dissenting.
I agree with the discussion and analysis of the Supreme Court’s recent decision in James v. United States, — U.S. -, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), and the ultimate conclusion the modified categorical approach still applies to this case involving an overinclusive Missouri statute covering two separate offenses, only one of which qualifies as a violent felony under 18 U.S.C. § 924(e)(2)(B), rather than a single offense which factually can be committed *676in either a violent 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 Missouri’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 involving both driving and nondriving conduct, but generally denominates both types of crimes as “driving while intoxicated.” I mention crimes identified in § 577.010.1 because we previously recognized Missouri’s “driving while intoxicated” crime includes the elements of both violent and nonviolent crimes for purposes of § 924(e)(2)(B). The 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 motor 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 concept of “driving” and “operating” a motor vehicle).
The crimes prohibited by § 577.010.1 are normally misdemeanors, but when a person repeatedly commits such misdemeanors he or she becomes subject to felony-level punishment under Mo.Rev. Stat. § 577.023, Missouri’s Prior/Persistent Offender statute. The subsection listing the “intoxication-related traffic offense[s]” which trigger felony-level punishment through repetition does not reference § 577.010 by name, but instead refers to the general title of the crime prohibited therein, i.e., “driving while intoxicated.” It is clear, however, 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 approach 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 this 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 over-inclusiveness 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 driving-related 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 nonviolent crimes identified in § 577.010.1 become felonies when an offender repeats them. Section 577.023 equally targets both the “driving” and “op*677erating” 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.
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 ignore the deterrent message.”) (emphasis added). Prior to 1996, § 577.010.1 encompassed 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. See State 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 May 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 “intoxication-related 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” counted 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 exclusion of other nonviolent crimes also covered by the statute, and also targeted for felony-level punishment based on recidivism.
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 convictions for violent felonies.”). Because § 577.010.1 is an overin-clusive statute, the government’s burden is not satisfied unless it presents evidence showing the specific offenses McCall committed were of the violent variety rather than the nonviolent variety. If the government never satisfies its initial burden, the burden-shifting situation discussed 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 charging *678documents alleging he committed felony violations of the overinclusive statute, and 2) docket sheets reflecting the entry of Alford5 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 government offered no evidence to show the charging documents would not have contained the very same allegations regarding location for situations where vehicles were found parked on the shoulder of the road without the engine running, in an adjacent ditch, or even in an adjacent driveway or parking lot.6 In short, the government did not present any evidence to establish McCall’s offenses involved actual driving conduct, rather than nonviolent “operation” or “actual physical control” conduct.
For the reasons stated, I respectfully dissent.
. North Carolina v. Alford, 400 U.S. 25, 39, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (recognizing a defendant’s right to plead guilty by acknowledging the government has enough evidence to convict while him still maintaining his innocence).
. Indeed, the presentence investigation report’s (PSR) discussion of the December 1990 incident suggests the police had no direct evidence of actual driving behavior “on” or “upon” a roadway. The police found McCall’s truck stuck in a ditch, not on the roadway, and McCall was not even inside the vehicle. PSR at ¶ 44. Of course, under the Supreme Court’s modified categorical approach, the information contained in the PSR cannot be considered in determining whether McCall’s offenses were violent felonies for purposes of § 924(e)(2)(B).