                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 06-3193
                                   ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
      v.                               * District Court for the Eastern
                                       * District of Missouri.
John Peter Spudich,                    *
                                       *
            Defendant - Appellant.     *
                                  ___________

                             Submitted: April 10, 2007
                                Filed: January 4, 2008
                                 ___________

Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.
                        ___________

SHEPHERD, Circuit Judge.

      John Peter Spudich is before us again, this time appealing the 46-month
sentence imposed by the district court1 at resentencing. After oral argument, the
Supreme Court issued its opinion in James v. United States, 550 U.S. ___, 127 S. Ct.
1586 (2007), and this court filed United States v. McCall (McCall II), 507 F.3d 670
(8th Cir. 2007). In light of James and McCall II, we affirm.




      1
       The Honorable Donald J. Stohr, United States District Judge for the Eastern
District of Missouri.
                                           I.

       Spudich pled guilty to unlawful possession of a firearm as a previously
convicted felon in violation of 18 U.S.C. § 922(g)(1). During Spudich’s first
sentencing,2 the district court found, over Spudich’s objection, that his two prior
Missouri felony driving while intoxicated (DWI) convictions were “crime[s] of
violence” for purposes of United States Sentencing Guidelines section 2K2.1(a)(2),3
resulting in an enhanced base offense level, and sentenced Spudich to a term of 50
months imprisonment. Spudich appealed, contending, among other things, that his
two prior Missouri felony DWI convictions were not “crimes of violence” under the
Guidelines. See United States v. Spudich (Spudich I), 443 F.3d 986, 986 (8th Cir.
2006) (per curiam).




      2
       The Presentence Investigation Report (PSR) concluded that Spudich’s base
offense level was 24 pursuant to United States Sentencing Guidelines section
2K2.1(a)(2) because Spudich’s two prior driving while intoxicated (DWI) felony
convictions under Missouri law were both crimes of violence within the meaning of
section 4B1.2(a). After applying a three-level downward adjustment for acceptance
of responsibility, the PSR set Spudich’s total offense level at 21. Spudich’s total
offense level coupled with his criminal history category of III resulted in an advisory
Guidelines sentence range of 46 to 57 months.
      3
        Guideline section 2K2.1 applies to offenses involving the unlawful possession
of firearms and sets the base offense level at 12. However, section 2K2.1(a)(2)
provides that the base offense level is “24, if the defendant committed any part of the
instant offense subsequent to sustaining at least two felony convictions of either a
crime of violence or a controlled substance offense.” USSG § 2K2.1(a)(2). Thus, the
application of section 2K2.1(a)(2) amounts to a 12-level enhancement. For purposes
of section 2K2.1, “crime of violence” has the meaning given that term in section
4B1.2(a). USSG § 2K2.1, comment. (n.1). Under section 4B1.2(a)(2), crimes of
violence include offenses that “involve[] conduct that presents a serious potential risk
of physical injury to another.” USSG § 4B1.2(a)(2).
                                          -2-
       Recognizing that driving while intoxicated is a crime of violence for purposes
of Guidelines section 2K2.1 but that an individual may commit the Missouri crime of
felony DWI through non-driving conduct such that it is not a crime of violence,4 we
vacated Spudich’s original sentence because the district court found that Spudich’s
felony DWI convictions were crimes of violence based on the Presentence
Investigation Report (PSR), which did “not provide sufficient information from
acceptable sources to determine . . . that Spudich was driving while intoxicated.”
Spudich I, 443 F.3d at 987. We remanded for resentencing, instructing that the
government could offer evidence to establish that Spudich was actually driving while
intoxicated such that his felony DWI convictions qualified as crimes of violence for
sentence enhancement purposes. Id.

      At resentencing, the district court determined that the government established,
by way of the charging documents, that Spudich’s felony DWI convictions actually
involved driving while intoxicated such that those offenses were “crime[s] of
violence,” subjecting Spudich to a base offense level enhancement pursuant to section

      4

      [T]he 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 others. 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, . . . not every
      felony DWI conviction in Missouri is a violent felony under [the Armed
      Career Criminal Act’s (ACCA’s) residual provision].

United States v. McCall (McCall I), 439 F.3d 967, 973 (8th Cir. 2006) (en banc)
(footnote omitted).
                                          -3-
2K2.1(a)(2), and sentenced Spudich to 46 months imprisonment. Spudich again
appeals his sentence, contending that the district erred because the government’s proof
at resentencing established only that he “operated” a motor vehicle, failing to resolve
whether his felony DWI convictions rested on the fact that he was driving while
intoxicated.

                                           II.

      We consider de novo whether the district court erred in finding that Spudich’s
Missouri felony DWI convictions were crimes of violence for purposes of section
2K2.1(a)(2). See United States v. Lockwood, 446 F.3d 825, 827 (8th Cir. 2006) (“We
review de novo the district court’s use of prior convictions for sentence enhancement
purposes.”).

                                           III.

       The focus of this appeal is the term “crime of violence” defined by the
Guidelines as “any offense . . . that . . . involves conduct that presents a serious
potential risk of physical injury to another.” USSG § 4B1.2(a)(2). However, in order
to construe this term, we look to the Supreme Court’s and this court’s interpretation
of “violent felony”5 contained in the Armed Career Criminal Act (ACCA), 18 U.S.C.


      5
       The ACCA’s 15-year mandatory minimum applies “[i]n the case of a person
who violates section 922(g) of this title [the felon in possession of a firearm provision]
and has three prior convictions . . . for a violent felony or a serious drug offense, or
both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1)
(emphasis added). The ACCA defines a “violent felony” as

      [A]ny 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.
                                           -4-
§ 924(e). More specifically, we consider the ACCA’s residual provision, the portion
of section 924(e)(2)(B) clause (ii) which encompasses as a “violent felony” any
offense which “presents a serious potential risk of physical injury to another,” 18
U.S.C. § 924(e)(2)(B)(ii), that was central in both James and McCall II. This
provision is relevant here because its language is “nearly identical to the definition”
of “crime of violence” for purposes of Guidelines section 2K2.1(a)(2). Spudich I, 443
F.3d at 987; see James, 127 S. Ct. at 1596 (stating that the Guidelines “definition of
a predicate ‘crime of violence’ closely tracks ACCA’s definition of ‘violent felony’”).
Further, this court “generally appl[ies] the same analysis to both terms.” Spudich I,
443 F.3d at 987. Thus, the same considerations that the James and McCall II Courts
applied in determining whether a prior state offense constituted a “violent felony”
under the ACCA’s residual provision govern whether such an offense is a “crime of
violence” under the Guidelines. Id.; see United States v. Wells, 469 F.3d 716, 721
(8th Cir. 2006) (“Our holding in McCall applied to the definition of “crime of
violence” under 18 U.S.C. § 924(e), but this holding also applies to the definition of
crime of violence under [section] 2K2.1(a)(2) because the definitions under these
statutes are ‘nearly identical.’”).

       Prior to James, the Supreme Court addressed the manner in which a sentencing
court determines whether a defendant’s prior conviction constitutes a violent felony
under the ACCA. See Shepard v. United States, 544 U.S. 13 (2005); Taylor v. United
States, 495 U.S. 575 (1990). In Shepard and Taylor, the Court examined whether a
burglary conviction pursuant to state law that defined the offense more broadly than
the generic offense of burglary,6 one of the enumerated offenses in section



Id. § 924(e)(2)(B) (emphasis added).
      6
       The Supreme Court found “that Congress meant by ‘burglary’ the generic
sense in which the term is now used in the criminal codes of most States.” Taylor v.
United States, 495 U.S. 575, 598 (1990) (citation omitted). Thus, the Court
“conclude[d] that a person has been convicted of burglary for purposes of a § 924(e)
enhancement if he is convicted of any crime, regardless of its exact definition or label,
                                           -5-
924(e)(2)(B) clause (ii), constituted a violent felony. See Shepard, 544 U.S. at 17 (“In
this case, the offenses charged in state complaints were broader than generic burglary
. . . .”); Taylor, 495 U.S. at 599-600 (“We therefore must address the question
whether, in the case of a defendant who has been convicted under a nongeneric-
burglary statute, the Government may seek enhancement on the ground that he
actually committed a generic burglary.”). Because the “ACCA generally prohibits the
later court from delving into particular facts disclosed by the record of conviction,”
Shepard, 544 U.S. at 17, both Taylor (jury verdicts) and Shepard (guilty pleas),
applied what the Supreme Court termed a “formal categorical approach,” Taylor, 495
U.S. at 600, “leaving the [sentencing] court normally to ‘look only to the fact of
conviction and the statutory definition of the prior offense.’” Shepard, 544 U.S. at 17
(quoting Taylor, 495 U.S. at 602).

       However, both Taylor and Shepard recognize “an exception to this ‘categorical
approach’ . . . for ‘a narrow range of cases’” where a state defines an offense more
broadly than the generic enumerated offense. Shepard, 544 U.S. at 17 (quoting
Taylor, 495 U.S. at 602). Where the prior conviction stems from a jury verdict, the
sentencing court may look to “the indictment or information and jury instructions” to
determine if the jury was “actually required to find all the elements of [the] generic
[offense].” Taylor, 495 U.S. at 602. With regard to guilty pleas, the court “is limited
to the terms of 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,” which must show that the defendant “necessarily admitted elements of
the generic offense.” Shepard, 544 U.S. at 26. This court has termed the Supreme
Court’s approach in Taylor and Shepard the “modified categorical approach.” See
United States v. McCall (McCall I), 439 F.3d 967, 974 (8th Cir. 2006) (en banc).




having the basic elements of unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime.” Id. at 599.
                                          -6-
        James involved a prior conviction for attempted burglary as defined by Florida
law, and the Supreme Court examined whether such an offense constituted a violent
felony under the ACCA’s residual provision. 127 S. Ct. at 1590-91. However, unlike
Taylor and Shepard which focused on “the specific crimes enumerated in clause (ii),”
James examines “the scope of [the ACCA’s] § 924(e)(2)(B)(ii)’s residual provision”
that is “broad” with “expansive phrasing.” 127 S. Ct. at 1591-93 (citing Chevron
U.S.A. Inc. v. Echazabal, 536 U.S. 73, 80 (2002)). In resolving the issue before it, the
James Court, relying on both Taylor and Shepard, utilized “the ‘“categorical approach
. . . look[ing] only to the fact of conviction and the statutory definition of the prior
offense,”’ and . . . not . . . the ‘“particular facts disclosed by the record of conviction”’
in determining ‘“whether the elements of the offense are of the type that would justify
its inclusion within the residual provision, without inquiring into the specific conduct
of [the] particular offender.”’” James, 127 S. Ct. at 1593-94 (quoting Shepard, 544
U.S. at 17, in turn quoting Taylor, 495 U.S. at 602). Significantly, the James Court
did not mention the narrow exception to the categorical approach outlined in Taylor
and Shepard that was discussed in the preceding analysis. Thus, James clarified the
approach that the federal courts are to take in ascertaining whether an offense qualifies
as a violent felony under the ACCA’s residual provision as: “whether the conduct
encompassed by the elements of the offense, in the ordinary case, presents a serious
potential risk of injury to another.” 127 S. Ct. at 1597. Applying this standard, the
James Court determined that attempted burglary under Florida law is a violent felony
under the ACCA’s residual provision. Id. at 1597-98.

       When faced with the same prior offense at issue in this case, a Missouri felony
DWI conviction, McCall II applied the categorical approach articulated by the
Supreme Court in James and found that “a charging paper alleging the felony offense
of driving while intoxicated should be construed as referring to the dominant offense
of driving while intoxicated,” McCall II, 507 F.3d at 674, which is a violent felony
for purposes of the ACCA’s residual provision. See McCall I, 439 F.3d at 972. The
McCall II Court went on to find that, because “a guilty plea to [this charge] without
more, raises no inference that the offense was not a violent felony,” and the record in

                                            -7-
McCall II did not offer any indicia that the defendant was not driving at the time he
committed the felony DWI, the district court properly concluded that McCall’s guilty
pleas to the offense constituted violent felonies. 507 F.3d at 675.

       Because, as shown in the preceding analysis, this court construes “crime of
violence” under the Guidelines in accordance with its interpretation of “violent
felony” pursuant to the ACCA, James and McCall II establish that the overinclusive
nature of the Missouri statute that caused the Spudich I Court concern, 443 F.3d at
987, does not preclude a finding that a Missouri felony DWI conviction is a crime of
violence for purposes of section 2K2.1(a)(2). See James, 127 S. Ct. at 1597; McCall
II, 507 F.3d at 674-75. The James Court acknowledged that “[o]ne could . . . imagine
a situation in which attempted burglary might not pose a realistic risk of confrontation
or injury to anyone” but still found that the offense was a violent felony under the
ACCA’s residual provision because the

      ACCA does not require metaphysical certainty.                        Rather,
      § 924(e)(2)(B)(ii)’s residual provision speaks in terms of a “potential
      risk.” . . .We do not view [Taylor’s categorical] approach as requiring
      that every conceivable factual offense covered by a statute must
      necessarily present a serious potential risk of injury before the offense
      can be deemed a violent felony. . . . One can always hypothesize unusual
      cases in which even a prototypically violent crime might not present a
      genuine risk of injury . . . . As long as an offense is of a type that, by its
      nature, presents a serious potential risk of injury to another, it satisfies
      the requirements of § 924(e)(2)(B)(ii)’s residual provision.

James, 127 S. Ct. at 1597 (internal citation omitted). Furthermore, McCall II
acknowledged the overinclusive nature of the Missouri felony DWI offense but
determined that this does not disqualify the offense from falling within the ACCA’s
residual provision under James’s categorical approach because “[t]he primary focus”
of this offense “is driving a vehicle” such that “[t]he plain meaning of a felony charge
of ‘driving while intoxicated’ is that the defendant operated the vehicle in that
condition by moving it, thereby creating the potential risk of serious physical injury

                                           -8-
to another . . . .” McCall II, 507 F.3d at 675. Accordingly, McCall II’s holding that
a felony DWI conviction pursuant to Missouri law is a violent felony under the ACCA
compels our conclusion that the same offense is a crime of violence for purposes of
section 2K2.1(a)(2). See James, 127 S. Ct. at 1596 (finding the United States
Sentencing Commission’s determination that attempt offenses can constitute crimes
of violence persuasive in determining that such offenses could serve as violent
felonies under the ACCA); see also United States v. Hessman, 493 F.3d 977, 982 (8th
Cir. 2007) (recognizing that only the en banc court can overrule circuit precedent).

       Furthermore, the record in this case mirrors that of McCall II. There, with
regard to the two convictions in dispute, “[t]he first information charged that McCall
‘committed the Class D felony of Driving While Intoxicated . . . upon Office Road at
Goose Creek . . . .’ The second charged that he ‘committed the Class D felony of
driving while intoxicated . . . on Missouri State Highway 34, west of Marble Hill . .
. .’” McCall II, 507 F.3d at 675. Here, the first information charged that Spudich
“committed the class D felony of Driving While Intoxicated Persistent Offender . . .
upon Missouri Highway 67 North . . . .” The second charged that he “committed the
class D felony of driving while intoxicated . . . on the ramp from Dorsett to
southbound Highway I-270 . . . .” Thus, the factual descriptions in the charging
papers in this case and McCall II are extremely similar in that all four use the words
“on” or “upon” in connection with a specific public roadway. Moreover, as in McCall
II, both of Spudich’s state court charging documents reference the felony statute, Mo.
Rev. Stat. § 577.023.1(3) (“An ‘intoxication-related traffic offense’ is driving while
intoxicated, driving with excessive blood alcohol content . . . .”), as well as the
driving-while-intoxicated statute, Mo. Rev. Stat. § 577.010 (“A person commits the
crime of ‘driving while intoxicated’ if he operates a motor vehicle while in an
intoxicated or drugged condition”). See id. Finally, as in McCall II, nothing in the
record indicates that Spudich committed his prior two felony DWIs by merely
“operating” his vehicle, for example, that Spudich was sitting in the car asleep with
the engine running. See id. Thus, Spudich’s “guilty plea to the felony charge of
‘driving while intoxicated,’ without more, raises no inference that the offense was not

                                          -9-
a [crime of violence].” See id.; see also United States v. Painter, 400 F.3d 1111, 1114
(8th Cir. 2005) (in evaluating California burglary convictions for purposes of the
ACCA, “[w]hen the charging paper charge[s] generic burglarly–unlawful entry into
a building to commit a crime–the conviction is a violent felony for purposes of 924(e)
unless a plea agreement or plea colloquy establishes that the defendant pleaded guilty
to an offense that was not generic burglary” such that the onus is on “the defendant
[to] lay the factual predicate for that issue in his guilty plea to the [state] court”)).
Therefore, Spudich’s sole contention on appeal has been foreclosed by McCall II.

                                          IV.

      Accordingly, we affirm Spudich’s sentence.
                     ______________________________




                                          -10-
