DUI a Crime of Violence for Career Offender Purposes

U.S. v. Moore, 2005 WL 2083039 (8/30/05) - The 10th holds that felony DUI is a "crime of violence" under USSG 4B1.2 [career offender]. The 10th holds that DUI "presents a serious potential risk of physical injury to another" [the same definition used for ACCA priors] because the dangers of drunk driving are not speculative, but well known, and drunk driving "often" results in injury. The 10th did not consider what the actual odds are that a drunk driver will cause another's physical injury. The 10th agreed with the 5th and 7th Circuits. It disagreed with the 8th Circuit''s contrary conclusion that the "risk" must be similar to that posed by burglary, arson, extortion and the use of explosives. The 10th distinguished the 4B1.2 "crime of violence" definition from 2L1.2's and 18 U.S.C. § 16(b)'s definition of "crime of violence" which require the use of physical "force" not physical "injury." The 10th did remand in this case because the Nevada DUI statute involved allowed a conviction for just sitting in a car drunk, which does not pose a serious potential risk of physical injury. On remand, the d.ct. is supposed to decide whether the proper record indicated the defendant was convicted of driving while drunk or sitting while drunk.