United States v. Veach ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0266p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
-
-
-
No. 05-6268
v.
,
>
DARWIN E. VEACH, -
Defendant-Appellant. -
N
Appeal from the United States District Court
for the Eastern District of Kentucky at London.
No. 04-00084—Karen K. Caldwell, District Judge.
Argued: June 7, 2006
Decided and Filed: August 1, 2006
Before: DAUGHTREY and COLE, Circuit Judges; GRAHAM, District Judge.*
_________________
COUNSEL
ARGUED: Bruce R. Bentley, ZOELLERS, HUDSON & BENTLEY, London, Kentucky, for
Appellant. David P. Grise, ASSISTANT UNITED STATES ATTORNEY, Lexington, Kentucky,
for Appellee. ON BRIEF: Bruce R. Bentley, ZOELLERS, HUDSON & BENTLEY, London,
Kentucky, for Appellant. David P. Grise, Charles P. Wisdom, Jr., ASSISTANT UNITED STATES
ATTORNEY, Lexington, Kentucky, for Appellee.
_________________
OPINION
_________________
MARTHA CRAIG DAUGHTREY, Circuit Judge. The defendant, Darwin Veach, appeals
from his conviction and sentence for resisting a federal law enforcement officer and threatening to
assault and murder two federal law enforcement officers with intent to impede the performance of
their official duties. The district court determined that Veach was a career offender and thus
sentenced him to an effective prison term of 80 months. The defendant now asserts that the district
court erred in preventing him from presenting a diminished capacity defense, in restricting his cross-
examination of one of the victims, and in counting his prior conviction for a fourth offense of driving
under the influence of intoxicants as a crime of violence. Because we conclude that the district
judge improperly restricted Veach’s ability to present a diminished capacity defense to a specific-
*
The Honorable James L. Graham, United States District Judge for the Southern District of Ohio, sitting by
designation.
1
No. 05-6268 United States v. Veach Page 2
intent crime, we reverse the defendant’s convictions for threatening to assault and murder law
enforcement officers with intent to impede the performance of their official duties and remand this
matter for retrial on those counts. Because we are remanding this case for a new trial, we address
the remaining evidentiary and sentencing issues merely as a matter of guidance to the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
There is no dispute concerning the relevant facts underlying the defendant’s convictions.
The record establishes that Veach’s automobile was involved in a collision with another vehicle in
Cumberland Gap National Historic Park. When United States Park Rangers Greg Mullin and Karen
Bradford arrived on the scene, they suspected that the defendant was intoxicated and performed
various field sobriety tests and a portable breath test on Veach that confirmed their initial
impressions.
While securing the defendant for transport, Ranger Mullin was forced to struggle with
Veach, who “attempted to pull away from” Mullin. The defendant also pulled the officer “down to
one knee, causing an abrasion on that knee.” Furthermore, as Mullin drove the defendant to the
police station for booking, Veach stated, “I’m going to mess with you; if I get a shot at you[,] God
dammit I’ll kill you, I will; and I’m going to cut your head off.” Veach was later transported to a
local hospital for treatment of a facial cut, and once there he again threatened to decapitate one of
the rangers. On the way back to the detention center, Veach threatened Mullin and Bradford once
more, saying, “I will put a fuckin’ bullet straight in your fuckin’ head. The sheriff won’t always
be in office and 15 years later I’ll walk up on you . . . . I’m going to drive you’ans all straight to
hell.”
Based on these facts, the jury convicted Veach of one count of resisting a federal law
enforcement officer, 18 U.S.C. § 111(a)(1), and two counts of threatening to assault and murder a
federal law enforcement officer with intent to impede such officer in the performance of official
duties, 18 U.S.C. § 115(a)(1)(B). At sentencing, the district judge ruled that Veach’s prior
convictions for second-degree manslaughter and for a fourth offense of driving under the influence
within five years were crimes of violence that subjected the defendant to sentencing as a career
offender. Consequently, the court imposed prison terms of 12 months, 80 months, and 80 months
for the respective offenses, to be served concurrently.
II. DISCUSSION
A. Evidentiary Challenges
On appeal, Veach first challenges two evidentiary rulings made by the district court.
Specifically, he maintains that the court erred in granting the government’s motion in limine to
exclude presentation of a defense of diminished capacity based upon voluntary intoxication. Veach
also contends that the district court erred in preventing him from cross-examining Ranger Bradford
regarding her perception of the threats made by the defendant.
1. Presentation of a Diminished Capacity Defense
As we have held, “[i]t is well established that intoxication, whether voluntary or involuntary,
may preclude the formation of specific-intent and thus serve to negate an essential element of certain
crimes.” United States v. Newman, 889 F.2d 88, 92 (6th Cir. 1989). It is, however, only “the mens
rea of a specific-intent crime” that may be negated by a diminished capacity or voluntary
intoxication defense; such defenses have no applicability to general intent crimes. See United States
v. Gonyea, 140 F.3d 649, 650 (6th Cir. 1998) (citations and footnote omitted). To determine
whether the district judge properly excluded the defendant’s testimony relating to his level of
No. 05-6268 United States v. Veach Page 3
intoxication at the time of the crimes charged, it is thus necessary to decide, first, whether 18 U.S.C.
§§ 111(a)(1) and 115(a)(1)(B) are general or specific intent offenses.
In Gonyea, we highlighted the differences between the two classes of crimes:
[A] specific intent crime is one that requires a defendant to do more than knowingly
act in violation of the law. The defendant must also act with the purpose of violating
the law. The violation of a general intent crime, by contrast, requires only that a
defendant intend to do the act that the law proscribes.
Id. at 653 (citations and internal quotation marks omitted).
Pursuant to the provisions of 18 U.S.C. § 111(a)(1):
Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with
[any officer or employee of the United States or of any agency in any branch of the
United States Government, or any person assisting such an officer or employee]
while engaged in or on account of the performance of official duties . . . shall, where
the acts . . . constitute only simple assault, be fined . . . or imprisoned not more than
one year, or both . . . .
This statutory provision clearly indicates that any violator will be punished solely for the forcible
assault on, resistance to, opposition to, impedance of, intimidation of, or interference with a
designated individual. No other intent on the part of a defendant need be shown; the mere
intentional performance of the prohibited act is sufficient to subject the perpetrator to federal
criminal liability. The plain language of the statute thus supports the district judge’s conclusion that
voluntary intoxication or diminished functional capacity is not a viable defense to a charge of a
violation of § 111.
Indeed, we have previously recognized as much in United States v. Kimes, 246 F.3d 800,
808-09 (6th Cir. 2001), in which we examined the language and overall purpose of the statute before
concluding “that the crime established in 18 U.S.C. § 111(a) is a general intent crime as to which
evidence of diminished capacity is not admissible.” Because Kimes is thus the law of the circuit,
the district court was not at liberty to disregard that holding and this panel may not now overturn
that decision absent intervening Supreme Court direction or an en banc decision of this court. See,
e.g., United States v. Seltzer, 794 F.2d 1114, 1123 (6th Cir. 1986).
Unlike 18 U.S.C. § 111, however, § 115(a)(1)(B) does contain additional language not found
in the former general intent statute. That latter statutory provision reads:
Whoever threatens to assault, kidnap, or murder, a United States official, a United
States judge, a Federal law enforcement officer, or an official whose killing would
be a crime under [18 U.S.C. § 1114], with intent to impede, intimidate, or interfere
with such official, judge, or law enforcement officer while engaged in the
performance of official duties, or with intent to retaliate against such official, judge,
or law enforcement officer on account of the performance of official duties, shall be
punished as provided in subsection (b). (Emphasis added.)
Despite the clear linguistic differences in the two statutes, the government argues that § 115,
like § 111, contains no element of specific intent. In support of its position, the government cites
the holding of the Eleventh Circuit in United States v. Berki, 936 F.2d 529, 532 (11th Cir. 1991),
“that 18 U.S.C.A. section 115(a)(1)(B) (West Supp. 1990) is not a specific intent crime.” See also
United States v. Ettinger, 344 F.3d 1149, 1157 (11th Cir. 2003). But see United States v. Stewart,
420 F.3d 1007, 1017 (9th Cir. 2005) (“Moreover, by its express language, section 115(a)(1)(B)
No. 05-6268 United States v. Veach Page 4
contains a specific intent element: it punishes only threats made regarding enumerated officials with
the intent to impede, intimidate, interfere with, or retaliate against such officials on account of the
officials’ performance of official duties.”).
The Sixth Circuit has not spoken directly to this issue in a published opinion. Nevertheless,
we have recognized “that Congress is fully cognizant of the general intent/specific intent
dichotomy,” Kimes, 246 F.3d at 808, and that “[w]here a statute does not specify a heightened
mental element such as specific intent, general intent is presumed to be the required element.”
United States v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992) (quoting United States v. Brown, 915
F.2d 219, 225 (6th Cir. 1990)). Conversely, when the legislative branch “intends to create a specific
intent crime, Congress explicitly says so.” Kimes, 246 F.3d at 808. For example:
18 U.S.C. § 113(a)(1), which provides that “assault with intent to commit murder”
in the special maritime and territorial jurisdiction of the United States is a crime
punishable by up to 20 years imprisonment. (Emphasis supplied.) Under 18 U.S.C.
§ 113(a)(3), similarly, “[a]ssault with a dangerous weapon, with intent to do bodily
harm, and without just cause or excuse . . .” is made punishable by up to 10 years
imprisonment. (Emphasis supplied.)
Id. In Kimes, we also discussed the situation in Gonyea, noting that in that case:
. . . the trial court, believing that bank robbery in violation of the first paragraph of
18 U.S.C. § 2113(a) is a general intent crime, had declined to let a defendant charged
under that paragraph present evidence of his diminished mental capacity. The first
paragraph of 18 U.S.C. § 2113(a) begins thus:
“Whoever, by force and violence, or by intimidation, takes, or
attempts to take, from the person or presence of another, or obtains
or attempts to obtain by extortion any property or money or any other
thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any savings
and loan association . . . .”
In contrast, the second paragraph begins thus:
“Whoever enters or attempts to enter any bank, credit union, or any
savings and loan association, or any building used in whole or in part
as a bank, credit union, or as a savings and loan association, with
intent to commit in such bank, credit union, or in such savings and
loan association, or building, or part thereof, so used, any felony
affecting such bank, credit union, or such savings and loan
association and in violation of any statute of the United States, or any
larceny . . . .” (Emphasis supplied.)
Based on the differing language in the two paragraphs, we upheld the district court’s
evidentiary ruling: because “Congress showed ‘careful draftsmanship’ by including
an intent requirement in the second paragraph, but not the first paragraph, of
§ 2113(a), we hold that the first paragraph of § 2113(a) describes a general intent
crime.” Gonyea, 140 F.3d at 654 (Citations omitted.)
Id. at 808-09.
By the same token, the additional, specific intent requirement in 18 U.S.C. § 115(a)(1)(B)
differentiates that statute from 18 U.S.C. § 111(a)(1). Not only does § 115(a)(1)(B) require the
No. 05-6268 United States v. Veach Page 5
government to prove beyond a reasonable doubt that the defendant threatened certain action against
a government official but also that the defendant made such a threat for the specific purpose of
interfering with the performance of official duties or of retaliating for the performance of such duties.
Indeed, we have assumed the requirement of specific intent in numerous opinions, both published and
unpublished, involving § 115 prosecutions. See, e.g., United States v. Snelenberger, 24 F.3d 799, 803
(6th Cir. 1994) (holding that the second part of 18 U.S.C. § 115(a)(1)(B) requires that a threat “be
made with the intent to retaliate against the judge after the judge has acted”), overruled on other
grounds in United States v. Hayes, 227 F.3d 578, 586 (6th Cir. 2000); United States v. Andrews, No.
00-6412, 2002 WL 31205333 at *3 (6th Cir. Oct. 2, 2002) (requiring the government to prove in a
§ 115 prosecution that “(1) the defendant conveyed a threat of physical harm to a federal official or
his family; (2) the threat was intended as an act of retaliation against the federal official; and (3) this
threat could reasonably be construed by the person in receipt of the threat to be actually carried out”
(emphasis added)); United States v. Williams, No. 98-2010, 2000 WL 32006 at *2 (6th Cir. Jan. 3,
2000) (recognizing that, to be in violation of 18 U.S.C. § 115(a)(1)(B), “the defendant must act ‘with
the intent to retaliate against a government employee on account of the performance of his or her
official duties’”); United States v. Kamen, Nos. 98-5170/5171, 1999 WL 232685 at *2 (6th Cir. Apr.
16, 1999) (ratifying the district court’s finding in a § 115(a)(1)(B) prosecution that the defendant
“threatened to assault or murder a federal law enforcement officer with the specific intent to
intimidate [an Assistant United States Attorney] on account of her performance or to impede her in
her performance of her official duties”) (emphasis added); United States v. Marcilous, No. 97-2108,
1998 WL 964240 at **1-2 (6th Cir. Dec. 29, 1998) (finding sufficient evidence of defendant’s
specific intent “to threaten his supervisors in retaliation for the performance of their duties”); United
States v. Conner, No. 94-6657, 1995 WL 734479 at *1 (6th Cir. Dec. 11, 1995) (finding sufficient
evidence that the defendant’s communication of a threat to a federal law enforcement officer was in
retaliation for the officer’s performance of his official duties).
Both the actual language of the statute itself and our allusions to the requirements for
conviction under that provision lead to the inescapable conclusion that 18 U.S.C. § 115(a)(1)(B)
contains a specific intent element that must be proven by the government beyond a reasonable doubt.
Consequently, because a defendant must possess a particular mens rea in order to be guilty of the
crimes described in that statute, in this case Veach should have been allowed to present evidence to
the jury that he was too intoxicated at the time of his arrest to form the requisite specific intent.
Instead, the district judge specifically forbade the defendant from “making intoxication . . . a defense”
or from attempting to show “that he could not form an opinion.”
That ruling was in error and prevented Veach from challenging effectively the government’s
assertion that it had proved all essential elements of a charge under 18 U.S.C. § 115(a)(1)(B) beyond
a reasonable doubt. Because the admitted evidence thus does not establish all offense elements, we
must reverse Veach’s § 115 convictions and remand this matter to the district court for retrial on
those charges only.
2. Restriction on Cross-Examination of Ranger Bradford Regarding Threats
During the presentation of the government’s case, the prosecution asked Ranger Karen
Bradford whether she took as a threat the defendant’s comment to her that “I will put a fucking bullet
straight into your head and won’t give a fucking thought about it.” Bradford answered in the
affirmative and further indicated that she was intimidated by the comment because, as she testified,
“I take all threats seriously, especially if I’ve arrested someone and deprived them of freedom.” In
response to that testimony, defense counsel sought to cross-examine Bradford about her apparent lack
of apprehension the following day when Veach returned to her office to retrieve his driver’s license.
The district judge sustained an objection to that line of questioning, however. Veach now contends
that he should have been allowed to pursue his inquiry into whether Bradford truly felt threatened
No. 05-6268 United States v. Veach Page 6
by the defendant’s drunken comments. We review such an evidentiary ruling by the district court
for an abuse of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997).
Here, the district judge restricted questioning by which defense counsel sought to elicit
evidence concerning Bradford’s reaction to a situation that occurred the day after the threat was
communicated, holding that the defendant “had clearly recovered and was under control.” The judge
held that this line of cross-examination was not relevant to “what was going on through the process
of taking Mr. Veach into custody.” Nevertheless, the court did permit defense counsel, in an attempt
to demonstrate that Bradford’s fear was unreasonable, to cross-examine the witness about the fact
that, shortly after arresting Veach, she let the defendant out of the car and readjusted his handcuffs,
that Veach was physically restrained at the time of the threat, that he was obviously intoxicated, and
that he had initially been “relatively cooperative.”
We conclude that the the district court’s limitation on cross-examination would not have been
in error had the threats made by the defendant been limited to his intent to harm the rangers at the
time of his arrest. But the defendant’s declarations evidenced an intention to inflict future harm on
the rangers (“15 years later I’ll walk up on you . . [and] I’m going to mess with you if I get a shot
at you”). It therefore became relevant that less than 24 hours later, Veach exhibited no hostility or
aggression toward Karen Bradford. Were this ruling by the district court the only error in the record,
it might well be considered harmless. But in view of the need to retry the defendant, we conclude
that the original ruling should be reconsidered by the district court in the event that the defendant
seeks to cross-examine Ranger Bradford on this ground.
B. Sentencing Challenge
In his final appellate issue, Veach contends that the district court erred in sentencing him as
a career offender. He insists that one of the predicate convictions used to justify his career offender
status – driving under the influence (fourth offense) – is not a crime of violence and thus cannot
support the enhanced punishment imposed in this case.
Pursuant to the provisions of § 4B1.1(a) of the United States Sentencing Guidelines, a
defendant will qualify as 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 at least two prior felony convictions of either a crime of violence or a controlled
substance offense.
Veach does not dispute the facts that he was over the age of 18 when he committed the instant
offense, that one of the instant offenses of conviction (threatening to murder a federal law
enforcement officer with intent to impede the performance of official duties) can be classified as a
“crime of violence,” or that his prior conviction for manslaughter is also a “crime of violence.”
Consequently, the sole sentencing issue remaining to be resolved is whether Veach’s driving under
the influence (fourth offense) conviction also constitutes a “crime of violence” for guidelines
purposes so as to serve as the second of the required “two prior felony convictions of . . . a crime of
violence.”
No. 05-6268 United States v. Veach Page 7
The term “crime of violence” has been specifically defined in § 4B1.2(a) of the guidelines to
mean:
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.
Furthermore, application note 1 to the commentary to that provision further defines the term
by including examples of “crimes of violence.” The application note states:
“Crime of violence” includes murder, manslaughter, kidnapping, aggravated assault,
forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and
burglary of a dwelling. Other offenses are included as “crimes of violence” if (A) that
offense has as an element the use, attempted use, or threatened use of physical force
against the person of another, or (B) the conduct set forth (i.e., expressly charged) in
the count of which the defendant was convicted involved use of explosives (including
any explosive material or destructive device) or, by its nature, presented a serious
potential risk of physical injury to another.
U.S. SENTENCING GUIDELINES MANUAL § 4B1.2, comment. (n.1). Thus, considering the relevant
guidelines provision and the relevant portion of its application note, we can find Veach’s conviction
for driving under the influence (fourth offense) to be a “crime of violence” only if we determine that
the conduct involved in the commission of the offense, by its nature, presents a serious potential risk
of physical injury to another.
In arguing that a fourth offense of driving under the influence does not constitute a “crime of
violence,” Veach points the court to the United States Supreme Court’s opinion in Leocal v. Ashcroft,
543 U.S. 1, 9-10 (2004), in which the Court determined that driving under the influence is not a
“crime of violence” as that term is defined in 18 U.S.C. § 16. In that statute, however, the definition
of “crime of violence” encompasses only offenses involving the use of physical force against another
person. Indeed, in Leocal, the Court specifically noted:
[Section] 16(b) plainly does not encompass all offenses which create a “substantial
risk” that injury will result from a person’s conduct. The “substantial risk” in § 16(b)
relates to the use of force, not to the possible effect of a person’s conduct. Compare
§ 16(b) (requiring a “substantial risk that physical force against the person or property
of another may be used”) with United States Sentencing Commission, Guidelines
Manual § 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 (citations omitted). The Court thus realized that the guidelines definition of the relevant
term encompassed additional conduct that the statutory definition does not.
No. 05-6268 United States v. Veach Page 8
The defendant also directs our attention to the Eighth Circuit decision in United States v.
Walker, 393 F.3d 819 (8th Cir. 2005), analysis rejected by United States v. McCall, 439 F.3d 967,
971 (8th Cir. 2006). In that case, a sister circuit held that the Iowa offense of “operating while
intoxicated” is not a “crime of violence” for sentencing purposes because the violation does not
“otherwise involve conduct that presents a serious potential risk of physical injury to another,” as
required by § 4B1.2(a)(2) of the guidelines. See id. at 824. In reaching that conclusion, the court
employed the statutory interpretation canons of noscitur a sociis and ejusdem generis, which “provide
that the general words are construed to embrace only objects similar in nature to those objects
enumerated by the preceding specific words.” Id. Thus, according to the Eighth Circuit, the phrase
in § 4B1.2(a)(2) of the guidelines that “crimes of violence” include offenses that “otherwise
involve[ ] conduct that presents a serious potential risk of physical injury to another” brings within
the provision’s coverage only crimes similar to the previously-listed offenses of burglary, arson,
extortion, and use of explosives. See id. Because even a fourth conviction for driving under the
influence does not rise to such a level, the court refused to consider operating while intoxicated a
“crime of violence.”
Every other circuit to have addressed the issue, however, has found driving under the
influence convictions to constitute “crimes of violence.” See, e.g., United States v. Moore, 420 F.3d
1218, 1221 (10th Cir. 2005) (“Driving while intoxicated clearly presents ‘serious potential risk of
physical injury to another’ and therefore is a crime of violence under § 4B1.2(a)(2).”); United States
v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir. 2000) (“the very nature of the crime of DWI
presents a ‘serious risk of physical injury’ to others, and makes DWI a crime of violence”); United
States v. Rutherford, 54 F.3d 370, 376-77 (7th Cir. 1995) (“Drunk driving is a reckless act that often
results in injury, and the risks of driving while intoxicated are well-known. This is sufficient to
satisfy the ‘serious risk’ standard of the ‘otherwise’ clause.”). The Moore decision even explains
why the Eighth Circuit’s Walker rationale, although initially appealing, is ultimately flawed. As the
Tenth Circuit noted:
At the outset, the analysis in Walker ignores the more flexible articulation of
§ 4B1.2’s “crime of violence” definition explained in its commentary section. See
USSG § 4B1.2, cmt. n.1. There, this “or otherwise” language is removed, and the
inclusion of offenses with conduct posing a serious potential risk of physical injury
is delinked from any preceding specific sequence of offenses. Id. 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 (i.e.,
expressly charged) in the count of which the defendant was convicted involved use
of explosives (including any explosive material or destructive device) or, by its
nature, presented a serious potential risk of physical injury to another.” Id.
Moore, 420 F.3d at 1221-22.
Despite the arguments of the defendant and the Eighth Circuit to the contrary, the Moore-
DeSantiago-Gonzalez-Rutherford rationale provides the more persuasive position on this sentencing
issue. The “crime of violence” enhancement involved in this appeal is a creature of the sentencing
guidelines and, as such, should adhere to definitions and explanations set forth in that sentencing
scheme. Consequently, a conviction for driving under the influence of intoxicants can properly be
considered a “crime of violence” if it: (1) is a felony punishable by a term of imprisonment of at least
one year; and (2) involves conduct presenting a serious potential risk of physical injury to another
individual. Without question, a fourth conviction for driving under the influence is considered in
Kentucky to be a felony offense punishable by imprisonment of one to five years. See K.R.S.
§§ 189A.010(5)(d); 532.020(1)(a). Equally undisputed is the fact that driving while under the
influence of intoxicants presents, at the very least, a serious potential risk that the driver will cause
No. 05-6268 United States v. Veach Page 9
physical injury to another person. Under the sentencing system established by the guidelines,
therefore, the defendant’s fourth Kentucky conviction within a five-year period for driving under the
influence should be considered a “crime of violence” that subjects Veach to sentencing as a career
offender.
III. CONCLUSION
For the reasons set out above, we REVERSE the judgment of the district court on Counts 1
and 2 of the indictment and REMAND this case for retrial on those charges only. The remainder of
the district court’s judgment is AFFIRMED.