## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 06-2993

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

___________ Submitted: April 12, 2007 Filed: November 5, 2007

___________ Before LOKEN, Chief Judge, BYE and RILEY, Circuit Judges.

___________ LOKEN, Chief Judge. After Timothy McCall pleaded guilty to one count of being a felon in possession of a firearm, the district cour t sentenced him to th e minimum fifteen-year sentence mandated for a felon-in-possessi on offender who has three prior “violent felony” convic tions. See 18 U.S.C. §§ 922(g)(1), 924(e)(1). McCall appealed, arguing that his three prio r Missouri convictions for driving while intoxicated were not violent felony convictions. We concluded thatviolating the statute in question, Mo. Rev. Stat. § 577.010.1, by driving while intoxicated constitutes a violent felony conviction. However, because the Supr eme Court of Missouri has construed the statute to include causing a vehicle to func tion by merely starting its engine, we held that the statutory offense is “overinclusive ,” that is, it includes conduct that is not a1 The HONORABLE HENRY E. AUTREY, United States District Judge for the Eastern District of Missouri.
-2- violent felony within the meaning of 18 U.S.C. § 924(e)(2)(B). Accordingly, we remanded for a determination of whethe r McCall's guilty plea convictions were violent felonies. United States v. McCall , 439 F.3d 967 (8th Cir. 2006) (en banc) (McCall I ). On remand, the district court 1 again determined that McCall's drivingwhile-intoxicated offenses were violent felony convictions. McCall appeals the resulting fifteen-year sentence. We review de novo whether a prior offense constitutes a violent felony. United States v. Kirkland , 450 F.3d 804, 806 (8th Cir.), cert. denied , 127 S. Ct. 420 (2006). After oral argumen t, the Supreme Court filed its opinion in James v. United States , 127 S. Ct. 1586 (2007), which ma y alter somewhat the legal landscape. Applying James to the prior convictions here at issue, we affirm.

Section 924(e)(2)(B)(ii) defines “violent felony” as including “any crime punishable by imprisonment for a term exceeding one year . . . that . . . is burglary, arson, or extortion, involves use of e xplosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” The Supreme Court first construed this provision in Taylor v. United States , 495 U.S. 575 (1990). Taylor raised the question whether the defendant 's prior Missouri convictions for seconddegree burglary fell within the explicit incl usion of “burglary” in § 924(e)(2)(B)(ii). The Court concluded that C ongress intended the generic m eaning of burglary. State burglary laws vary substantially. To determine whether a particular state offense is generic burglary, the Court adopted a “for mal categorical approach” that focuses on the statutory definition of the offense, rather than on the particular facts underlying the defendant's conviction. 495 U.S. at 602.

Under this categorical approach, some st ate statutes are overinclusive. In such cases, the Court held, the government may use a prior conviction for enhancement if the charging paper and the jury instructions “actually required the jury to find all the-3- elements of generic burglary . . . .” 495 U.S. at 602. In Shepard v. United States , 544 U.S. 13, 26 (2005), the Court applied this m odified categorical approach to prior convictions by guilty plea, holding that whethe r a violation of an overinclusive statute was generic burglary must be the determined by reviewing “the charging document, the terms of a plea agreement or transcri pt of colloquy between judge and defendant in which the factual basis for the plea wa s confirmed by the defendant, or . . . some comparable judicial recordof this information.”

In McCall I , we considered felony convictions for driving-while-intoxicated. Unlike burglary, this is not an enumerated offense, so the ques tion was whether it fell within the “otherwise involves” residual provision in § 924(e)(2)(B)(ii). Following briefing and oral argument in this seco nd appeal, the Supreme Court applied the “otherwise involved” provision in James , concluding that a Florida felony conviction for attempted burglary, though not an enumer ated offense, fell within the residual provision. Our task is to determine whether the Court's analysis in James undermines any portion of our otherwise controlling analysis in McCall I

.

In McCall I , we first concluded that the focus of § 924(e) is on the elements of an offense, not the facts of a particular c onviction. Therefore, for a state law offense to fall within the “otherwise involves” provi sion, “the inherent potential for harm must be present, if not in every violation, at least in a substantial portion of the circumstances made criminal by the statute.” 439 F.3d at 971-72. James is consistent with this aspect of our analysis. See 127 S. Ct. at 1597 (“the proper inquiry is whether the conduct encompassed by the elements of th e offense, in the ordinary case, presents a serious potential risk of injury to anothe r”). We then concluded that “a felony conviction for driving while intoxicated presents a serious potential risk of physical injury to another and is therefore a vi olent felony under the 'otherwise involves' provision.” 439 F.3d at 972. James of course addressed a di fferent offense, attempted burglary. But we see nothing in the Court's analysis th at casts doubt on our-4- conclusion that driving while intoxicated falls within the otherwise involves provision. See 127 S. Ct. at 1594-97.

McCall I then addressed the issue raised by the Supreme Court of Missouri's construction of the driving-while-intoxicated offense. The statute is entitled “Driving while intoxicated.” It provides: “A person commits the crime of 'driving while intoxicated' if he operates a motor vehicle wh ile in an intoxicated or drugged condition.” Mo. Rev. Stat. § 577.010.1 (boldf ace in original). However, another statute defines “operates” as “physically driving or operating a motor vehicle.” Mo. Rev. Stat. § 577.001.1. In Cox v. Director of Revenue , 98 S.W.3d 548, 550-51 (Mo. banc 2003), the Court construed Mo. Rev . Stat. § 577.001.1 as applying both to “driving” a vehicle and to “operating” a vehicle by starting its engine. Because the latter type of conduct may not present a se rious potential risk of physical injury to another -- for example, “the inebriatedcar owner who recognizes his impaired condition and turns on the engine of a parkedvehicle to keep warm while sobering,” 439 F.3d at 973 -- we concluded the Missouri offense is overinclusive and remanded for a determination of whether McCall's prior guilty plea convictions involved driving a vehicle. For this determination, we instru cted the district court to apply the Supreme Court's modified categorical analysis, looking only at charging documents, plea agreements, and other parts of the judici al record appropriate to the “truncated inquiry” mandated by Shepard . 439 F.3d at 974.

James casts some doubt on this part of our analysis. Consistent with Taylor , the Court in James first rejected petitioner's contention that an offense is not a violent felony unless all cases pose a serious risk of physical injury to another:

James' argument also misapprehends Taylor's categorical approach. We do not view that approach as requi ring that every conceivable factual offense covered by a statute must n ecessarily present a serious potential risk of injury before the offense can be deemed a violent felony. . . . As long as an offense is of a type th at, by its nature, presents a serious-5- potential risk of injury to anothe r, it satisfies th e requirements of § 924(e)(2)(B)(ii)'s residual provision.

127 S. Ct. at 1597. But that was not the end of the Court's analysis in James because the Florida statute went beyond Taylor's definition of generic burglary to include attempted burglaries of dwe lling curtilages and conveyances. The Court considered the first question on the merits, concluding that attempted burglary of a dwelling's curtilage, as narrowly defined under state law, did not “so mitigate[] the risk presented by attempted burglary as to take the offense outside the scope of cl ause (ii)'s residual provision.” 127 S. Ct. at 1600. The Court did not consider the second question because the state court record establishe d that James was convicted of attempted burglary of a dwelling, not a conveyance. 127 S. Ct. at 1599 n.7.

The critical question is how the Court woul d have proceeded if the record of the prior conviction required it to consider the second question and if it concluded that attempted burglary of a conveyance does not present a serious potential risk of injury to another. Would it have directed th e trial court, as we did in McCall I , to apply the modified categorical approach of Taylor and Shepardand determine whether the state court record reveals whether James was c onvicted of the violent felony component of an overinclusive statute? Adherence to the precedent of Taylorwould seem to call for that result when dealing with attempts to commit an enumeratedoffense like burglary. But the Court might have departedfrom this aspect of the Tayloranalysis when applying the residual provision, instead engaging in a quantitative assessment of whether most violations of the statute i nvolve attempted burglar ies of dwellings and therefore all prior convictions are violent felonies . The difference in approach could be very significant in applying the otherwise involves residual provision to broadly worded state offenses.

In Taylor , the Court expressed great reluctance to engage in fact-intensive analysis of prior convictions in applyi ng 18 U.S.C. § 924(e). 495 U.S. at 600-02. The-6- Court in James adhered to this principle in applying the otherwise involves residual provision in § 924(e)(2)(B)(ii), focusing primarily on the statutory elements of an offense. Thus, if a state statute defines a single violent felony offense, a defendant may not avoid the residual provision by ar guing he committed that offense in a nonviolent manner. On the other hand, if the statute encompasses two crimes with different elements , only one of which is a violent felony, footnote 7 and the curtilage analysis in James suggest that the modified categor ical approach will still apply. In other words, if the statute combines two offenses, crime (a) and crime (b), and only the elements of crime (a) make it a violent felony, then to use a prior conviction for enhancement under § 924(e)(2)(B)(ii) the gove rnment must prove that the defendant committed crime (a), not crime (b). In doing so, the government may use only the truncated evidence permitted by Taylor or Shepard , depending on whether the conviction followed a trial or a guilty plea.

In this case, the statute is entitled “D riving while intoxicated” and appears to encompass a single crime: “Aperson commits the crime of 'driving while intoxicated' if he operates a motor vehicle wh ile in an intoxicated or drugged condition.” However, “operates” is defined in § 577.001. 1 as “physically driving or operating a motor vehicle,” and in Cox the Supreme Court of Missouri held that the words driving and operating “have distinct m eanings.” 98 S.W.3d at 550. At least in some circumstances, this construction seems to define a second crime with a distinct element -- operating a vehicle without driving it. But “driving while intoxicated” is a felony only if the defendant is a “persistent offender.” Mo. Rev. Stat. § 577.023.3. A persistent offender is one who has been found guilty oftwo or more “intoxicationrelated traffic offenses” within the past te n years. § 577.023.1(2)(a). An intoxicationrelated traffic offense is defined in § 577.023.1(1) as including driving while intoxicated; driving with an excessiveblood alcohol content; driving under the influence of alcohol or drugs; or involuntary manslaughter, assault, or assault of a law2 These crimes are committed by one who “[w]hile in an intoxicated condition . . . operates a motor vehicle in this state and, when so operati ng, acts with criminal negligence to cause” physical injury ordeath to a victim. Mo. Rev. Stat. §§ 565.024.1(2), 565.060.1(4), 565.082.1(3).

3 The government advised that it was unable to obtain transcripts of the guilty plea hearings from these two convictions.
-7- enforcement officer in the second degree. 2 The primary focus of these intoxicationrelated traffic offenses is driving a vehicle -- the excessive risk of danger to others that is created when a drunk sets a vehicle in motion -- not sleeping in a parked car. Therefore, a charging paper alleging the felony offense of driving while intoxicated should be construed as referri ng to the dominant offense of driving while intoxicated. Cf. United States v. Painter , 400 F.3d 1111, 1114 (8th Cir.), cert. denied , 546 U.S. 1035 (2005).

At the initial sentencing hearing, the r ecord consisted of evidence that may not be considered under Taylor and Shepard-- police reports and parole board records. On remand, the government introduced th e plea colloquy underlying the third felony conviction in which McCall admitted drivi ng a vehicle while intoxicated. McCall concedes this was a violent felony conviction under McCall I . However, for the first two felony DWI convictions, the government introduced only the charging papers and docket sheets reflecting that McCall entered Alfordguilty pleas to both charges. 3 The first information charged that McCall “c ommitted 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 . . . .” Both charging documents cited the felony statute, Mo. Rev. Stat. § 577.023.3, as well as the driving-while-intoxicated statute, § 577.010.

The district court concluded that these charging papers and McCall's guilty pleas establish that he was “in fact drivi ng the automobiles in question at the time of4 McCall urges us to concludethat he did not admit hewas guilty of the charged offenses for purposes of § 924(e)(2)(B) because he entered Alfordpleas. See North Carolina v. Alford , 400 U.S. 25, 37 (1970). We reject this contention. Section 924(e)(1) applies to prior convictions for violent felonies. For this purpose, we see no distinction between convic tions that result from Alfordpleas, more typical guilty pleas, or jury verdicts. See Shepard , 544 U.S. at 19-20; United States v. GuerreroVelasquez , 434 F.3d 1193, 1197 (9th Cir. 2006) ; United States v. Johnson , 326 F.3d 934, 936 (8th Cir. 2003).
-8- the alleged offenses. . . . There is nothing, no evidence to suggest in any way, shape or form that the defendant was just sitting behind the wheel asleep or sitting in the car asleep with the engine runni ng or not running.” We agree. 4 The 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 to another identified in McCall I . No doubt to reduce difficulties of proof in less serious cases, the Missouri legislature a nd courts have more broadly defined the word “operating” to include situations in which the police come upon an inebriated person sitting behind the wheel of a parked car with the engine running. In some circumstances, this may create the distinctelement of a second crime. But a guilty plea to the felony charge of “driving while intoxicated,” without more, raises no inference that the offense was not a violent felony. To raise and preserve that issue under Shepard , “the defendant must lay the factual predicate . . . in his guilty plea.” Painter , 400 F.3d at 1114.

The judgment of the district court is affirmed.

BYE, Circuit Judge, dissenting.

I agree with the discussion and analysis of the Supreme C ourt's recent decision in James v. United States , 127 S. Ct. 1586 (2007), and the ultimate conclusion the modified categorical approach still applie s to this case involving an overinclusive Missouri statute covering two separate o ffenses, only one of which qualifies as a-9- violent felony under 18 U.S.C. § 924(e)(2)(B), rather than a single offense which factually can be committed in either a violen t or nonviolent way. I part ways with the Court, however, in regard to its analysis of Missouri law itself. I disagree with the conclusion that the application of Miss ouri's Prior/Persistent Offender provisions somehow cures the problem by creating a presumption that a felony violation of the overinclusive statute transforms multiple offenses into a single, violent offense. I therefore respectfully dissent.

The overinclusive statute which purportedly subjects Timothy McCall to enhanced punishment under § 924(e)(2)(B) is Missouri Revised Statute § 577.010. Section 577.010.1 prohibits crimes invol ving both driving and nondriving conduct, but generally denominates both types of cr imes as "driving while intoxicated." I mention crimes identified in § 577.010.1 because we previously recognized Missouri's "driving while intoxicated" crime includes th e elements of both violent and nonviolent crimes for purposes of § 924(e)(2)(B). Th e statute is overinclusive because the driving conduct prohibited by the statute presents a serious potential risk of injury to others, but the nondriving conduct (merely " operating" a motor vehicle) does not pose such a risk. United States v. McCall , 439 F.3d 967, 971-73 (8th Cir. 2006) (en banc) (McCall I ) (discussing the "operation" of a mo tor vehicle and noting it would include such nonviolent conduct as "the inebriated car owner who recognizes his impaired condition and turns on the engine of a parked vehicle to keep warm while sobering"); see also Cox v. Director of Revenue , 98 S.W.3d 548, 550 (Mo. 2003) (discussing the definition of "driving" as used in Chapter 577 of the Missouri Revised Statutes and holding the term encompasses both the concep t of "driving" and "operating" a motor vehicle).

The crimes prohibited by § 577.010.1 are normally misdemeanors, but when a person repeatedlycommits such misdemeanors he or she becomes subject to felonylevel punishment under Mo. Rev. Stat. § 577. 023, Missouri's Prior/Persistent Offender statute. The subsection listing the "intoxi cation-related traffic offense[s]" which-10- trigger felony-level punishment through repetition does not re ference § 577.010 by name, but instead refers to the general title of the crime prohibited therein, i.e., "driving while intoxicated." It is clear, howev er, such reference applies equally to both the driving and nondriving crimes identified in § 577.010, and even though only one type of crime actually involves driving conduct which qualifies as violent behavior under § 924(e)(2)(B)(ii)'s "otherwise involves" clause. McCall I , 439 F.3d at 973.

Because the modified categorical appro ach still applies here, nothing about the Supreme Court's analysis in James changes the fact as to Mo. Rev. Stat. § 577.010.1 being an overinclusive statute. In th is appeal, however, the Court concludes § 577.023.1(3)'s use of the title of the § 577.010.1 violation, i.e., "driving while intoxicated," cures the statute's overinclusi veness such that it should be interpreted as encompassing only the violent crime, that is, the crime involving actual driving conduct, unless the defendant can prove otherwise. The Court concludes the drivingrelated crime in § 577.010.1 should be construed as the statute's "dominant" offense when charged as a felony on the grounds that the list of "intoxication-related traffic offense[s]" set forth in § 577.023 focus on driving behavior.

I disagree. The primary focus of § 577. 023 is not driving behavior, but rather repetitive behavior. Both the violent and nonvi olent crimes identified in § 577.010.1 become felonies when an offender repeat s them. Section 577.023 equally targets both the "driving" and "operating" aspects of § 577.010.1; one aspect is not secondary to the other merely because the crimes are both denominated as "driving while intoxicated." Nonviolent "operating" offenders become subject to felony-level punishment under § 577.023 the same way violent "driving" offenders become subject to such punishment. The mere repetition of nonviolent conduct covered by the statute does not transform it into violent conduct, yet that is the clear import of the Court's holding.-11- The claim as to the primary focus of § 577.023 being on driving behavior, rather than on repetitive behavior, is not supported by an examination of Missouri law. See, e.g. , A.B. v. Frank , 657 S.W.2d 625, 628 (Mo. 1983) ("Clearly, the purpose of this Prior/Persistent Offender statute [§ 577.023] is to deter persons who have previously been convicted of driving while intoxicated from repeating their unlawful acts and to severely punish those who i gnore the deterrent message.") (emphasis added). Prior to 1996, § 577.010.1 encompa ssed the elements of not just two, but three distinct intoxication-related traffic offenses: 1) driving while intoxicated, 2) operating a motor vehicle while intoxicated, and 3) being in actual physical control of a motor vehicle while intoxicated. In 1996, the statute was amended to delete the reference to being in actual physical control. SeeState v. Gibson , 122 S.W.3d 121, 126 (Mo. Ct. App. 2003) (discussing the history of the statute). McCall committed the two violations at issue here in Ma y 1990 and December 1990, before the statute was amended. At that time, only one of the three offenses covered by the statute involved actual driving conduct, even though all three were designated as "driving while intoxicated."

Likewise, in 1990, § 577.023 targeted all three of those distinct "intoxicationrelated traffic offenses" for felony-level punishment for repeat offenses, not merely the one involving driving conduct. See Gibson , 122 S.W.3d at 128-30 (recognizing a conviction for "actual physical control" co unted as an "intoxication-related traffic offense" prior to § 577.010's amendment, but did not count after the amendment). Thus, at the time McCall committed his offenses, § 577.023 targeted not only the intoxicated person who repeatedly engaged in actual driving conduct, but also the nonviolent person who repeatedly fell asleep in a parked car with his keys in his pocket. Section 577.023's mere use of the title of a crime set forth in an overinclusive statute does not somehow cure the statute's overinclusiveness, or make the one crime that corresponds most closely with the title – the violent "driving" crime – the statute's "dominant" offense to the exclus ion of other nonviolent crimes also covered by the statute, and also targeted for fe lony-level punishment based on recidivism.5 North Carolina v. Alford , 400 U.S. 25, 39 (1970) (recognizing a defendant's right to plead guilty by acknowledging the government has enough evidence to convict while him still maintaining his innocence).

6 Indeed, the presentence investigation report's (PSR) discussion of the December 1990 incident suggests the police ha d no direct evidence of actual driving behavior "on" or "upon" a roadway. The police found McCall's truck stuck in a ditch,
-12- The government bears the initial burden of showing McCall committed three violent felonies. See United States v. Redding , 16 F.3d 298, 302 (8th Cir. 1994) ("For purposes of § 924(e)(1), the government must make an initial showing that a defendant has three prior c onvictions for violent felonies."). Because § 577.010.1 is an overinclusive statute, the government's burden is not satisfied unless it presents evidence showing the specific offenses McCa ll committed were of the violent variety rather than the nonviolent variety. If the government never satisfi es its initial burden, the burden-shifting situation discu ssed in United States v. Painter , 400 F.3d 1111, 1114 (8th Cir. 2005), never arises.

The only evidence offered by the government to satisfy its initial burden of showing McCall's offenses involved violent "driving" conduct, rather than nonviolent conduct, consisted of 1) the bare char ging documents allegi ng he committed felony violations of the overinclusive statute, and 2) docket sheets reflecting the entry of Alford 5 pleas to the overinclusive statute. The government argues the charging documents' mere reference to the location where the two crimes occurred, i.e., "upon Office Road" and "on Missouri State Highway 34," established the violent nature of McCall's behavior, claiming the references to location establish McCall was driving a vehicle on the roadways . Nonsense. Alleging where an offense occurred does not prove what the offense conduct was. The gove rnment offered no evidence to show the charging documents would not have contai ned the very same allegations regarding location for situations where vehicles we re found parked on the shoulder of the road without the engine running, in an adjacent d itch, or even in an adjacent driveway or parking lot. 6 In short, the government did notpresent any evid ence to establishnot on the roadway, and McCall was not even inside the ve hicle. PSR at ¶ 44. Of course, under the Supreme Court's modified categorical approach, the information contained in the PSR cannot be consideredin determining whether McCall's offenses were violent felonies for purposes of § 924(e)(2)(B).
-13- McCall's offenses involved actual driving conduct, rather than nonviolent "operation" or "actual physical control" conduct.

For the reasons stated, I respectfully dissent.

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