                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1143
                                   ___________

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

                             Submitted: September 13, 2004
                                Filed: February 4, 2005
                                 ___________

Before RILEY, LAY, and SMITH, Circuit Judges.
                             ___________

SMITH, Circuit Judge.

       We are again asked whether a felony conviction for driving while intoxicated
(DWI) is a violent felony under the Armed Career Criminal Act of 1984 (ACCA). 18
U.S.C. § 924(e)(2)(B)(ii) (defining violent felony as a felony involving "conduct that
presents a serious potential risk of physical injury to another"). Concluding a felony
DWI conviction is a violent felony, the district court sentenced Timothy McCall
(McCall) as an armed career criminal under the ACCA based on his conviction for
felon in possession of a firearm and three felony DWI convictions. We reverse.
                                    I. Background
       McCall was indicted in April 2003 for being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). The indictment also charged McCall with being
an armed career criminal, in violation of 18 U.S.C. § 924(e), based on McCall's three
felony DWI convictions. McCall pled guilty to being a felon in possession of a
firearm. The presentence investigation report (PSR) recommended an offense level
of 30. This level was based on an enhanced sentence under the ACCA for McCall's
three felony DWI convictions, as well as a three-level reduction for acceptance of
responsibility. See U.S.S.G. §§ 4B1.4(b)(3)(B) (setting an offense level of 33 for an
armed career criminal under the ACCA), 3E1.1(a)–(b) (providing a three-level
reduction for acceptance of responsibility). The PSR also calculated McCall's
criminal history category at level V. Based on the mandatory fifteen year minimum
term of imprisonment set by the ACCA, 18 U.S.C. § 924(e)(1), an offense level of 30,
and a criminal history category of V, the PSR stated the sentencing range under the
United States Sentencing Guidelines (Guidelines) was between 180 and 188 months'
imprisonment.

       At sentencing, the district court considered whether McCall's three felony DWI
convictions mandated he be sentenced as an armed career criminal. The district court
addressed whether a felony DWI conviction is a violent felony under the ACCA, i.e.,
whether a felony DWI "involves conduct that presents a serious potential risk of
physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The district court concluded
this language "clearly indicates that the consideration is whether there is a risk of
injury to others, and clearly this type of offense [i.e., felony DWI] poses a risk to
others who may be on the highways or byways within the state." Finding McCall's
felony DWI convictions were violent felonies under the ACCA, the district court
sentenced McCall to the mandatory minimum of 180 months' imprisonment, as well
as five years of supervised release. Arguing that the district court erroneously held
McCall's felony DWI convictions are violent felonies, McCall appeals, requesting he
"be resentenced without the application of 18 U.S.C. § 924(e)."

                                         -2-
                                      II. Discussion
       The ACCA mandates any person who violates 18 U.S.C. § 922(g), which
McCall admittedly did, and has three previous convictions for a violent felony shall
be "imprisoned not less than fifteen years." 18 U.S.C. § 924(e)(1). Congress defined
a violent felony as a felony involving "conduct that presents a serious potential risk
of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). Section 4B1.4 of the
Guidelines implements the ACCA. In deciding this appeal, we review de novo the
district court's determination that a felony DWI constitutes a violent felony under the
ACCA. United States v. Abernathy, 277 F.3d 1048, 1051 (8th Cir. 2002).

       In United States v. Jernigan, 257 F.3d 865 (8th Cir. 2001), we declined to
decide whether a DWI not resulting in injury was a crime of violence under §
4B1.2(a). In our ruling, we discussed cases from two other circuits. We noted that 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[,] . . . because '[d]runk driving is a reckless act that often results
in injury, and the risks of driving while intoxicated are well-known.'" Id. at 866
(quoting United States v. Rutherford, 54 F.3d 370, 376 (7th Cir. 1995)). In Jernigan
we recognized that the Seventh Circuit in Rutherford decided a felony DWI is a crime
of violence under the Guidelines and noted that Judge Easterbrook concurred only in
the result. Judge Easterbrook chose not to address the general issue of whether a
felony DWI conviction is a crime of violence, because the crime actually involved
serious bodily injury. Id.

       We also discussed United States v. DeSantiago-Gonzalez, 207 F.3d 261 (5th
Cir. 2000), in which "the Fifth Circuit followed the majority in Rutherford and held
that DWI is a crime of violence for purposes of [U.S.S.G. § 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.'" Jernigan, 257 F.3d at 866 (quoting

                                          -3-
DeSantiago-Gonzalez, 207 F.3d at 264). Although we recognized a DWI "presents
a well-known risk of an automobile accident," we were content to follow Judge
Easterbrook's concurrence in Rutherford, holding the crime of which the defendant
had been convicted was a crime of violence because the conduct underlying the
offense actually resulted in serious injury to another person. Id. at 867. The court left
"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." Id. This issue
has now been resolved.

       In United States v. Walker, — F.3d — , No. 04-1223, 2005 WL 66272 (8th Cir.
Jan. 6, 2005), we decided that a felony DWI is not a violent felony under the ACCA.
An individual is a career offender under U.S.S.G. § 4B1.1(a) if he has two felony
convictions for a crime of violence. The Guidelines define a crime of violence to
include "conduct that presents a serious potential risk of physical injury to another."
U.S.S.G. § 4B1.2(a)(2). It is no surprise that the definition of a crime of violence in
§ 4B1.2 mirrors the definition of a violent felony in the ACCA. In 1989, the
definition of a crime of violence under § 4B1.2 was amended, and the current
definition "is derived from 18 U.S.C. § 924(e) [i.e., the ACCA]." U.S.S.G. app. C,
amend. 268 (1989).

      McCall contends that the language of 18 U.S.C. § 16(b) is analogous to §
924(e). While the Supreme Court held in Leocal v. Ashcroft, 125 S. Ct. 377, 383
(2004), that §§ 16(b) and 4B1.2(a) are linguistically different, the Court cited
language from then Chief Judge Breyer's opinion in United States v. Doe, 960 F.2d
221 (1st Cir. 1992), determining DWI not to be a crime of violence under § 16(b):

      [T]o read the statute . . . to cover firearm possession [] would also bring
      within the statute's scope a host of other crimes that do not seem to
      belong there. To include possession [of a firearm], one would have to
      focus on the risk of direct future harm that present conduct poses. But,
      how could one then exclude, say, drunken driving or unlawful

                                          -4-
      transportation of hazardous chemicals or other risk-creating crimes very
      unlike the burglary, arson, extortion, and explosives use that the statute
      mentions? There is no reason to believe that Congress meant to enhance
      sentences based on, say, proof of drunken driving convictions. Rather,
      we must read the definition in light of the term to be defined, 'violent
      felony,' which calls to mind a tradition of crimes that involve the
      possibility of more closely related, active violence.

Id. at 225 (emphasis added); Walker, — F.3d — , 2005 WL 66272, at *6. "This
passage addresses the exact language under consideration here, albeit in 18 U.S.C.
§ 924(e) rather than in U.S.S.G. § 4B1.2." Id.

     McCall argues that DWI is not a crime of violence that "otherwise involves
conduct that presents a serious potential risk of physical injury to another" under §
4B1.2(a)(2). McCall is correct. As we said in Walker:

      The otherwise clause of § 4B1.2(2) follows an enumeration of specific
      crimes: burglary of a dwelling, arson, extortion, and crimes that involve
      the use of explosives. Where general words follow specific words in a
      statutory enumeration, the established interpretative canons of noscitur
      a sociis and ejusdem generis provide that the general words are
      construed to embrace only objects similar in nature to those objects
      enumerated by the preceding specific words.

Walker, — F.3d — , 2005 WL 66272, *3. This conclusion is "reinforced by the
legislative history of the statute from which the guideline is derived." Id. at *4. DWI
is not similar to the crimes listed in § 4B1.2(a)(2), therefore, "under the rule of
ejusdem generis, [DWI] is not encompassed by the general language that follows."
Id. at *6.

      For the foregoing reasons we conclude a felony DWI is not a violent felony
under the ACCA. Therefore, we reverse the district court's judgment and sentence.


                                         -5-
RILEY, Circuit Judge, concurring.

       Based on the controlling effect of recent precedent of this circuit, see United
States v. Walker, 393 F.3d 819, 828 (8th Cir. 2005) (holding that operating a motor
vehicle while intoxicated does not constitute a crime of violence under U.S.S.G. §
4B1.2(a)), I must concur in the result reached in this case. If not bound by precedent,
I would hold a felony conviction for driving while intoxicated (DWI) is a violent
felony under the plain language contained in the Armed Career Criminal Act of 1984
(ACCA). 18 U.S.C. § 924(e)(2)(B)(ii) (defining violent felony as a felony involving
“conduct that presents a serious potential risk of physical injury to another”); see also
U.S.S.G. § 4B1.2(a)(2) (mirror-image of the ACCA’s definition of violent felony for
the Guidelines’ definition of crime of violence). Our circuit’s avoidance of such a
holding contradicts the plain language of the ACCA, rejects our court’s common-
sense approach1 to what constitutes a violent felony, spawns conflict with two other
circuits, and creates tension with existing Eighth Circuit cases.

       When this panel began its work on this case, our court had intimated a felony
DWI fits the ACCA’s definition of a violent felony. In United States v. Jernigan, 257
F.3d 865, 867 (8th Cir. 2001), the court asked whether the conduct underlying the
offense of negligent homicide when operating a motor vehicle while intoxicated
“presents a serious potential risk of injury to another,” i.e., whether such conduct
constituted a crime of violence under section 4B1.2(a) of the Guidelines. The court
in Jernigan had little difficulty holding the defendant had been convicted of a crime
of violence because the “risk-laden conduct [i.e., DWI] in fact resulted in a felony
conviction for seriously injuring or killing another person.” Id. In reaching this
decision, the court noted the Seventh Circuit has “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[,] . . . because ‘[d]runk


      1
       See United States v. Sun Bear, 307 F.3d 747, 752 (8th Cir. 2002).
                                       -6-
driving is a reckless act that often results in injury, and the risks of driving while
intoxicated are well-known.’” Id. at 866 (alteration in original) (quoting United
States v. Rutherford, 54 F.3d 370, 376 (7th Cir. 1995)). The court in Jernigan also
discussed United States v. DeSantiago-Gonzalez, 207 F.3d 261 (5th Cir. 2000), in
which “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. § 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.’” Jernigan, 257 F.3d at 866
(quoting DeSantiago-Gonzalez, 207 F.3d at 264). Thus, our court’s decision in
Walker that operating a motor vehicle while intoxicated is not a crime of violence has
created a conflict with the logic employed by the Fifth and Seventh Circuits in
holding DWI is a crime of violence.

       Although our court in Walker rejected the reasoning employed by the Fifth and
Seventh Circuits in analogous cases, the court instead relied, in part, on confusing
dicta in United States v. Doe, 960 F.2d 221 (1st Cir. 1992), as well as the Supreme
Court’s recent interpretation and application of 18 U.S.C. § 16(b) in Leocal v.
Ashcroft, 125 S. Ct. 377 (2004). Such reliance is misplaced. First, the First Circuit’s
passing discussion of drunk driving in the context of deciding that being a felon in
possession (FIP) of a firearm is not a violent felony under the ACCA was wholly
fortuitous and gratuitous. See Doe, 960 F.2d at 225. The holding in Doe that an FIP
conviction is not a violent felony has no bearing on whether DWI “involves conduct
that presents a serious potential risk of physical injury to another.”

       Second, the Supreme Court’s determination in Leocal that DWI is not a crime
of violence under 18 U.S.C. § 16(b) also should have little bearing on the resolution
of whether DWI is a violent felony under the ACCA. 18 U.S.C. § 16(b) defines crime
of violence as an offense involving “a substantial risk that physical force against the
person or property of another may be used in the course of committing the offense.”
The ACCA is much broader, and includes any “conduct that presents a serious

                                         -7-
potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). By using
completely different language in section 16(b) and section 924(e), Congress
undoubtedly expressed its intent for courts to focus on the use of force under section
16(b), and on the risk of injury under the ACCA. See Leocal, 125 S. Ct. at 379, 383
n.7 (holding a DWI “conviction is not a crime of violence under 18 U.S.C. § 16,” but
recognizing “§ 16(b) plainly does not encompass all offenses which create a
‘substantial risk’ that injury will result from a person’s conduct[, and] . . . § 16(b)
relates to the use of force, not to the possible effect of a person’s conduct,” thus “[t]he
risk that an accident may occur when an individual drives while intoxicated is simply
not the same thing as the risk that the individual may ‘use’ physical force against
another in committing the [DWI] offense”); Bazan-Reyes v. INS, 256 F.3d 600, 610
(7th Cir. 2001) (acknowledging “significant differences between the language” used
to define a crime of violence in section 16(b) and the language used to define a
violent felony in the ACCA); see also Omar v. INS, 298 F.3d 710, 723 (8th Cir. 2002)
(implicitly recognizing the differences between section 16(b) and the ACCA: “Many
offenses involve a substantial risk of injury but do not involve the use of force.”)
(Heaney, J., dissenting), overruled by Leocal, 125 S. Ct. at 380.

      Abiding by our common-sense approach construing the ACCA’s plain
language and consistent with the pronouncements of the Fifth and Seventh Circuits,
DWI, by its very nature, “involves conduct that presents a serious potential risk of
physical injury to another.”2 Indeed, if drunk driving did not “involve conduct that
presents a serious potential risk of physical injury to another,” why is it even a crime?
The fundamental purpose for criminalizing DWI is an acknowledgment of the
unacceptable and serious potential risk of physical injury to the innocent public as
well as to the offender himself.




      2
       The district court agreed, concluding felony DWI clearly “poses a risk to
others who may be on the highways or byways within the state.”
                                        -8-
        According to statistics cited by the National Highway Traffic Safety
Administration (NHTSA) in April 2004: (1) “Impaired driving is the most frequently
committed violent crime in the United States”; and (2) “Every 30 minutes, someone
is killed in the United States in an alcohol-related crash.”3 According to a public
opinion poll sponsored by the NHTSA and conducted by the Gallup Organization,
“[t]he driving age public sees drinking and driving as a serious problem that needs
to be addressed. Virtually all (97%) see drinking and driving by others as a threat to
their own personal safety and that of their family. With 77% naming [drinking and
driving] a major threat. Multiple offenders are seen as even a greater threat (84%
major threat).”4 The serious potential risk of physical injury in a DWI is
overwhelmingly recognized by the public, and, presumably, by Congress, but not by
our court. If impaired driving is anywhere near “the most frequently committed
violent crime in the United States” and if someone dies every 30 minutes from an
alcohol-related crash, why does DWI not present a serious potential risk of physical
injury to another and qualify as a violent felony under the ACCA?

       The extensive list of innocent DWI victims is compelling. Imagine looking
into the eyes of family members who lost a loved one to a drunk driver and telling
them the drunk driver’s conduct did not present “a serious potential risk of physical
injury to another.” Our court in Jernigan recognized as much when we referred to
DWI as “risk-laden conduct” that “presents a well-known risk of an automobile
accident.” Jernigan, 257 F.3d at 867. Our court now rejects that view, and, in the
process, rejects the common-sense observations made by the Seventh Circuit in
Rutherford:



      3
        Open Container Traffic Safety Fact Sheet, available                        at
http://www.nhtsa.dot.gov/people/injury/New-fact-sheet03/OpenContainer.pdf.
      4
       Gallup Organization, 2001 Nat’l Survey of Drinking and Driving, at 8,
available at http://www.nhtsa.dot.gov/people/injury/alcohol/marvin-drink-
drive01/volISum.pdf.
                                    -9-
             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 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 of
      the [career offender Guideline].

Rutherford, 54 F.3d at 376-77; see also DeSantiago-Gonzalez, 207 F.3d at 264
(stating “as a result of the inherent risk of physical injury associated with drunk
driving in general and without regard to the circumstances of any particular case, we
join the Seventh Circuit in holding that by its very nature, the crime of driving while
intoxicated is a crime of violence”).5

       Holding a felony DWI is not a violent felony under the ACCA also creates
tension with our circuit’s precedent on what convictions constitute crimes of violence
under the Guidelines or violent felonies under the ACCA. See, e.g., Sun Bear, 307
F.3d at 751-52 (holding attempted theft of an operable vehicle “involves conduct that
presents a serious potential risk of physical injury to another”); United States v.


      5
       Although the underlying circumstances of McCall’s three felony DWI
convictions are irrelevant to our analysis of whether those convictions are violent
felonies under the ACCA, see United States v. Abernathy, 277 F.3d 1048, 1051 (8th
Cir. 2002), I find it instructive to note what happened in the past when McCall drove
while intoxicated. McCall’s DWI convictions involved driving his vehicle off a rural
road and into a ditch; striking a sign and leaving the scene; being involved in a motor
vehicle accident while driving westbound in the eastbound lane of a divided highway;
and running over curbs while evading police. The specific circumstances
surrounding each of McCall’s DWI convictions underscore how DWI “involves
conduct that presents a serious potential risk of physical injury to another.”
                                           -10-
Nation, 243 F.3d 467, 472 (8th Cir. 2001) (holding “every escape, even a so-called
‘walkaway’ escape, involves a potential risk of injury to others,” because escape “is
a powder keg, which may or may not explode into violence and result in physical
injury to someone at any given time, but which always has the serious potential to do
so”) (quoting United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994)); United
States v. Hascall, 76 F.3d 902, 904 (8th Cir. 1996) (holding “second-degree burglary
of a commercial building involves conduct that presents a serious potential risk of
physical injury to another”); United States v. Solomon, 998 F.2d 587, 590 (8th Cir.
1993) (holding attempted second-degree burglary is a violent felony under the ACCA
because it “involves conduct that presents a serious potential risk of physical injury
to another”).

       Comparing the risks associated with DWI with the risks associated with
attempted thefts of operable vehicles, walkaway escapes, and burglaries of
commercial buildings, a common-sense approach must lead one to conclude the risk
of injury to another person is just as great–if not greater–when an intoxicated person
operates a motor vehicle.6 By ignoring this reality and concluding DWI does not
involve “conduct that presents a serious potential risk of physical injury to another,”
our court has implicitly rejected our holdings and reasoning in Sun Bear, Nation,
Hascall, and Solomon.

       Finally, I do not mean to bang the drum too loudly. Reasonable minds
certainly can, and do, differ on this issue. Even the Seventh Circuit in Rutherford was
concerned the Sentencing Commission may not have intended DWI categorically to
constitute a crime of violence for career offender purposes. Rutherford, 54 F.3d at


      6
       Indeed, parents routinely implore their children not to drink and drive and
never to ride in a vehicle driven by a drunk friend. This common-sense, parental
advice is not inspired by a dislike of drunk drivers as people, but through the wise
counsel that DWI “presents a serious potential risk of physical injury” to their
children and others.
                                         -11-
377 (“invit[ing] the Commission to re-evaluate its definition of crime of violence and
to determine whether every person convicted of felony drunk driving should therefore
have one of the two prior convictions for a crime of violence necessary for career
offender status”). However, the Seventh Circuit recognized its role is to enforce the
Guidelines, and the court was unable to escape the Commission’s plain language
dictating that a felony DWI constitutes a crime of violence. Id. Congress may not
have contemplated explicitly whether to snare every felony DWI conviction in the
ACCA web. However, we should not ignore the plain language Congress used in
defining a violent felony in the ACCA while knowing the serious potential risk of
physical injury to others occurring every day when impaired people drive.

      Based on the ACCA’s plain language, other circuits’ reasoning, and our
common-sense precedent involving other crimes, I would hold a felony DWI is a
violent felony under the ACCA. Because Walker now precludes such a holding, I
concur.
                       ______________________________




                                        -12-
