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. § 4B 1.2(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 Jemigan had little difficulty holding the *1032defendant 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 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 Jemigan 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 DWl 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 violenc'e 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, — U.S. -, 125 S.Ct. 377, 160 L.Ed.2d 271 (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 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 *1033Cir.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.
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 Jemi-gan 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:
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 *1034of 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 Gircuit 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. Nation, 243 F.3d 467, 472 (8th Cir.2001) (holding “every escape, even a. so-called ‘walkaway’ escape, involves a potential risk qf 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 377 (“invit[ing] the Commission to re-evaluate its definition of crime of violence and *1035to 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 commonsense 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.
. See United States v. Sun Bear, 307 F.3d 747, 752 (8th Cir.2002).
. The district court agreed, concluding felony DWI clearly "poses a risk to others who may be on the highways or byways within the state.”
. Open Container Traffic Safety Fact Sheet, available at http://www.nhtsa.dot.gov/people/ injury/New-fact-sheet03/OpenContainer.pdf.
. Gallup Organization, 2001 Nat’l Survey of Drinking and Driving, at 8, available at http://www.nhtsa.dot.gov/people/injury/ alcohol/marvin-drink-driveOl/volISum.pdf.
. 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.”
. 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.