                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 00-4042
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Dewayne Alan Jernigan,                   *
                                         *    [TO BE PUBLISHED]
      Defendant - Appellant.             *
                                    ___________

                               Submitted: June 13, 2001

                                   Filed: July 26, 2001
                                    ___________

Before LOKEN, HALL,* and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                            ___________

PER CURIAM.

       Dewayne Alan Jernigan pleaded guilty to manufacturing and possessing with
intent to distribute methamphetamine. He was sentenced to 262 months in prison and
five years of supervised release based upon the district court’s finding that he is a
“career offender” under § 4B1.1 of the Sentencing Guidelines. Jernigan appeals,
arguing that the district court erred in sentencing him as a career offender because his



      *
       The HONORABLE CYNTHIA HOLCOMB HALL, United States Circuit
Judge for the Ninth Circuit, sitting by designation.
1993 Arkansas conviction for negligent homicide was not a “crime of violence” for
purposes of the career offender guideline. We affirm.

       Section 4B1.1 subjects a defendant who is a career offender to an increased
offense level and criminal history category. An adult convicted of a controlled
substance offense is a career offender if he “has at least two prior felony convictions
of either a crime of violence or a controlled substance offense.” It is undisputed that
Jernigan has a prior controlled-substance felony conviction. Thus, his sentence as a
career offender turns on whether his prior conviction for negligent homicide was a
“crime of violence” for career offender sentencing purposes. A “crime of violence” is
defined in U.S.S.G. § 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

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

After listing specific offenses that are crimes of violence, including manslaughter and
aggravated assault, Application Note 1 to § 4B1.2 provides that other offenses are
included if “the conduct set forth (i.e., expressly charged) in the count of which the
defendant was convicted . . . by its nature, presented a serious potential risk of physical
injury to another.”

        The following conduct led to Jernigan’s negligent homicide conviction. Shortly
after midnight on May 19, 1993, while he was attempting to pass another vehicle
during a rainstorm, Jernigan’s truck collided with the rear of the other vehicle, forcing
it off the road into a tree and killing the other driver. Blood-alcohol tests at the scene

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indicated that Jernigan was driving under the influence of alcohol, as defined by
Arkansas law. He was initially charged with manslaughter. He ultimately pleaded
guilty to negligent homicide while operating a vehicle while intoxicated or under the
influence, a felony violation of ARK. CODE ANN. § 5-10-105(a)(1).

       In United States v. Rutherford, 54 F.3d 370 (7th Cir.), cert. denied, 516 U.S. 924
(1995), the Seventh Circuit held that a felony assault conviction for causing serious
bodily injury while driving under the influence of alcohol was a crime of violence for
career offender purposes. The majority concluded that felony driving-while-intoxicated
falls within the “otherwise” clause in U.S.S.G. § 4B1.2(a)(2) because “[d]runk driving
is a reckless act that often results in injury, and the risks of driving while intoxicated
are well-known.” 54 F.3d at 376. Judge Easterbrook in a concurring opinion did not
reach that issue, concluding that the assault conviction at issue was a crime of violence
because “every conviction of first-degree assault in Alabama entails ‘serious bodily
injury,’ and a category of acts 100% of which end in ‘serious bodily injury’ necessarily
‘presents a serious potential risk of physical injury to another.’” Id. at 379 (emphasis
in original).

        In United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir. 2000), the
Fifth Circuit followed the majority in Rutherford and held that driving while intoxicated
is a crime of violence for purposes of U.S.S.G. § 2L1.2(b)(1)(B), which incorporates
by reference the definition in § 4B1.2(a), because “the very nature of the crime of DWI
presents a ‘serious risk of physical injury’ to others, and makes DWI a crime of
violence.”

       On appeal, Jernigan argues that manslaughter is specifically listed as a crime of
violence in Application Note 1 to § 4B1.2(a), that negligent homicide requires proof
of a less culpable mental state than manslaughter, and therefore that the Sentencing
Commission’s failure to include negligent homicide in its list of specified offenses
means that it is not a crime of violence for career offender purposes. Like the Seventh

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Circuit and the Fifth Circuit, we disagree. Both the “otherwise” clause in § 4B1.2(a)(2)
and the “other offenses” sentence in Application Note 1 make it clear that the crimes
of violence listed in Note 1 are not intended to be all-inclusive. When considering a
prior felony offense that is not specifically listed, the issue is whether the conduct
underlying the offense “presents a serious potential risk of physical injury to another.”
Driving while intoxicated or under the influence of alcohol presents a well-known risk
of an automobile accident. In this case, as in Rutherford, that risk-laden conduct in fact
resulted in a felony conviction for seriously injuring or killing another person. We
agree with Judge Easterbrook’s concurring opinion in Rutherford -- the conduct
underlying that offense meets the criteria of a crime of violence under § 4B1.2(a). We
leave for another day the issue presented in DeSantiago-Gonzalez -- whether a DWI
offense that does not result in injury or death is a crime of violence.

      The judgment of the district court is affirmed.

      A true copy.

             Attest:

                 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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