                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-4010
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Southern District of Iowa.
Eric Clark Webster,                      *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: October 11, 2005
                                 Filed: April 4, 2006
                                  ___________

Before ARNOLD, BOWMAN, and MURPHY, Circuit Judges.
                         ___________

BOWMAN, Circuit Judge.

       A jury convicted Eric Clark Webster of one count of being a prohibited person
in possession of a firearm, and the District Court sentenced him to 262 months'
imprisonment. Webster appeals his conviction, arguing that the District Court erred
in instructing the jury regarding his flight from police. He also challenges his
sentence. We affirm Webster's conviction but vacate his sentence and remand his case
for resentencing.

       On January 16, 2002, employees at a Des Moines, Iowa, convenience store
called police to report suspicious activity outside the store. An officer responding to
the call spotted Webster in the area driving without wearing a seat belt. The officer
pulled his marked police car behind Webster's vehicle and activated the police car's
emergency lights and siren. Instead of pulling over, Webster accelerated in an attempt
to elude the officer. When the officer finally succeeded in stopping Webster's vehicle,
the officer removed Webster and his passengers from the vehicle and saw in plain
view a large plastic bag of marijuana and a .25 caliber Colt automatic pistol on the
floor in front of the driver's seat.

        Webster was indicted on one count of being a prohibited person in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1). At his arraignment, Webster was
advised that his criminal history, including two Iowa felony convictions for operating
a motor vehicle while intoxicated ("OWI") and an Iowa felony conviction for
possession of a controlled substance with intent to deliver, would be used to seek an
enhanced penalty under the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C.
§ 924(e). After a two-day trial, the jury found Webster guilty of the § 922(g)(1)
charge. The United States Probation Office prepared a presentence report ("PSR")
recommending application of an enhanced penalty under the ACCA. At sentencing
and over Webster's objection, the District Court determined that each of Webster's
Iowa felony OWI convictions constituted a "violent felony" as defined in
§ 924(e)(2)(B)(ii). The District Court then calculated Webster's sentence pursuant to
United States Sentencing Guidelines section 4B1.4, which implements the ACCA.
With an offense level of 34 and a criminal history category of VI, Webster's guideline
sentencing range under section 4B1.4 was 262 to 327 months' imprisonment. The
District Court sentenced Webster to 262 months' imprisonment.1

       On appeal, Webster argues that the District Court erred when it instructed the
jury that his flight from police could be used to infer consciousness of guilt with
respect to his possession of a firearm. Webster also challenges his sentence,


      1
      After receiving credit for time served on a related Iowa state conviction,
Webster's actual sentence was 229 months' imprisonment.

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contending that the District Court erred in concluding that his Iowa felony OWI
convictions were violent felonies as defined in the ACCA and in applying section
4B1.4 of the sentencing guidelines in a mandatory fashion.

       Webster first argues that the District Court erred in instructing the jury that it
could consider his flight from police to infer consciousness of guilt. "We review
challenges to jury instructions for an abuse of discretion." United States v. Wipf, 397
F.3d 632, 635 (8th Cir. 2005). We will "affirm if the entire charge to the jury, when
read as a whole, fairly and adequately contains the law applicable to the case." United
States v. Sdoulam, 398 F.3d 981, 993 (8th Cir. 2005) (internal citations and quotations
omitted). And we will reverse only if we find that an instructional error was
prejudicial to the defendant. United States v. Gianakos, 415 F.3d 912, 920 (8th Cir.),
cert. denied, 126 S. Ct. 764 (2005). A flight instruction may be given when such an
instruction is warranted by the evidence presented at trial. See United States v. Roy,
843 F.2d 305, 310 (8th Cir.), cert. denied, 487 U.S. 1222 (1988).

      The District Court's Instruction 11 to the jury read:

      You may also consider any evidence of flight by the defendant, along
      with all of the evidence in the case, and you may consider whether this
      evidence shows a consciousness of guilt and determine the significance
      to be attached to any such conduct.

      Whether or not evidence of flight shows a consciousness of guilt and the
      significance to be attached to any such evidence are matters exclusively
      within the province of the jury. In your consideration of the evidence of
      flight you should consider that there may be reasons for this which are
      fully consistent with innocence.

Webster argues that this instruction improperly allowed the jury to infer consciousness
of guilt with respect to his alleged possession of a firearm when the evidence
suggested that he had other reasons to flee the police, namely, that he knew there were

                                          -3-
illegal drugs in the car and that he had violated a traffic law. We disagree. While the
flight instruction allowed the jury to consider the flight evidence, it also instructed the
jury to consider all the evidence admitted during the trial and determine what
significance, if any, to attach to the flight evidence. The District Court properly left
to the jury the issue of Webster's reason for fleeing from the police. That Webster
may have had other possible reasons for fleeing from police "does not render evidence
of the flight inadmissible to show consciousness of guilt" of the crime charged. Roy,
843 F.2d at 310; see also United States v. Clark, 45 F.3d 1247, 1251 (8th Cir. 1995).
The District Court instructed the jury that there may have been any number of reasons
for Webster to flee from police that were "fully consistent with innocence." The jury
heard Webster's evidence on the other possible motives for his flight. Whatever
weight the jury may have given the evidence of Webster's flight, there is sufficient
other evidence in the record to support the conviction. In these circumstances, we see
no abuse of discretion in the District Court's decision to give the flight instruction.

       Webster next argues that the District Court erred in concluding that a felony
OWI conviction under Iowa law is a "violent felony" as defined in the ACCA. The
ACCA defines violent felony as a felony punishable by a prison 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)(ii). After the parties filed their briefs and presented their
arguments in this case, our court en banc issued an opinion in United States v. McCall,
No. 04-1143, 2006 WL 625687, at *4 (8th Cir. Mar. 15, 2006) (en banc), in which we
held that "driving while intoxicated . . . is . . . a violent felony under the 'otherwise
involves' provision in § 924(e)(2)(B)(ii)." We therefore address Webster's arguments
in light of our recent decision in McCall.

       We turn first to the Iowa statute defining an OWI offense to determine what
specific conduct is criminalized. In Iowa, a "person commits the offense of operating
while intoxicated if the person operates a motor vehicle . . . [w]hile under the

                                           -4-
influence of an alcoholic beverage or other drug." Iowa Code § 321J.2. The Iowa
Supreme Court has defined "operate" for purposes of the OWI statute "as the
immediate, actual physical control over a motor vehicle that is in motion and/or has
its engine running." State v. Hopkins, 576 N.W.2d 374, 377 (Iowa 1998) (internal
citations and quotations omitted). Thus, like the Missouri statute at issue in McCall,
Iowa's OWI statute criminalizes "both driving a vehicle and merely causing the
vehicle to function by starting its engine." McCall 2006 WL 625687, at *5. Because
the Iowa statute criminalizes conduct other than driving while intoxicated, McCall
instructs that we look to the judicial record, as limited by the United States Supreme
Court in Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States,
125 S. Ct. 1254 (2005), to determine whether Webster's prior convictions involved
driving while intoxicated and thus constitute violent felonies for purposes of
§ 924(e)(2)(B)(ii). Id. at *5–6.

        As we noted in McCall, the Supreme Court held in Taylor that a state burglary
conviction constitutes 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.'" Id. at *5 (quoting Taylor, 495 U.S. at 602). We also noted
that in Shepard, the Court expanded this approach to include a guilty-plea conviction,
but restricted the evidence admissible to prove 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.'" Id. (quoting Shepard, 125 S. Ct. at 1263). A review of the record on
appeal in this case reveals that such evidence of Webster's guilty-plea convictions is
absent.

      Included in the record on appeal is Webster's PSR, which indicates that Webster
pleaded guilty to two Iowa felony OWI offenses in 1992. With respect to the first
offense, the PSR states that Webster "was observed by officers with the Des Moines

                                         -5-
Police Department operating a white 1979 Ford Fairmont while under the influence
of alcohol." PSR at 11. There is no assertion in the PSR that on this occasion
Webster was driving the vehicle when he was observed by officers. With respect to
the second OWI offense, the PSR states that Webster "was observed by officers
operating a motor vehicle (a Nissan pickup). Officers became involved in a chase
with the vehicle. Upon contact, officers observed the defendant had watery, bloodshot
eyes, slurred speech, and a strong odor of alcohol on his breath. A [blood alcohol
concentration] registered .158." Id. The PSR does assert that on this occasion,
Webster was driving the vehicle when he was observed by officers. The PSR
concludes that these two felony OWI convictions constitute violent felonies, and it
recommends that Webster receive a sentence calculated under section 4B1.4 of the
sentencing guidelines. Webster objected to the sentencing calculations included in the
PSR and to all underlying facts on which those calculations were based.

       We conclude that in these circumstances, the "fact recitals in the PSR are not
an adequate basis for affirming" Webster's sentence. McCall, 2006 WL 625687, at
*6. Webster objected to the calculation of his base offense level, the application of
all sentencing enhancements, and the recitation of facts in the PSR. Faced with such
objections, the government had an obligation at sentencing to introduce the
documentary evidence Taylor or Shepard requires if it intended to rely on Webster's
prior felony convictions to support an ACCA enhancement to Webster's sentence. Id.
The record on appeal does not include the charging documents, written plea
agreements, transcripts of plea colloquies, or comparable judicial records to establish
that Webster pleaded guilty to two while-driving felony OWI offenses. Accordingly,
we vacate the sentence imposed by the District Court and remand the case for further
sentencing proceedings at which the court may allow the government to submit
evidence admissible under Taylor or Shepard to establish that Webster's two prior
felony OWI convictions involved driving while intoxicated and thus were violent
felonies under § 924(e)(2)(B)(ii). The District Court may allow the parties to



                                         -6-
supplement the sentencing record for this purpose. Id.; United States v. Deroo, 304
F.3d 824, 828 (8th Cir. 2002).2

       For the reasons set forth above, we affirm Webster's conviction, but we vacate
his sentence and remand to the District Court for resentencing.

                       ______________________________




      2
       Because we are remanding Webster's case for further sentencing proceedings
to determine whether his prior felony OWI convictions constitute violent felonies
under § 924(e)(2)(B)(ii), we decline to address the arguments Webster raises based
on United States v. Booker, 125 S. Ct. 738 (2005). The District Court is aware of its
duty on remand to impose a sentence in accordance with Booker.

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