1 After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). T he case therefore is ordered submitted without oral argument. The court wishes to acknowledge that the attorneys in this case have submitted excellent briefs. The public defender ha s furnished us a superb summary of the issue presented, and the U.S. Attorn ey’s office is equally well represented. The court commends the attorneys in t his case. 

## F I L E D United States Court of Appeals Tenth Circuit 

### August 30, 2005 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LARRY ALLEN MOORE, Defendant - Appellant. No. 04-8091

Appeal from the United States District Court

for the District of Wyoming (D.C. No. 04-CR-21-J)

Submitted on the briefs: 1 Raymond P. Moore, Federal Public Defender, and Robe rt R. Rogers, Assistant Federal Public Defender, Cheyenne, Wyoming, for Def endant-Appellant. Matthew H. Mead, United States Attorney, and StevenK. Sharpe, Assistant United States Attorney, Cheyenne, Wyoming, for Plai ntiff-Appellee.- 2 -

Before EBEL, McKAY and HENRY , Circuit Judges.

EBEL , Circuit Judge.

This appeal requires us to decide whether a Nevada felony conviction for Driving Under the Influence (“DUI”) is a “crime of violence” as defined in the United States Sentencing Guidelines. U.S. Sentenci ng Guidelines Manual, § 4B1.2 (2003). The district court determined thatit is and accordingly increased Defendant-Appellant Larry Allen Moore’s base offens e level pursuant to USSG § 2K2.1(a)(4)(A). We agree that felony driving und er the influence is a crime of violence under USSG § 4B1.2. However, because the particular statute Moore was convicted under is ambiguous to the extent it c ould penalize some nonviolent, non-driving conduct, we REMAND with instructions to the district court to evaluate this issue after determining what conduct was actually penalized in this

case. BACKGROUND Pursuant to a plea agreement, Defendant-Appellant L arry Allen Moore (“Moore”) pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). After accepting the plea, the district court ordere d that a Presentence Investigation Report (“PSR”) be prepared. The PSR noted that Moore has a prior- 3 -

Nevada felony conviction for Driving Under the Infl uence (“DUI”) in 1995. The Nevada DUI statute Moore was convicted under read: It is unlawful for any person who: (a) Is under the influence of intoxicating liquor; (b) Has 0.10 percent or more by weight of alcohol i n his blood; or (c) Is found by measurement within 2 hours after dr iving or being in actual physical control of a vehicle to have 0.10 percent or more by weight of alcohol in his bl ood, to drive or be in actual physical control of a vehi cle on a highway or on premises to which the public has access. Nev. Rev. Stat. § 484.379(1) (1995). Moore’s 1995 conviction was a felony because it was his “third or subsequent offense within 7 years.” Id. § 484.3792(1)(c). In the case at bar, the PSR deemed this prior convi ction to be a “crime of violence” as defined in USSG § 4B1.2. This resulte d in an enhancement in Moore’s base offense level pursuant to USSG § 2K2.1 (a)(4)(A). Moore objected, arguing that a DUI is not a “crime of violence” und er USSG § 4B1.2. At sentencing, the district court overruled Moore’s ob jection and sentenced him to 41 months’ imprisonment, 36 months’ supervised rele ase, and a fine of $500. Moore filed a timely Notice of Appeal. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.2 The offense guideline for Moore’s offense of convic tion, possession of a

firearm by a felon, is USSG § 2K2.1, which addresse s the unlawful receipt, possession, or transportation of firearms or ammuni tion. This guideline provides that a defendant’s base offense level should be setat 20 if “the defendant committed any part of the instant offense subsequen t to sustaining one felony conviction of either a crime of violence or a contr olled substance offense . . . .” USSG § 2K2.1(a)(4)(A). For purposes of this partic ular guideline, “crime of violence” is defined by reference to the meaning gi ven it “in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.” Id. § 2K2.1, cmt. n.5. - 4 - DISCUSSION The issue before this court is whether a Nevada fel ony DUI is a crime of violence under USSG § 4B1.2. 2 “Whether a statute defines a ‘crime of violence’ for purposes of USSG § 4B1.2 is a question of statutory construction, which we review de novo .” United States v. Vigil , 334 F.3d 1215, 1218 (10th Cir. 2003); see also United States v. Doe , 398 F.3d 1254, 1257 (10th Cir. 2005). To determine whether Moore’s prior DUI conviction i s a predicate crime of violence under § 4B1.2, “we are limited to examinin g the statutory elements of the crime, but if ambiguity exists under the statut e we can look beyond the statute to certain records of the prior proceeding . . . .” United States v. Zamora , 222 F.3d 756, 764 (10th Cir. 2000) (quotation marks, ci tation omitted). For example, where a statute is ambiguous (i.e. , reaches different types of conduct) and a defendant’s conviction followed a jury trial, the c ourt may look to charging documents and jury instructions to determine if the actual offense the defendant was convicted of qualifies as a crime of violence. Taylor v. United States , 495- 5 -

U.S. 575, 602 (1990). Where the statute is ambiguo us and the defendant was convicted by a guilty plea, the court can review th e charging document, written plea agreement, transcript of the plea colloquy, an d any explicit factual finding by the trial judge to which the defendant assented. S hepard v. United States , 125 S. Ct. 1254, 1257 (2005). In this case, we are asked to decide whether a conv iction under Nev. Rev. Stat. § 484.379(1), which makes it unlawful “to dri ve or be in actual physical control of a vehicle on a highway or on premises to which the public has access” while intoxicated, is a crime of violence under USS G § 4B1.2. Under this guideline, [t]he term “crime of violence” means any offense un der federal or state law, punishable by imprisonment for a term ex ceeding 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) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of p hysical injury to another. USSG § 4B1.2(a). In addition, relevant commentary to this section provides: “Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of adwelling. Other offenses are included as “crimes of violence” if (A ) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the con duct set forth (i.e. , expressly charged) in the count of which the defend ant was convicted- 6 -

involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another. Id. § 4B1.2(a), cmt. n.1. We hold that felony driving under the influence is a crime of violence under USSG § 4B1.2. This follows from the plain language of the guideline, which encompasses offenses “involv[ing] conduct that presents a serious potential risk of physical injuryto another.” Id. § 4B1.2(a)(2) (emphasis added). Driving while intoxicated clearly presents a “serious poten tial risk of physical injury to another” and therefore is a crime of violence under§ 4B1.2(a)(2). Other circuits have reached this conclusion in anal ogous cases. E.g. , United States v. Rutherford , 54 F.3d 370, 371-72, 376-77 (7th Cir. 1995) (hold ing that assault conviction for “driving a motor vehicl e under the influence of alcohol and causing serious bodily injury to the person of another with the motor vehicle” qualified as a crime of violence under USSG § 4B1.2 (a)); United States v. DeSantiago-Gonzalez , 207 F.3d 261, 262, 264 (5th Cir. 2000) (holding that misdemeanor offense of “driving while intoxicated” constitutes a crime of violence under USSG § 4B1.2(a)). However, we acknowledge that the Eighth Circuit has recently reached a different conclusion in United States v. Walker , 393 F.3d 819 (8th Cir. 2005), where that court held that Iowa’s felony Operating While Intoxicated (“OWI”)- 7 -

offense is not a crime of violence under USSG § 4B1.2. Id. at 828. In Walker , the court reasoned that “[w]here general words foll ow 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 em brace only objects similar in nature to those objects enumerat ed by the preceding specific words.” Id. at 824. After emphasizing the guidelines’ use of the phrase “ or otherwise involves conduct that presents a serious potential risk of physical injury to another,” see USSG § 4B1.2(a) (emphasis added), and examining th e relevant legislative history, the court limited USSG § 4B1.2 (a)(2)’s coverage to crimes posing a serious risk of physical injury that are s imilar in nature to burglary of a dwelling, arson, extortion, and the use of explosives. Walker , 393 F.3d at 824-25. Because OWI is not similar to these listed offenses , and does not fit within the “ordinary meaning” of the phrase “crime of violence ,” the Eight Circuit concluded OWI is not a crime of violence under USSG § 4B1.2(a)(2). Walker , 393 F.3d at 825. While we see some force to this argument, we ultimately disagree with it. At the outset, the analysis in Walker ignores the more flexible articulation of § 4B1.2’s “crime of violence” definition explained in its commentary section.
See USSG § 4B1.2, cmt. n.1. There, this “or otherwise ” language is removed, and the inclusion of offenses with conduct posing a ser ious potential risk of physical- 8 -

injury is de-linked from any preceding specific sequence of offenses. Id. Instead, the commentary gives a long list of crimes of viole nce ranging from murder to kidnapping to extortion and then, in a separate sen tence, explains that “[o]ther offenses are included as ‘crimes of violence’ if . . . the conduct set forth (i.e. , expressly charged) in the count of which the defend ant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of p hysical injury to another.” Id. Moreover, our prior cases interpreting this broad “ serious potential risk of physical injury” language in § 4B1.2 have not neces sarily required any similarity to burglary, arson, extortion, or the use of explos ives. See, e.g. , United States v. Rowland , 357 F.3d 1193, 1197-98 (10th Cir. 2004) (affirmin g “crime of violence” classification under § 4B1.2 where “Oklahoma’s statutory definition of sexual battery presents the ‘serious possibility[] of riskof physical injury’”) (citation omitted) (alteration in original); cf. Vigil , 334 F.3d at 1223-24 (concluding risk of injury “inherent” in Colorado’s aggravated incest o ffense makes it a crime of violence under § 4B1.2 even though, like arson or b urglary, there might be some cases where incest occurs without actual physical i njury). Our conclusion that felony DUI is a crime of violen ce under § 4B1.2 is also compelled by our holding in United States v. Farnsw orth , 92 F.3d 1001 (10th Cir. 1996). In Farnsworth , we held that a California statute penalizing a DU I that3 The statute at issue in Farnsworthprovided:

Driving a vehicle in violation of Section 23152 [DU I] or 23153 [DUI causing bodily injury] of the Vehicle Code and in t he commission of an unlawful act, not amounting to a felony, and wit h gross negligence; or driving a vehicle in violation of Se ction 23152 [DUI] or 23153 [DUI causing bodily injury] of the Vehicle Code and in the commission of a lawful act which might produce deat h, in an unlawful manner, and with gross negligence. Cal. Penal Code § 192 (West Supp. 1984) (subsequent ly amended) (quoted without alterations in Farnsworth , 92 F.3d at 1008).

4 At the time Farnsworthwas decided, what is now § 4B1.2(a)(2) was designated § 4B1.2(1)(ii). - 9 - results in death is a crime of violence under USSG § 4B1.2. 3 Farnsworth , 92 F.3d at 1009. With respect to this DUI, we said: We have no difficulty in concluding that this clear ly was ‘conduct that present[ed] a serious potential risk of physic al injury to another.’ USSG § 4B1.2(1)(ii). 4 AccordUnited States v. Fry , 51 F.3d 543, 546 (5th Cir. 1995). We agree with the Seventh Circuitthat: [t]he dangers of drunk driving are well-known and w ell documented. Unlike other acts that may present som e risk of physical injury, . . . the risk of injury f rom drunk driving is neither conjectural nor speculative. . . . Drunk driving is a reckless act that often results in inj ury, and the risks of driving while intoxicated are well kno wn. This is sufficient to satisfy the “serious risk” st andard of the “otherwise” clause [of § 4B1.2(1)(ii)]. Farnsworth , 92 F.3d at 1008-09 (alterations in original) (foo tnote added) (quoting Rutherford , 54 F.3d at 376-77). Moore attempts to distinguish Farnsworthon the basis that the offense at issue in that case was labeled “vehicular manslaugh ter” and therefore, as a5 The fact that the statute in Farnsworthrequired proof of an actual

harm—the killing of a human being—while the Nevada DUI statute at issue here could punish victimless conduct is also not a disti nguishing factor. This crime of violence definition speaks in terms of risk of inju ry, not certainty. See Rowland , 357 F.3d at 1197-98 (quoting Vigil , 334 F.3d at 1223). Generally, the “risk” is the same in both DUI causing death and felony DUI, even if the actual result is not. Similarly, we reject any attempt to distinguish Nev ada’s statute in this case based on the fact that Nevada’s penalty statute forfelony DUI provides that defendants convicted of felony DUI shall “be segreg ated from offenders whose crimes were violent . . . .” Nev. Rev. Stat. § 484.3792(1)(c) (1995). The conditions of a defendant’s confinement following c onviction are not an element of the underlying offense. Moreover, whether a state conviction counts as a predicate offense for a guidelines enhancement is aquestion of federal law “interpreted according to a uniform, national defin ition, not dependent upon the vagaries of state law.” United States v. Martinez , 232 F.3d 728, 732 (9th Cir. 2000) (citing Taylor , 495 U.S. at 591-92). - 10 - version of manslaughter, was already specifically e numerated as a crime of violence in the commentary to USSG § 4B1.2. See USSG § 4B1.2, cmt. n.1 (listing “manslaughter” as an example of a “crime o f violence”). However, this is foreclosed by the language in Farnsworthexpressly declining to reach this issue. 92 F.3d at 1009 (“[W]e do not reach the government’ s argument that all vehicular manslaughter is ‘manslaughter,’ and therefore a cri me of violence, for purposes of the Commentary to § 4B1.2.”) Farnsworthclearly holds that “caus[ing] death by driving whi le under the influence of drugs or alcohol and with gross neglig ence . . . describes conduct that ‘by its nature, presents a serious potential r isk of injury to another.’” 5
Farnsworth , 92 F.3d at 1009 (quoting USSG § 4B1.2, cmt. n.2.) ; see also United- 11 -

States v. Lucio-Lucio , 347 F.3d 1202, 1207 (10th Cir. 2003) (summarizing Farnsworthas holding “[g]rossly negligent driving while into xicated self-evidently posed ‘a serious potential risk of p hysical injury to another’”) (quoting USSG § 4B1.2(a)(2)). We see no reason to depart from this interpretation. Finally, Moore does point out that several recent c ases have held that DUI offenses are not crimes of violence; however, these cases address very different “crime of violence” definitions. E.g. , Leocal v. Ashcroft , 125 S. Ct. 377, 379, 382 (2004) (holding “DUI causing serious bodily inj ury” is not a crime of violence under 18 U.S.C. § 16); Lucio-Lucio , 347 F.3d at 1204, 1205-06 (10th Cir. 2003) (holding DWI (intoxicated operation of amotor vehicle in a public place) is clearly not a crime of violence under 18 U.S.C. § 16(b)); United States v. Torres-Ruiz , 387 F.3d 1179, 1188 (10th Cir. 2004) (concluding negligent DUI causing injury is not a crime of violence under USS G § 2L1.2). These “crime of violence” definitions, found in 18 U.S.C. § 16 and USSG § 2L1.2 respectively, are each unique from the defi nition in USSG § 4B1.2 at issue here. All three of these definitions define, in part, an offense that “has as an element the use, attempted use, or threatened use o f physical force against the person of another[ .]” See 18 U.S.C. § 16(a); USSG § 2L1.2(b)(1)(A)(ii) & cmt

. n.1(B)(iii) ; USSG § 4B1.2(a)(1). In addition, 18 U.S.C. § 16 (b) defines crime of- 12 -

violence to cover any felony that “by its nature, i nvolves a substantial risk that physical force against the person or property of an other may be used in the course of committing the offense.” All of the cases cited by Moore for holding that DUI is not a crime of violence under these definitions emphasize that these definitions require, in some fashion, the use of physical force against the person of another.
See Leocal , 125 S.Ct. at 382-83; Lucio-Lucio , 347 F.3d at 1207; Torres-Ruiz , 387 F.3d at 1188. These cases hold that this “use of f orce” language implies that some “intentional availment of force” is required b efore an offense rises to the level of a crime of violence under those definitions. See id. However, while these other definitions require at least the “risk of use of force,” USSG § 4B1.2(a)(2) here covers offenses inv olving only the “risk of physical injury.” This is a significant difference . In fact, the Supreme Court itself recognized this difference between the langu age of USSG § 4B1.2(a)(2) and the language of 18 U.S.C. § 16(b), which the Court said did not include a DUI offense. Leocal ,125 S. Ct. at 383 n.7. In Leocal , the Court wrote: Thus, § 16(b) [defining crimes of violence to inclu de offenses involving the “risk of use of physical force”] plai nly does not encompass all offenses which create a “substantial risk” that injury will result from a person’s conduct. The “substant ial risk” in § 16(b) relates to the use of force, not to the possible ef fect of a person’s conduct. Compare § 16(b) (requiring a “substantial risk that physic al force against the person or property of another maybe used”), with United States Sentencing Commission, Guidelines Man ual § 4B1.2(a)(2) (Nov. 2003) (in the context of a care er-offender sentencing enhancement, defining “crime of violence ” as meaning,- 13 -

interalia , “conduct that presents a serious potential risk o f physical injury to another”). The risk that an accident may occur when an individual drives while intoxicated is simply not t he same thing as the risk that the individual may “use” physical for ce against another in committing the DUI offense. Leocal , 125 S. Ct. at 383 n.7; see also Lucio-Lucio , 346 F.3d 1207 (noting that § 4B1.2 is “obviously broader than § 16(b)” and exp laining that if § 16(b) were read to reach DUI offenses “merely because they inv olve a significant risk of harm to the person or property of others, we would collapse the distinction between these two differently-worded definitions”) (citation, quotation omitted); Torres-Ruiz , 387 F.3d at 1185 n.7 (explaining that § 4B1.2(a)( 2)’s inclusion of “risk of physical injury” test “means that the Sent encing Commission recognizes the difference between ‘use of force’ and ‘injury,’ and strongly suggests that the ‘use of force’ incorporates an ‘intent’ requirement ”); United States v. Venegas-Ornelas , 348 F.3d 1273, 1277 n.2 (10th Cir. 2003) (collect ing Tenth Circuit cases distinguishing broad “risk of injury” test in § 4B1.2 from more narrow “risk of force” requirement in other crime-o f-violence definitions), cert. denied , 125 S. Ct. 494 (2004). Therefore, based on the foregoing, we conclude thatfelony driving under the influence is a crime of violence under § 4B1.2( a)(2). However, we note that the Nevada statute at issue in this case encompasse s not only driving under the influence but also merely being “in actual physical control of a vehicle . . . on- 14 -

premises to which the public has access.” Nev. Rev . Stat. § 484.379(1). Thus, § 484.379 also could penalize such nonviolent condu ct as sleeping off a hangover inside a locked car in a public parking lot or othe r similar non-driving conduct we need not imagine. Sleeping in a car while drunk si mply would not pose the same “substantial risk of injury” that driving under the influence of alcohol does. Accordingly, we hold that the statute is ambiguous in that in covers both violent and nonviolent conduct. Our record contain s none of the documents permitted for review in these circumstances. See Taylor , 495 U.S. at 602; Shepard , 125 S. Ct. at 1257. Therefore, we remand for the district court to determine, based on a proper record, whether Moore was actually convicted of driving under the influence and, thus, whether a crime of violence enhancement is warranted in this case.
CONCLUSION We REMAND to the district court for proceedings con sistent with this opinion.