UNITED STATES of America, Plaintiff-Appellee, v. Timothy Jerome McCALL, Defendant-Appellant, 439 F.3d 967

LOKEN, Chief Judge. Timothy J. McCall pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court imposed the fifteen-year minimum prison sentence mandated by 18 U.S.C. § 924(e)(1) for a § 922(g)(1) offender who has three prior “violent felony” convictions. McCall appeals, arguing that the district court erred in concluding that his three prior felony convictions for driving while intoxicated in Missouri were violent felonies that trigger the § 924(

e) enhancement. This issue requires us to construe and apply the definition of “violent felony” found in § 924(e)(2)(B)(ii): (

B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year ... 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 .... (Emphasis added.) A panel of this court reversed the fifteen-year sentence, United States v. McCall, 397 F.3d 1028 (8th Cir.2005), concluding that it was bound by a prior panel’s decision that felony DWI offenses are not “crimes of violence” under an identically worded “otherwise involves” provision in U.S.S.G. § 4B 1.2(a)(2).

See United States v. Walker, 393 F.3d 819 (8th Cir.2005). We granted the government’s petition for rehearing en banc to consider de novo whether a felony DWI conviction in Missouri is a violent felony under the “otherwise involves” provision in § 924(e)(2)(B)(ii). We conclude that felony driving while intoxicated is a violent felony.

However, because the Missouri felony DWI offense includes non-driving conduct as well, we remand for further sentencing proceedings at which the government may seek to prove that McCall’s prior convictions were driving offenses, using the limited universe of evidence permitted by 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). X.

Many decisions of this court and our sister circuits have construed the “otherwise involves” provision in 18 U.S.C. § 924(e)(2)(B)(ii) since the provision was enacted as part of the Armed Career Criminal Act of 1984. The question recurs frequently and has a significant impact on an offender’s sentence. The statute was designed to implement an important principle of federal sentencing — violent career criminals who possess firearms should be severely punished.

But the legislative history reviewed by the Supreme Court in Taylor, 495 U.S. at 581-90, 110 S.Ct. 2143, demonstrates that Congress struggled to define the types of violent felonies that should trigger the sentence enhancement. Subsection 924(e)(2)(B)(

i) used language taken directly from the definition of a “crime of violence” in 18 U.S.C. § 16(a) — a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” But subsection 924(e)(2)(B)(ii), which added categories of violent or dangerous property crimes to the universe of violent felonies, used an odd structural amalgam — “is burglary ... or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Thus, the first question in construing the “otherwise involves” provision is to determine whether its focus is on the statutory elements of a prior conviction, or on the facts (“conduct”) underlying that conviction.

In Taylor, the Supreme Court held that the enumerated crime “burglary” in § 924(e)(2)(B)(ii) means “ ‘burglary’ [in] the generic sense in which the term is now used in the criminal codes of most States.” 495 U.S. at 598, 110 S.Ct. 2143. To determine whether a defendant’s prior eonviction was for generic burglary, and therefore was a violent felony, the Court adopted a “formal categorical approach, looking only to the statutory

definitions of the prior offenses, and not to the particular facts underlying those convictions.” Id. at 600, 110 S.Ct. 2143. The language of the first operative clause in § 924(e)(2)(B)(ii) — “is burglary, arson, or extortion” — almost commands use of a formal categorical approach in determining what offenses are included within these enumerated crimes. But the language of the provision here at issue— “otherwise involves conduct ” — suggests that the facts underlying a particular offense may be relevant.

The Supreme Court did not answer this question in Taylor, see 495 U.S. at 600 n. 9, 110 S.Ct. 2143, and our prior panel opinions have been inconsistent. Compare United States v. Mincks, 409 F.3d 898, 899-900 (8th Cir. 2005) (reviewing only the statutory elements), with United States v. Johnson, 326 F.3d 934, 937 (8th Cir.2003) (reviewing the underlying facts). Like our sister circuits, we resolve this troubling ambiguity by adopting the formal categorical approach of Taylor in construing the “otherwise involves” provision in § 924(e)(2)(B)(ii).

As the Court noted in Taylor, § 924(e)(1) “refers to ‘a person who ... has three previous convictions ’ for — not a person who has committed — three previous violent felonies.” 495 U.S. at 600, 110 S.Ct. 2143 (emphasis added). This is textual evidence that the statute “generally requires the trial court to look only to the fact of conviction and the statutory definition of the prior offense.” Id. at 602, 110 S.Ct. 2143. Moreover, a contrary

interpretation that focused on the underlying facts would embroil sentencing courts “in an elaborate factfinding process regarding the defendant’s prior offenses,” Taylor, 495 U.S. at 601, 110 S.Ct. 2143, and might raise serious Sixth Amendment concerns, see Shepard, 125 S.Ct. at 1262-63.

Therefore, to determine whether a prior conviction was a violent felony within the meaning of the “otherwise involves” provision in § 924(e)(2)(B)(ii), the sentencing court must first determine whether the elements of that prior crime involved or described conduct that “necessarily entails a serious potential risk of physical injury.” United States v. Montgomery, 402 F.3d 482, 488 (5th Cir.2005). II.

We must next consider the decision in Walker, endorsed by the dissent, that the “otherwise involves” provision should be limited to violent crimes of “active aggression” that are similar to the crimes enumerated in § 924(e)(2)(B)(ii). In reaching this conclusion, the panel in Walker relied on two canons of statutory construction, noscitur a sociis and ejusdem generis; fragments of the legislative history reviewed in greater depth in Taylor; dicta in the First Circuit’s decision in United States v. Doe, 960 F.2d 221 (1992); and the Supreme Court’s recent

interpretation of 18 U.S.C. § 16(

b) in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004). We conclude that this analysis is unpersuasive.

In Leocal, the Court construed § 16(b), which defines a “crime of violence” as a felony which, “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.” The Court held that the plain language of § 16(b), the same language Congress used in § 924(e)(2)(B)(i), limits that statute to “violent, active crimes” because the word “used” incorporates a mens rea component and thus requires that an offender’s conduct be more than “merely accidental or negligent.” 543 U.S. at 11, 125 S.Ct. 377.

By contrast, as the Leocal opinion noted, id. at 10 n. 7, 125 S.Ct. 377, the “otherwise involves” provision in § 924(e)(2)(B)(ii) is not so limited. It focuses on “conduct that presents a serious potential risk of physical injury to another,” not on the intent of the offender. See United States v. Sperberg, 432 F.3d 706, 2005 WL 3455832, *2 (7th Cir. Dec.19, 2005); United States v. Scott, 413 F.3d 839, 840 (8th Cir.2005).

When a statute’s plain language is this clear, it is controlling, without regard to contrary hints in the legislative history and without the need to refer to the canons of noscitur a sociis and ejusdem generis. See United States v. Vig, 167 F.3d 443, 447-49 (8th Cir.1999); United States v. Smith, 35 F.3d 344, 346 (8th Cir.1994). If we look beyond the plain language of the statute, the legislative history of § 924(e)(2)(B)(ii) described in Taylor undermines Walker’s reliance on interpretative canons.

Taylor explained that the enumerated crimes and the word “otherwise” were added to the “involves conduct” language. The form of the addition made the “otherwise involves” provision look like a catchall when in fact it was initially the operative provision. See 495 U.S. at 586-87, 110 S.Ct. 2143. Adding the enumerated crimes served the obvious purpose of including all prior convictions for those crimes (burglary, arson, extortion, use of explosives), regardless of whether they present a serious potential risk of physical injury. Id. at 597, 110 S.Ct. 2143.

Given this drafting sequence, it is wrong to infer that Congress intended to limit the “otherwise involves” provision to offenses that are similar to the enumerated add-ons. For these reasons, though we give due regard to contrary dicta in Doe which cautioned against construing the “otherwise involves” provision to include risk-creating crimes “that do not seem to belong there,” 960 F.2d at 225, we conclude that we must construe the provision consistent with its plain language.

We therefore reject the analysis in Walker and hold that a violent felony within the meaning of § 924(e)(2)(B)(ii) includes any crime whose elements involve conduct that necessarily presents a serious potential risk of physical injury to another. III. This brings us to the principal question at issue, whether the elements of a felony DWI conviction place that offense within the “otherwise involves” provision in § 924(e)(2)(B)(ii).

To fall within this provision, the criminal conduct must present a serious risk of physical injury or, as the Supreme Court said in Taylor, the “inherent potential for harm to persons,” 495 U.S. at 588, 110 S.Ct. 2143. Physical injury need not be an element of the offense. But because § 924(

e) is focused on the elements of the offense, 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. See Montgomery, 402 F.3d at 488-89. Statistics quantifying the risk of physical harm created by a class of crimes are helpful but not essential to this judicial task. See Howze, 343 F.3d at 923-24. Driving a car creates a risk of physical injury to the driver and others, but it is not a “serious potential risk” within the meaning of § 924(e)(2)(B)(ii).

Driving under the influence, however, dramatically increases the risk of physical injury. In 2004, alcohol-related crashes resulted in 16,694 fatalities, 39% of all traffic fatalities, and almost a quarter-million more injuries. A driver with a blood alcohol concentration of .08 is 11.1 times more likely to cause a fatal accident than a sober driver. Thus, “[n]o one can seriously dispute the magnitude of the drunken driving problem.” Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990).

In Missouri, as elsewhere, felony DWI convictions are reserved for the persistent drunk driver. Thus, the person given an initial DWI misdemeanor citation while driving a few blocks home from a neighborhood pub will not be guilty of a violent felony. The increased punishment for a felony DWI offense is directly related to the fact that persistent drunk driving creates a substantially greater risk of physical injury to others. See Robert D. Brewer et al., The Risk of Dying in Alcohol-Related, Automobile Crashes Among Habitual Drunk Drivers, 331 New. Eng. J. Med. 513 (1994).

Moreover, this risk-creating conduct is not inadvertent or merely negligent. As the Seventh Circuit said in United States v. Rutherford, 54 F.3d 370, 376-77 (7th Cir.), cert. denied, 516 U.S. 924, 116 S.Ct. 323, 133 L.Ed.2d 224 (1995): Drunk driving is a reckless act, perhaps

an act of gross recklessness. Any drunk driver who takes to the road should know he runs a risk of injuring another person .... The dangers of drunk driving are well-known and well documented. Unlike other acts that may present some risk of physical injury, ... the risk of injury from drunk driving is neither conjectural nor speculative. Driving under the influence vastly increases the probability that the driver will injure someone in an accident .... Drunk driving is a reckless act that often results in injury, and the risks of driving while intoxicated are well-known.

This is sufficient to satisfy the “serious risk” standard .... We agree and therefore conclude that, by its nature, 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 in § 924(e)(2)(B)(ii). Accord United States v. Moore, 420 F.3d 1218 (10th Cir.2005); United States v. DeSantiago-Gonzalez, 207 F.3d 261 (5th Cir.2000). Having reached this general conclusion, we must next examine the specific elements of McCall’s felony DWI convictions.

In Missouri, “[a] person commits the crime of ‘driving while intoxicated’ if hé operates a motor vehicle while in an intoxicated or drugged condition.” Mo. Rev.Stat. § 577.010.1. (boldface in original). The term “operates” is defined as “physically driving or operating a motor vehicle.” Mo.Rev.Stat. § 577.001.1. The DWI offense is a class D felony if the offender had two or more “intoxication-related traffic offenses” within ten years of the instant offense. Mo.Rev.Stat. § 577.023.1(2)(a), .3.

Thus, the statutory elements of McCall’s felony DWI convictions criminalize repeatedly driving while impaired, conduct that necessarily presents a serious potential risk of physical injury to others. However, the Supreme Court of Missouri has construed the statutory term “operates” to include both driving a vehicle and merely causing the vehicle to function by starting its engine. See Cox v. Director of Revenue, 98 S.W.3d 548, 550-51 (Mo. 2003).

This makes the felony DWI offense overinclusive, for purposes of the “otherwise involves” provision in § 924(e)(2)(B)(ii), because it criminalizes non-driving conduct that does not necessarily present a serious risk of physical injury to others. 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 is not risking physical harm to others but is violating the Missouri DWI statutes as construed.

Thus, as the Tenth Circuit concluded in construing Nevada’s similar felony DWI statute, not every felony DWI conviction in Missouri is a violent felony under § 924(e)(2)(B)(ii). See Moore, 420 F.3d at 1224. IV. In Taylor, the Supreme Court considered how to apply § 924(e)(2)(B)(ii) to a state burglary statute that was overinclusive, that is, that defined burglary to include a broader range of conduct than generic burglary.

Modifying its formal categorical approach in order to avoid excluding all convictions under such a statute, the Court held that the prior offense is a violent felony if “the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant.” 495 U.S. at 602, 110 S.Ct. 2143.

In Shepard, the Court extended this approach to guilty plea convictions but limited the government’s proof that the defendant pleaded guilty to a generic burglary offense to “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 to some comparable judicial record of this information.” 125 S.Ct. at 1263. In applying the “otherwise involves” provision in § 924(e)(2)(B)(ii), we deal with a somewhat different type of overinclusiveness.

But we conclude that the analysis adopted in Taylor and Shepard should nonetheless apply. Therefore, the district court may look to the judicial record, as limited by Taylor and Shepard, to determine whether juries were required to find, or guilty pleas necessarily rested on the fact, that McCall’s three prior convictions involved driving while intoxicated. McCall’s PSR recited the fact of three prior felony convictions for “driving while intoxicated” but did not disclose whether he was convicted after trials or guilty pleas.

The PSR recited underlying facts seeming to establish that in each case McCall was driving while intoxicated, but the facts were attributed to “police reports” and parole board “records,” documents that may not be used to establish a violent felony under the modified categorical ' approach mandated by Taylor and Shepard. Though McCall did not object to these PSR recitals, he did object to the § 924(

e) enhancement. At sentencing, relying on our opinion in United States v. Jernigan, 257 F.3d 865, 867 (8th Cir.2001), both counsel and the district court understandably believed that the relevant inquiry was the conduct underlying the offenses. Neither counsel nor the court felt constrained by the more truncated inquiry mandated by Taylor and Shepard. Thus, the record on appeal includes no charging documents, no jury instructions, no written plea agreements, and no plea colloquies or judicial findings of the facts underlying a plea confirmed by McCall.

In these circumstances, we conclude that the fact recitals in the PSR are not an adequate basis for affirming McCall’s sentence. This is not a case where the PSR described prior offense conduct without stating its documentary sources. In such cases, we have held that failure to object relieved the government of its obligation to introduce at sentencing the documentary evidence Taylor or Shepard requires. See United States v. Menteer, 408 F.3d 445, 446-47 (8th Cir.2005); United States v. Balanga, 109 F.3d 1299, 1304 & n. 7 (8th Cir.1997); accord United States v.

Bregnard, 951 F.2d 457, 460 n. 3 (1st Cir.1991), cert. denied, 504 U.S. 973, 112 S.Ct. 2939, 119 L.Ed.2d 564 (1992). Nor is this a case where the PSR described conduct derived from documents Taylor or Shepard permit. Instead, the PSR expressly relied on police reports and probation records that would be inadmissible at sentencing under Taylor and Shepard. Timothy McCall objected to the § 924(

e) enhancement. The minimum sentence mandated by that enhancement is severe, and the parties and the court understandably failed to perceive the governing evidentiary principles that we have now clarified. In these circumstances, we reverse the judgment of the district court and remand the case for further sentencing proceedings at which the government may seek to prove, with evidence admissible under Taylor or Shepard, that McCall’s three prior felony DWI convictions were violent felonies under the “otherwise involves” provision in 18 U.S.C. § 924(e)(2)(B)(ii).

For this purpose, the district court may permit the parties to expand the sentencing record, as we have approved in prior cases remanded for re-sentencing in light of Taylor. See United States v. Cornelius, 968 F.2d 703, 705 (8th Cir.1992); United States v. Taylor, 932 F.2d 703, 707 (8th Cir.), cert. denied, 502 U.S. 882, 112 S.Ct. 232, 116 L.Ed.2d 188 (1991). . Accord United States v. Hargrove, 416 F.3d 486, 494 (6th Cir.2005); United States v. Melton, 344 F.3d 1021, 1026-29 (9th Cir.2003), cert. denied, 541 U.S. 953, 124 S.Ct. 1696, 158 L.Ed.2d 386 (2004); United States v.

Howze, 343 F.3d 919, 920-22 (7th Cir.2003); United States v. James, 337 F.3d 387, 389-91 (4th Cir.2003), cert. denied, 540 U.S. 1134, 124 S.Ct. 1111, 157 L.Ed.2d 939 (2004); United States v. Jackson, 301 F.3d 59, 61-63 (2d Cir.2002), cert. denied, 539 U.S. 952, 123 S.Ct. 2629, 156 L.Ed.2d 644 (2003); United States v. Sacko, 178 F.3d 1, 7 (1st Cir.1999); United States v. Jackson, 113 F.3d 249, 251-53 (D.C.Cir.), cert. denied, 522 U.S. 901, 118 S.Ct. 252, 139 L.Ed.2d 180 (1997); United States v.

Phelps, 17 F.3d 1334, 1342 (10th Cir.), cert. denied, 513 U.S. 844, 115 S.Ct. 135, 130 L.Ed.2d 77 (1994); United States v. O'Brien, 972 F.2d 47, 49-53 (3d Cir.1992), cert. denied, 510 U.S. 875, 114 S.Ct. 210, 126 L.Ed.2d 166 (1993). . We are inclined to agree with Judge Posner that " 'potential risk’ appears to be a redundancy” in the statutory language. United States v. Shannon, 110 F.3d 382, 385 (7th Cir.) (en banc), cert. denied, 522 U.S. 888, 118 S.Ct. 223, 139 L.Ed.2d 156 (1997). .

See National Highway Traffic Safety Administration, Traffic Safety Facts 2004: A Compilation of Motor Vehicle Crash Data from the Fatality Analysis Reporting System and the General Estimates Systems 32, 111 <http://www.nhtsa.dot.gov>. . See National Institute on Alcohol Abuse and Alcoholism of the National Institutes of Health, Alcohol Alert No. 31 ¶ 5 (1996) <http://pubs.niaaa.nih.gov>. .

Prior to 1996, Missouri’s felony DWI offense encompassed even more non-driving conduct because it included "being in actual physical control of a motor vehicle,” Mo.Rev.Stat. § 577.001.1 (1995), as that term was construed in State v. Dey, 798 S.W.2d 210 (Mo. App.1990). Two of McCall’s three prior felony DWI convictions were under the prior statute.