United States v. Timothy Jerome McCall

offense, sought paid a knife after he to be his stances of personal charac- wages, justified upward departure an un defendant, teristics of the the seriousness § making finding, der 5K2.21. In offense, and the need protect employee district court also noted that the public from further such violence and ex- “particularly type was vulnerable” to this ploitation by the defendant. because, alien, illegal an abuse as he Accordingly, we affirm the district report could not to law enforce assault court’s sentence.

ment. choice of victim Ademi’s was fact and, related to the conduct uncharged court,

along other facts found

demonstrated the actual seriousness of such, criminal

Ademi’s actions. As considering

district court did not err in

vulnerability many of the victim as one of uncharged

facts related to the determining upward whether a 5K2.21 America, UNITED STATES of departure appropriate. was Appellee, Plaintiff — addition, argues Ademi his sentence was unreasonable and re Timothy McCALL, Jerome quests a pursuant review to United States Appellant. Defendant — Booker, L.Ed.2d The reasonableness No. 04-1143. of a sentence is reviewed for abuse of Appeals, States Court of Dalton, discretion. United States v. Eighth Circuit. (8th Cir.2005) (citing Unit Yahnke, (8th ed States v. 395 F.3d Sept. Submitted: 2005. Cir.2005)). Ademi’s 47-month sentence Filed: March 3553(a).2

was reasonable under Al though pled guilty illegal posses Ademi

sion of a firearm and harboring illegal an

alien, his criminal physi conduct included

cally abusing an employee. His violence particularly reprehensible

was because the alien,

employee, illegal an could not com knew,

plain to authorities-as Ademi being illegal Applying alien himself. 3553(a) factors to these facts and to the whole,

record as a we find that Ademi’s

sentence, advisory which exceeded the

guidelines month, range only one given

reasonable the nature and circum- However, Although provided guidelines range. the district court its rea- side the where granting upward departure provide sons for the district court fails to reasons calculating guidelines range required, of 37 to 46 we affirm the sentence if we deter months, provide it did not reasons its one- mine that the sentence is reasonable. 3742(f)(2),(3); upward required pursuant month variance as U.S.C. United States v. Kick 3553(c)(2) (8th Cir.2005). lighter, to 18 U.S.C. for sentences out- presented argument who on be-

Counsel appellant half of the was Felicia A. Jones Louis, of St. MO. presented argument

Counsel who on be- Sorrell, D. appellee half of the was Keith AUSA, Girardeau, Cape MO. LOKEN, LAY, Judge, Before Chief WOLLMAN, ARNOLD, MURPHY, BYE, RILEY, MELLOY, SMITH, COLLOTON, BENTON, Judges, Circuit en banc. LOKEN, Judge. Chief Timothy guilty to pleaded J. McCall be- possession a felon in of a firearm in 922(g)(1). violation 18 U.S.C. imposed fifteen-year district court prison minimum sentence mandated 924(e)(1) 922(g)(1) of- U.S.C. for a prior fender who has three “violent felo- ny” arguing appeals, convictions. McCall States, concluding Shepard court erred in that the district prior felony three convictions for S.Ct. his were driving while intoxicated Missouri 924(e) trigger

violent felonies that X. requires enhancement. This issue us to Many decisions of court and our apply the definition of “vio- construe sister circuits have construed the “other- 924(e)(2)(B)(ii): felony” lent found wise involves” provision 18 U.S.C. (B) the term “violent means 924(e)(2)(B)(ii) provision since the punishable by imprisonment crime part enacted as of the Armed Career ... exceeding year for a term one question Criminal Act of The recurs that— frequently and has a significant impact

(i) use, an element has as the at- an offender’s sentence. The statute was use, or tempted threatened use of designed to implement important prin- an physical against person the ciple of sentencing federal career —violent another; or possess criminals who firearms should be

(ii) arson, extortion, severely punished. But burglary, legislative his- tory reviewed explosives, Supreme involves use of or other- Court in Taylor, 581-90, at presents wise involves conduct that 110 S.Ct. U.S. Congress struggled risk demonstrates that in- define jury (Emphasis types .... of violent felonies that another add- ed.) trigger the sentence enhancement. 924(e)(2)(B)(i) language Subsection used A panel of this court reversed the fif- directly taken from the definition of a sentence, teen-year United States v. 16(a) “crime of violence” 18 U.S.C. —a (8th McCall, Cir.2005), 397 F.3d 1028 con- use, crime that as an “has element the that it was cluding prior pan- bound use, attempted physi- or threatened use of felony el’s decision that DWI offenses are cal force of another.” “crimes of violence” under identical- 924(e)(2)(B)(ii), But subsection which add- ly provision worded “otherwise involves” categories ed dangerous prop- of violent or 1.2(a)(2). § 4B U.S.S.G. See United States erty crimes to the universe of violent felo- Cir.2005). Walker, (8th 393 F.3d 819 nies, amalgam used an odd structural —“is granted government’s petition We for burglary ... or con- otherwise involves rehearing en banc consider de novo duct that a serious risk felony whether a DWI conviction in Mis- injury to another.” felony souri is a violent under the “other- question construing first the “otherwise wise involves” is to determine wheth- 924(e)(2)(B)(ii). We conclude that statutory er its focus is on the elements of driving while intoxicated is a violent felo- (“con- conviction, a prior or on the facts However, ny. because the Missouri duct”) underlying conviction. non-driving DWI offense includes well, sentencing we remand for further held that proceedings government may “burglary” at which the crime “ 924(e)(2)(B)(ii) prove prior seek to that McCall’s convic- ‘burglary’ means [in] offenses, tions using generic were the lim- sense in which term is now permitted by ited universe of evidence used in the criminal codes of most States.” States, v. United 110 495 at 2143. To deter- U.S. S.Ct. (1990), prior S.Ct. 109 L.Ed.2d 607 and mine whether a defendant’s eonvic- “generally requires the trial court to generic burglary, and there ute tion was felony, only the Court to the fact of and the fore was look conviction adopted categorical approach, statutory prior a “formal definition of the offense.” looking only Moreover, to the definitions Id. at 110 S.Ct. 2143. offenses, prior particu and not to the on the contrary interpretation focused convictions.” underlying lar facts those sentencing underlying facts would embroil Id. factfinding process courts “in an elaborate offenses,” prior the defendant’s regarding operative language of the first Taylor, 495 U.S. at 924(e)(2)(B)(ii) burglary, §in clause —“is raise serious Sixth Amendment might arson, or commands extortion” —almost concerns, Shepard, at 1262- see categorical approach in of a formal use Therefore, to determine whether a determining offenses are included what prior conviction was violent within But within these enumerated crimes. meaning of the at “otherwise involves” language provision of the here issue— 924(e)(2)(B)(ii), § suggests provision in the sentenc “otherwise involves conduct ”— underlying particular that the facts of court must first determine whether the may The Supreme fense be relevant. prior elements of that crime involved or question Tay in Court did answer this “necessarily entails described conduct lor, 9, 2143, n. see 495 U.S. at 600 110 S.Ct. injury.” physical a serious risk of prior panel opinions and our have been Montgomery, States v. 402 F.3d United Compare v. inconsistent. United States (5th Cir.2005).1 (8th Mincks, 898, 409 F.3d 899-900 Cir. II.

2005) (reviewing only statutory ele ments), Johnson, with United States v. 326 in We must next consider the decision (8th Cir.2003) 934, (reviewing 937 the Walker, dissent, endorsed that the facts). underlying “otherwise involves” aggres- limited to violent crimes of “active circuits,

Like our sister we resolve similar sion” are to the crimes enu- troubling ambiguity by adopting this 924(e)(2)(B)(ii). §in In reaching merated categorical approach formal in conclusion, panel this relied Walker construing provi the “otherwise involves” construction, on two canons of 924(e)(2)(B)(ii). §in sion As the Court ejusdem generis; noscitur sociis and 924(e)(1) Taylor, to ‘a noted “refers fragments legislative history re- ... person previous who has three convic ’ greater depth Taylor; viewed dicta tions a person who has commit for —not the First Circuit’s decision United previous ted—three violent felonies.” 495 Doe, (1992); 600, 221 (emphasis 110 States v. 960 F.2d and the U.S. S.Ct. 2143 add ed). interpretation This is textual evidence that the stat- recent Court’s 2629, (2003); Hargrove, 1. Accord United States v. 416 F.3d 156 L.Ed.2d 644 United States 486, (6th Cir.2005); Sacko, 1, (1st Cir.1999); 494 United States Mel v. 178 F.3d 7 United ton, 1021, Jackson, 249, (9th Cir.2003), 344 F.3d 1026-29 States v. 113 F.3d 251-53 denied, 953, 1696, denied, 901, (D.C.Cir.), cert. 541 U.S. 124 S.Ct. cert. 522 U.S. Howze, 252, (2004); (1997); L.Ed.2d 386 United States S.Ct. 139 L.Ed.2d 180 United 919, Cir.2003); 1334, (7th (10th Phelps, 343 F.3d 920-22 United States v. 17 F.3d James, 387, (4th denied, 844, 135, Cir.), States v. 337 F.3d 389-91 cert. 513 U.S. 115 S.Ct. denied, Cir.2003), 1134, (1994); cert. 540 U.S. 130 L.Ed.2d 77 United States v. 1111, (2004); O'Brien, 47, (3d Cir.1992), 157 L.Ed.2d 939 972 F.2d 49-53 Jackson, 210, (2d denied, States v. 61-63 cert. 510 U.S. 114 S.Ct. denied, Cir.2002), (1993). cert. 16(b) form of the addition made Ashcroft, language. The in Leocal v. 18 U.S.C. involves” look like 160 L.Ed.2d the “otherwise analysis is conclude that this initially We when in fact it was a catchall unpersuasive. operative provision. See 495 U.S. at 586- Adding 110 S.Ct. 2143. the enumerat- Leocal, construed the Court purpose of ed crimes served the obvious 16(b), of vio defines a “crime which all convictions for those including prior which, nature, “by its lence” as a extortion, arson, (burglary, use of risk that a substantial involves regardless they of whether explosives), property a serious present in the course of may be used another injury. Id. at 110 S.Ct. 2143. Given held committing the offense.” The Court wrong it drafting sequence, infer 16(b), language of plain intended to limit the “other- used language same 924(e)(2)(B)(i), provision to offenses that limits that statute to “vio wise lent, the word active crimes” because to the enumerated add-ons. are similar component rea incorporates a mens “used” reasons, give though For these we con requires that an offender’s and thus which regard contrary dicta Doe due “merely than accidental or duct be more against construing the “other cautioned 11, at 125 negligent.” 543 U.S. S.Ct. provision involves” to include risk- wise noted, contrast, By opinion as the Leocal to be creating crimes “that do seem 7, 377, “otherwise at 10 n. the id. there,” 225, F.2d at conclude long 960 we 924(e)(2)(B)(ii) §in is provision involves” con that we must construe the It on “conduct not so limited. focuses We there plain language. sistent with its physical potential a serious risk presents reject analysis in and hold fore Walker another,” not on the intent of the injury to meaning of that a violent within the v. Sperberg, offender. United States See 924(e)(2)(B)(ii) crime whose includes (7th 3455832, 706, *2 432 F.3d WL necessarily involve conduct elements Scott, Dec.19, 2005); States v. Cir. United physi potential a serious (8th Cir.2005). 839, aWhen 413 F.3d injury cal to another. clear, is this it is plain language statute’s contrary controlling, regard to without III. legislative history hints in the without question brings principal This us to the canons of the need to refer to the noscitur issue, of a at elements ejusdem generis. See United a sociis (8th 443, that offense within Vig, place 167 F.3d 447-49 States v. DWI conviction Smith, Cir.1999); 35 F.3d United States “otherwise (8th Cir.1994). 344, 924(e)(2)(B)(ii). pro To fall within this vision, present criminal conduct must beyond plain language of If we look or, injury as the physical risk2 of statute, history of legislative the “inher Supreme Court said 924(e)(2)(B)(ii) un- Taylor described persons,” for harm ent interpreta- dermines Walker’s reliance 588, Physical inju 110 S.Ct. 2143. U.S. at explained that tive canons. of the offense. ry need not be element word crimes and the “other- 924(e) focused on the But because is wise” were added to the “involves conduct” Shannon, (7th 110 F.3d agree Judge States v. 2. We Posner are inclined " denied, banc), Cir.) (en cert. 522 U.S. 'potential appears to be redun- risk’ language. 139 L.Ed.2d 156 dancy” in the offense, creating the inherent is not inadvertent or po- elements of present, merely negligent. tential for must be if not in As the Seventh Circuit harm violation, every Rutherford, at least a substantial said United States (7th Cir.), denied, portion of the circumstances criminal F.3d 376-77 cert. made Montgomery, the statute. See 402 F.3d 133 L.Ed.2d (1995): quantifying at the risk of 224 488-89. Statistics harm created class of crimes act, driving perhaps Drunk is a reckless judicial helpful are but not essential to this gross Any an act of recklessness. drunk Howze, task. See 923-24. driver who takes to the road should injuring know he runs a risk of another Driving a car creates a risk of person .... of drunk driv- dangers others, injury to it the driver and but ing are well-known and well document- not a “serious risk” within the may present ed. Unlike other acts that 924(e)(2)(B)(ii). meaning Driving un physical injury, ... some risk the risk influence, however, dramatically der injury driving from drunk is neither physical injury. increases the risk of conjectural speculative. Driving nor un- alcohol-related crashes resulted vastly der the influence increases the 16,694fatalities, fatalities, of all 39% traffic probability injure the driver will injur a quarter-million almost more someone an accident .... Drunk driv- A ies.3 driver with a blood alcohol con reckless act that often results likely centration of .08 is 11.1 times more injury, and the driving risks of while to cause a fatal accident than a sober intoxicated are well-known. This is suf- seriously driver.4 one can “[n]o dis satisfy ficient to the “serious risk” stan- pute magnitude of the drunken dard .... problem.” Michigan Dept. State Police Sitz, 444, 451, that, agree by We and therefore conclude 110 L.Ed.2d nature, felony its a conviction for driving poten- while intoxicated a serious Missouri, elsewhere, In as felony physical injury tial risk of to another and DWI convictions are reserved for per felony is therefore a violent under the Thus, sistent drunk driver. provision “otherwise involves” given an initial DWI misdemeanor citation 924(e)(2)(B)(ii). Accord United States v. a driving while few blocks home from a Moore, (10th Cir.2005); 420 F.3d 1218 neighborhood pub guilty will not be of a DeSantiago-Gonzalez, States v. felony. punishment increased (5th Cir.2000). 207 F.3d 261 felony directly for a DWI offense is related persistent Having general to the fact that reached con driving drunk clusion, substantially greater creates a we must specific risk of next examine the physical injury to others. D. of felony See Robert elements McCall’s DWI convic al., Missouri, Brewer et Dying The Risk in Alco tions. In person commits “[a] hol-Related, ‘driving Automobile Among Crashes the crime of while intoxicated’ if Drivers, Habitual Drunk Eng. operates 331 New. hé a motor in an vehicle while (1994). Moreover, J. Med. 513 this risk- or drugged intoxicated condition.” Mo. Highway Safety 3. See National Traffic Admin 4. See National Institute on Alcohol Abuse and istration, Safety Compi Facts 2004: A Alcoholism of the National Institutes of Traffic Health, ¶ (1996) <http:/ lation Motor Vehicle Crash Data Alcohol Alert No. 31 from Fatality Analysis Reporting System and the /pubs.niaaa.nih.gov>. <http:// Systems General Estimates www.nhtsa.dot.gov>. (boldface burglary statute that was overinclu origi- state § 577.010.1. Rev.Stat. is, sive, burglary to in that defined nal). defined as “operates” is The term than range clude a broader of conduct a motor driving operating “physically Modifying its formal generic burglary. § 577.001.1. The Mo.Rev.Stat. vehicle.” to avoid ex categorical approach if the order D is a class offense DWI a cluding all convictions under such stat more “intoxication- had two or offender ute, prior the Court held that the offense years within ten traffic offenses” related charging if paper is a violent “the Mo.Rev.Stat. instant offense. actually 577.023.1(2)(a), jury required instructions .3. generic jury to find all the elements felony DWI convic- of McCall’s elements burglary order to convict the defen driving while repeatedly criminalize tions In dant.” 495 U.S. at S.Ct. 2143. necessarily pres- impaired, approach Shepard, the Court extended this risk of a serious ents limited the guilty plea convictions but injury to others. the defendant government’s proof However, of Mis generic burglary to a of pleaded guilty statutory term construed the souri has document, charging to “the fense include both vehicle “operates” to plea agreement transcript of a terms function causing the vehicle to merely judge and defendant colloquy between v. Director engine. See Cox by starting plea for the which the factual basis (Mo. Revenue, 548, 550-51 98 S.W.3d defendant, or to some confirmed 2003). felony DWI offense This makes the judicial record of this informa comparable overinclusive, of the “other purposes applying tion.” 125 S.Ct. at 1263. involves” wise “otherwise 924(e)(2)(B)(ii), it criminalizes because 924(e)(2)(B)(ii), we deal with somewhat not neces non-driving conduct that does But type different of overinclusiveness. sarily present analysis adopted in that the we conclude example, the inebri injury to others.5 For nonetheless Shepard should Taylor and im recognizes his car owner who ated Therefore, may court the district apply. engine and turns on paired condition record, limited judicial look to the while so keep warm parked vehicle to determine whether Shepard, harm risking physical to oth bering is not find, pleas guilty or juries required were violating the Missouri DWI stat ers but fact, on the necessarily rested Thus, as the Tenth utes as construed. involved convictions prior three McCall’s construing in Nevada’s concluded Circuit driving while intoxicated. statute, every felony not felo DWI similar a violent three in the fact of ny DWI conviction Missouri PSR recited McCall’s 924(e)(2)(B)(ii). “driving § See for while felony under convictions prior Moore, 420 F.3d at did not disclose intoxicated” but guilty trials or convicted after he was

IV. facts underlying The PSR recited pleas. in each case seeming to establish that Supreme Court consid- Taylor, In intoxicated, 924(e)(2)(B)(ii) but while a McCall apply ered how to (Mo. 1996, Dey, 798 S.W.2d 210 in State v. felony DWI strued offense 5. Prior to Missouri’s prior felo- non-driving conduct three encompassed App.1990). more Two of McCall’s even "being prior actual it included because were under ny DWI convictions vehicle,” Mo.Rev.Stat. of a motor control statute. (1995), term was con- as that 577.001.1 the facts were and “police parties attributed re and the court understand “records,” ports” parole and board ably perceive docu failed to governing evi may dentiary ments be used to establish a principles that we have now clari categori circumstances, under modified fied. In these we reverse ' approach by Taylor cal mandated judgment of the district court and Shepard. Though object McCall did not to remand the case for further sentencing recitals, object these PSR he did to the proceedings government may which the 924(e) At sentencing, enhancement. re prove, seek to with evidence admissible lying our opinion United States v. Shepard, under or that McCall’s (8th 865, Cir.2001), Jernigan, 257 F.3d prior felony three DWI convictions were both counsel the district court under violent felonies under the “otherwise in standably inqui believed that the relevant volves” 18 U.S.C. ry was underlying the conduct the of 924(e)(2)(B)(ii). For purpose, fenses. Neither nor counsel the court felt may district court permit parties constrained the more inquiry truncated record, expand sentencing as we have by Taylor Shepard. mandated approved prior cases remanded for re- appeal the record on includes no charging sentencing light Taylor. See United documents, instructions, jury no no written Cornelius, (8th 703, States 968 F.2d agreements, plea plea and no colloquies or Cir.1992); United States v. judicial findings of underlying the facts (8th 703, Cir.), denied, cert. plea confirmed McCall. 116 L.Ed.2d 188 circumstances, In these we conclude that

the fact recitals the PSR are not an LAY, BYE, with whom WOLLMAN and adequate affirming basis for McCall’s sen Judges, join, dissenting. Circuit tence. This is not a case where the PSR prior described offense conduct without I respectfully Felony dissent. drunken stating documentary its sources. such driving convictions are not violent felonies cases, object we have held that failure to under the Armed Career Criminal Act government relieved the obligation (“ACCA” “Act”). The in- “otherwise introduce at sentencing documentary volves” 18 U.S.C. evidence Taylor Shepard requires. See 924(e)(2)(B)(ii) can interpreted Menteer, United States v. 408 F.3d more than one reasonable manner. (8th Cir.2005); 446-47 United States v. (B)(ii) ambiguity of subsection is resolved (8th Balanga, 109 F.3d 1304 & n. 7 when the subsection light is viewed in Cir.1997); accord United States v. Breg Congress’s purpose enacting the ACCA. nard, (1st Cir.1991), 460 n. 3 defining When qualify crimes that as “vio- denied, cert. lent felonies” under subsection 119 L.Ed.2d 564 Nor is this a case enhancement purposes, Congress intended where the PSR described conduct derived property serious crimes that from Taylor documents or Shepard per arson, are similar in burglary, nature to Instead, mit. expressly PSR relied on extortion, and crimes involving the use of police reports and probation that records explosives. not, however, Congress did would be sentencing inadmissible at under intend to include crimes driving like drunk Shepard. for purposes, enhancement as drunk driv- 924(e)

Timothy objected inherently McCall to the ers are not dangerous more enhancement. The society they minimum gun possession sentence when violate severe, mandated case, enhancement is laws. this McCall should be sen- to 180 months. The Sentencing McCall was sentenced the United States fenced under (“Guidelines”) pos- objects question felon to which -this dissent Guidelines should not whether, His sentence gun. this: in enact- simply session this case is 924(e)(2)(B)(ii). under ACCA, enhanced be intended to en- prison terms of defendants with hance

I. felony driving drunk convictions three who matter, may it be useful to initial As an forbidding the law subsequently fel- violate not—at issue what is—and is review possessing ons from firearms. First, faced we are not

case. punished should be of how McCall

question II. felony for drunk for his three convictions Congress expressly “violent felo- defined presum of Missouri driving. The State ny” in the as follows: ACCA sentenced McCall ably convicted and (B) felony” any the term “violent means driving drunk accordance with Missouri by imprisonment for a punishable crime served the presumably and McCall laws year ... that— exceeding term one Second, we are not imposed. sentences (i) use, at- has as an element the of whether McCall question with the faced use, tempted or threatened use being a felon in punished of a firearm. Under 18 U.S.C. possession another; 922(g)(1), Congress,has mandated convicted any person “who has been (ii) arson, extortion, burglary, is punishable by imprison court of a crime [ ] explosives, or other- involves use may exceeding year” one

ment for a term presents wise involves conduct case, In this possess a firearm. inju- 'physical risk of serious being a felon- pleaded guilty McCall .... ry to another police of a forearm after the possession 924(e)(2)(B). This case re- 18 U.S.C. home. discovered a rifle his Under phrase to decide whether the “or quires us Guidelines, sentencing presumptive involves conduct that otherwise 27 to 33 months.6 range for McCall was injury to However, sought to government have in- as the “otherwise another” —known enhanced under McCall’s sentence provision of the ACCA—includes volves” ACCA, previ arguing that McCall’s three driving felony drunk convictions. ous convictions for drunk statute, interpreting a our court’s When constituted “violent felonies.” See 18 to the intent of objective give is to effect 924(e). ACCA, a felon U.S.C. Under 192 F.3d Congress. Ray, Watson v. qualify possession gun of a with three (8th Cir.1999). principle 1155-56 The first subject ing “violent convictions us to requires construction mandatory 15-year minimum sen to a congressional intent determine whether determi tence. the district court’s meaning of the stat plain clear from the three drunk nation McCall’s Safety Prods. ute. Shelton v. Consumer were “violent felonies” driving convictions (8th Cir.2002). Comm’n, be increased mandated that his sentence that, emphasized has being than sen nearly six-fold. Rather meaning of ascertaining plain [a] range, “[i]n in the 27-to-33-month tenced responsibility U.S.S.G. category for his offense. See history was V 6. McCall’s criminal 12, offense level was which reflects and his 3E1.1. accepted McCall two-level reduction because statute, particu- the court must look to the plainly Congress indicates that intended to issue, statutory language lar at arson, as well as burglary, include the crimes of ex language and design tortion, of the statute as a involving and those the use of ex Cartier, Inc., K Corp. whole.” Mart 486 plosives in the definition of “violent felon 281, 291, 1811, 108 S.Ct. 100 L.Ed.2d y.”7 “ (1988). process, In this courts ‘con- operative The second clause of subsec only sider not the bare meaning of the (B)(ii) tion pro “otherwise involves” —the ” “ issue, critical word or phrase’ ‘but easily vision—is not so parsed. The stat also placement purpose and in the stat- grammatical ute’s requires structure us to ” utory scheme.’ Holloway v. United carry language over from beginning States, 1, 6, 966, 526 U.S. 119 S.Ct. 143 the definition in order to make sense of the (1999) L.Ed.2d 1 (quoting Bailey v. United subsection’s locution. a violent felo States, 137, 145, 516 U.S. 116 S.Ct. ny punishable by crime more than a (1995)). 133 L.Ed.2d 472 Accordingly, in year arson, in prison burglary, that “is evaluating 924(e)(2)(B)(ii), we cannot extortion, involves use of explosives, or only consider meaning” “bare of the otherwise involves conduct that presents a Rather, “otherwise involves” provision. physical injury we must light consider the above, another.” As noted in determining “language design of the statute as the crimes intended to encom whole.” K Mart Corp., 486 U.S. at pass in the “otherwise provision, 108 S.Ct. 1811. we cannot look language at the (B)(i), Subsection the first subsection in provision Rather, in isolation. the Su the definition of “violent felony,” is preme Court has stressed “over and over” straightforward, directing us to determine that “‘in expounding statute, we must whether the elements of the crime in ques- guided by a single sentence or use, tion use, involve the attempted sentence, member of a but look to the threatened use of against force provisions law, of the whole and to its another encompassing a —thus object policy.’” U.S. Nat. Bank of wide swath of crimes with elements that America, Ore. v. Indep. Agents Ins. expressly involve the use or use Inc., 439, 455, 508 U.S. 113 S.Ct. people. (1993) L.Ed.2d 402 (quoting United States (B)(ii) Boisdore, wording 113, 122, Heirs subsection 8 How. less (1850)). clear. The subsection L.Ed. 1009 operative said, has two As the Court has clauses. The operative “[statutory first clause con construction is ‘a holistic en tains an crimes, deavor,’ and, minimum, list of each of at a must account which felony. text, “is” Given the for a full statute’s language as well as express structure, enumeration of four punctuation, crimes and subject mat “is,” the use of the word part (quoting ter.” Id. United Savings Assn. of However, 7. clearly even this "burglary," 924(e), enumerated list stated that as used in interpretive problems, has caused as it is not "must have indepen- some uniform definition clear language from the statute's dent employed by of the labels the various Congress intended to define the enumerated States' criminal codes." Id. at 110 S.Ct. law, according to the common The Court then concluded code, penal model given or the label to crimes by 'burglary' generic "meant sense in state statutes. The United States which the term is now used in the criminal settled this issue in v. United codes of most States.” Id. at States, the Court every in fashion that word has strued such Inwood Forest As Timbers Texas v. of 371, 108 Ltd., operative effect.” United socs., S.Ct. some States 484 U.S. (1988)). Inc., Vill., 30, 36, 112 Given these es L.Ed.2d 740 Nordic construction, (1992). in statutory rules of 117 L.Ed.2d If tablished S.Ct. intent is evaluating congressional pur to “otherwise” is assumed have some meaning of subsection plain from the statute, clear in dictio pose turning the to the (B)(ii), provision involves” the “otherwise meaning nary plain to confirm the term’s context of first be read must adverb, of little is avail. When used as language subsection other (1) “otherwise,” “in way means a different statute as a in the context of the then (2) manner”; “in or different circum whole. (3) stances”; respects.” “in other Dictio Collegiate Webster’s Ninth New provision the “otherwise

When nary list of which defi Depending is in the context of the enumer read (B)(ii), provision gives apply, crimes nition of one chooses to ated “otherwise” interpre than to more one reasonable rise which of the defini elements chosen hand, possible the one it is to On tation. one in emphasizes, tion “otherwise language extrapolate from the subsection’s support volves” can be read regard a violent is that crimes” and crimes” “any both “similar crime— involves conduct of its nature —that less interpretations. serious is clear and We have stated statute However, injury to this another.8 unambiguous “it is possible when that can be drawn merely one inference than construe it in more one reasonable tortured locution.

from the subsection’s Bak- Earthgrains manner.” Breedlove inference equally An reasonable (8th Cir.1998); Cos., specific proper four Congress enumerated also v. United see Chickasaw Nation ty prior to the “otherwise involves” crimes States, 84, 90, it intended the subsec because (2001) a statute is (stating property crimes tion to serious under- ambiguous “capable being if it is of the enumerated similar nature possible more senses stood two or crimes.9 wording put, strange ways”). Simply Congress, the discerning In the intent of 924(e)(2)(B)(ii) more than gives rise to (B)(ii) po- word “otherwise” subsection interpretation of Con- one reasonable If difficulties. particular interpretive ses Accordingly, it contravenes gress’s intent. in- the “otherwise construction principles basic crimes, all provision to include volves” (B)(ii) “plainly” subsection to assert only a of crimes similar rather than subset involving includes conduct all crimes, the “or” enumerated word poses risk have this end more would achieved alone fact, only plainly injury to another. is, That could stat- clearly. have (B)(ii) is its in subsection apparent quality crimes], “is [one ed ” ambiguity. Thus, under .... involves (B)(ii) is ambiguity subsection interpretation, the word “oth- crimes” “all consider the subsection amplified if we meaning nothing adds to the erwise” overall structure relation to the rule provision. This violates the “settled “violent must, definition possible, if be con- that a statute convenience, the "similar This referred will be the sake of will be 8. For interpretation. interpretation. crimes” as the crimes” referred to “all 978 924(e)(2)(B). felony” When it “violent of “violent subsec defined the definition (B)(i) (B)(ii)

felony,” Congress set forth tivo subsections tions cannot be reconciled scope the Sub- establishing term. proposition Congress “plain with the that (B)(i) with section includes crimes ele- ly” intended the pro “otherwise involves” ments to the use of related to all-encompassing. King vision be See v. (B)(ii) against person. another Subsection 215, 221, Hosp., 502 U.S. 112 St. Vincent’s crimes, specific property enumerates four (1991) (“[T]he 578 S.Ct. L.Ed.2d provi- followed the “otherwise involves” meaning of statutory language, plain or deliberate, two-part sion. This structure context.”); not, depends on United States easily propo- cannot the be reconciled with Witkovich, 194, 200, v. 353 77 U.S. Congress sition plainly that intended the (1957) 779, L.Ed.2d (acknowledging 765 to “otherwise include interpret statutory provision courts to regardless all of their nature— crimes— surrounding provisions). harmonize presents that involve conduct that a seri- potential injury ous risk of physical to III. requires another. view the conclu- Such language If of a is ambiguous statute Congress deliberately sion that created a doubtful, meaning is courts must delineating peo- against subsection crimes “purpose, subject consider matter ple, deliberately then created a subsection and the condition of affairs which led” to that enumerated four crimes Yates, the statute’s enactment. Lambur v. against that of property pose injury a risk (8th Cir.1945). F.2d “When people, then all-encom- included an meaning questionable, of a is statute it passing “otherwise involves” that given sensible construction and already of subsumes most the crimes de- underlying pur- construed effectuate the fined in each subsection. Retsinas, poses Haley of the law.” is, provi That if the “otherwise involves” (8th Cir.1998) (quotation sion interpreted is to include all crimes omitted). and citation involve conduct that a seri In resolving ous risk physical injury of (B)(ii) encompass subsection “all another, that encompasses definition all of only crimes” crimes similar the enu- non-threat crimes people crimes, primary merated we have three (B)(i) fall under as well as three of the four First, disposal. our apply tools at we can in(B)(ii) i.e., specific set forth crimes bur — established canons of construction to the arson, glary, involving explos and crimes Second, text itself. we can ex- only ives.10 specific lan legislative history amine the ACCA guage of ambiguous, subsection Third, purposes to ascertain the the Act. ambiguity reinforced fact we draw from can Court’s defined “violent two discussion of the Act in supra, as

parts. two-part neatly This structure ech the Supreme well as Court’s statements ACCA, os the original structure Ashcroft, about the ACCA in Leocal which designated only the rob bery and burglary pur for enhancement

poses. (2004), guidance See in understanding discussion Part III.B. infra Accordingly, the deliberate purpose. structure Act’s many 10. It also subsumes the fourth forms of the serious risk harm to extortion—which, de- crime— another. circumstances, pending on the creates often provision should not be erwise involves” A. Canons Construction all interpreted to crimes —re- (B)(ii) ambiguous, Because subsection the gardless of their nature'—'that involve canons of construc apply we established Rather, the specified conduct. congressional the to determine to text tion encompass interpreted only to should be begins with list Subsection intent. are in crimes that similar property serious crimes, by the followed of four enumerated arson, extortion, burglary, nature to and provision. involves” general “otherwise involving explosives. those the use of appended are general words When items, specific more the of enumeration History Legislative B. long-established” maxim and “sensible way we should generis Congress “limits the ejusdem The conclusion that general Holder understand such words.” provision to in the “otherwise involves” 874, 2581, Hall, 917, 512 U.S. in to the only clude crimes similar nature principle of L.Ed.2d “The 129 687 crimes is reinforced property enumerated gener generis suggests that ejusdem such of the by legislative history the ACCA.11 to refer to should be understood al terms the' Armed it enacted 1984 Career When the class belonging to same items Act,12 Congress provided that a Criminal specific by the more terms defined of a possession firearm felon convicted Id.; Washington State see also list.” previous convictions for who had three Health Servs. v. Guardian Dep’t & of Soc. burglary” mandatory faced a “robbery or 371, 384, U.S. ship Keffeler, Estate 537 15 years. prison minimum sentence (2003) 1017, 154 L.Ed.2d 972 by The 1984 Act was amended 1986 (“Where specific general words follow Act,13 Protection then Firearms Owners’ enumeration, gen in a words five months later the Career Criminal only words are construed to embrace eral (CCAA Act of 1986 Amendments objects in nature those objects similar 1986).14 of 1986 effected two The CCAA preceding specific by the enumerated First, Congress changed changes. central (citation omitted). words.”) quotation triggering enhance predicate offenses Here, Congress four crimes enumerated robbery” to “a “burglary ment from and attached this list to against property drug felony or serious offense.” involves general phrase “or otherwise (B)(i) added subsections then conduct that (B)(ii), felony.” defining “violent physical injury another.” Under observed in United States As our court gen ejusdem principle generis, (8th Cir.2005), Walker, 824 pro words in the “otherwise eral history legislative of the CCAA of construed “to embrace vision should be reinforces the conclusion expressly subjects nature” to the only similar in- “otherwise intended the Washington State crimes. crimes sim- Servs., volves” 537 U.S. at Dep’t Soc. & Health Therefore, enumerated crimes. ilar nature 1017. “oth- S.Ct. 99-308, legislative Stat. This 13. Pub.L. 11. A full statement ACCA’s 924(e). history Taylor, 495 U.S. at U.S.C. can be found act 1202 as 18 recodified 581-83, 110 S.Ct. 2143. Anti-Drug of Subtitle I of 14. Section 1402 98-473, Pub.L. ch. 98 Stat. 99-570, 100 Stat. Abuse Pub.L. Act (1982 ed., III) 1202(a) Supp. U.S.C.App. § 3207-40. 99-308, 104(b), (repealed in 1986 Pub.L. 459). 100 Stat. deciding against “violent should force person. how cal This latter defined, Congress agreed catego- that the provision would include such felonies in- (B)(i) against ries of people volving physical against force congressional be included. The de- assault, murder, robbery, as rape, such place upon bate that took “centered wheth- etc. er property crimes should be included major The other question involved offenses, so, predicate which and if hearings these as to what violent ones.” involving felonies added). (emphasis compromise property should included the defi- be presented by pro- bill the Subcommittee felony. nition of “violent” The Subcom- vided that agreed mittee to the punish- add crimes the term “violent means exceeding year for a term able one that by crime punishable imprisonment for a presents involve that a serious exceeding year term one that— risk potential physical injury to oth- (i) use, has an as element the at- ers. This will add State and Federal use, or tempted threatened use of against crimes such property burgla- as another; the arson, ry, extortion, explosives use of or similar as predicate and crimes of- (ii) involves conduct that presents fenses where the conduct pres- involved potential physical inju- serious risk of injury ents a serious person. risk of to a ry to another. (1986) (second H.R.Rep. 99-849, No. at 3 H.R. Report 4885. The of the House added). Later, emphasis Report the sum Judiciary (“Report”) Committee on the fa- conclusions, “[sjubsec stating marized its

vorably reported bill, compromise this 2(b)(B)(ii) tion adds all State and Federal explaining: against property felonies such as burglary, The Subcommittee on held a Crime arson, extortion, of explosives use and hearing ... to it consider whether predicate similar crimes as offenses where should expand predicate the offenses the conduct presents involved a serious (robbery burglary) existing and law in (em injury person.” risk of to a Id. at 5 order to to its add At effectiveness. added). phasis The repeated reference to hearing a consensus developed sup- Report “similar crimes” in the reinforces port expansion predicate of an that Congress the view intended the “oth drug offenses to include serious traffick- erwise to felonies, ... offenses and violent property crimes that are similar in nature generally. This encom- concept was arson, extortion, burglary, to and crimes passed in by deleting H.R. 4885 explosives. that involve the use of specific predicate robbery offenses for finally Before CCAA of 1986 was burglary adding predicate as enacted, compromise version of subsec- offenses State Federal laws for tion was amended to read: “is bur- which a maximum term of imprisonment arson, extortion, glary, or involves use of years of 10 or prescribed more is explosives, or otherwise involves conduct manufacturing, distributing possess- that presents potential ing intent manufacture or dis- physical injury tribute to another.” controlled substances and felonies explained under Federal or law if Court the addition State use, offense has element the at- of the enumerated crimes to subsection tempted physi- (B)(ii), use threatened stating use compromise “appar- bill they possess weapons, who, because burglary, include intended ently offenses, threat of at least present property other serious among con- ‘involves persons. a crime harm to as implication, risk a serious duct 587-88, 2143. The Id. at ” 495 U.S. to another.’ injury that, defining predicate further noted then The Court 589, 110 S.Ct. at ACCA, in under offenses crimes were noted a certain offenses of “capture all tended to make “simply to the subsection added violence or involve of seriousness level coverage of implied provision’s explicit thereof, are like and that risk an inherent indi- This Id. burglary.” crimes such career offenders.” committed ly analysis founded the Court cates As the Court Id. assumption that of(B)(ii) on the ACCA, Con out, enacting pointed to “serious the subsection to limit intensely prac in the “immersed gress was Thus, the enumer- Id. offenses.” property crime.” controlling violent concerns tical. compromise added were ated Id. at arson, extor- burglary, to assure that bill acknowledged expressly Thus, treat- the Court be explosives would tion, of and use to crimes” en- is meant that the ACCA property Taylor in as “serious ed express The Court’s of career purposes. sentences prison hancement enhance (B)(ii) in- that Taylor in “as statement violent crimes commit who criminals property “serious encompass to tended rec- The Court of livelihood.” their means with the reconciled cannot be crimes” between nexus exists that a causal ognized (B)(ii) Congress that proposition subse- criminals and career dangerous of regardless all encompass crimes— both that when possession' quent gun —and that conduct involve nature —-that their risk a serious present, are factors injury risk a serious is, the That results. injury to others requires proposition a another. Such a that the notion on premised is ACCA that, defining an all- after assumption crime is history of violent awith defendant added category, encompassing pos- he society when dangerous more merely to articu- crimes previ- if a defendant’s gun. sesses a of enhancement subclass random a late “violent,” defen- have been ous felonies crimes. by dangerous particularly made dant in that conclusion Court The under enhancement gun possessing —and (B)(ii) limited to as interpreted subsection however, When, is in order. the ACCA supported offenses” property “serious not does previous the defendant’s regard- express statements the Court’s injury elevated poses an he indicate enacting the intent Congress’s gun, enhance- by possessing to others history reviewing legislative In ACCA. Rather, in those no sense. ment makes Taylor stated ACCA, the Court has violated who defendant cases the observations” of “useful a number that. guns possessing against prohibition legislative histo- from the drawn could ac- Guidelines under the be sentenced First, the ry. Id. at history category criminal cordance his that observed Court level. and offense history the enhance- throughout its ef- focused provision, ment and Doe C. Leocal who offenders —those forts career Congress did that The conclusion fairly serious number large commit felo- encompass livelihood, intend subsection and means as their crimes ny supported by drunk laws is cannot naturally that be said Doe, in United statements States include Id. at DUI offenses.” (1st Cir.1992), Leocal added). and v. Ash (emphasis S.Ct. at Court croft, 543 U.S. favorably quoted then then-Chief Judge Leocal, the Su Breyer’s that statement Doe the term preme interpreted U.S.C. 924(e) felony” § “violent 18 U.S.C. “ 16(b), § which defines a “crime of vio ‘calls to mind a of crimes tradition “any lence” other offense is a felo possibility closely involve the of more re ” that, nature, ny involves a sub lated, Doe, (quoting active violence.’ Id. stantial risk 225).15 960 F.2d at This favorable citation property may of another be used supports of Doe in Leocal the proposition committing the course of the offense.” § that a “crime of violence” under 4B1.2— Leocal, 543 U.S. at 125 S.Ct. at 381. felony” therefore “violent under The Court noted this definition of “crime 924(e) not include drunk driving. —does specific is much violence” more than the least, very At the the tension between the definition of “crime of violence” U.S.S.G. 16(b) Court’s initial observation that 4B1.2—a that is viewed as es 4B1.2 different conduct and sentially interchangeable with the defini observation, Doe, citing its subsequent 924(e)(2)(B). tion of “violent actively violent crimes must be distin Nolan, States guished negligent from “accidental or con (8th Cir.2005); see also United States v. duct” underscores the unsettled nature of (9th 889, Cir.2005); Kelly, F.3d 894 n. 2 Congress whether intended to include felo United v. Montgomery, States 402 F.3d ny driving drunk convictions the catego (5th Cir.2005); n. 28 United ry 924(e). § of violent felonies as defined Johnson, States v. 333 n. 5 Thus, although neither Doe nor Leocal (4th Cir.2001); Arnold, United States provide support direct for the conclusion (6th Cir.1995). driving that drunk is not a violent 16(b) 1.2, § § comparing When with 4B § under Leocal’s discussion of “ 16(b) the Court in Leocal that stated 924(e) indicates that the Court believes plainly all does offenses driving actively drunk is not an which a create ‘substantial risk’ that injury crime, required under the ACCA. will person’s result from a conduct.” Id. at at n. This 7. statement IV. could be construed to mean that the Court question There is no that drunk driving is predisposed concluding to that 4B1.2 has destructive consequences and that (and 924(e)) thus does include “all of- state legislatures Congress have a inju- fenses” that create a substantial risk duty to laws enact that facilitate the identi- ry will result from one’s conduct. Howev- fication, conviction, er, punishment went on of to state that “[t]he hand, drunk ordinary meaning The of of drivers. issue at [crime howev- violence] violent, er, ... a suggests category of driving active is not how drunk should be 924(e), on, discussing § 15. In say, proof First Circuit tences driving based drunken of reading Rather, noted in that broadly Doe the statute convictions. we read the must defini- “bring would within the statute’s host a num- defined, light tion in of the term to be 'violent belong ber of that other crimes do not seem to felony,' which calls to amind tradition of there.” 960 F.2d at First Circuit possibility involve of more say went on to is no "[t]here reason to related, closely active violence.” Id. Congress believe that meant to enhance sen- can be interpretation based such felons when is the issue Nor punished. guess a as to what Con- no more than accordance punished should be guns. States, illegally possessing gress intended.” Ladner Guidelines to Congress is whether The issue 3 L.Ed.2d in the driving convictions include drunk hand, at after In the case as defined of “violent felonies” category gun possessing vio- guilty pleading the ACCA Congress enacted the ACCA. prison McCall’s sen- 922(g)(1), lation career offenders the sentences lengthen six-fold, from nearly increased tence was fairly seri large number “who commit mandatory minimum months to a 27-to-33 livelihood, their means crimes as ous from clear direction 15-years. Absent weapons, who, they possess because construing avoid we should Congress, harm threat of at least present imposes such in a manner ACCA 587-88, Taylor, 495 U.S. persons.” In- defendant. on a criminal penalty dire repeating that It bears the statute at stead, construe we should trig statute is an enhancement the ACCA favor, recognizing that in McCall’s issue In imposing by gun possession. gered history of the ACCA indi- legislative on these mandatory minimum sentences to in- did not intend Congress cates soci defendants, recognized has for drunk clude convictions enhancing sentences ety’s interest If provision. “otherwise involves” in'the dangerous whose criminals violent career statute can disagrees, be Al by gun possession. ness is intensified any question regard- to alleviate amended poses a repeat drunk driver though a case should This ing Congress’s intent. not intensi society, that threat threat remanded, be resen- and McCall should Rather, a a gun. possession fied under an enhancement without tenced society is intensi threat drunk driver’s ACCA. drive to drink and her choice fied his and Con legislatures state

again. While reme sentencing to fashion free

gress are repeat drunk threat to address the

dies only makes sense society, it pose to

drivers by the triggered have those remedies question: drunk

dangerous

driving. America, UNITED STATES 924(e) gives wording of Because Appellee, regarding questions rise to reasonable to include crime under enhancing driving as drunk STEVENS, Cameron Maurice expanding the ACCA, than rather Appellant. statute, ap- our court scope of construe the lenity and No. principle of 05-1744. ply “[A]m- in favor of the defendant. statute Appeals, States Court of criminal the ambit biguity concerning Circuit. Eighth in favor of should be resolved statutes States, 401 v. United lenity.” Rewis 11, 2005. Oct. Submitted: 808, 812, 16, 2006. March Filed: “interpret a should not Courts as to increase statute so federal criminal an individual places it penalty

Case Details

Case Name: United States v. Timothy Jerome McCall

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Mar 15, 2006

Citation: 439 F.3d 967

Docket Number: 04-1143

Court Abbreviation: 8th Cir.