United States v. Russell Kim McGill

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-10285 June 1, 2006
THOMAS K. KAHN
CLERK
D. C. Docket No. 03-00283 CR-T-S

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RUSSELL KIM MCGILL,

Defendant-Appellant.

Appeal from the United States District Court
for the Middle District of Alabama

(June 1, 2006)

Before DUBINA, MARCUS and COX, Circuit Judges.

DUBINA, Circuit Judge:
 Appellant, Russell Kim McGill (“McGill”), appeals his 70-month sentence

imposed after pleading guilty to being a felon in possession of firearms, in

violation of 18 U.S.C. § 922(g)(1). In determining the appropriate sentence, the

district court applied a base offense level of 24, pursuant to the United States

Sentencing Guidelines (“U.S.S.G.”) § 2K2.1(a)(2), based on its holding that

McGill’s two Alabama felony driving under the influence (“DUI”) convictions

constitute “crimes of violence” as defined in U.S.S.G. § 4B1.2(a)(2). McGill

argues on appeal that the district court erred in holding that his two Alabama

felony DUI convictions constitute “crimes of violence.” In this appeal we are

asked to decide whether an Alabama felony DUI conviction in violation of Ala.

Code § 32-5A-191 (1975) constitutes a “crime of violence” as defined in U.S.S.G.

§ 4B1.2(a)(2). For the reasons discussed below, we hold that it does and affirm

McGill’s 70-month sentence.

I. BACKGROUND

On February 11, 2003, McGill was arrested at his home under suspicion of

possession of a controlled substance. After obtaining McGill’s consent and a

search warrant, law enforcement officers searched his home and found three

operable shotguns. McGill was subsequently charged with one count of being a

2
felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).1 He

pleaded guilty to this offense and agreed to be sentenced pursuant to the

Guidelines.

The Pre-Sentence Investigation Report (“PSI”) assigned a base offense level

of 24, pursuant to U.S.S.G. § 2K2.1(a)(2), finding that McGill’s two prior

Alabama felony DUI convictions in violation of Ala. Code § 32-5A-191 (a) and

(h),2 constitute “crimes of violence.” After the base offense level was

appropriately increased and reduced,3 McGill’s total offense level was 23, which,

1
McGill was also charged with and convicted of possession of a controlled substance in the
Circuit Court of Coffee County, Alabama, as a result of the February 11, 2003, arrest and subsequent
search of his home.
2
Ala. Code § 32-5A-191 states, in relevant part:
(a) A person shall not drive or be in actual physical control of any vehicle while:
(1) There is 0.08 percent or more by weight of alcohol in his or her blood;
(2) Under the influence of alcohol;
(3) Under the influence of a controlled substance to a degree which renders him or
her incapable of safely driving; or
(4) Under the combined influence of alcohol and a controlled substance to a degree
which renders him or her incapable of safely driving;
(5) Under the influence of any substance which impairs the mental or physical
faculties of such person to a degree which renders him or her incapable of safely
driving.
...

(h) On a fourth or subsequent conviction, a person convicted of violating this section shall
be guilty of a Class C felony and punished . . . by imprisonment of not less than one year and
one day . . . .
3
Pursuant to U.S.S.G. § 2K2.1(b)(1)(A), the PSI increased the base offense level by two
because the offense involved three firearms and, pursuant to U.S.S.G. § 3E1.1, reduced the level by
three for McGill’s acceptance of responsibility.

3
combined with a criminal history category of IV, produced an applicable guideline

range of 70 to 87 months. McGill objected to the PSI’s calculation of his base

offense level, arguing that his prior Alabama felony DUI convictions did not

constitute “crimes of violence” under § 2K2.1.4 After consideration of the parties’

motions and oral argument, the district court issued a published order finding that

McGill’s two prior Alabama felony DUI convictions constitute “crimes of

violence.” United States v. McGill, 347 F. Supp. 2d 1210 (M.D. Ala. 2004).

Following the PSI’s recommendations, the district court sentenced McGill within

the applicable guideline range to 70 months imprisonment.

II. STANDARD OF REVIEW

This court reviews de novo a district court’s interpretation of the Guidelines

and its application of the Guidelines to the facts. United States v. Gunn, 369 F.3d

1229, 1237-38 (11th Cir. 2004).

4
If McGill’s DUI convictions did not constitute “crimes of violence” his base offense level
would have been 14 under § 2K2.1(a)(6), and he would have been eligible for the “sporting
purposes” reduction under § 2K1.2(b)(2), which would have decreased his offense level to 6. After
the additional two-level reduction for his acceptance of responsibility, his adjusted offense level
would have been 4, resulting in an applicable guideline range of 2 to 8 months. McGill then would
have fallen within Zone B of the Sentencing Table, making him eligible for a sentence of probation
pursuant to § 5C1.1(c)(3).

4
 III. DISCUSSION

Section 2K2.1 of the Guidelines governs McGill’s base offense level for

violating 18 U.S.C. § 922(g)(1). Subsection (a)(2) of § 2K2.1 provides that a

defendant’s base offense level is 24 “if the defendant committed any part of the

instant offense subsequent to sustaining at least two felony convictions of . . . a

crime of violence.” According to the Commentary to § 2K2.1, the term “‘[c]rime

of violence’ has the meaning given that term in § 4B1.2(a) and Application Note 1

of the Commentary to § 4B1.2.”5 Section 4B1.2(a), in turn, states that,

[t]he 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.

U.S.S.G. § 4B1.2(a) (emphasis added). Application Note 1 of the Commentary to

§ 4B1.2(a)(2) similarly provides 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 defendant was convicted . . . by its nature, presented a serious potential risk of

physical injury to another.”

5
We treat the Commentary in the Sentencing Guidelines Manual as authoritative. See United
States v. Spell, 44 F.3d 936, 938 (11th Cir. 1995).

5
 “[U]nder U.S.S.G. § 4B1.2, there are two approaches for classifying an

offense as a crime of violence.” United States v. Searcy, 418 F.3d 1193, 1196

(11th Cir. 2005). The first approach, under subsection (a)(1), requires that the

“use, attempted use, or threatened use of physical force against the person of

another” is an element of the offense. U.S.S.G. § 4B1.2(a)(1). Under the second

approach in subsection (a)(2), the offense must “otherwise involve[] conduct that

presents a serious potential risk of physical injury to another.” U.S.S.G. §

4B1.2(a)(2).

Relying on the second approach under subsection (a)(2) (hereinafter

referred to as the “otherwise clause”), the district court held that an Alabama

felony DUI conviction in violation of Ala. Code § 32-5A-191 (a) and (h) is a

crime of violence. The district court reasoned that the term “crime of violence” as

defined in § 4B1.2(a)(2) concerns the potential risk and nature of the offense, not

the result. McGill, 347 F. Supp. 2d at 1216. Accordingly, because “[t]he dangers

of drunk driving are well-known and well documented,” the district court

concluded that “Ala. Code § 32-5A-191(a) describes conduct that poses a serious

potential risk of physical injury to another, [and thus,] it is not outside the realm of

the ‘crime of violence’ definition in § 4B1.2[(a)(2)].” Id. At 1215-17. We agree.

6
 In this appeal McGill presents three arguments to support his contention

that the district court erred in holding that an Alabama felony DUI conviction is a

crime of violence. He argues that: (1) rules of statutory construction provide that

the term “crime of violence” encompasses only hostile, aggressive acts which are

dissimilar in nature to acts resulting in a DUI offense; (2) the Supreme Court’s

opinion in Leocal v. Ashcroft, 543 U.S. 1 (2004), controls the outcome of the case;

and (3) Alabama’s DUI statute criminalizes non-violent conduct, including being

in physical control of a vehicle while under the influence. We address each of

McGill’s arguments in turn.6

First, McGill argues that § 4B1.2(a)(2)’s definition of “crime of violence”

does not encompass a felony DUI conviction because the otherwise clause, upon

which the district court relied, follows an enumeration of hostile, aggressive acts

which are dissimilar to acts resulting in an Alabama felony DUI conviction.

McGill relies on the interpretive canons of noscitur a sociis and ejusdem generis,

which provide that where general words follow specific words in a statutory

enumeration, the general words are construed to embrace only objects similar in

6
This court has previously held that a DUI is a crime of violence as defined in § 4B1.2(a)(2).
United States v. Rubio, 317 F.3d 1240 (11th Cir. 2003). We recognize that the Supreme Court’s
opinion in Leocal v. Ashcroft, 543 U.S.1 (2004), undermined this court’s rationale in Rubio.
However, we do not need to determine whether Leocal overruled our holding in Rubio because we
do not need to rely on Rubio to affirm this case.

7
nature to those objects enumerated by the preceding specific words. Accordingly,

McGill argues that § 4B1.2(a)(2)’s general definition of “crime of violence” in its

otherwise clause as “conduct that presents a serious potential risk of physical

injury to another,” only encompasses conduct similar in nature to the preceding

enumerated crimes: burglary, arson, extortion, and crimes that involve the use of

explosives.

We are not persuaded by McGill’s argument. Although the otherwise

clause in § 4B1.2(a)(2) follows an enumeration of specific crimes, the

Commentary’s explanation of its definition sets apart the clause in a separate

sentence. See U.S.S.G. § 4B1.2 cmt. n.1. As the Tenth Circuit recognized in

rejecting the same argument,

this “or otherwise” language is removed [in the Commentary], and
the inclusion of offenses with conduct posing a serious potential risk of
physical injury is de-linked from any preceding specific sequence of
offenses. Instead, the Commentary gives a long list of crimes of violence
ranging from murder to kidnapping to extortion and then, in a separate
sentence, explains that “[o]ther offenses are included as ‘crimes of violence’
if . . . the conduct set forth . . . by its nature, presented a serious potential
risk of physical injury to another.”

United States v. Moore, 420 F.3d 1218, 1221-22 (10th Cir. 2005) (quoting

U.S.S.G. § 4B1.2 cmt. n.1). McGill’s argument was initially adopted by the

Eighth Circuit in United States v. Walker, 393 F.3d 819 (8th Cir. 2005). However,

8
the Eighth Circuit has since rejected such reasoning en banc in United States v.

McCall, holding that the otherwise clause “includes any crime whose elements

involve conduct that necessarily presents a serious potential risk of physical injury

to another.” 439 F.3d 967, 971 (8th Cir. 2006) (en banc) (emphasis added).7

Moreover, this court has broadly interpreted § 4B1.2(a)(2)’s definition to

include crimes that do not fit neatly into a category of hostile, aggressive acts. See

United States v. Gilbert, 138 F.3d 1371 (11th Cir. 1998) (holding that carrying a

concealed firearm is a crime of violence because it presents a serious potential risk

of causing physical injury to another); Searcy, 418 F.3d at 1197 (holding that “the

use of an Internet facility to entice a minor to engage in sexual activity”

constitutes a crime of violence because it “presents the possibility of an encounter

that could result in ‘a serious risk of physical injury to [the minor]’”), cert. denied,

126 S. Ct. 1107 (2006). Interpreting § 4B1.2(a)(2) to include those crimes that

may not necessarily constitute hostile, aggressive acts, but do create a serious

potential risk of physical injury is consistent with the plain language of §

4B1.2(a)(2).

7
Although the Eighth Circuit in McCall interpreted 18 U.S.C. § 924(e)(2)(B)(ii), its reasoning
is applicable to this case because the definition of “violent felony” under § 924(e)(2)(B)(ii) contains
an otherwise clause that is identical to the clause contained in U.S.S.G. § 4B1.2(a)(2) defining
“crime of violence.”

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 Second, McGill argues that the Supreme Court’s opinion in Leocal v.

Ashcroft, in which the Court held that a DUI conviction is not a crime of violence

under 18 U.S.C. § 16(b), controls the outcome of this case. 543 U.S. 1 (2004). In

Leocal, the Court relied on the specific language of § 16(b), defining a crime of

violence as one that “involves a substantial risk that physical force . . . may be

used in the course of committing the offense,” to reach its conclusion. 18 U.S.C. §

16(b). The Court emphasized § 16(b)’s requirement that “physical force . . . may

be used in the course of committing the offense,” holding that “[t]he reckless

disregard in § 16 relates not to the general conduct or to the possibility that harm

will result from a person’s conduct, but to the risk that the use of physical force

against another might be required in committing a crime.” Leocal, 543 U.S. at 10.

The Court explicitly distinguished § 4B1.2(a)(2)’s definition of “crime of

violence” from that of § 16(b)’s in footnote seven of its opinion:

Compare § 16(b) (requiring a “substantial risk that physical force against
the person or property may be used”), with [U.S.S.G.] § 4B1.2(a)(2) (Nov.
2003) (in the context of a career-offender sentencing enhancement, defining
“crime of violence” as meaning, inter alia, “conduct that presents a serious
potential risk of physical injury to another”). The 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 DUI offense.

Id. at 10 n.7.

10
 The district court held that Leocal does not control the outcome of this case,

finding that the Court “all but states that [it]’s holding in Leocal in no way

implicates the § 4B1.2 definition of ‘crime of violence.’” McGill, 347 F. Supp. 2d

at 1214. The district court held that “the linguistic distinction between ‘a

substantial risk that physical force against the person or property of another may

be used,’ as provided in 18 U.S.C.A. § 16(b) (emphasis added), and ‘conduct that

presents a serious potential risk of physical injury to another,’ as stated in

U.S.S.G. § 4B1.2 (emphasis added),” sufficiently distinguishes the holding in

Leocal from the present case. Id. The district court’s holding is in accord with the

decisions of our sister circuits. See United States v. McCall, 439 F.3d 967, 971-72

(8th Cir. 2006) (en banc); Aguiar v. Gonzales, 438 F.3d 86, 88 (1st Cir. 2006);

United States v. Sperberg, 432 F.3d 706, 708-09 (7th Cir. 2005); United States v.

Moore, 420 F.3d 1218, 1223 (10th Cir. 2005). Accordingly, we reject McGill’s

argument and hold that the Supreme Court’s opinion in Leocal does not extend to

§ 4B1.2(a)(2).

As the Supreme Court in Leocal demonstrated, the specific language of §

4B1.2(a)(2) controls whether an Alabama felony DUI conviction is a crime of

violence. Because the specific language of § 4B1.2(a)(2) concerns the potential

risk of physical injury rather than the actual use of force against another, we hold

11
that an Alabama felony DUI conviction is a crime of violence under § 4B1.2(a)(2).

As the Seventh Circuit has recognized, “[d]runk driving is a reckless act, perhaps

an act of gross recklessness” because it “vastly increases the probability that the

driver will injure someone in an accident.” United States v. Rutherford, 54 F.3d

370, 376 (7th Cir. 1995). As we noted above, “[t]he 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.” Id.

Furthermore, because an offense must be punishable for a term exceeding

one year to constitute a crime of violence under § 4B1.2(a), only felony

convictions resulting from repeat DUI offenses under Alabama’s statute are

subject to qualifying as crimes of violence.8 McGill has been convicted in the

State of Alabama for driving under the influence five times, but only the last two

convictions, which resulted in felony charges, are at issue in this case.

Accordingly, even though each DUI offense presents a substantial risk of potential

physical injury, only repeat offenders such as McGill are subject to receiving an

8
A DUI offense is not a felony under Alabama’s DUI statute until the fourth or subsequent
offense. See Ala. Code § 32-5A-191(h) (1975) (providing that “[o]n a fourth or subsequent
conviction, a person convicted of violating this [DUI] section shall be guilty of a Class C felony .
. . and punished . . . by imprisonment of not less than one year and one day . . .”).

12
increased sentence under § 2K1.2(a)(2) as a result of their DUI convictions. We

join the unanimous view of our sister circuits in holding that driving while under

the influence “presents a serious potential risk of physical injury to another,” and

thus constitutes a crime of violence under § 4B1.2(a)(2). See McCall, 439 F.3d

967 (8th Cir. 2006) (en banc); United States v. Moore, 420 F.3d 1218, 1221 (10th

Cir. 2005); United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir.

2000); United States v. Rutherford, 54 F.3d 370, 366-367 (7th Cir. 1995); see

also United States v. Parson, 955 F.2d 858, 874 (3d Cir. 1992) (recognizing in

dicta that “crimes such as drunk driving . . . present a serious risk of physical harm

to a victim and therefore qualify as predicate ‘crimes of violence’ for purposes of

the career offender Guideline”).

McGill’s final argument is that a felony Alabama DUI conviction is not a

crime of violence because Alabama’s DUI statute criminalizes not only driving

under the influence, but also being in physical control of the car while under the

influence. See Ala. Code § 32-5A-191(a) (providing that “[a] person shall not

drive or be in physical control of any vehicle” while under the influence).

As discussed above, when determining whether a felony DUI conviction

under Alabama law is a crime of violence as defined in § 4B1.2(a)(2), we need

only look at whether such conduct presents a substantial risk of physical injury to

13
another. The Alabama Supreme Court has defined “actual physical control” under

Ala. Code § 32-5A-191(a) as “exclusive physical power, and present ability, to

operate, move, park, or direct whatever use or non-use is to be made of the motor

vehicle at the moment.” Cagle v. City of Gadsden, 495 So. 2d 1144, 1145 (Ala.

1986) (emphasis added). The district court held that, applying Alabama’s

definition of “actual physical control,” an individual under the influence presents a

serious potential risk of physical injury to another while in physical control of a

vehicle regardless of whether the individual actually operates the vehicle. McGill,

347 F. Supp. 2d at 1216. We agree with the district court and decline to follow the

Tenth and Eighth Circuits in creating a distinction between the risks associated

with driving while under the influence and those risks associated with being in

physical control of a vehicle while under the influence. See Moore, 420 F.3d at

1224 (holding that criminalizing nonviolent conduct such as sleeping off a

hangover in a car, “simply would not pose the same ‘substantial risk of injury’ that

driving under the influence of alcohol does’”); McCall, 439 F.3d at 973 (holding

that “non-driving conduct . . . does not necessarily present a serious risk of

physical injury to others”).

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 IV. CONCLUSION

For the foregoing reasons, we affirm McGill’s 70-month sentence.

AFFIRMED.

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