                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    UNITED STATES COURT OF APPEALS                   June 16, 2008
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 05-2253
          v.                                           (D. New Mexico)
 LARRY BEGAY,                                  (D.C. No. 1:04-CR-2245-WJ-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before LUCERO, HARTZ, and McCONNELL, Circuit Judges.



      In Begay v. United States, 128 S. Ct. 1581 (2008), the Supreme Court

reversed that portion of our decision in United States v. Begay, 470 F.3d 964

(10th Cir. 2006), holding that Mr. Begay’s conviction of felony driving while

intoxicated is a violent felony under 18 U.S.C. § 924(e). We therefore vacate that

portion of our prior decision so holding and reinstate the remainder of the court’s

December 12, 2006, opinion. We REMAND to the district court with




      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
instructions to vacate the sentence and resentence Mr. Begay subject to our prior

decision as modified by the Supreme Court.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




                                        -2-
                                                                         FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                                      PUBLISH
                                                                       December 12, 2006
                   UNITED STATES COURT OF APPEALS                      Elisabeth A. Shumaker
                                                                          Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
       v.                                                No. 05-2253
 LARRY BEGAY,

              Defendant - Appellant.


         APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW MEXICO
                     (D.C. NO. CR-04-2245 WJ)


Margaret A. Katze, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Defendant - Appellant.

David N. Williams, Assistant United States Attorney, (David C. Iglesias, United
States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff -
Appellee.


Before LUCERO, HARTZ, and McCONNELL, Circuit Judges.


HARTZ, Circuit Judge.


      Larry Begay was sentenced to 188 months’ imprisonment after pleading

guilty to one count of being a felon in possession of a firearm in violation of 18

U.S.C. § 922(g)(1). The district court determined that each of Mr. Begay’s three
previous felony convictions for driving while intoxicated was a “violent felony”

under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See United

States v. Begay, 377 F. Supp. 2d 1141 (D.N.M. 2005). On appeal Mr. Begay

contends that (1) felony driving while intoxicated is not a violent felony under the

ACCA, and (2) the district court violated United States v. Booker, 543 U.S. 220

(2005), in concluding that it could not impose a sentence below the Guidelines

range if a sentence within that range would be reasonable. We have jurisdiction

under 28 U.S.C. § 1291 and hold that (1) felony driving while intoxicated is a

violent felony under the ACCA, and (2) a district court may impose a sentence

outside the Guidelines range even if a sentence within the range would be

reasonable. Accordingly, we affirm in part, reverse in part, and remand for

resentencing.

I.    BACKGROUND

      According to the presentence report (PSR), in September 2004 Mr. Begay

threatened to shoot his sister, Annie Begay, with a rifle if she did not give him

money. When she informed him that she did not have any money, he repeatedly

pulled the trigger, but the rifle did not fire. The next morning she called the

Navajo Department of Law Enforcement while he was asleep. Officers responded

and found a .22 caliber rifle under a mattress inside his room.

      Mr. Begay pleaded guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1). According to the PSR, Mr. Begay had 12

                                         -2-
previous convictions for driving while intoxicated (DWI). Three of these

convictions were felonies under New Mexico law, which makes the fourth and

each subsequent DWI conviction a felony. See N.M. Stat. Ann.

§ 66-8-102(G)–(J) (1978) (“Upon a fourth conviction pursuant to this section, an

offender is guilty of a fourth degree felony and . . . shall be sentenced to a term of

imprisonment of eighteen months . . . . Upon a fifth conviction . . . an offender . .

. shall be sentenced to a term of imprisonment of two years . . . .”). The district

court determined that a felony DWI is a “violent felony” under the ACCA. With

convictions for three such felonies, Mr. Begay was subject to a mandatory

minimum sentence of 15 years’ imprisonment under the ACCA, see

18 U.S.C. § 924(e)(1), and his offense level under the United States Sentencing

Guidelines (USSG) was 34, see USSG § 4B1.4(a) (“A defendant who is subject to

an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed

career criminal.”); id. § 4B1.4(b)(3)(A) (setting offense level for armed career

criminal at 34 “if the defendant used or possessed the firearm or ammunition in

connection with . . . a crime of violence”). A three-level downward adjustment

for acceptance of responsibility, see id. § 3E1.1, combined with Mr. Begay’s prior

convictions, which placed him in criminal-history category VI, resulted in a

sentencing range of 188 to 235 months.

      At sentencing, Mr. Begay contended that the Guidelines range was higher

than necessary to accomplish the goals set forth in the list of sentencing factors in

                                         -3-
18 U.S.C. § 3553(a). He requested a sentence of 180 months, the minimum

permitted under the ACCA. His counsel noted that Mr. Begay had been plagued

by alcoholism “for the better part of his life,” and that “he has almost no other

conviction other than drinking and—while driving, and also, that his DWI cases

do not—have not resulted in physical injury to another.” R. Vol. III at 10. He

also noted that Mr. Begay’s father and brother had died in a car accident and

Mr. Begay “had assumed almost completely the role of caretaker in the family

compound. . . . He was responsible for taking care of all the livestock, for

hauling wood and water for the family.” Id. at 11. The district court considered

each of the sentencing factors in 18 U.S.C. § 3553(a) and concluded that “in order

for me to go below the guidelines, I have to make a finding that, under the

sentencing factors, the sentence of 188 months is unreasonable.” Id. at 15. The

court continued:

      Again, taking a look at the guidelines, the way they’re formulated
      and how they apply, how the Sentencing Commission has formulated
      the calculation of the guidelines if the armed career criminal
      enhancement applies, I cannot make a finding that 188 months is
      unreasonable under 18 U.S.C., under the sentencing factors of 18
      U.S.C. 3553(a).

Id. at 16. The court sentenced Mr. Begay to 188 months’ imprisonment and

adjourned.




                                         -4-
II.   DISCUSSION

      A.     Violent Felony

                                          1.

      The relevant portion of the ACCA definition of violent felony is:

      any crime punishable by imprisonment for a term exceeding one
      year, or any act of juvenile delinquency involving the use or carrying
      of a firearm, knife, or destructive device that would be punishable by
      imprisonment for such term if committed by an adult, 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.

18 U.S.C. § 924(e)(2)(B) (emphasis added). To determine whether an offense is a

“violent felony” under the ACCA, we follow the categorical approach set forth by

the Supreme Court in Taylor v. United States, 495 U.S. 575 (1990), and Shepard

v. United States, 544 U.S. 13 (2005); that is, we look only to the statutory

definition of the crime. See United States v. Moore, 420 F.3d 1218, 1220 (10th

Cir. 2005). Mr. Begay’s three felony convictions were for violations of N.M.

Stat. Ann. § 66-8-102A, which states: “It is unlawful for a person who is under

the influence of intoxicating liquor to drive a vehicle within this state.”

Mr. Begay contends that this crime is not a “violent felony” under the ACCA.




                                          -5-
We review questions of statutory interpretation de novo. See Moore, 420 F.3d at

1220.

        Mr. Begay argues that the “otherwise” clause in § 924(e)(2)(B)(ii)

embraces only offenses “that present[] a serious potential risk of physical injury

to another” in the same way as the specifically enumerated crimes—burglary,

arson, extortion, or crimes involving explosives. Because DWI is dissimilar to

these enumerated crimes, he concludes, it is not a violent felony under the ACCA.

        Mr. Begay cites as authority the Eighth Circuit’s opinion in United States v.

Walker, 393 F.3d 819 (8th Cir. 2005), overruled by United States v. McCall,

439 F.3d 967 (8th Cir. 2006) (en banc). The issue in Walker was “whether Iowa’s

offense of Operating While Intoxicated (‘OWI’) is a ‘crime of violence’ under the

United States Sentencing Guidelines.” 393 F.3d at 820. The district court had

ruled that Mr. Walker was a career offender under USSG § 4B1.1(a), which

provides that a defendant is a career offender if he “has at least two prior felony

convictions of either a crime of violence or a controlled substance offense.” The

Guidelines definition of crime of violence appears in USSG § 4B1.2(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




                                          -6-
             (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.

(emphasis added). As Walker noted, “The portions of U.S.S.G. § 4B1.2 at issue

are identical to the corresponding portions of 18 U.S.C. § 924(e)(2)(B), except

that the guideline provision adds the phrase of a dwelling after the word

burglary.” Walker, 393 F.3d at 823. It then said, “Since the pertinent language is

substantially identical, . . . we will construe [the] guideline language at issue to

be consistent with the corresponding language in the [ACCA].” Id. at 823.

      The court began its analysis of the definition as follows:

      The “otherwise” clause of § 4B1.2[(a)](2) follows an enumeration of
      specific crimes: burglary of a dwelling, arson, extortion, and crimes
      that involve the use of explosives. Where 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. This conclusion, the court stated, “is reinforced by the legislative

history of the statute from which the guideline was derived,” the ACCA. Id.

After quoting two paragraphs from the relevant Report of the House Committee

on the Judiciary, it observed:

      For present purposes, the most important sentence of this lengthy
      quotation is the last one, which states that the legislation would add
      “burglary, arson, extortion, use of explosives and similar crimes as
      predicate offenses where the conduct involved presents a serious risk
      of injury to a person.” . . . Thus, the legislative history reinforces the
      view that the intent of the “otherwise” clause in 18 U.S.C.

                                          -7-
      § 924(e)(2)(B)(ii) was to encompass crimes similar to burglary,
      arson, extortion, and crimes that involve the use of explosives.

Id. at 824-25 (quoting H.R. Rep. No. 99-849, at 3 (1986)).

      Walker also relied on language in Leocal v. Ashcroft, 543 U.S. 1 (2004), in

which the Supreme Court held that the offense of driving under the influence

(DUI) under Florida law was not a “crime of violence” as defined in 18 U.S.C.

§ 16, and therefore not an “aggravated felony” under § 101(a)(43)(F) of the

Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F). Section 16 defines

crime of violence as

             (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.

The court in Walker quoted the following from Leocal:

      In construing both parts of § 16, we cannot forget that we ultimately
      are determining the meaning of the term “crime of violence.” The
      ordinary meaning of this term, combined with § 16's emphasis on the
      use of physical force against another person (or the risk of having to
      use such force in committing a crime), suggests a category of violent,
      active crimes that cannot be said naturally to include DUI offenses.
      Cf. United States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992) (Breyer,
      C.J.) (observing that the term “violent felony” in 18 U.S.C. § 924(e) .
      . . “calls to mind a tradition of crimes that involve the possibility of
      more closely related, active violence”). Interpreting § 16 to
      encompass accidental or negligent conduct would blur the distinction
      between the “violent” crimes Congress sought to distinguish for
      heightened punishment and other crimes.

                                         -8-
Leocal, 543 U.S. at 11. Deeming it particularly important that the Supreme Court

had “cited with approval [a] passage from then Chief Judge Breyer’s opinion in

Doe stating that drunk driving should not be considered as a ‘violent felony’

under 18 U.S.C. § 924(e),” the court in Walker quoted the pertinent passage from

the future Justice’s opinion holding that possession of a firearm is not a “violent

felony” under the ACCA:

      [T]o read the statute . . . to cover firearm possession [] would also
      bring within the statute’s scope a host of other crimes that do not
      seem to belong there. To include possession [of a firearm], one
      would have to focus upon the risk of direct future harm that present
      conduct poses. But how could one then exclude, say, drunken
      driving or unlawful transportation of hazardous chemicals or other
      risk-creating crimes very unlike the burglary, arson, extortion, and
      explosives use that the statute mentions? There is no reason to
      believe that Congress meant to enhance sentences based on, say,
      proof of drunken driving convictions. Rather, we must read the
      definition in light of the term to be defined, “violent felony,” which
      calls to mind a tradition of crimes that involve the possibility of more
      closely related, active violence.

Walker, 393 F.3d at 826 (ellipsis and brackets in Walker) (quoting Doe, 960 F.2d

at 225).

      The Walker court reasoned: “It is common sense that OWI is not the same

kind of offense as the crimes specifically listed in U.S.S.G. § 4B1.2(a)(2) . . . .

The latter are hostile, aggressive acts. They create a significant risk of violent

confrontation between the criminal and the victim or the law enforcement

officer.” Id. at 825. It concluded, “Since drunken driving—or more precisely,


                                          -9-
operating while intoxicated—is very unlike the crimes specifically named in

§ 4B1.2(a)(2), under the rule of ejusdem generis, OWI is not encompassed by the

general language that follows.” Id. at 826.

      Finally, Walker stated that its interpretation of the definition of crime of

violence complied with “the elementary canon of construction that a statute

should be interpreted so as not to render one part inoperative.” Id. (internal

quotation marks omitted).

      Here, the government construes U.S.S.G. § 4B1.2(a)(2) to encompass
      all conduct that presents a serious potential risk of physical injury to
      another. That construction not only ignores the list of specific
      crimes that precede this general language and therefore modify it,
      that construction also would render the list of specific crimes
      redundant or superfluous.

Id. at 827. In addition, said the court, the government’s interpretation would

      render superfluous the distinction in § 4B1.1(a) and § 4B1.2 between
      a felony that is a crime of violence and a felony that is a controlled
      substance offense. . . . On the government’s argument, the inclusion
      of controlled substance offenses as separately named predicate
      offenses for career offender status would be superfluous because
      those offenses involve a substantial risk of physical injury to another
      and therefore would be included in the “otherwise” provision of
      § 4B1.2(a). Our interpretation of § 4B1.2(a)(2), however, preserves
      the distinction between subsections (a)(1), (a)(2), and (b); and it
      avoids a construction that renders any part of § 4B1.2 superfluous.

Id. Mr. Begay raises these same arguments in hope that this court will reach the

same conclusion.

      The government contends that we are bound by our rejection of Walker in

Moore, 420 F.3d at 1221-22. Moore held that “felony [driving under the

                                         -10-
influence] is a crime of violence under USSG § 4B1.2.” Id. at 1220. “Driving

while intoxicated,” we stated, “clearly presents a ‘serious potential risk of

physical injury to another.’” Id. at 1221. If we were addressing whether DWI is

a “crime of violence” under § 4B1.2 of the Guidelines, the Government would be

correct. But on this appeal we are not applying that guideline; rather, we are

construing a provision under the ACCA.

      At first blush this seems to be a distinction without a difference, because

the language we are considering is virtually identical to the language considered

in Moore. Moore, however, relied on more than the plain language of § 4B1.2. It

also pointed to commentary to that Guidelines provision. We observed that “the

analysis in Walker ignores the more flexible articulation of § 4B1.2’s ‘crime of

violence’ definition explained in its commentary section.” Id. We noted that in

that commentary,

      this “or otherwise” language is removed, and the inclusion of
      offenses with conduct posing a serious potential risk of physical
      injury is delinked from any preceding specific sequence of offenses.
      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. at 1221-22 (internal citation omitted). Ordinarily, such “commentary is a

binding interpretation of the phrase ‘crime of violence’” in the Guidelines.

                                         -11-
Stinson v. United States, 508 U.S. 36, 47 (1993). But, of course, Guidelines

commentary is not binding with respect to the ACCA, even if the language in that

statute is identical to Guidelines language interpreted in the commentary. Thus,

Moore is not controlling.

      Nevertheless, we believe that Moore’s construction of § 4B1.2 is also

correct for the ACCA. We reach the same conclusion as the en banc decision of

the Eighth Circuit in McCall, 439 F.3d at 969, which overturned Walker, and the

decisions of the other circuits to address the language at issue, see United States

v. Sperberg, 432 F.3d 706 (7th Cir. 2005) (felony DWI is a violent felony under

the ACCA), United States v. DeSantiago-Gonzales, 207 F.3d 261, 264 (5th Cir.

2000) (DUI is a crime of violence under USSG § 4B1.2(a)(2)); United States v.

Veach, 455 F.3d 628 (6th Cir. 2006) (same); United States v. McGill, 450 F.3d

1276, 1280 (11th Cir. 2006) (same).

      McCall addressed “whether a felony DWI conviction in Missouri is a

violent felony under the ‘otherwise involves’ provision in § 924(e)(2)(B)(ii).”

439 F.3d at 969. The court rejected Walker’s reliance on Leocal, noting that

Leocal

      held that the plain language of [18 U.S.C.] § 16(b) . . . 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.”




                                         -12-
      By contrast, as the Leocal opinion noted, [543 U.S.] at 10 n.7 1, 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.

Id. at 971.

      The McCall court also thought that Walker’s reliance on noscitur a sociis

and ejusdem generis was misplaced, because “[w]hen a statute’s plain language is

this clear, it is controlling, . . . without the need to refer to [these] canons of

construction . . . .” Id. Likewise, it said, “contrary hints in the legislative

history” could not overcome the clear statutory language, id., and in any event,

that history undermines, rather than supports Walker’s reliance on canons of

construction. McCall explained:

      [T]he 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. Adding the enumerated crimes
      served the obvious purpose of including all prior convictions for

      1
          Footnote 7 in Leocal states:

      Thus, § 16(b) plainly does not encompass all offenses which create a
      “substantial risk” that injury will result from a person’s conduct.
      The “substantial risk” in § 16(b) relates to the use of force, not to the
      possible effect of a person’s conduct. Compare § 16(b) (requiring a
      “substantial risk that physical force against the person or property of
      another may be used”), with [USSG] § 4B1.2(a)(2) . . . (in the
      context of a career-offender sentencing enhancement, defining
      “crime of violence” as meaning, inter alia, “conduct that presents a
      serious potential risk of physical injury to another”). The risk that an
      accident may occur when an individual drives while intoxicated is
      simply not the same thing as the risk that the individual may “use”
      physical force against another in committing the DUI offense.

                                          -13-
      those crimes (burglary, arson, extortion, use of explosives),
      regardless of whether they present a serious potential risk of physical
      injury. 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.

Id. (internal citation omitted). (This circuit relied on this same legislative history

in United States v. King, 479 F.2d 801, 803 (10th Cir. 1992), to declare that the

crimes covered by the “otherwise” clause were not restricted to property crimes.)

      Finally, addressing the First Circuit’s opinion in Doe, McCall stated:

“[T]hough 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,’ we conclude that we must construe the provision

consistent with its plain language.” Id. (internal citation omitted). Thus, the

court concluded 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.” Id.

                                           2.

      We agree with the holdings of McCall and the Seventh Circuit in Sperberg.

First, DWI is encompassed by the natural meaning of the statutory language “any

crime . . . that . . . involves conduct that presents a serious potential risk of

physical injury to another.” DWI certainly presents such a risk. Many would say

that the gravest risk to their physical safety from criminal misconduct is from

drunken drivers. When the dissent states that its construction of § 924(e) captures

                                          -14-
“ordinary meaning,” it is apparently referring not to the meaning of the above-

quoted language but to the term defined by that language—namely, violent felony.

Surely, however, we should look to the statutory definition of the term and begin

with the ordinary meaning of that language rather than with the “ordinary

meaning” of the term that Congress thought it advisable to define. Even less

should we rely on the short title of the statute, “The Armed Career Criminal Act.”

The term armed career criminal appears nowhere in the United States Code, not

even in the heading to any codified provision. It would be rather unusual, and

disrespectful to legislative drafting, to let such a title override statutory language.

The Racketeer Influenced and Corrupt Organizations chapter of the Criminal

Code, 18 U.S.C. §§ 1961 et seq., is not interpreted by restricting its reach to

entities that are described by the ordinary meaning of the title; instead, courts

refer to the statutory language. We should do likewise here.

                                           3.

      Second, statutory purpose does not suggest a different definition. Section

924(e) is a punishment provision. It states that particularly severe sentences

should be imposed on certain violators of 18 U.S.C. § 922(g) (which prohibits the

possession of firearms by various classes of people, including, and typically,

convicted felons)—namely, those who have repeatedly committed “violent

felonies.” But how to define such felonies for this purpose?




                                          -15-
      It is revealing that Congress could have adopted the same language that

appears in the definition of crime of violence in the very same statutory section,

18 U.S.C. § 924(c)(3). (This statutory definition of crime of violence was added

by Pub. L. No. 99-308 on May 19, 1986; it is a slight variation of the definition

of crime of violence in 18 U.S.C. § 16, which was enacted in 1984. The

definition of violent felony was added by Pub. L. No. 99-570 on October 27,

1986.) The definition of crime of violence is:

      an offense that is a felony and—

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

             (B)    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.

18 U.S.C. § 924(c)(3). A detailed examination of the differences between the

definitions of crime of violence and violent felony is less important than the

observation that there are differences. The reason for the differences must be that

the definitions serve distinct purposes. The definition in § 924(c) was used to

create a criminal offense. Under § 924(c)(1)(A), “any person who, during and in

relation to any crime of violence . . . , uses or carries a firearm, or who, in

furtherance of any such crime, possesses a firearm” is subject to punishment for a

separate offense with a minimum sentence of five years’ imprisonment. In other

words, when someone while committing a “crime of violence” uses or carries a

                                          -16-
firearm or possesses a firearm in furtherance of that crime, then that person has

violated § 924(c). Undoubtedly, Congress defined crime of violence in this

context to capture those crimes in which the danger is magnified by the firearm.

It is not surprising that DWI is not a “crime of violence,” because a firearm in the

car does not increase the danger from the DWI offense. The dissent’s view of

violent felony would seem to conform to the purpose for defining crime of

violence as it appears in § 924(c).

      But the term violent felony serves a different purpose. The definition of

violent felony in § 924(e)(2)(b) is used to identify persons who should be

sentenced to very long terms for their present offense (possession of a firearm by

a convicted felon) because of their criminal history. One may disagree with the

choice, but it seems perfectly reasonable to include within the definition those

who have a confirmed history of displaying contempt for human life or

safety—those who, in the statutory language, have repeatedly committed felonies

“involv[ing] conduct that presents a serious potential risk of physical injury to

another.” From this perspective, there is nothing remarkable about including

felony DWI as a “violent felony.”

      In that regard, it is significant that the five circuits to address the issue

have held that the term crime of violence in the Sentencing Guidelines, USSG

§ 4B1.2(a), which is defined identically to the term violent felony in § 924(e)

(and, ironically, not identically to the statutory definition of crime of violence in

                                          -17-
§ 924(c)) encompasses DWI. To be sure, as already noted above, our

construction of § 924(e) is not controlled by our decision in Moore, 420 F.3d

1218, interpreting USSG § 4B1.2(a), because Moore relied, at least in part, on

Sentencing Commission commentary to the definition—commentary which is

ordinarily binding in interpreting the Guidelines. Nevertheless, one may well ask

why the Sentencing Commission apparently adopted a definition in this context

broad enough to include felony DWI. And the answer must again lie in the

context; the Sentencing Commission was considering what type of criminal

history indicates that a person is so dangerous that a long term of incarceration is

appropriate, regardless of the present offense of conviction. That is essentially

the same context for which Congress defined violent felony. The Sentencing

Commission’s expertise on sentencing issues counsels us to defer to its

construction of the same language confronting us in this case, even though the

formal grounds for deference are inapplicable.

      Thus, both the natural meaning of the statutory language and the apparent

statutory purpose support a construction of the term violent felony to include

felony DWI. Neither the legislative history nor canons of construction persuade

otherwise. The only legislative history referred to by disputants on this issue is,

as usual, of little help, nor do canons of construction assist in distinguishing

between the constructions of the statutory language embraced by the parties on

this appeal.

                                         -18-
      The legislative history relied upon by the opposing opinions in the Eighth

Circuit’s McCall case is a statement in a report by the House Committee on the

Judiciary:

      [One] major question involved in these hearings was as to what
      violent felonies involving physical force against property should be
      included in the definition of “violent” felony. The Subcommittee
      agreed to add the crimes punishable for a term exceeding one year
      that involve conduct that presents a serious potential risk of physical
      injury to others. This will add State and Federal crimes against
      property such as burglary, arson, extortion, use of explosives and
      similar crimes as predicate offenses where the conduct involved
      presents a serious risk of injury to a person.

H.R. Rep. No. 99-849, at 3 (1986). To begin with, it is worth noting that the

committee report does not say that the definition includes only the enumerated

and similar crimes. The emphasis placed in legislative history on one effect of a

statute does not mean that it has no others. For example, when Congress

imposed limits on civil-rights suits by prisoners, Members repeatedly noted

problems caused by suits challenging prison conditions. Nevertheless, the

statutory language compelled us also to apply those limits on other civil-rights

claims. Cf. Robbins v. Chronister, 435 F.3d 1238 (10th Cir. 2006) (rejecting

contention that it would be absurd to apply the provision to civil-rights claim that

arose before prisoner was incarcerated).

      More importantly, the quoted committee report did not address the final

language of the statute, but rather the version before addition to § 924(e)(2) of the

language “is burglary, arson, or extortion, involves use of explosives, or

                                         -19-
otherwise” (what I will call the “specific language”). In other words, it referred

only to the language “involves conduct that presents a serious potential risk of

physical injury to another” (what I will call the “general language”). One can

speculate from this history either (1) that the addition of the specific language

was to make clear (in case one disagreed with the committee report’s view of the

general language) that the term violent felony encompassed the newly listed

offenses, from which one can infer that the general language is to be read broadly

as not being limited to crimes like the newly added offenses (the view of the

McCall majority) or (2) the addition of the specific language was to suggest that

the general language should be read narrowly to encompass only offenses similar

to the newly listed ones (the view of the McCall dissent). I think the McCall

majority view is the more plausible, but it is impossible to know. This ambiguous

history is not particularly persuasive either way.

      Nor are canons of construction—in particular, ejusdem generis and noscitur

a sociis—helpful in this case. These two canons state that a term in a series

should be understood in a limited sense that the term shares with the others in the

series. The word to be so limited in the phrase “conduct that presents a serious

potential risk of physical injury to another” is the word conduct. But how is the

meaning of conduct to be limited? The statute itself says that the conduct must

“present[] a serious potential risk of physical injury to another.” One could

certainly say that this limitation is also a feature, perhaps the essential common

                                         -20-
feature, of the enumerated crimes: burglary, arson, extortion, and crimes

involving the use of explosives. But the dissent would be more restrictive. “Each

of the[] enumerated crimes,” it says, “involves violent, aggressive conduct.”

Dissent Op. at 5. It is questionable, however, whether opening an unlocked front

door to a home for the purpose of committing larceny is “violent” conduct (and if

not, should burglary count only if committed in a “violent” manner?); and one

could reasonably describe felony DWI as both “violent” and “aggressive.” It is

important to recognize the rather limited role of the ejusdem and noscitur canons

in the enterprise of statutory construction. The Supreme Court appears to reject

their application as often as it embraces them. See, e.g., Garcia v. United States,

469 U.S. 70 (1984) (rejecting application of ejusdem generis when terms in series

are each separated by “or”). And when it embraces them, one wonders whether

they are critical to the Court’s reasoning or makeweight additions to an argument

based on deeper principles. Whatever the value of these two canons, they cannot

be used to make fine distinctions regarding what common features of terms in a

series should be imposed on a more general term in the series. I do not see how

these canons can inform us that the word conduct should be restricted any more

than it is by the statute’s modifying phrase “that presents a serious potential risk

of physical injury to another.”

      Moreover, there is a particularly compelling reason not to apply these two

canons in this case. The statutory language at issue defines violent felony as “any

                                         -21-
crime punishable by imprisonment for a term exceeding one year . . . that . . . is

burglary, arson, or extortion, involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of physical injury to another.” 18

U.S.C. § 924(e)(2)(B) (emphasis added). Mr. Begay contends that “conduct that

presents a serious potential risk of physical injury to another” should be

interpreted as restricted to conduct like burglary, arson, etc. But the primary

definition of otherwise is “in a different way or manner.” Webster’s Third New

International Dictionary 1598 (2002). Thus, the otherwise clause is best

understood not as saying “conduct that presents (in the same way that burglary,

arson, etc., do) a serious risk of physical injury to another,” but rather “conduct

that presents (in a manner different from burglary, arson, etc.) a serious risk of

physical injury to another.” The use of otherwise in the statute negates the two

canons.

      In sum, the ordinary, natural meaning of § 924(e)(2)(B) encompasses DWI.

Although other considerations can, and do, override ordinary meaning in some

circumstances, I am not persuaded that such circumstances are present here. I

therefore would apply ordinary meaning and reject Mr. Begay’s argument. See

Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985) (“Statutory

construction must begin with the language employed by Congress and the

assumption that the ordinary meaning of that language accurately expresses the

legislative purpose.”)

                                         -22-
      B.    Reasonableness of Sentence

      Mr. Begay contends that the district court violated Booker at sentencing

when it stated that it could not impose a sentence below the Guidelines range

unless a sentence within that range would be unreasonable. Counsel for

Mr. Begay had requested a sentence of 180 months and proffered several reasons

why such a sentence would fulfill the purposes of sentencing set forth in 18

U.S.C. § 3553(a). After hearing these arguments, the court stated:

            Now, in order at this point and noting the defendant’s
      continuing objection, the low end of the guideline—applicable
      guideline range is 188 months. The statutory minimum is 180
      [months], and so in order for me to go below the guidelines, I have to
      make a finding that, under the sentencing factors, the sentence of 188
      months is unreasonable.

            Again, taking a look at the guidelines, the way they’re
      formulated and how they apply, how the Sentencing Commission has
      formulated the calculation of the guidelines if the armed career
      criminal enhancement applies, I cannot make a finding that 188
      months is unreasonable under 18 U.S.C., under the sentencing factors
      of 18 U.S.C. § 3553(a).

           Therefore, the sentence imposed, the defendant will be
      committed to the custody of the Bureau of Prisons for a term of 188
      months.

R. Vol. III at 15-16. The court then addressed the terms of supervised release,

imposed a fine, notified Mr. Begay of his right to appeal, and adjourned the

hearing.




                                       -23-
      1.     Merits

      We agree with Mr. Begay that the district court erred. In Booker, 543 U.S.

220, the Supreme Court held that mandatory application of the Guidelines

violated the Sixth Amendment. To remedy the violation, it made the Guidelines

advisory. Appellate review of a sentence would henceforth be for

“unreasonableness.” Booker, 543 U.S. at 261-62. In other words, so long as the

district court’s sentence is reasonable, we will affirm it. See United States v.

Kristl, 437 F.3d 1050, 1053-54 (10th Cir. 2006).

      Although the Guidelines “continue to be the ‘starting point’ for district

courts and for this court’s reasonableness review on appeal,” United States v.

Terrell, 445 F.3d 1261, 1264 (10th Cir. 2006), they impose no rigid boundaries on

what sentences are permissible. In any given case there could be a range of

reasonable sentences that includes sentences both within and outside the

Guidelines range. Booker and § 3553(a) do not require the district court to limit

itself to those reasonable sentences within the Guidelines range. The court may

impose a non-Guidelines sentence if the sentencing factors set forth in § 3553(a)

warrant it, even if a Guidelines sentence might also be reasonable. The district

court misconceived Booker when it said otherwise.

      2.     Relief/Preservation

      Having determined that the district court erred, we must next resolve

whether Mr. Begay is entitled to relief. He failed to object in district court to the

                                         -24-
court’s error. Ordinarily, this failure would require that we limit our review to

plain error, see United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005) (en banc), so that we could set aside Mr. Begay’s sentence only if he

demonstrates that “there is (1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings,” id. (internal quotation marks omitted). In this case, we

doubt that Mr. Begay could surmount the final requirement. See id. at 736-37.

      Nevertheless, in certain circumstances we have excused a defendant’s

failure to object to an error by the district court when imposing sentence. We

have relied on the provision in Fed. R. Crim. P. 51(b) that states, “If a party does

not have the opportunity to object to a ruling or order, the absence of an objection

does not later prejudice that party.” Mr. Begay argues: “The district court did

not explain until it announced Mr. Begay’s sentence that it would not impose a

sentence below the guideline range unless it found the guideline range to be

unreasonable. Thus, the error was not apparent until it was too late to object.”

Aplt. Br. at 33.

      In support of his position Mr. Begay cites United States v. Bartsma, 198

F.3d 1191 (10th Cir. 1999). In Bartsma the district court imposed a special

condition of supervised release without giving notice to the defendant. The

defendant did not object to the condition, but this court ruled that the issue had

not been waived. We stated:

                                          -25-
      Mr. Bartsma had no notice the district court was considering the
      special condition until the court stated its tentative sentence near the
      beginning of the sentencing hearing. . . . [T]he complete lack of
      notice made it impossible for the parties to anticipate the nature of
      the special condition and short-circuited the significance of any
      opportunity to comment.

Bartsma, 198 F.3d at 1198; accord United States v. Bruce, No. 05-2150, 2006

WL 2349216, at *8 (10th Cir. Aug. 15, 2006). Although the sentencing error in

this case was not imposition of a special condition of supervised release, it was an

error that Mr. Begay would have had no reason to anticipate. Cf. United States v.

Barajas, 331 F.3d 1141, 1144 (10th Cir. 2003) (issue was not preserved when

“defense counsel had constructive notice that the challenged conditions of release

might be imposed” and failed to object); United States v. Lopez-Flores, 444 F.3d

1218, 1220-21 (10th Cir. 2006) (reviewing for plain error the defendant’s claim

that his sentence was unreasonable because the district court did not justify it

under the § 3553(a) factors). Nothing in the record suggests that Mr. Begay

should have been prepared for the district court’s novel interpretation of Booker.

Indeed, the government makes no attempt to distinguish Bartsma. Accordingly,

we will follow Bartsma in excusing Mr. Begay’s failure to object to the district

court’s error at the time of pronouncing sentence.

      We must reverse and remand for resentencing unless the government can

establish that the error was harmless. See Fed. R. Crim. P. 52(a). But the

government fails to argue harmless error. Nor could it do so successfully. The


                                         -26-
sentence imposed was at the bottom of the Guidelines range. We cannot say

whether the district court would have imposed the same sentence if it had

properly understood the post-Booker legal landscape. This “places us in the zone

of speculation and conjecture.” United States v. Labastida-Segura, 396 F.3d

1140, 1143 (10th Cir. 2005). Thus, remand is required so that the district court

can determine whether it should impose a lower sentence, even though a sentence

within the Guidelines range may indeed be reasonable.

III.   CONCLUSION

       We AFFIRM the district court’s ruling that Mr. Begay is subject to a

mandatory minimum sentence under 18 U.S.C. § 924. We REVERSE and

REMAND for resentencing in light of our holding that the district court violated

Booker at sentencing.




                                       -27-
05-2253, United States v. Begay
LUCERO, J., concurring.


      Following my careful review of my respected colleagues’ separate

expressions in this case, as well as the record, the legislative history, and the

pertinent cases, I join the opinion of Judge Hartz, save for Part II(A)(3). I do not

disagree with much of what Judge McConnell has said, but ultimately conclude

that the language of the statute is so clear and unambiguous that it does not allow

resort to the legislative history. 18 U.S.C. § 924(e)(2)(B)(ii) unequivocally

reaches a myriad of crimes – burglary, arson, extortion, the use of explosives, “or

[a crime that] otherwise involves conduct that presents a serious potential risk of

physical injury to another” (emphasis added). In agreeing with Judge Hartz, the

Eighth Circuit sitting en banc, and a panel of the Seventh Circuit, I conclude that

a conviction for felony driving while under the influence falls within the ambit of

the quoted statutory text.

      Judge McConnell is right to highlight the dramatic increase in sentence that

results from application of the Armed Career Criminal Act to Larry Begay’s case.

I agree that driving while under the influence may not have been in the minds of

the 1986 amendment’s sponsors when they drafted the residual language in

§ 924(e)(2)(B)(ii). Nevertheless, the wording that Congress chose is clear. If a

change is to be made, it is for Congress, not the courts, to make.
05-2253, United States v. Begay
McCONNELL, J, dissenting in part.


      The majority holds that serial drunk driving is a violent felony for purposes

of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). As a result, it

finds that the defendant was properly sentenced to over fifteen years in prison for

a crime that otherwise would entail a Guidelines range of 41-51 months. I

respectfully dissent.

      The case arose when Mr. Larry Begay, a 44-year-old Navajo, threatened

family members with an unloaded rifle and later pled guilty to unlawful

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Based on an

offense level of 15 and a criminal history category of VI, the ordinary Guidelines

range for this offense would be 41-51 months, which is a very substantial

sentence. But that is not the end of the story. Mr. Begay has a long history of

drinking and driving, though fortunately he has never injured anyone. Under New

Mexico law, the first three convictions for driving while intoxicated (DWI) are

misdemeanors, but subsequent DWIs are classified as fourth-degree felonies,

punishable by a term of eighteen months or, upon a fifth conviction, of two years.

N.M. Stat. Ann. § 66-8-102-(G)-(J). Mr. Begay has been convicted of DWI in

New Mexico twelve times, which means that he has committed more than three

felonies. Under the ACCA, any person convicted of unlawful possession of a

firearm who has three previous convictions for a “violent felony” is subject to a

mandatory minimum sentence of fifteen years and a Guidelines range of 188-235
months. 18 U.S.C. § 922(g); U.S.S.G. § 4B1.4. The district court concluded that

serial DWI is a “violent felony,” and sentenced Mr. Begay to a term of 188

months in prison.

      The ACCA defines a “violent felony” as:

      any crime punishable by imprisonment for a term exceeding one

      year, or any act of juvenile delinquency involving the use or carrying

      of a firearm, knife, or destructive device that would be punishable by

      imprisonment for such term if committed by an adult, 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;

18 U.S.C. § 924(e)(2)(B) (emphasis added). The majority joins with the two

other courts of appeals that have held felony DWI to be a “violent felony” within

the meaning of this statute. 1 See United States v. McCall, 439 F.3d 967 (8th Cir.

      1
       This Court and four other courts of appeals have held that felony DWI is a
crime of violence under the identical language of U.S.S.G. § 4B1.2(a)(2)). United
States v. Moore, 420 F.3d 1218, 1220 (10th Cir. 2005); United States v.
DeSantiago-Gonzales, 207 F.3d 261, 264 (5th Cir. 2000); United States v. Veach,
455 F.3d 628 (6th Cir. 2006); United States v. McGill, 450 F.3d 1276, 1280 (11th
Cir. 2006); United States v. Rutherford, 54 F.3d 370 (7th Cir. 1995). I agree with
                                                                      (continued...)

                                         -2-
2006) (en banc); United States v. Sperberg, 432 F.3d 706 (7th Cir. 2005). 2 It is

with the greatest hesitation that I part company with these decisions. But I am

convinced that to treat drunk driving convictions, however numerous, as “violent

felonies” is unwarranted by the language of the ACCA and is contrary to the

intent of Congress.

      In interpreting the term “crime of violence” in another portion of the

criminal code, a unanimous Supreme Court recently observed that the “ordinary

meaning of this term . . . suggests a category of violent, active crimes that cannot

be said naturally to include DUI offenses.” Leocal v. Ashcroft, 543 U.S. 1, 11

      1
       (...continued)
the majority that these precedents are distinguishable, because the Sentencing
Commission’s commentary to § 4B1.2(a)(2), which is ordinarily “binding on the
federal courts,” Stinson v. United States, 508 U.S. 36, 46 (1993), employs a
broader interpretation of § 4B1.2(a)(2) than is evident from the language of §
924(e). See Maj. Op. 10-11. We owe deference to the Sentencing Commission’s
commentary notes interpreting the Commission’s Guidelines, but do not owe
deference to the Commission in interpreting acts of Congress, even when those
acts contain wording identical to a Guideline. In effect, because the Guideline
commentary note omits the key word “otherwise,” the cases interpreting U.S.S.G.
§ 4B1.2(a)(2)) are not interpreting an identically worded provision.

       An unpublished decision of this Court, United States v. Gwartney, 2006
WL 2640616 (10th Cir. 2006), recently held that “Moore clearly binds the panel”
in a case under the ACCA. This panel unanimously rejects the view that Moore is
so controlling.
      2
       The Seventh Circuit in Sperberg relied on its prior precedent in
Rutherford, which was an interpretation of U.S.S.G. § 4B1.2(a)(2). See Sperberg,
432 F.3d at 708 (finding no distinction between an interpretation of USSG
§ 4B1.2(a)(2) and of 18 U.S.C. § 924(e)). Since the majority recognizes
(correctly) that an interpretation of U.S.S.G. § 4B1.2(a)(2) is not controlling with
respect to § 924(e), Maj. Op. 11, Sperberg can have no persuasive value here.

                                         -3-
(2004). To be sure, that holding does not directly apply to this case, which

involves a different statute with slightly different wording (though the Court’s

reliance on the “ordinary meaning” of the defined term would seem equally

applicable here). But in reaching its interpretation in Leocal, the Court quoted

from an earlier First Circuit decision, written by then-Circuit Judge Stephen

Breyer, which interpreted the term “violent felony” in our statute, the ACCA, 18

U.S.C. § 924(e), as “call[ing] to mind a tradition of crimes that involve the

possibility of more closely related, active violence.” Id. at 11 (quoting United

States v. Doe, 960 F.2d 221, 225 (1st Cir. 1992)). The Supreme Court also cited

this Court’s observation in United States v. Lucio-Lucio, 347 F.3d 1202, 1205-06

(10th Cir. 2003), in connection with yet another subsection of the ACCA, that

interpreting the term “crime of violence” to encompass accidental or negligent

conduct, such as drunk driving, “would blur the distinction between the ‘violent’

crimes Congress sought to distinguish for heightened punishment and other

crimes.” Leocal, 543 U.S. at 11. These comments and citations strongly suggest

that the Supreme Court does not view drunk driving as within the “violent”

category of crimes Congress singled out for heightened punishment, under any of

these similar but not identical statutes.

      Mr. Begay argues that felony drunk driving does not fall within the

meaning of the statutory term “violent felony,” and that interpretation of the

statute to include felony drunk driving is contrary to the purpose of the statute, its

                                            -4-
legislative history, and several hoary canons of statutory interpretation. The en

banc Eighth Circuit and the concurrence in this case resist resort to legislative

intent and canons of interpretation on the ground that the language of the statute

is “plain.” McCall, 439 F.3d at 971 (“we must construe the provision consistent

with its plain language”); id. (“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”); Concur.

Op. 1 (“the wording that Congress chose is clear”). The opinion for the Court

does not appear to agree that the language is “plain,” but instead looks to

legislative history and other outside indications of congressional meaning.

      Unlike the concurrence, I find the language of § 924(e) anything but

“plain,” and in light of evidence of legislative intent and canons of construction, I

believe the language favors the defendant. The ACCA defines “violent felony” as

including any crime punishable by more than one year in prison that either “has as

an element the use, attempted use, or threatened use of physical force against the

person of another” or “is burglary, arson, or extortion, involves use of explosives,

or otherwise involves conduct that presents a serious potential risk of physical

injury to another.” 18 U.S.C. § 924(e)(2)(B). The question is whether felony

drunk driving qualifies under the second of these definitions.

      This definition is susceptible to two linguistically plausible interpretations.

The first, favored by the government, has been dubbed the “all crimes”

                                          -5-
interpretation. See McCall, 439 F.3d at 977 n.8 (Lay, J., dissenting). Under this

interpretation, a violent felony is any crime, regardless of its nature, that involves

conduct presenting a serious potential risk of physical injury to another. The

examples that precede the “otherwise involves” clause, under this interpretation,

do not limit or narrow the scope of the definition, but rather are listed to make

sure that the crimes of burglary, arson, extortion, and crimes using explosives are

categorically included.

      The second, favored by the defense, has been dubbed the “similar crimes”

interpretation. Id. at 977 n.9. Under this interpretation, the general phrase

“otherwise involves conduct that presents a serious potential risk of physical

injury to another” is limited to crimes of a nature similar to the enumerated

crimes of burglary, arson, extortion, and crimes using explosives. Each of these

enumerated crimes involves violent, aggressive conduct; each is characteristic of

the armed career criminal, the eponym of the statute. In the words of the First

Circuit in Doe, 960 F.2d at 225, quoted with approval by the Supreme Court in

Leocal, 543 U.S. at 11, these are “crimes that involve the possibility of more

closely related, active violence.” Moreover, each of the enumerated crimes is

potentially more dangerous when firearms are involved, which is evidently the

reason Congress imposed so severe a penalty on persons who have committed

these crimes who later are found in possession of a firearm.       Both sides appear

to agree that drunk driving is not of this nature. Although it undoubtedly entails

                                          -6-
risk of physical injury to others, drunk driving is a crime of negligence or

recklessness, rather than violence or aggression; it is not characteristic of career

criminals; and its dangers are unrelated to the presence or use of firearms. The

question in this case therefore comes down to which interpretation of the statute

is correct. If the “all crimes” interpretation is correct, drunk driving is included;

if the “similar crimes” interpretation is correct, drunk driving is not included.

      Looking first at the language chosen by Congress, I consider the “similar

crimes” interpretation more persuasive. The key is Congress’s use of the term

“otherwise.” Under the “all crimes” interpretation adopted by the majority, the

word “otherwise” is surplusage. The statute is interpreted as if Congress had

defined “violent felony” as any felony that “is burglary, arson, or extortion,

involves use of explosives, or . . . involves conduct that presents a serious

potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B) (omitting

the word “otherwise”). That is not the statute Congress wrote. By using the word

“otherwise,” Congress indicated a substantive connection between the enumerated

crimes and the general phrase. Rather than covering all felonies involving

“conduct that presents a serious potential risk of physical injury to another,”

Congress limited coverage to felonies that “otherwise” involve such a risk – in

other words, felonies that, while not identical to burglary, arson, extortion, or

explosives offenses, impose a similar sort of risk.




                                          -7-
      Other indicia of meaning support this interpretation. The Supreme Court

has repeatedly stated that “‘[i]n expounding a statute, we must not be guided by a

single sentence or member of a sentence, but look to the provisions of the whole

law, and to its object and policy.’” U.S. Nat. Bank of Ore. v. Indep. Ins. Agents of

Am., Inc., 508 U.S. 439, 455 (1993) (quoting United States v. Heirs of Boisdore, 8

How. 113, 122, 12 L.Ed. 1009 (1850)); see also Dole v. Steelworkers, 494 U.S.

26, 35 (1990). Given the history and purpose of the ACCA, as well as the context

of the “otherwise” clause in the statute, felony driving while intoxicated simply

does not fit with the other crimes enumerated and contemplated by § 924(e).

      When confronted with another question regarding the interpretation of 18

U.S.C. § 924(e)(2)(B)(ii) – the meaning of “burglary” – the Supreme Court took

its bearings from a detailed examination of the history and purposes of the

provision. Taylor v. United States, 495 U.S. 575, 581-90 (1990). The Court

concluded that “Congress focused its efforts on career offenders – those who

commit a large number of fairly serious crimes as their means of livelihood, and

who, because they possess weapons, present at least a potential threat of harm to

persons.” Id. at 587-88. The Court interpreted the statutory term “burglary” in

terms of that general purpose. See id. at 590 (“These observations about the

purpose and general approach of the enhancement provision enable us to narrow

the range of possible meanings of the term ‘burglary.’”). Applying the same

method here, it seems beyond question that drunk drivers fall outside any

                                         -8-
reasonable understanding of Congress’s definition of an “armed career criminal.”

Drunk drivers do not drive drunk “as their means of livelihood,” and the threat

they pose to other persons has nothing to do with whether they possess weapons. 3

      More specific legislative history confirms the “similar crimes”

interpretation. The first version of the ACCA sentencing enhancement, enacted

by Congress in 1984, applied to any convicted felon found guilty of possession of

a firearm who had three previous convictions for robbery or burglary. Taylor,

495 U.S. at 581. In 1986, Congress debated two proposals for expanding the

reach of the enhancement. The broader proposal would have included any felony

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.” Id. at 583 (quoting S. 2312, 99th Cong., 2d Sess. (1986); H.R. 4639,

99th Cong., 2d Sess. (1986)). If enacted, this enhancement would have included

crimes, such as vandalism, that involve the use of physical force against property

even if there was no substantial risk of injury to a person. The narrower proposal

      3
        The opinion for the Court would have us discount Congress’s purpose of
targeting career criminals, arguing that it would be “disrespectful to legislative
drafting[] to let such a title override statutory language.” Maj. Op. 15. Yet in
Taylor, in determining the meaning of the statutory term “burglary,” the Supreme
Court relied heavily on the connection between that term and the congressional
object of heavily punishing “armed career criminals.” Taylor 495 U.S. 587-90. It
can hardly be improper for us to use the same interpretative approach here.
Moreover, the legislative history, both originally and in the amendments relevant
to this case, makes clear that the title – the “Armed Career Criminal Act” – was
not merely decorative. See H.R. Conf. Rep. 98-1159 (1984).


                                          -9-
would have applied the enhancement to “any State or Federal felony that has as

an element the use, attempted use, or threatened use of physical force against the

person of another.” Id. (quoting H.R. 4768, 99th Cong., 2d Sess. (1986)). If

enacted, this bill would have excluded burglary and arson, which do not contain

as an element the use of force against a person. The bill that ultimately was

enacted was a compromise: it extended the definition of “violent felony” to those

not involving the use of physical force against a person if there was “serious risk

of physical injury to another.” Id. at 586. The House Committee on the Judiciary

explained:

      [One] major question involved in these hearings was as to what
      violent felonies involving physical force against property should be
      included in the definition of ‘violent’ felony. The Subcommittee
      agreed to add the crimes punishable for a term exceeding one year
      that involve conduct that presents a serious potential risk of physical
      injury to others. This will add State and Federal crimes against
      property such as burglary, arson, extortion, use of explosives and
      similar crimes as predicate offenses where the conduct involved
      presents a serious risk of injury to a person.

Id. at 587 (quoting H.R.Rep. No. 99-849 (1986) (first emphasis in original,

second emphasis added)). This legislative history makes clear that Congress

intended the expanded definition to cover only “similar crimes” – that is, crimes

“similar” to burglary, arson, extortion, and use of explosives. For reasons already

explained, that does not include drunk driving.




                                         -10-
       The McCall decision’s contrary interpretation of the legislative history is

based on the notion that the “otherwise involves” clause of § 924(e)(2)(B) was

drafted first, and that the enumerated crimes were “add-ons”:

      [T]he 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. 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. 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.

McCall, 439 F.3d at 971 (internal citations omitted). With all respect, I think this

is a misleading interpretation. To be sure, the version of the amendment

immediately prior to the addition of the “otherwise involves” language did not

enumerate the crimes of burglary, arson, extortion, and use of explosives, but this

has to be viewed in a broader context. Congress was amending the 1984 version

of the statute, which applied explicitly to robbery and burglary, and only to those

crimes. These were not “enumerated add-ons,” as the McCall opinion calls them,

but were the statutory foundation on which the congressional deliberations were

based. The entire thrust of the 1986 debates was to expand the statute to

encompass other crimes that warranted the same treatment already given to

robbery and burglary. The only question was how far to go. In answering that

question, we need not “infer” that Congress intended to limit the provision to


                                        -11-
“offenses that are similar to the enumerated [crimes],” as the McCall opinion

states. Id. The House Judiciary Committee report explicitly tells us: “This will

add State and Federal crimes against property such as burglary, arson, extortion,

use of explosives and similar crimes as predicate offenses where the conduct

involved presents a serious risk of injury to a person.” Taylor, 495 U.S. at 587

(quoting H.R.Rep. No. 99-849 (1986) (emphasis added).

      Moreover, the statutory language adopted by Congress contradicts the

McCall opinion’s interpretation. According to McCall, “[a]dding 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.” McCall, 439 F.3d at 971. But

this interpretation is belied by Congress’s use of the word “otherwise.” Whatever

else it may mean, the term “otherwise” unmistakably indicates that Congress

believed the enumerated crimes do present a substantial potential risk of physical

injury to others (presumably because burglary, arson, extortion, and explosives

crimes frequently, even if not invariably, erupt into violence). It makes no sense

to refer to crimes that “otherwise involve” such a risk if the previously listed

crimes do not do so. The listed crimes were not “enumerated add-ons”; they were

illustrative or even paradigmatic.

      The opinion for the Court apparently favors the McCall opinion’s analysis

of the legislative history, but ultimately places little or no weight on it. See Maj.

                                         -12-
Op. 20 (“I think the McCall majority view is the more plausible, but it is

impossible to know. This ambiguous history is not particularly persuasive either

way.”). The opinion for the Court instead emphasizes what it considers to be the

“ordinary meaning” of the defined term, Maj. Op. 14, reenforced by an analysis of

the statutory purpose. I have already explained why I consider the “similar

crimes” interpretation the more plausible rendition of the statutory language. The

Court’s analysis of statutory purpose warrants additional response.

      The opinion for the Court notes that Congress used two different, though

similar, terms – “crime of violence” and “violent felony” – in the same statutory

section. Compare 18 U.S.C. § 924(c)(3) (“crime of violence”) with §

924(e)(2)(B) (“violent felony”). The term “crime of violence” is defined in such

a way that drunk driving is excluded. The opinion for the Court invites us to

infer that the more ambiguous language of § 924(e)(2)(B) must lead to the

opposite conclusion. The problem with this argument is that the definitions of the

two terms vary in a number of different ways. In some respects, § 924(c)(3) is

the broader provision, and in some respects it is the narrower. Section 924(c)(3)

is broader, for example, in that it includes all crimes with a substantial risk of

physical force against property, not just against persons; it is narrower in that it is

confined to crimes involving the risk of the use of “force.” No doubt an intensive

analysis could reveal the unifying rationale for all these differences, but it is not

immediately apparent.

                                          -13-
      The opinion for the Court, however, offers a theory. According to that

theory, the important distinction is that § 924(c)(3) defines a separate offense,

while § 924(e)(2)(B) imposes an enhanced sentence for the present offense on

those who have committed violent felonies in the past. Maj. Op. 17. That is true.

But the fact that one provision creates a separate offense while the other imposes

a higher sentence for the present offense does not cast much light on the question

in this case, because it does not provide any general rationale for the differences

between the provisions. If § 924(c)(1)(A) were narrower in all, or even most,

respects, one might surmise that Congress was more circumspect in creating a

new crime than in imposing an enhanced penalty; but that explanation does not

meet these facts.

      Nor is the Court’s more specific analysis of the statutory purpose of the two

provisions more helpful. According to the Court:

      The definition in § 924(c) was used to create a criminal offense. Under §
      924(c)(1)(A), “any person who, during and in relation to any crime of
      violence      . . . , uses or carries a firearm, or who, in furtherance of any
      such crime, possesses a firearm” is subject to punishment for a separate
      offense with a minimum sentence of five years’ imprisonment. In other
      words, when someone while committing a “crime of violence” uses or
      carries a firearm or possesses a firearm in furtherance of that crime, then
      that person has violated § 924(c). Undoubtedly, Congress defined crime of
      violence in this context to capture those crimes in which the danger is
      magnified by the firearm. It is not surprising that DWI is not a “crime of
      violence,” because a firearm in the car does not increase the danger from
      the DWI offense.

Id. at 16-17. On the other hand, according to the opinion for the Court:


                                         -14-
      The definition in § 924(e)(2)(b) is to identify persons who should be
      sentenced to very long terms for their present offense (possession of a
      firearm by a convicted felon) because of their criminal history. One may
      disagree with the choice, but it seems perfectly reasonable to include within
      the definition those who have a confirmed history of displaying contempt
      for human life or safety—those who, in the statutory language, have
      repeatedly committed felonies “involv[ing] conduct that presents a serious
      potential risk of physical injury to another.” From this perspective, there is
      nothing remarkable about including felony DWI as a “violent felony.”

Id. at 17. The opinion for the Court thus concludes that a “crime of violence”

under § 924(c)(1)(A) is limited to “those crimes in which the danger is magnified

by the firearm,” which does not include DWI, while “violent felony” under §

924(e)(2)(B) extends more broadly to “those who have a confirmed history of

displaying contempt for human life or safety,” which does include DWI.

      Neither half of this analysis is persuasive. While the Court’s interpretation

of § 924(c)(1)(A) as focusing on “crimes in which the danger is magnified by the

firearm” is eminently sensible, there is no reason not to apply the same logic to §

924(e)(2)(B). That section, after all, imposes its enhanced penalty only on those

whose present offense involves the unlawful possession of a firearm. The Court’s

surmise that “it seems perfectly reasonable to include within the definition [under

§ 924(e)(2)(B)] those who have a confirmed history of displaying contempt for

human life or safety” substantially broadens the target of the statute, beyond

anything in the language or legislative history of the statute. If that were the

congressional purpose, why limit the enhanced penalty to those who commit

firearms offenses?

                                         -15-
      The “similar crimes” interpretation is further supported by at least two

established canons of statutory construction. The doctrine of noscitur a sociis,

meaning “a word is known by the company it keeps,” is often applied to a general

term that “is capable of multiple meanings in order to avoid the giving of

unintended breadth to the Acts of Congress.” Jarecki v. G.D. Searle & Co., 367

U.S. 303, 307 (1961). Similarly, under the doctrine of ejusdem generis, “[w]here

general words follow specific words in a statutory enumeration, the general words

are construed to embrace only objects similar in nature to those objects

enumerated by the preceding specific words.” Circuit City Stores, Inc. v. Adams,

532 U.S. 105, 114-15 (2001) (internal quotation marks omitted). Both canons

confirm the “similar crimes” interpretation. The opinion for the Court reminds us

that the Supreme Court “appears to reject [the canons’] application as often as it

embraces them.” Maj. Op. 20. Even the case cited by the Court, however,

acknowledges that use of ejusdem generis is “firmly established” when a statute’s

meaning is uncertain. Garcia v. United States, 469 U.S. 70, 74 (1984) (quoting

United States v. Powell, 423 U.S. 87, 91 (1975)). Under these rules of

construction, the ACCA’s “otherwise” clause should be restricted to violent,

active crimes which, like burglary, arson, extortion, and crimes involving

explosives, are typical of career criminals, and which are more dangerous when

committed in conjunction with firearms.




                                        -16-
      The opinion for the Court also rejects the canons on the ground that it is not

obvious that all burglaries – for example “opening an unlocked front door to a

home for the purpose of committing larceny” – are “violent.” Maj. Op. 21. But

this is just to quibble with Congress’s judgment that, in the typical case, burglary

is a crime that is likely to explode into violence risking substantial injury to the

householder. It is well established that whether a crime is a violent felony must

be determined on a categorical basis, not on the specific facts of the case. Taylor,

495 U.S. at 600-01. I do not argue that Mr. Begay’s DWI offenses are not

“violent felonies” because he did not hurt anyone (though he did not), but

because, on a categorical basis, the crime of DWI does not have the typical

attributes of a violent felony, as defined in the statute.

      Finally, it bears mention that the rule of lenity may apply. This Court has

stated that “we will not interpret a federal criminal statute so as to increase the

penalty that it places on an individual when such an interpretation can be based

on no more than a guess as to what Congress intended.” United States v. Diaz,

989 F.2d 391, 393 (10th Cir. 1993) (internal citations omitted). See, e.g., United

States v. Giles, 213 F.3d 1247 (10th Cir. 2000) (using lenity to hold that

“patches” are not “goods” under the law governing trafficking in counterfeit

labels); United States v. Bazile, 209 F.3d 1205 (10th Cir. 2000) (using lenity to

overturn a mandatory life sentence under U.S.S.G. § 2K2.4(a)); United States v.

Wicklund, 114 F.3d 151 (10th Cir. 1997) (invoking lenity to overturn the district

                                          -17-
court’s contrary interpretation of a murder-for-hire statute). To be sure, “a court

must first consult ‘all available relevant materials,’ and invoke the rule of lenity

only as a tie-breaker when ordinary means of discerning statutory meaning leave

the issue in ‘equipoise.’” United States v. DeGasso, 369 F.3d 1139, 1149 (10th

Cir. 2004) (quoting United States v. Wilson, 10 F.3d 734, 736 (10th Cir. 1993);

United States v. Ruiz-Gea, 340 F.3d 1181, 1188 (10th Cir. 2003)). I am inclined

to think the rule of lenity is not needed in this case because the defendant should

prevail under other approaches to statutory interpretation. But the opinion for the

Court declines to find the language of § 924(e) “plain”; it finds the legislative

history “not particularly persuasive either way” (Maj. Op. 20); it concludes that

the canons of statutory interpretation are of little help (id. at 21); and it offers

only speculation regarding congressional purpose (id. at 15-17). In such a case,

the rule of lenity should tip the scales.

      The “similar crimes” interpretation thus finds support in an impressive

array of interpretive methods: ordinary meaning, avoidance of surplusage,

consistency with general statutory purposes, specific legislative history, and two

canons of construction, plus the rule of lenity. I therefore conclude that 18

U.S.C. § 924(e)(2)(B)(ii) should be given the “similar crimes” interpretation, and

that under that interpretation, felony DWI is not a “violent felony.” I respectfully

dissent from Part IIA of the opinion for the Court. I join Part IIB.




                                            -18-
