followed United States v. John, 936 F.2d 764, 770 (3rd Cir.1991). The Third Circuit has recognized that the Sentencing Commission effectively overruled John when it adopted the current version of the Application Notes to § 4B1.2. United States v. Joshua, 976 F.2d 844, 852-54 (3rd Cir.1992), overruled on other grounds by Stinson v. United States, 508 U.S. 36, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). Even so, the dicta in Wright has been followed in this circuit. United States v. Gomez-Hernandez, 300 F.3d 974, 980 (8th Cir.2002); United States v. Kind, 194 F.3d 900, 907 (8th Cir.1999).

III.

Walker was convicted under Iowa Code Ann. § 321J.2.1, which provides:

1. A person commits the offense of operating while intoxicated if the person operates a motor vehicle in this state in any of the following conditions:

a. While under the influence of an alcoholic beverage or other drug or a combination of such substances.

b. While having an alcohol concentration of .08 or more.

c. While any amount of a controlled substance is present in the person, as measured in the person's blood or urine.

The information says nothing about the offense in question except that Walker "did operate a motor vehicle while under the influence of an alcoholic beverage or drugs or a combination of such substances, contrary to Section 321J.2 of the 1991 Code of Iowa, THIRD OFFENSE ...." A third offense is a class "D" felony punishable by a term of imprisonment not to exceed five years. Iowa Code Ann. § 321J.2.2.c.

The Supreme Court of Iowa has said that the offense of operating while intoxicated consists of two essential elements: (1) the operation of a motor vehicle (2) while under the influence of alcohol. State v. Boleyn, 547 N.W.2d 202, 204 (Iowa 1996). The definition of "operate" is "the immediate, actual physical control over a motor vehicle that is in motion and/or has its engine running." Id. at 205. A person can be "operating" a vehicle for purposes of an OWI charge even if the vehicle is not moving and even if the vehicle is incapable of moving, so long as the engine is running. State v. Murray, 539 N.W.2d 368 (Iowa 1995). Thus, a person can "operate" a motor vehicle without "driving" it. Id. at 369. In Murray, the Supreme Court of Iowa affirmed an OWI conviction where the defendant was found intoxicated and slumped over the wheel of his vehicle while the engine was running but the vehicle was incapable of mechanical movement due to a non-functioning clutch. Id. See also State v. Weaver, 405 N.W.2d 852, 854 (Iowa 1987) ("[T]here need not be vehicle movement nor capability of vehicle movement for a person to be in actual physical control, and therefore operating, a motor vehicle...."). The OWI statute extends to operating a vehicle on private property. State v. Rosenstiel, 473 N.W.2d 59, 62 (Iowa 1991); State v. Valeu, 257 Iowa 867, 134 N.W.2d 911 (Iowa 1965). Proof of recklessness is not an essential element of operating while intoxicated. State v. Massick, 511 N.W.2d 384, 387 (Iowa 1994). "Reckless driving requires proof that the defendant actually drove a vehicle, that is, moved it. In contrast, operating while intoxicated only requires proof that the defendant operated a vehicle. Under our law, the two are not synonymous." Id. (emphasis in the original). Although OWI does not require driving a vehicle as an element, in fact Walker did drive while intoxicated, and he did cause an accident. The opinion of the Iowa Court of Appeals affirming Walker's conviction states: "It is undisputed Walker struck the rear of the [Amy] Dodge vehicle with sufficient force to push it across a street, through a street sign and on to a residential lawn. Dodge received bumps to her head and arm; the three passengers were not injured." State v. Walker, 499 N.W.2d 323, 324 (Iowa App.1993).

With this background as to the elements of OWI under Iowa law and the underlying facts of Walker's conviction, we now turn to the sentencing guidelines.

IV.

U.S.S.G. § 4B1.1(a) provides, "[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense."

U.S.S.G. § 4B1.2(a) provides:

(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.

Prior to 1989, the sentencing guidelines defined "crime of violence" by reference to 18 U.S.C. § 16, which provides:

The term "crime of violence" means —

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, 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.

See United States v. Parson, 955 F.2d 858, 864 (3rd Cir.1992). By Amendment 268, effective November 1, 1989, the Sentencing Commission adopted the definition of "crime of violence" currently in force. U.S. SENTENCING GUIDELINES MANUAL App.C — Vol. 1 at 131-33 (2003). The Commission explained, "[t]he definition of crime of violence used in this amendment is derived from 18 U.S.C. § 924(e)." Id. at 133. Section 924(e) defines "violent felony." The portions of U.S.S.G. § 4B1.2 at issue here are...