United States v. Ned Walker

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 04-1815
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Northern District of Iowa.
Ned Walker, *
*
Appellant. *
___________

Submitted: November 19, 2004
Filed: January 6, 2005
___________

Before WOLLMAN and HEANEY, Circuit Judges, and HOLMES,1 District Judge.
___________

HOLMES, District Judge.

The issue in this case is whether Iowa’s offense of Operating While Intoxicated
(“OWI”) is a “crime of violence” under the United States Sentencing Guidelines.

I.
Ned Walker entered a plea of guilty to a charge of conspiracy to distribute
methamphetamine. The presentence investigation report stated that his base offense

1
The Honorable J. Leon Holmes, United States District Judge for the Eastern
District of Arkansas, sitting by designation.
level was 24, which should be reduced three levels for acceptance of responsibility,
leaving an offense level of 21. Walker had a total of 17 criminal history points,
placing him in criminal history category VI, which would make Walker’s sentencing
range 77 to 96 months.

The government objected to the presentence investigation report, contending
that Walker was a career offender because he had two prior predicate crimes of
violence. One of the prior crimes was for attempted burglary in 1994, which Walker
conceded was a “crime of violence.” The other was an OWI offense in 1991 in Iowa,
which Walker contended was not a “crime of violence.” The district court made no
findings of fact but held, as a legal matter, that OWI is a “crime of violence” as
defined in U.S.S.G. § 4B1.2(a)(2). The two predicate crimes of violence – burglary
and OWI – made Walker a career offender under U.S.S.G. § 4B1.1. With career
offender status, Walker had a total offense level of 29, criminal history category VI,
which has a sentencing range of 151 to 188 months. The district court sentenced
Walker to 151 months.

We review the application of the sentencing guidelines de novo. United States
v. Sun Bear, 307 F.3d 747, 750 (8th Cir. 2002).

II.
OWI is not specifically named in U.S.S.G. § 4B1.2 as a crime of violence. The
Supreme Court has held that we should look to the statutory definition of the prior
offense, not to the underlying facts, to determine whether a prior conviction is a
predicate offense. Taylor v. United States, 495 U.S. 575, 600-02, 110 S. Ct. 2143,
2159-60, 109 L. Ed. 2d 607 (1990).2 See also United States v. Smith, 171 F.3d 617,

2
Taylor construed 18 U.S.C. § 924(e)(2)(B)(ii), which is identical to
U.S.S.G. § 4B1.2(a)(2), except that the guideline adds “of a dwelling” after the
“burglary.” The current version of § 4B1.2 was adopted by the Sentencing
Commission in Amendment 268. In explaining the amendment, the Sentencing

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620 (8th Cir. 1999); United States v. Bauer, 990 F.2d 373, 374-75 (8th Cir. 1993)
(rejecting a defendant’s argument under U.S.S.G. § 4B1.2 that the court should
consider the underlying facts of the predicate offense); United States v. Whitfield, 907
F.2d 798, 800 (8th Cir. 1990) (holding that 18 U.S.C. § 924(e) mandates a formal
categorical approach looking only to the statutory definitions of the prior offenses,
not to the underlying facts). The Application Notes to § 4B1.2 state, in pertinent part,
that an offense is a crime of violence if “the conduct set forth (i.e., expressly charged)
in the count of which the defendant was convicted . . . , by its nature, presented a
serious potential risk of physical injury to another.” Most of that language was added
in Amendment 268, along with the current version of § 4B1.2(a). It was amended by
Amendment 433 in 1991 to include the language, i.e., expressly charged. These
changes to the Application Notes apparently were made in response to cases holding
that courts may look beyond the face of the indictment in determining whether a prior
offense is a “crime of violence” under § 4B1.2(a)(2). United States v. Fitzhugh, 954
F.2d 253, 254 (5th Cir. 1992). This Court stated in United States v. Wright, 957 F.2d
520, 522 (8th Cir. 1992), that courts may examine the facts underlying the conviction
when deciding whether an offense involves conduct that presents a serious potential
risk of physical injury to another under U.S.S.G. § 4B1.2(a)(2). As noted in United
States v. Rodriguez, 979 F.2d 138, 141 (8th Cir. 1992), that statement in Wright was
dicta. Wright followed United States v. John, 936 F.2d 764, 770 (3rd Cir. 1991). The
Third Circuit has recognized that the Sentencing Commission effectively overruled
John when it adopted the current version of the Application Notes to § 4B1.2. United
States v. Joshua, 976 F.2d 844, 852-54 (3rd Cir. 1992), overruled on other grounds
by Stinson v. United States, 508 U.S. 36, 113 S. Ct. 1913, 123 L. Ed. 2d 598 (1993).
Even so, the dicta in Wright has been followed in this circuit. United States v.

Commission said that the definition of crime of violence used is derived from 18
U.S.C. § 924(e). U.S. SENTENCING GUIDELINES MANUAL App. C - Vol. 1, 133
(2003). Although § 924(e)(2) differs in some respects from § 4B1.2, those
differences relate to portions of those provisions not at issue here.

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Gomez-Hernandez, 300 F.3d 974, 980 (8th Cir. 2002); United States v. Kind, 194
F.3d 900, 907 (8th Cir. 1999).

III.
Walker was convicted under Iowa Code Ann. § 321J.2.1, which provides:

1. A person commits the offense of operating while intoxicated if the
person operates a motor vehicle in this state in any of the following
conditions:

a. While under the influence of an alcoholic beverage or other
drug or a combination of such substances.

b. While having an alcohol concentration of .08 or more.

c. While any amount of a controlled substance is present in the
person, as measured in the person’s blood or urine.

The information says nothing about the offense in question except that Walker “did
operate a motor vehicle while under the influence of an alcoholic beverage or drugs
or a combination of such substances, contrary to Section 321J.2 of the 1991 Code of
Iowa, THIRD OFFENSE . . . .” A third offense is a class “D” felony punishable by
a term of imprisonment not to exceed five years. Iowa Code Ann. § 321J.2.2.c.

The Supreme Court of Iowa has said that the offense of operating while
intoxicated consists of two essential elements: (1) the operation of a motor vehicle (2)
while under the influence of alcohol. State v. Boleyn, 547 N.W.2d 202, 204 (Iowa
1996). The definition of “operate” is “the immediate, actual physical control over a
motor vehicle that is in motion and/or has its engine running.” Id. at 205. A person
can be “operating” a vehicle for purposes of an OWI charge even if the vehicle is not
moving and even if the vehicle is incapable of moving, so long as the engine is
running. State v. Murray, 539 N.W.2d 368 (Iowa 1995). Thus, a person can

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“operate” a motor vehicle without “driving” it. Id. at 369. In Murray, the Supreme
Court of Iowa affirmed an OWI conviction where the defendant was found
intoxicated and slumped over the wheel of his vehicle while the engine was running
but the vehicle was incapable of mechanical movement due to a non-functioning
clutch. Id. See also State v. Weaver, 405 N.W.2d 852, 854 (Iowa 1987) (“[T]here
need not be vehicle movement nor capability of vehicle movement for a person to be
in actual physical control, and therefore operating, a motor vehicle . . . .”). The OWI
statute extends to operating a vehicle on private property. State v. Rosenstiel, 473
N.W.2d 59, 62 (Iowa 1991); State v. Valeu, 134 N.W.2d 911 (Iowa 1965). Proof of
recklessness is not an essential element of operating while intoxicated. State v.
Massick, 511 N.W.2d 384, 387 (Iowa 1994). “Reckless driving requires proof that
the defendant actually drove a vehicle, that is, moved it. In contrast, operating while
intoxicated only requires proof that the defendant operated a vehicle. Under our law,
the two are not synonymous.” Id. (emphasis in the original). Although OWI does not
require driving a vehicle as an element, in fact Walker did drive while intoxicated,
and he did cause an accident. The opinion of the Iowa Court of Appeals affirming
Walker’s conviction states: “It is undisputed Walker struck the rear of the [Amy]
Dodge vehicle with sufficient force to push it across a street, through a street sign and
on to a residential lawn. Dodge received bumps to her head and arm; the three
passengers were not injured.” State v. Walker, 499 N.W.2d 323, 324 (Iowa App.
1993).

With this background as to the elements of OWI under Iowa law and the
underlying facts of Walker’s conviction, we now turn to the sentencing guidelines.

IV.
U.S.S.G. § 4B1.1(a) provides, “[a] defendant is a career offender if (1) the
defendant was at least eighteen years old at the time the defendant committed the
instant offense of conviction; (2) the instant offense of conviction is a felony that is
either a crime of violence or a controlled substance offense; and (3) the defendant has

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at least two prior felony convictions of either a crime of violence or a controlled
substance offense.”

U.S.S.G. § 4B1.2(a) provides:

(a) The term “crime of violence” means any offense under federal or
state law, punishable by imprisonment for a term exceeding one
year, that --

(1) has as an element the use, attempted use, or threatened use
of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.

Prior to 1989, the sentencing guidelines defined “crime of violence” by reference to
18 U.S.C. § 16, which provides:

The term “crime of violence” means --

(a) an offense that has as an element the use, attempted use, or
threatened use of physical force against the person or property of
another, or

(b) any other offense that is a felony and that, by its nature, involves
a substantial risk that physical force against the person or
property of another may be used in the course of committing the
offense.

See United States v. Parson, 955 F.2d 858, 864 (3rd Cir. 1992). By Amendment 268,
effective November 1, 1989, the Sentencing Commission adopted the definition of
“crime of violence” currently in force. U.S. SENTENCING GUIDELINES MANUAL App.

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C - Vol. 1 at 131-33 (2003). The Commission explained, “[t]he definition of crime
of violence used in this amendment is derived from 18 U.S.C. § 924(e).” Id. at 133.
Section 924(e) defines “violent felony.” The portions of U.S.S.G. § 4B1.2 at issue
here are identical to the corresponding portions of 18 U.S.C. § 924(e)(2)(B), except
that the guideline provision adds the phrase of a dwelling after the word burglary.3
Since the pertinent language is substantially identical, and since the Commission
derived the definition of “crime of violence” in § 4B1.2(a) from the definition of
violent felony in 18 U.S.C. § 924(e)(2), we will construe guideline language at issue
to be consistent with the corresponding language in the statute. Cf. United States v.
Doe, 960 F.2d 221, 225 (1st Cir. 1992) (Breyer, C.J.) (interpreting 18 U.S.C. §
924(e)(2)(B)(ii) in harmony with the guideline).

The government contends that OWI is a “crime of violence” under
§ 4B1.2(a)(2) because it is a crime that “otherwise involves conduct that presents a
serious potential risk of physical injury to another.” 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. Washington State Dep’t of Soc. & Health Servs. v.
Guardianship Estate of Keffeler, 537 U.S. 371, 384-85, 123 S. Ct. 1017, 1025, 154

3
Section 924(e)(2)(A) defines “serious drug offense” in a manner different
from the definition of “controlled substance offense” in U.S.S.G. § 4B1.2(b). The
most notable difference is that § 924(e)(2)(A) requires an offense with a maximum
term of imprisonment of ten years or more, whereas § 4B1.2(b) defines “controlled
substance offense” to include drug offenses “punishable by imprisonment for a
term exceeding one year.” Section 924(e)(2)(B) and (C) has language relating to
juvenile convictions that was omitted in § 4B1.2(a). And, as noted above,
§ 4B1.2(a)(2) adds of a dwelling after burglary. Otherwise, the guideline is
identical to the statute.

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L. Ed. 2d 972 (2003). See also Patterson v. Tenet Healthcare, Inc., 113 F.3d 832,
836 (8th Cir. 1997); United States v. Freeman, 473 F.2d 7, 9 (8th Cir. 1973). The
Court of Appeals for the District of Columbia applied these interpretive canons to
§ 4B1.2(2) in United States v. Thomas, 361 F.3d 653, 659 (D.C. Cir. 2004). This
Court applied ejusdem generis to another section of the sentencing guidelines in
United States v. Mendoza-Alvarez, 79 F.3d 96, 99 (8th Cir. 1996).

The conclusion that noscitur a sociis and ejusdem generis should be used to
interpret U.S.S.G. § 4B1.2(a) is reinforced by the legislative history of the statute
from which the guideline was derived. Title 18 U.S.C. § 924(e)(2)(B) was amended
in 1986 by the Firearms Owners’ Protection Act, Pub. L. 99-308, § 104, 100 Stat.
457, and five months later by § 1402 of Subtitle I (the Career Criminals Amendment
Act of 1986) of the Anti-Drug Abuse Act of 1986, Pub. L. 99-570, 100 Stat. 3207-40.
The history is stated in Taylor, 495 U.S. at 581-83, 110 S. Ct. at 2149-50. The Report
of the House Committee on the Judiciary explained:

The Subcommittee on Crime held a hearing . . . to consider whether it
should expand the predicate offenses (robbery and burglary) in existing
law in order to add to its effectiveness. At this hearing a consensus
developed in support of an expansion of the predicate offenses to
include serious drug trafficking offenses . . . and violent felonies,
generally. This concept was encompassed in H.R. 4885 by deleting the
specific predicate offenses for robbery and burglary and adding as
predicate offenses State and Federal laws for which a maximum term of
imprisonment of 10 years or more is prescribed for manufacturing,
distributing or possessing with intent to manufacture or distribute
controlled substances and violent felonies under Federal or State law if
the offense has an element the use, attempted use or threatened use of
physical force against a person. This latter provision would include
such felonies involving physical force against a person such as murder,
rape, assault, robbery, etc.

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 The other major question involved in these hearings was as to what
violent felonies involving physical force against property should be
included in the definition of “violent” felony. The Subcommittee agreed
to add the crimes punishable for a term exceeding one year that involve
conduct that presents a serious potential risk of physical injury to others.
This will add State and Federal crimes against property such as burglary,
arson, extortion, use of explosives and similar crimes as predicate
offenses where the conduct involved presents a serious risk of injury to
a person.

H.R. REP. NO. 99-849, at 3 (1986) (emphasis in original). For present purposes, the
most important sentence of this lengthy quotation is the last one, which states that the
legislation would add “burglary, arson, extortion, use of explosives and similar
crimes as predicate offenses where the conduct involved presents a serious risk of
injury to a person.” Id. (emphasis added). Later, the Report states, in its section-by-
section analysis, “Subsection 2(b)(B)(ii) adds all State and Federal felonies against
property such as burglary, arson, extortion, use of explosives and similar crimes as
predicate offenses where the conduct involved presents a serious risk of injury to a
person.” Id. at 5 (emphasis added). Thus, the legislative history reinforces the view
that the intent of the “otherwise” clause in 18 U.S.C. § 924(e)(2)(B)(ii) was to
encompass crimes similar to burglary, arson, extortion, and crimes that involve the
use of explosives.

In holding that a conviction of DUI causing serious bodily injury under Fla.
Stat. § 316.193(3)(c)(2) is not a “crime of violence” under 18 U.S.C. § 16, the
Supreme Court recently stated:

In construing both parts of § 16, we cannot forget that we ultimately are
determining the meaning of the term “crime of violence.” The ordinary
meaning of this term, combined with § 16’s emphasis on the use of
physical force against another person (or the risk of having to use such
force in committing a crime), suggests a category of violent, active

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 crimes that cannot be said naturally to include DUI offenses. Cf. United
States v. Doe, 960 F.2d 221, 225 (CA1 1992) (Breyer, C.J.) (observing
that the term “violent felony” in 18 U.S.C. § 924(e) (2000 ed. and Supp.
II) “calls to mind a tradition of crimes that involve the possibility of
more closely related, active violence”). Interpreting § 16 to encompass
accidental or negligent conduct would blur the distinction between the
“violent” crimes Congress sought to distinguish for heightened
punishment and other crimes.

Leocal v. Ashcroft, 543 U.S. ___, 125 S. Ct. 377, 383 (2004). Our Eighth Circuit
precedents reflect a “common sense approach to determining whether a given offense
is a crime of violence.” Sun Bear, 307 F.3d at 752. See also Conway County
Farmers Ass’n v. United States, 588 F.2d 592, 598 (8th Cir. 1978) (quoting Crane v.
Commissioner, 331 U.S. 1, 6, 67 S. Ct. 1047, 1051, 91 L. Ed. 1301 (1947) (The words
of statutes “should be interpreted where possible in their ordinary, everyday
senses.”)). This “common sense approach” is consistent with the Supreme Court’s
resort in Leocal to the “ordinary meaning” of the term. It is common sense that OWI
is not the same kind of offense as the crimes specifically listed in U.S.S.G. §
4B1.2(a)(2) – burglary of a dwelling, arson, extortion, and crimes that involve the use
of explosives.4 The latter are hostile, aggressive acts. They create a significant risk
of violent confrontation between the criminal and the victim or the law enforcement
officer. Cf. Taylor, 495 U.S. at 588 (“The fact that an offender enters a building to
commit a crime often creates the possibility of a violent confrontation between the

4
At Walker’s sentencing hearing, the district court observed, “[i]t would turn
common sense on its head to make somebody a career offender who had two
drunk driving convictions,” but held that the plain language of the “otherwise”
clause required that result. We agree with the district court’s view that it is
contrary to common sense to say that someone with two OWI convictions is a
career criminal. See also Parson, 955 F.2d at 870. The district court, however,
read the “otherwise” clause apart from the preceding list of specific crimes and the
appropriate canons of construction and therefore erroneously attributed to the
sentencing guidelines a result that would violate common sense.

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offender and an occupant, caretaker, or some other person who comes to
investigate.”); Thomas, 361 F.3d at 660 (holding that escape is a crime of violence
because the escape invites pursuit, and the pursuit invites confrontation); Sun Bear,
307 F.3d at 752 (holding that theft of a vehicle is a crime of violence because it
presents a likelihood of confrontation).

The Supreme Court in Leocal noted that the language in 18 U.S.C. § 16(b)
differs from the language in U.S.S.G. § 4B1.2(a)(2). Leocal, 543 U.S. at ___, 125 S.
Ct. at 383 n.7. See also United States v. McGill, 2004 WL 2827746, at *2-3 (M.D.
Ala. Dec. 10, 2004). Even so, the Court cited with approval the following passage
from then Chief Judge Breyer’s opinion in Doe stating that drunken driving should
not be considered as a “violent felony” under 18 U.S.C. § 924(e):

[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
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.

960 F.2d at 225. 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. Drunken driving is
“very unlike the burglary, arson, extortion, and explosives use that the statute [and
the guideline] mentions.” Id. Since drunken driving – or more precisely, operating
while intoxicated – is very unlike the crimes specifically named in § 4B1.2(a)(2),

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under the rule of ejusdem generis, OWI is not encompassed by the general language
that follows.

The rule of ejusdem generis is closely related to another well-established canon
of statutory construction that compels a narrower interpretation than that advocated
by the government, i.e., “the elementary canon of construction that a statute should
be interpreted so as not to render one part inoperative.” Colautti v. Franklin, 439
U.S. 379, 392, 99 S. Ct. 675, 684, 58 L. Ed. 2d 596 (1979). See also Mountain States
Tel. & Tel. Co., 472 U.S. 237, 249, 105 S. Ct. 2586, 2594, 86 L. Ed. 2d 168 (1985).
The leading treatise on statutory interpretation explains:

The doctrine of ejusdem generis is an attempt to reconcile an
incompatibility between specific and general words so that all words in
a statute and other legal instruments can be given effect, all parts of a
statute can be construed together and no words will be superfluous. If
the general words are given their full and natural meaning, they would
include the objects designated by the specific words, making the latter
superfluous. If, on the other hand, the series of specific words is given
its full and natural meaning, the general words are partially redundant.
The rule “accomplishes the purpose of giving effect to both the
particular and the general words, by treating the particular words as
indicating the class, and the general words as extending the provisions
of the statute to everything embraced in that class, though not
specifically named by the particular words.”

The resolution of this conflict by allowing the specific words to identify
the class and by restricting the meaning of general words to things
within the class is justified on the ground that had the legislature
intended the general words to be used in their unrestricted sense, it
would have made no mention of the particular words.

The doctrine of ejusdem generis has been said to be “especially
applicable to penal statutes.”

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2A NORMAN J. SINGER, STATUTES AND STATUTORY CONSTRUCTION § 47:17 (6th ed.
2000) (citations omitted). This Court avoids reading a statute in a manner that would
render some words redundant. Patterson, 113 F.3d at 836; Missouri v. Andrews, 787
F.2d 270, 284 (8th Cir. 1986). Here, the government construes U.S.S.G. §
4B1.2(a)(2) to encompass all conduct that presents a serious potential risk of physical
injury to another. That construction not only ignores the list of specific crimes that
precede this general language and therefore modify it, that construction also would
render the list of specific crimes redundant or superfluous.

The government’s argument would also render superfluous the distinction in
§ 4B1.1(a) and § 4B1.2 between a felony that is a crime of violence and a felony that
is a controlled substance offense. We punish controlled substance offenses, and
include them as predicate offenses when determining which criminals are career
offenders, because they involve a serious potential risk of physical injury to other
persons. Dalton v. Ashcroft, 257 F.3d 200, 207 (2d Cir. 2001) (“Statutes
criminalizing the use, possession and/or distribution of dangerous drugs and other
controlled substances also underscore the fact that some criminal conduct may
involve a substantial risk of injury or harm without at the same time involving the use
of physical force.”). On the government’s argument, the inclusion of controlled
substance offenses as separately named predicate offenses for career offender status
would be superfluous because those offenses involve a substantial risk of physical
injury to another and therefore would be included in the “otherwise” provision of §
4B1.2(a). Our interpretation of § 4B1.2(a)(2), however, preserves the distinction
between subsections (a)(1), (a)(2), and (b); and it avoids a construction that renders
any part of § 4B1.2 superfluous.

The government relies on United States v. Jernigan, 257 F.3d 865 (8th Cir.
2001), where this Court held that negligent homicide while operating a vehicle while
intoxicated in violation of Ark. Code Ann. § 5-10-105(a)(1) was a crime of violence
under U.S.S.G. § 4B1.2(a)(2). The opinion in Jernigan suggested that the Court was

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adopting the rationale of Judge Easterbrook’s concurring opinion in United States v.
Rutherford, 54 F.3d 370 (7th Cir. 1995). Jernigan, 257 F.3d at 867. Judge
Easterbrook’s concurring opinion in Rutherford argued that a court should not look
beyond the statutory elements and, if those are open-ended, the charging papers,
citing Taylor. Rutherford, 54 F.3d at 378. Judge Easterbrook’s argument, adopted
by reference in Jernigan, is consistent with this Court’s precedents that follow Taylor
and look only to the elements of the predicate offense. See Smith, 171 F.3d at 620;
Bauer, 990 F.2d at 375; Whitfield, 907 F.2d at 800. Jernigan was a homicide case;
the elements of the prior offense included causing the death of another person. The
offense of OWI under Iowa law includes no element of harm to another person, nor
even an element of risk of harm to another person; and no homicide or serious injury
occurred. Consequently, Jernigan is not on point.

We are mindful that some of our sister circuits have said, sometimes in dicta,
that the language in 18 U.S.C. § 924(e)(2)(B)(ii) and U.S.S.G. § 4B1.2(a)(2) appears
to be substantially broader than the language in 18 U.S.C. § 16. See United States v.
Lucio-Lucio, 347 F.3d 1202, 1207 (10th Cir. 2003); Dalton, 257 F.3d at 207.
However, when the Sentencing Commission amended the section at issue to delete
the reference to 18 U.S.C. § 16 and insert the current language, the Commission
stated as the reason for the amendment, “[t]he purpose of this amendment is to clarify
the definitions of crime of violence and controlled substance offense used in this
guideline.” U.S. SENTENCING GUIDELINES MANUAL App. C - Vol. 1 at 133 (2003)
(emphasis added). The purpose was to clarify, not to expand. Nothing in the
commentary suggests that the Commission intended that the new language would
significantly expand the scope of the definition of “crimes of violence.” Two of our
sister circuits have stated that the Sentencing Commission did in fact significantly
expand the scope of the definition of “crimes of violence,” perhaps unwittingly, when
it deleted the reference to 18 U.S.C. § 16 and adopted the current language. Bazan-

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Reyes v. I.N.S., 256 F.3d 600, 609 (7th Cir. 2001); Parson, 955 F.2d at 866 n.10.5 We
respectfully disagree. For the reasons stated above, we are convinced that the
Commission’s commentary accurately describes its own actions in amending the
definition of “crimes of violence.” The language of 18 U.S.C. § 16(b) differs from
U.S.S.G. § 4B1.2(a)(2), but both provisions are efforts to define “crime of violence,”
and both use language that calls to mind a tradition of violent, active crimes. The
Commission’s commentary on the latter indicates that it does not significantly differ
in meaning from the former. That commentary is not plainly erroneous or
inconsistent with U.S.S.G. § 4B1.2, so it is a binding interpretation of the phrase
“crime of violence.” Stinson, 508 U.S. at 47, 113 S. Ct. at 1920. The appropriate
consideration of the list of specific crimes that precede the general language in
U.S.S.G. § 4B1.2(a)(2), in the light of the canons of noscitur a sociis and ejusdem
generis and the rule that a statute should be interpreted so as not to render one part
inoperative, shows the correctness of the Commission’s view that the current version
of U.S.S.G. § 4B1.2 does not differ significantly from 18 U.S.C. § 16. And, if that
is so, Leocal controls this case.

For these reasons, we hold that Iowa’s offense of operating while intoxicated
does not fall within the definition of “crime of violence” in U.S.S.G. § 4B1.2(a).
Therefore, we reverse and remand for resentencing.
______________________________

5
Parson also argues that U.S.S.G. § 4B1.2(a)(2) may have a meaning
significantly different from the virtually identical language in 18 U.S.C. §
924(e)(2)(B). Parson, 955 F.2d at 871.

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