                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-1143
                                    ___________

United States of America,               *
                                        *
      Plaintiff - Appellee,             *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Timothy Jerome McCall,                  *
                                        *
      Defendant - Appellant.            *
                                    __________

                               Submitted: September 14, 2005
                                  Filed: March 15, 2006
                                   ___________

Before LOKEN, Chief Judge, LAY, WOLLMAN, ARNOLD, MURPHY, BYE,
      RILEY, MELLOY, SMITH, COLLOTON, and BENTON, Circuit Judges,
      en banc.
                             ___________

LOKEN, Chief Judge.

       Timothy J. McCall pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court imposed the fifteen-year
minimum prison sentence mandated by 18 U.S.C. § 924(e)(1) for a § 922(g)(1)
offender who has three prior “violent felony” convictions. McCall appeals, arguing
that the district court erred in concluding that his three prior felony convictions for
driving while intoxicated in Missouri were violent felonies that trigger the § 924(e)
enhancement. This issue requires us to construe and apply the definition of “violent
felony” found in § 924(e)(2)(B)(ii):
            (B) the term “violent felony” means any crime punishable by
      imprisonment for a term exceeding one year . . . that --
               (i) has as an element the use, attempted use, or threatened use
            of physical force against the person of another; or
               (ii) is burglary, arson, or extortion, involves use of explosives,
            or otherwise involves conduct that presents a serious potential
            risk of physical injury to another . . . . (Emphasis added.)


       A panel of this court reversed the fifteen-year sentence, United States v.
McCall, 397 F.3d 1028 (8th Cir. 2005), concluding that it was bound by a prior
panel’s decision that felony DWI offenses are not “crimes of violence” under an
identically worded “otherwise involves” provision in U.S.S.G. § 4B1.2(a)(2). See
United States v. Walker, 393 F.3d 819 (8th Cir. 2005). We granted the government’s
petition for rehearing en banc to consider de novo whether a felony DWI conviction
in Missouri is a violent felony under the “otherwise involves” provision in
§ 924(e)(2)(B)(ii). We conclude that felony driving while intoxicated is a violent
felony. However, because the Missouri felony DWI offense includes non-driving
conduct as well, we remand for further sentencing proceedings at which the
government may seek to prove that McCall’s prior convictions were driving offenses,
using the limited universe of evidence permitted by Taylor v. United States, 495 U.S.
575 (1990), and Shepard v. United States, 125 S. Ct. 1254 (2005).

                                          I.

       Many decisions of this court and our sister circuits have construed the
“otherwise involves” provision in 18 U.S.C. § 924(e)(2)(B)(ii) since the provision was
enacted as part of the Armed Career Criminal Act of 1984. The question recurs
frequently and has a significant impact on an offender’s sentence. The statute was
designed to implement an important principle of federal sentencing -- violent career
criminals who possess firearms should be severely punished. But the legislative
history reviewed by the Supreme Court in Taylor, 495 U.S. at 581-90, demonstrates

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

       In Taylor, the Supreme Court held that the enumerated crime “burglary” in
§ 924(e)(2)(B)(ii) means “‘burglary’ [in] the generic sense in which the term is now
used in the criminal codes of most States.” 495 U.S. at 598. To determine whether
a defendant’s prior conviction was for generic burglary, and therefore was a violent
felony, the Court adopted a “formal categorical approach, looking only to the statutory
definitions of the prior offenses, and not to the particular facts underlying those
convictions.” Id. at 600.

       The language of the first operative clause in § 924(e)(2)(B)(ii) -- “is burglary,
arson, or extortion” -- almost commands use of a formal categorical approach in
determining what offenses are included within these enumerated crimes. But the
language of the provision here at issue -- “otherwise involves conduct” -- suggests that
the facts underlying a particular offense may be relevant. The Supreme Court did not
answer this question in Taylor, see 495 U.S. at 600 n.9, and our prior panel opinions
have been inconsistent. Compare United States v. Mincks, 409 F.3d 898, 899-900
(8th Cir. 2005) (reviewing only the statutory elements), with United States v. Johnson,
326 F.3d 934, 937 (8th Cir. 2003) (reviewing the underlying facts).

      Like our sister circuits, we resolve this troubling ambiguity by adopting the
formal categorical approach of Taylor in construing the “otherwise involves”
                                         -3-
provision in § 924(e)(2)(B)(ii). As the Court noted in Taylor, § 924(e)(1) “refers to
‘a person who . . . has three previous convictions’ for -- not a person who has
committed -- three previous violent felonies.” 495 U.S. at 600 (emphasis added). This
is textual evidence that the statute “generally requires the trial court to look only to the
fact of conviction and the statutory definition of the prior offense.” Id. at 602.
Moreover, a contrary interpretation that focused on the underlying facts would
embroil sentencing courts “in an elaborate factfinding process regarding the
defendant’s prior offenses,” Taylor, 495 U.S. at 601, and might raise serious Sixth
Amendment concerns, see Shepard, 125 S. Ct. at 1262-63. Therefore, to determine
whether a prior conviction was a violent felony within the meaning of the “otherwise
involves” provision in § 924(e)(2)(B)(ii), the sentencing court must first determine
whether the elements of that prior crime involved or described conduct that
“necessarily entails a serious potential risk of physical injury.” United States v.
Montgomery, 402 F.3d 482, 488 (5th Cir. 2005).1

                                            II.

      We must next consider the decision in Walker, endorsed by the dissent, that the
“otherwise involves” provision should be limited to violent crimes of “active
aggression” that are similar to the crimes enumerated in § 924(e)(2)(B)(ii). In
reaching this conclusion, the panel in Walker relied on two canons of statutory


       1
        Accord United States v. Hargrove, 416 F.3d 486, 494 (6th Cir. 2005); United
States v. Melton, 344 F.3d 1021, 1026-29 (9th Cir. 2003), cert. denied, 541 U.S. 953
(2004); United States v. Howze, 343 F.3d 919, 920-22 (7th Cir. 2003); United States
v. James, 337 F.3d 387, 389-91 (4th Cir. 2003), cert. denied, 540 U.S. 1134 (2004);
United States v. Jackson, 301 F.3d 59, 61-63 (2d Cir. 2002), cert. denied, 539 U.S.
952 (2003); United States v. Sacko, 178 F.3d 1, 7 (1st Cir. 1999); United States v.
Jackson, 113 F.3d 249, 251-53 (D.C. Cir.), cert. denied, 522 U.S. 901 (1997); United
States v. Phelps, 17 F.3d 1334, 1342 (10th Cir.), cert. denied, 513 U.S. 844 (1994);
United States v. O’Brien, 972 F.2d 47, 49-53 (3d Cir. 1992), cert. denied, 510 U.S.
875 (1993).
                                        -4-
construction, noscitur a sociis and ejusdem generis; fragments of the legislative
history reviewed in greater depth in Taylor; dicta in the First Circuit’s decision in
United States v. Doe, 960 F.2d 221 (1992); and the Supreme Court’s recent
interpretation of 18 U.S.C. § 16(b) in Leocal v. Ashcroft, 543 U.S. 1 (2004). We
conclude that this analysis is unpersuasive.

        In Leocal, the Court construed § 16(b), which defines a “crime of violence” as
a felony which, “by its nature, involves a substantial risk that physical force against
the person or property of another may be used in the course of committing the
offense.” The Court held that the plain language of § 16(b), the same language
Congress used in § 924(e)(2)(B)(i), limits that statute to “violent, active crimes”
because the word “used” incorporates a mens rea component and thus requires that
an offender’s conduct be more than “merely accidental or negligent.” 543 U.S. at 11.
By contrast, as the Leocal opinion noted, id. at 10 n.7, the “otherwise involves”
provision in § 924(e)(2)(B)(ii) is not so limited. It focuses on “conduct that presents
a serious potential risk of physical injury to another,” not on the intent of the offender.
See United States v. Sperberg, 2005 WL 3455832, *2 (7th Cir. Dec. 19, 2005); United
States v. Scott, 413 F.3d 839, 840 (8th Cir. 2005). When a statute’s plain language
is this clear, it is controlling, without regard to contrary hints in the legislative history
and without the need to refer to the canons of noscitur a sociis and ejusdem generis.
See United States v. Vig, 167 F.3d 443, 447-49 (8th Cir. 1999); United States v.
Smith, 35 F.3d 344, 346 (8th Cir. 1994).

      If we look beyond the plain language of the statute, the legislative history of
§ 924(e)(2)(B)(ii) described in Taylor undermines Walker’s reliance on interpretative
canons. Taylor explained that the enumerated crimes and the word “otherwise” were
added to the “involves conduct” language. The form of the addition made the
“otherwise involves” provision look like a catchall when in fact it was initially the
operative provision. See 495 U.S. at 586-87. 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
                                         -5-
potential risk of physical injury. Id. at 597. Given this drafting sequence, it is wrong
to infer that Congress intended to limit the “otherwise involves” provision to offenses
that are similar to the enumerated add-ons.

       For these reasons, though we give due regard to contrary dicta in Doe which
cautioned against construing the “otherwise involves” provision to include risk-
creating crimes “that do not seem to belong there,” 960 F.2d at 225, we conclude that
we must construe the provision consistent with its plain language. We therefore reject
the analysis in Walker and hold that a violent felony within the meaning of
§ 924(e)(2)(B)(ii) includes any crime whose elements involve conduct that necessarily
presents a serious potential risk of physical injury to another.

                                          III.

       This brings us to the principal question at issue, whether the elements of a
felony DWI conviction place that offense within the “otherwise involves” provision
in § 924(e)(2)(B)(ii). To fall within this provision, the criminal conduct must present
a serious risk2 of physical injury or, as the Supreme Court said in Taylor, the “inherent
potential for harm to persons,” 495 U.S. at 588. Physical injury need not be an
element of the offense. But because § 924(e) is focused on the elements of the
offense, the inherent potential for harm must be present, if not in every violation, at
least in a substantial portion of the circumstances made criminal by the statute. See
Montgomery, 402 F.3d at 488-89. Statistics quantifying the risk of physical harm
created by a class of crimes are helpful but not essential to this judicial task. See
Howze, 343 F.3d at 923-24.




      2
       We are inclined to agree with Judge Posner that “‘potential risk’ appears to be
a redundancy” in the statutory language. United States v. Shannon, 110 F.3d 382, 385
(7th Cir.) (en banc), cert. denied, 522 U.S. 888 (1997).
                                          -6-
       Driving a car creates a risk of physical injury to the driver and others, but it is
not a “serious potential risk” within the meaning of § 924(e)(2)(B)(ii). Driving under
the influence, however, dramatically increases the risk of physical injury. In 2004,
alcohol-related crashes resulted in 16,694 fatalities, 39% of all traffic fatalities, and
almost a quarter-million more injuries.3 A driver with a blood alcohol concentration
of .08 is 11.1 times more likely to cause a fatal accident than a sober driver.4 Thus,
“[n]o one can seriously dispute the magnitude of the drunken driving problem.”
Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451 (1990).

       In Missouri, as elsewhere, felony DWI convictions are reserved for the
persistent drunk driver. Thus, the person given an initial DWI misdemeanor citation
while driving a few blocks home from a neighborhood pub will not be guilty of a
violent felony. The increased punishment for a felony DWI offense is directly related
to the fact that persistent drunk driving creates a substantially greater risk of physical
injury to others. See Robert D. Brewer et al., The Risk of Dying in Alcohol-Related
Automobile Crashes Among Habitual Drunk Drivers, 331 New. Eng. J. Med. 513
(1994). Moreover, this risk-creating conduct is not inadvertent or merely negligent.
As the Seventh Circuit said in United States v. Rutherford, 54 F.3d 370, 376-77 (7th
Cir.), cert. denied, 516 U.S. 924 (1995):

      Drunk driving is a reckless act, perhaps an act of gross recklessness. Any
      drunk driver who takes to the road should know he runs a risk of injuring
      another person . . . . The dangers of drunk driving are well-known and
      well documented. Unlike other acts that may present some risk of
      physical injury, . . . the risk of injury from drunk driving is neither


      3
        See National Highway Traffic Safety Administration, Traffic Safety Facts
2004: A Compilation of Motor Vehicle Crash Data from the Fatality Analysis
Reporting System and the General Estimates Systems 32, 111
<http://www.nhtsa.dot.gov>.
      4
        See National Institute on Alcohol Abuse and Alcoholism of the National
Institutes of Health, Alcohol Alert No. 31 ¶ 5 (1996) <http://pubs.niaaa.nih.gov>.
                                         -7-
      conjectural nor speculative. Driving under the influence vastly increases
      the probability that the driver will injure someone in an accident . . . .
      Drunk driving is a reckless act that often results in injury, and the risks
      of driving while intoxicated are well-known. This is sufficient to satisfy
      the “serious risk” standard . . . .

We agree and therefore conclude that, by its nature, a felony conviction for driving
while intoxicated presents a serious potential risk of physical injury to another and is
therefore a violent felony under the “otherwise involves” provision in
§ 924(e)(2)(B)(ii). Accord United States v. Moore, 420 F.3d 1218 (10th Cir. 2005);
United States v. DeSantiago-Gonzalez, 207 F.3d 261 (5th Cir. 2000).

       Having reached this general conclusion, we must next examine the specific
elements of McCall’s felony DWI convictions. In Missouri, “[a] person commits the
crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an
intoxicated or drugged condition.” Mo. Rev. Stat. § 577.010.1. (boldface in original).
The term “operates” is defined as “physically driving or operating a motor vehicle.”
Mo. Rev. Stat. § 577.001.1. The DWI offense is a class D felony if the offender had
two or more “intoxication-related traffic offenses” within ten years of the instant
offense. Mo. Rev. Stat. § 577.023.1(2)(a), .3. Thus, the statutory elements of
McCall’s felony DWI convictions criminalize repeatedly driving while impaired,
conduct that necessarily presents a serious potential risk of physical injury to others.

       However, the Supreme Court of Missouri has construed the statutory term
“operates” to include both driving a vehicle and merely causing the vehicle to function
by starting its engine. See Cox v. Director of Revenue, 98 S.W.3d 548, 550-51 (Mo.
2003). This makes the felony DWI offense overinclusive, for purposes of the
“otherwise involves” provision in § 924(e)(2)(B)(ii), because it criminalizes non-
driving conduct that does not necessarily present a serious risk of physical injury to




                                          -8-
others.5 For example, the inebriated car owner who recognizes his impaired condition
and turns on the engine of a parked vehicle to keep warm while sobering is not risking
physical harm to others but is violating the Missouri DWI statutes as construed. Thus,
as the Tenth Circuit concluded in construing Nevada’s similar felony DWI statute, not
every felony DWI conviction in Missouri is a violent felony under § 924(e)(2)(B)(ii).
See Moore, 420 F.3d at 1224.

                                          IV.

       In Taylor, the Supreme Court considered how to apply § 924(e)(2)(B)(ii) to a
state burglary statute that was overinclusive, that is, that defined burglary to include
a broader range of conduct than generic burglary. Modifying its formal categorical
approach in order to avoid excluding all convictions under such a statute, the Court
held that the prior offense is a violent felony if “the charging paper and jury
instructions actually required the jury to find all the elements of generic burglary in
order to convict the defendant.” 495 U.S. at 602. In Shepard, the Court extended this
approach to guilty plea convictions but limited the government’s proof that the
defendant pleaded guilty to a generic burglary offense to “the charging document, the
terms of a plea agreement or transcript of colloquy between judge and defendant in
which the factual basis for the plea was confirmed by the defendant, or to some
comparable judicial record of this information.” 125 S. Ct. at 1263. In applying the
“otherwise involves” provision in § 924(e)(2)(B)(ii), we deal with a somewhat
different type of overinclusiveness. But we conclude that the analysis adopted in
Taylor and Shepard should nonetheless apply. Therefore, the district court may look
to the judicial record, as limited by Taylor and Shepard, to determine whether juries


      5
       Prior to 1996, Missouri’s felony DWI offense encompassed even more non-
driving conduct because it included “being in actual physical control of a motor
vehicle,” Mo. Rev. Stat. § 577.001.1 (1995), as that term was construed in State v.
Dey, 798 S.W.2d 210 (Mo. App. 1990). Two of McCall’s three prior felony DWI
convictions were under the prior statute.
                                          -9-
were required to find, or guilty pleas necessarily rested on the fact, that McCall’s three
prior convictions involved driving while intoxicated.

       McCall’s PSR recited the fact of three prior felony convictions for “driving
while intoxicated” but did not disclose whether he was convicted after trials or guilty
pleas. The PSR recited underlying facts seeming to establish that in each case McCall
was driving while intoxicated, but the facts were attributed to “police reports” and
parole board “records,” documents that may not be used to establish a violent felony
under the modified categorical approach mandated by Taylor and Shepard. Though
McCall did not object to these PSR recitals, he did object to the § 924(e)
enhancement. At sentencing, relying on our opinion in United States v. Jernigan, 257
F.3d 865, 867 (8th Cir. 2001), both counsel and the district court understandably
believed that the relevant inquiry was the conduct underlying the offenses. Neither
counsel nor the court felt constrained by the more truncated inquiry mandated by
Taylor and Shepard. Thus, the record on appeal includes no charging documents, no
jury instructions, no written plea agreements, and no plea colloquies or judicial
findings of the facts underlying a plea confirmed by McCall.

       In these circumstances, we conclude that the fact recitals in the PSR are not an
adequate basis for affirming McCall’s sentence. This is not a case where the PSR
described prior offense conduct without stating its documentary sources. In such
cases, we have held that failure to object relieved the government of its obligation to
introduce at sentencing the documentary evidence Taylor or Shepard requires. See
United States v. Menteer, 408 F.3d 445, 446-47 (8th Cir. 2005); United States v.
Balanga, 109 F.3d 1299, 1304 & n.7 (8th Cir. 1997); accord United States v.
Bregnard, 951 F.2d 457, 460 n.3 (1st Cir. 1991), cert. denied, 504 U.S. 973 (1992).
Nor is this a case where the PSR described conduct derived from documents Taylor
or Shepard permit. Instead, the PSR expressly relied on police reports and probation
records that would be inadmissible at sentencing under Taylor and Shepard.



                                          -10-
       Timothy McCall objected to the § 924(e) enhancement. The minimum sentence
mandated by that enhancement is severe, and the parties and the court understandably
failed to perceive the governing evidentiary principles that we have now clarified. In
these circumstances, we reverse the judgment of the district court and remand the case
for further sentencing proceedings at which the government may seek to prove, with
evidence admissible under Taylor or Shepard, that McCall’s three prior felony DWI
convictions were violent felonies under the “otherwise involves” provision in 18
U.S.C. § 924(e)(2)(B)(ii). For this purpose, the district court may permit the parties
to expand the sentencing record, as we have approved in prior cases remanded for
resentencing in light of Taylor. See United States v. Cornelius, 968 F.2d 703, 705
(8th Cir. 1992); United States v. Taylor, 932 F.2d 703, 707 (8th Cir.), cert. denied, 502
U.S. 882 (1991).

LAY, with whom WOLLMAN and BYE, Circuit Judges, join, dissenting.

       I respectfully dissent. Felony drunken driving convictions are not violent
felonies under the Armed Career Criminal Act (“ACCA” or “Act”). The “otherwise
involves” provision of 18 U.S.C. § 924(e)(2)(B)(ii) can be interpreted in more than
one reasonable manner. The ambiguity of subsection (B)(ii) is resolved when the
subsection is viewed in light of Congress’s purpose in enacting the ACCA. When
defining crimes that qualify as “violent felonies” under subsection (B)(ii) for
enhancement purposes, Congress intended to encompass serious property crimes that
are similar in nature to burglary, arson, extortion, and crimes involving the use of
explosives. Congress did not, however, intend to include crimes like drunk driving
for enhancement purposes, as drunk drivers are not inherently more dangerous to
society when they violate gun possession laws. In this case, McCall should be
sentenced under the United States Sentencing Guidelines (“Guidelines”) as a felon in
possession of a gun. His sentence should not be enhanced under § 924(e)(2)(B)(ii).




                                          -11-
                                           I.

       As an initial matter, it may be useful to review what is—and is not—at issue in
this case. First, we are not faced with the question of how McCall should be punished
for his three convictions for felony drunk driving. The State of Missouri presumably
convicted and sentenced McCall in accordance with Missouri drunk driving laws and
McCall presumably served the sentences imposed. Second, we are not faced with the
question of whether McCall should be punished for being a felon in possession of a
firearm. Under 18 U.S.C. § 922(g)(1), Congress has mandated that any person “who
has been convicted in any court of [] a crime punishable by imprisonment for a term
exceeding one year” may not possess a firearm. In this case, McCall pleaded guilty
to being a felon in possession of a firearm after the police discovered a rifle in his
home. Under the Guidelines, the presumptive sentencing range for McCall was 27 to
33 months.6 However, the government sought to have McCall’s sentence enhanced
under the ACCA, arguing that McCall’s three previous convictions for felony drunk
driving constituted “violent felonies.” See 18 U.S.C. § 924(e). Under the ACCA, a
felon in possession of a gun with three qualifying “violent felony” convictions is
subject to a mandatory 15-year minimum sentence. Thus, the district court’s
determination that McCall’s three felony drunk driving convictions were “violent
felonies” mandated that his sentence be increased nearly six-fold. Rather than being
sentenced in the 27-to-33-month range, McCall was sentenced to 180 months. The
question to which this dissent objects in this case is simply this: whether, in enacting
the ACCA, Congress intended to enhance the prison terms of defendants with three
felony drunk driving convictions who subsequently violate the law forbidding felons
from possessing firearms.




      6
        McCall’s criminal history category was V and his offense level was 12, which
reflects a two-level reduction because McCall accepted responsibility for his offense.
See U.S.S.G. § 3E1.1.
                                        -12-
                                           II.

      Congress expressly defined“violent felony” in the ACCA as follows:

      (B) the term “violent felony” means any crime punishable by
      imprisonment for a term exceeding one year . . . that—

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

                             (ii) is burglary, arson, or extortion, involves
             use of explosives, or otherwise involves conduct that
             presents a serious potential risk of physical injury to
             another . . . .

18 U.S.C. § 924(e)(2)(B). This case requires us to decide whether the phrase “or
otherwise involves conduct that presents a serious potential risk of physical injury to
another”—known as the “otherwise involves” provision of the ACCA—includes
felony drunk driving convictions.

       When interpreting a statute, our court’s objective is to give effect to the intent
of Congress. Watson v. Ray, 192 F.3d 1153, 1155-56 (8th Cir. 1999). The first
principle of statutory construction requires us to determine whether congressional
intent is clear from the plain meaning of the statute. Shelton v. Consumer Prods.
Safety Comm’n, 277 F.3d 998, 1004 (8th Cir. 2002). The Supreme Court has
emphasized that, “[i]n ascertaining the plain meaning of [a] statute, the court must
look to the particular statutory language at issue, as well as the language and design
of the statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).
In this process, courts “‘consider not only the bare meaning of the critical word or
phrase’” at issue, “‘but also its placement and purpose in the statutory scheme.’”
Holloway v. United States, 526 U.S. 1, 6 (1999) (quoting Bailey v. United States, 516
U.S. 137, 145 (1995)). Accordingly, in evaluating § 924(e)(2)(B)(ii), we cannot
                                          -13-
consider only the “bare meaning” of the “otherwise involves” provision. Rather, we
must consider the provision in light of the “language and design of the statute as a
whole.” K Mart Corp., 486 U.S. at 291.

       Subsection (B)(i), the first subsection in the definition of “violent felony,” is
straightforward, directing us to determine whether the elements of the crime in
question involve the use, attempted use, or threatened use of physical force against
another person—thus encompassing a wide swath of crimes with elements that
expressly involve the use or potential use of physical force against people.

       The wording of subsection (B)(ii) is less clear. The subsection has two
operative clauses. The first operative clause contains an enumerated list of crimes,
each of which “is” a violent felony. Given the express enumeration of four crimes and
the use of the word “is,” this part of (B)(ii) plainly indicates that Congress intended
to include the crimes of burglary, arson, extortion, and those involving the use of
explosives in the definition of “violent felony.”7

       The second operative clause of subsection (B)(ii)—the “otherwise involves”
provision—is not so easily parsed. The statute’s grammatical structure requires us to
carry over language from the beginning of the definition in order to make sense of the
subsection’s locution. Thus, a violent felony is any crime punishable by more than
a year in prison that “is burglary, arson, or extortion, involves use of explosives, or


      7
         However, even this clearly enumerated list has caused interpretive problems,
as it is not clear from the statute’s language whether Congress intended to define the
enumerated crimes according to the common law, the model penal code, or the label
given to crimes in state statutes. The United States Supreme Court settled this issue
in Taylor v. United States, 495 U.S. 575 (1990). In Taylor, the Court stated that
“burglary,” as used in § 924(e), “must have some uniform definition independent of
the labels employed by the various States’ criminal codes.” Id. at 592. The Court
then concluded Congress “meant by ‘burglary’ the generic sense in which the term is
now used in the criminal codes of most States.” Id. at 598.
                                           -14-
otherwise involves conduct that presents a serious potential risk of physical injury to
another.” As noted above, in determining the crimes Congress intended to encompass
in the “otherwise involves” provision, we cannot look at the language of the provision
in isolation. Rather, the Supreme Court has stressed “over and over” that “‘in
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 America, Inc., 508 U.S.
 439, 455 (1993) (quoting United States v. Heirs of Boisdoré, 8 How. 113, 122
(1849)). As the Court has said, “[s]tatutory construction is ‘a holistic endeavor,’ and,
at a minimum, must account for a statute’s full text, language as well as punctuation,
structure, and subject matter.” Id. (quoting United Savings Assn. of Texas v. Timbers
of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371 (1988)). Given these established
rules of statutory construction, in evaluating whether congressional intent is clear from
the plain meaning of subsection (B)(ii), the “otherwise involves” provision must first
be read in the context of the other language in subsection (B)(ii) and then in the
context of the statute as a whole.

        When the “otherwise involves” provision is read in the context of the list of
enumerated crimes in (B)(ii), the provision gives rise to more than one reasonable
interpretation. On the one hand, it is possible to extrapolate from the subsection’s
language that a violent felony is any crime—regardless of its nature—that involves
conduct that presents a serious potential risk of physical injury to another.8 However,
this is merely one inference that can be drawn from the subsection’s tortured locution.
An equally reasonable inference is that Congress enumerated four specific property
crimes prior to the “otherwise involves” provision because it intended the subsection
to encompass serious property crimes similar in nature to the enumerated crimes.9

      8
       For the sake of convenience, this will be referred to as the “all crimes”
interpretation.
      9
       This will be referred to as the “similar crimes” interpretation.

                                          -15-
       In discerning the intent of Congress, the word “otherwise” in subsection (B)(ii)
poses particular interpretive difficulties. If Congress intended the “otherwise
involves” provision to include all crimes, rather than only a subset of crimes similar
to the enumerated crimes, the word “or” alone would have achieved this end more
clearly. That is, Congress could have stated “is [one of the enumerated crimes], or
involves conduct . . . .” Thus, under the “all crimes” interpretation, the word
“otherwise” adds nothing to the meaning of the provision. This violates the “settled
rule that a statute must, if possible, be construed in such fashion that every word has
some operative effect.” United States v. Nordic Vill., Inc., 503 U.S. 30, 36 (1992).
If “otherwise” is assumed to have some purpose in the statute, turning to the
dictionary to confirm the term’s plain meaning is of little avail. When used as an
adverb, “otherwise,” means (1) “in a different way or manner”; (2) “in different
circumstances”; and (3) “in other respects.” Webster’s Ninth New Collegiate
Dictionary 835 (1984). Depending on which definition of “otherwise” one chooses
to apply, and which elements of the chosen definition one emphasizes, the “otherwise
involves” provision can be read to support both the “any crimes” and “similar crimes”
interpretations.

       We have stated a statute is clear and unambiguous when “it is not possible to
construe it in more than one reasonable manner.” Breedlove v. Earthgrains Baking
Cos., 140 F.3d 797, 799 (8th Cir. 1998); see also Chickasaw Nation v. United States,
534 U.S. 84, 90 (2001) (stating a statute is ambiguous if it is “capable of being
understood in two or more possible senses or ways”). Simply put, the strange wording
of § 924(e)(2)(B)(ii) gives rise to more than one reasonable interpretation of
Congress’s intent. Accordingly, it contravenes basic principles of statutory
construction to assert that subsection (B)(ii) “plainly” includes all crimes involving
conduct that poses a serious potential risk of physical injury to another. In fact, the
only plainly apparent quality in subsection (B)(ii) is its ambiguity.

      The ambiguity of subsection (B)(ii) is amplified if we consider the subsection
in relation to the overall structure of the definition of “violent felony” in
                                      -16-
§ 924(e)(2)(B). When it defined “violent felony,” Congress set forth two subsections
establishing the scope of the term. Subsection (B)(i) includes crimes with elements
related to the use of physical force against another person. Subsection (B)(ii)
enumerates four specific property crimes, followed by the “otherwise involves”
provision. This deliberate, two-part structure cannot be easily reconciled with the
proposition that Congress plainly intended the “otherwise involves” provision to
include all crimes—regardless of their nature—that involve conduct that presents a
serious potential risk of physical injury to another. Such a view requires the
conclusion that Congress deliberately created a subsection delineating crimes against
people, then deliberately created a subsection that enumerated four serious crimes
against property that pose a risk of injury to people, and then included an all-
encompassing “otherwise involves” provision that subsumes most of the crimes
already defined in each subsection.

       That is, if the “otherwise involves” provision is interpreted to include all crimes
that involve conduct that presents a serious potential risk of physical injury to another,
that definition encompasses all of the non-threat crimes against people that fall under
(B)(i) as well as three of the four specific crimes set forth in(B)(ii)—i.e., burglary,
arson, and crimes involving explosives.10 Thus, not only is the specific language of
subsection (B)(ii) ambiguous, that ambiguity is reinforced by the fact that Congress
defined “violent felony” in two parts. This two-part structure neatly echos the
structure of the original ACCA, which designated only the crimes of robbery and
burglary for enhancement purposes. See discussion infra Part III.B. Accordingly, the
deliberate structure of the definition of “violent felony” in subsections (B)(i) and
(B)(ii) cannot be reconciled with the proposition that Congress “plainly” intended the
“otherwise involves” provision to be all-encompassing. See King v. St. Vincent’s
Hosp., 502 U.S. 215, 221 (1991) (“[T]he meaning of statutory language, plain or not,


      10
       It also subsumes many forms of the fourth enumerated crime—extortion—
which, depending on the circumstances, often creates the serious potential risk of
physical harm to another.
                                    -17-
depends on context.”); United States v. Witkovich, 353 U.S. 194, 200 (1957)
(acknowledging courts interpret a statutory provision to harmonize with surrounding
provisions).

                                          III.

       If the language of a statute is ambiguous or its meaning is doubtful, courts must
consider the “purpose, the subject matter and the condition of affairs which led” to the
statute’s enactment. Lambur v. Yates, 148 F.2d 137, 139 (8th Cir. 1945). “When the
meaning of a statute is questionable, it should be given a sensible construction and
construed to effectuate the underlying purposes of the law.” Haley v. Retsinas, 138
F.3d 1245, 1249 (8th Cir. 1998) (quotation and citation omitted).

        In resolving whether Congress intended subsection (B)(ii) to encompass “all
crimes” or only crimes similar to the enumerated crimes, we have three primary tools
at our disposal. First, we can apply established canons of construction to the statutory
text itself. Second, we can examine the legislative history of the ACCA to ascertain
the purposes of the Act. Third, we can draw from the Supreme Court’s discussion of
the Act in Taylor, supra, as well as the Supreme Court’s statements about the ACCA
in Leocal v. Ashcroft, 543 U.S. 1 (2004), for guidance in understanding the Act’s
purpose.

             A.               Canons of Construction

       Because subsection (B)(ii) is ambiguous, we apply established canons of
construction to the text to determine congressional intent. Subsection (B)(ii) begins
with a list of four enumerated crimes, followed by the general “otherwise involves”
provision. When general words are appended to an enumeration of more specific
items, the “sensible and long-established” maxim of ejusdem generis “limits the way
we should understand such general words.” Holder v. Hall, 512 U.S. 874, 917 (1994).
“The principle of ejusdem generis suggests that such general terms should be
                                         -18-
understood to refer to items belonging to the same class that is defined by the more
specific terms in the list.” Id.; see also Washington State Dep’t of Soc. & Health
Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003) (“Where 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.”) (citation and quotation omitted). Here, Congress
enumerated four crimes against property and attached this list to the general phrase
“or otherwise involves conduct that presents a serious potential risk of physical injury
to another.” Under the principle of ejusdem generis, the general words in the
“otherwise involves” provision should be construed “to embrace only subjects similar
in nature” to the enumerated crimes. Washington State Dep’t of Soc & Health Servs.,
537 U.S. at 384. Therefore, the “otherwise involves” provision should not be
interpreted to encompass all crimes—regardless of their nature—that involve the
specified conduct. Rather, the provision should be interpreted to encompass only
serious property crimes that are similar in nature to burglary, arson, extortion, and
those involving the use of explosives.

             B.               Legislative History

      The conclusion that Congress intended the “otherwise involves” provision to
include only crimes similar in nature to the enumerated property crimes is reinforced
by the legislative history of the ACCA.11 When it enacted the 1984 Armed Career
Criminal Act,12 Congress provided that a convicted felon in possession of a firearm
who had three previous convictions for “robbery or burglary” faced a mandatory
minimum prison sentence of 15 years. The 1984 Act was amended in 1986 by the



      11
        A full statement of the ACCA’s legislative history can be found in Taylor, 495
U.S. at 581-83.
      12
        Pub. L. 98-473, ch. 18, 98 Stat. 2185, 18 U.S.C. App. § 1202(a) (1982 ed.,
Supp. III) (repealed in 1986 by Pub. L. 99-308, § 104(b), 100 Stat. 459).
                                        -19-
Firearms Owners’ Protection Act,13 then five months later by the Career Criminal
Amendments Act of 1986 (CCAA of 1986).14 The CCAA of 1986 effected two
central changes. First, Congress changed the predicate offenses triggering
enhancement from “burglary and robbery” to “a violent felony or serious drug
offense.” Congress then added subsections (B)(i) and (B)(ii), defining “violent
felony.”

      As our court observed in United States v. Walker, 393 F.3d 819, 824 (8th Cir.
2005), the legislative history of the CCAA of 1986 expressly reinforces the conclusion
that Congress intended the “otherwise involves” provision to encompass crimes
similar in nature to the enumerated crimes. In deciding how “violent felony” should
be defined, Congress agreed that the categories of crimes against people in (B)(i)
should be included. The congressional debate that took place “centered upon whether
any property crimes should be included as predicate offenses, and if so, which ones.”
Taylor, 495 U.S. at 589 (emphasis added). The compromise bill presented by the
Subcommittee provided that

      the term “violent felony” means any crime punishable by imprisonment
      for a term exceeding one year that—

             (i) has as an element the use, attempted use, or threatened
             use of force against the person of another; or

             (ii) involves conduct that presents a serious potential risk of
             physical injury to another.

H.R. 4885. The Report of the House Committee on the Judiciary (“Report”) favorably
reported on this compromise bill, explaining:

      13
       Pub. L. 99-308, § 104, 100 Stat. 458. This act recodified § 1202 as 18 U.S.C.
§ 924(e).
      14
       Section 1402 of Subtitle I of the Anti-Drug Abuse Act of 1986, Pub. L. 99-
570, 100 Stat. 3207-40.
                                        -20-
      The Subcommittee on Crime held a hearing . . . to consider whether it
      should expand the predicate offenses (robbery and burglary) in existing
      law in order to add to its effectiveness. At this hearing a consensus
      developed in support of an expansion of the predicate offenses to include
      serious drug trafficking offenses . . . and violent felonies, generally. This
      concept was encompassed in H.R. 4885 by deleting the specific predicate
      offenses for robbery and burglary and adding as predicate offenses State
      and Federal laws for which a maximum term of imprisonment of 10
      years or more is prescribed for manufacturing, distributing or possessing
      with intent to manufacture or distribute controlled substances and violent
      felonies under Federal or State law if the offense has an element the use,
      attempted use or threatened use of physical force against a person. This
      latter provision would include such felonies involving physical force
      against a person such as murder, rape, assault, robbery, etc.

             The other 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) (second emphasis added). Later, the Report
summarized its conclusions, stating “[s]ubsection 2(b)(B)(ii) adds all State and
Federal felonies 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 5 (emphasis added). The repeated reference to
“similar crimes” in the Report reinforces the view that Congress intended the
“otherwise involves” provision to encompass property crimes that are similar in nature
to burglary, arson, extortion, and crimes that involve the use of explosives.

      Before the CCAA of 1986 was finally enacted, the compromise version of
subsection (B)(ii) was amended to read: “is burglary, arson, or extortion, involves use
                                        -21-
of explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another.” In Taylor, the Supreme Court explained the addition of
the enumerated crimes to subsection (B)(ii), stating the compromise bill “apparently
was intended to include burglary, among other serious property offenses, by
implication, as a crime that ‘involves conduct that presents a serious potential risk of
physical injury to another.’” 495 U.S. at 589. The Court then noted that the
enumerated crimes were added to the subsection “simply to make explicit the
provision’s implied coverage of crimes such as burglary.” Id. This indicates the
Court founded its analysis of (B)(ii) on the assumption that Congress intended to limit
the subsection to “serious property offenses.” Id. Thus, the enumerated crimes were
added to the compromise bill to assure that burglary, arson, extortion, and use of
explosives would be treated as “serious property crimes” for enhancement purposes.
The Court’s express statement in Taylor that (B)(ii) was intended to encompass
“serious property crimes” cannot be reconciled with the proposition that Congress
intended (B)(ii) to encompass all crimes—regardless of their nature—that involve
conduct that presents a serious potential risk of injury to another. Such a proposition
requires the assumption that, after defining an all-encompassing category, Congress
added the enumerated crimes merely to articulate a random subclass of enhancement
crimes.

       The conclusion that the Court in Taylor interpreted subsection (B)(ii) as limited
to “serious property offenses” is supported by the Court’s express statements
regarding Congress’s intent in enacting the ACCA. In reviewing the legislative
history of the ACCA, the Court in Taylor stated that a number of “useful
observations” could be drawn from the legislative history. Id. at 587. First, the Court
observed that

      throughout the history of the enhancement provision, 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.

                                         -22-
Id. at 587-88. The Court further noted that, in defining predicate offenses under the
ACCA, Congress intended to “capture all offenses of a certain level of seriousness
that involve violence or an inherent risk thereof, and that are likely to be committed
by career offenders.” Id. at 590. As the Court pointed out, in enacting the ACCA,
Congress was “immersed in the intensely practical concerns of controlling violent
crime.” Id. at 594.

       Thus, the Court expressly acknowledged in Taylor that the ACCA is meant to
enhance the prison sentences of career criminals who commit violent crimes “as their
means of livelihood.” The Court recognized that a causal nexus exists between
dangerous career criminals and subsequent gun possession—and that when both
factors are present, a serious potential risk of injury to others results. That is, the
ACCA is premised on the notion that a defendant with a history of violent crime is
more dangerous to society when he possesses a gun. Thus, if a defendant’s previous
felonies have been “violent,” the defendant is made particularly dangerous by
possessing a gun—and enhancement under the ACCA is in order. When, however,
the defendant’s previous conduct does not indicate he poses an elevated risk of injury
to others by possessing a gun, enhancement makes no sense. Rather, in those cases
the defendant who has violated the prohibition against possessing guns should be
sentenced under the Guidelines in accordance with his criminal history category and
offense level.

                              C. Leocal and Doe

       The conclusion that Congress did not intend subsection (B)(ii) to encompass
felony drunk driving laws is supported by statements in United States v. Doe, 960
F.2d 221 (1st Cir. 1992), and Leocal v. Ashcroft, 543 U.S. 1, 125 S. Ct. 377 (2004).
In Leocal, the Supreme Court interpreted 18 U.S.C. § 16(b), which defines a “crime
of violence” as “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.” Leocal, 543 U.S. at __, 125 S. Ct. at
                                          -23-
381. The Court noted this definition of “crime of violence” is much more specific
than the definition of “crime of violence” in U.S.S.G. § 4B1.2—a provision that is
viewed as essentially interchangeable with the definition of “violent felony” in
§ 924(e)(2)(B). United States v. Nolan, 397 F.3d 665, 666 (8th Cir. 2005); see also
United States v. Kelly, 422 F.3d 889, 894 n.2 (9th Cir. 2005); United States v.
Montgomery, 402 F.3d 482, 488 n.28 (5th Cir. 2005); United States v. Johnson, 246
F.3d 330, 333 n.5 (4th Cir. 2001); United States v. Arnold, 58 F.3d 1117, 1121 (6th
Cir. 1995).

       When comparing § 16(b) with § 4B1.2, the Court in Leocal stated that “§ 16(b)
plainly does not encompass all offenses which create a ‘substantial risk’ that injury
will result from a person’s conduct.” Id. at ___, 125 S. Ct. at 383 n.7. This statement
could be construed to mean that the Court is predisposed to concluding that § 4B1.2
(and thus § 924(e)) does include “all offenses” that create a substantial risk injury will
result from one’s conduct. However, the Court went on to state that “[t]he ordinary
meaning of [crime of violence] . . . suggests a category of violent, active crimes that
cannot be said naturally to include DUI offenses.” Id. at __, 125 S. Ct. at 383
(emphasis added). The Court then favorably quoted then-Chief Judge Breyer’s
statement in Doe 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.’” Id. (quoting Doe, 960 F.2d at 225).15 This favorable citation of Doe in
Leocal supports the proposition that a “crime of violence” under § 4B1.2—and
therefore a “violent felony” under § 924(e)—does not include drunk driving. At the
very least, the tension between the Court’s initial observation that § 16(b) and § 4B1.2


      15
         In discussing § 924(e), the First Circuit noted in Doe that reading the statute
broadly would “bring within the statute’s host a number of other crimes that do not
seem to belong there.” 960 F.2d at 225. The First Circuit went on to say that “[t]here
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.” Id.
                                          -24-
encompass different conduct and its subsequent observation, citing Doe, that actively
violent crimes must be distinguished from “accidental or negligent conduct”
underscores the unsettled nature of whether Congress intended to include felony drunk
driving convictions in the category of violent felonies as defined in § 924(e). Thus,
although neither Doe nor Leocal provide direct support for the conclusion that drunk
driving is not a violent felony under § 924, Leocal’s discussion of § 924(e) indicates
that the Court believes drunk driving is not an actively violent crime, as required
under the ACCA.

                                          V.

       There is no question that drunk driving has destructive consequences and that
state legislatures and Congress have a duty to enact laws that facilitate the
identification, conviction, and punishment of drunk drivers. The issue at hand,
however, is not how drunk driving should be punished. Nor is the issue whether
felons should be punished in accordance with the Guidelines for illegally possessing
guns. The issue is whether Congress intended to include drunk driving convictions
in the category of “violent felonies” as defined in the ACCA. Congress enacted the
ACCA to lengthen the sentences of career offenders “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.” Taylor, 495 U.S. at
587-88. It bears repeating that the ACCA is an enhancement statute triggered by gun
possession. In imposing mandatory minimum sentences on these defendants,
Congress has recognized society’s interest in enhancing the sentences of violent career
criminals whose dangerousness is intensified by gun possession. Although a repeat
drunk driver poses a threat to society, that threat is not intensified by the possession
of a gun. Rather, a drunk driver’s threat to society is intensified by his or her choice
to drink and drive again. While state legislatures and Congress are free to fashion
sentencing remedies to address the threat repeat drunk drivers pose to society, it only
makes sense to have those remedies triggered by the dangerous conduct in question:
drunk driving.
                                          -25-
       Because the wording of § 924(e) gives rise to reasonable questions regarding
whether Congress intended to include drunk driving as an enhancing crime under the
ACCA, rather than expanding the scope of the statute, our court should apply the
principle of lenity and construe the statute in favor of the defendant. “[A]mbiguity
concerning the ambit of criminal statutes should be resolved in favor of lenity.”
Rewis v. United States, 401 U.S. 808, 812 (1971). Courts should 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.” Ladner v. United States, 358 U.S. 169, 178 (1958). In the case at hand,
after pleading guilty to possessing a gun in violation of § 922(g)(1), McCall’s prison
sentence was increased nearly six-fold, from 27-to-33 months to a mandatory
minimum of 15-years. Absent clear direction from Congress, we should avoid
construing the ACCA in a manner that imposes such a dire penalty on a criminal
defendant. Instead, we should construe the statute at issue in McCall’s favor,
recognizing that the legislative history of the ACCA indicates that Congress did not
intend to include felony convictions for drunk driving in the “otherwise involves”
provision. If Congress disagrees, the statute can be amended to alleviate any question
regarding Congress’s intent. This case should be remanded, and McCall should be
resentenced without an enhancement under the ACCA.
                         ______________________________




                                        -26-
