United States v. Larry Begay

470 F.3d 964, 2006 U.S. App. LEXIS 30494, 2006 WL 3598297

Opinions

HARTZ, Circuit Judge.

Larry Begay was sentenced to 188 months’ imprisonment after pleading guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court determined that each of Mr. Begay’s three previous felony convictions for driving while intoxicated was a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See United States v. Begay, 377 F.Supp.2d 1141 (D.N.M.2005). On appeal Mr. Begay contends that (1) felony driving while intoxicated is not a violent felony under the ACCA, and (2) the district court violated United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), in concluding that it could not impose a sentence below the Guidelines range if a sentence within that range would be reasonable. We have jurisdiction under 28 U.S.C. § 1291 and hold that (1) felony driving while intoxicated is a violent felony under the ACCA, and (2) a district court may impose a sentence outside the Guidelines range even if a sentence within the range would be reasonable. Accordingly, we affirm in part, reverse in part, and remand for re-sentencing.

I. BACKGROUND

According to the presentence report (PSR), in September 2004 Mr. Begay threatened to shoot his sister, Annie Be-gay, with a rifle if she did not give him money. When she informed him that she did not have any money, he repeatedly pulled the trigger, but the rifle did not fire. The next morning she called the Navajo Department of Law Enforcement while he was asleep. Officers responded and found a .22 caliber rifle under a mattress inside his room.

Mr. Begay pleaded guilty to being a felon in possession of a firearm, in viola tion of 18 U.S.C. § 922(g)(1). According to the PSR, Mr. Begay had 12 previous convictions for driving while intoxicated (DWI). Three of these convictions were felonies under New Mexico law, which makes the fourth and each subsequent DWI conviction a felony. See N.M. Stat. Ann. § 66-8-102(G)-(J) (1978) (“Upon a fourth conviction pursuant to this section, an offender is guilty of a fourth degree felony and ... shall be sentenced to a term of imprisonment of eighteen months.... Upon a fifth conviction ... an offender ... shall be sentenced to a term of imprisonment of two years....”). The district court determined that a felony DWI is a “violent felony” under the ACCA. With convictions for three such felonies, Mr. Begay was subject to a mandatory minimum sentence of 15 years’ imprisonment under the ACCA, see 18 U.S.C. § 924(e)(1), and his offense level under the United States Sentencing Guidelines (USSG) was 34, see USSG § 4B1.4(a) (“A defendant who is subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e) is an armed career criminal.”); id. § 4B1.4(b)(3)(A) (setting offense level for armed career criminal at 34 “if the defendant used or possessed the firearm or ammunition in connection with ... a crime of violence”). A three-level downward adjustment for acceptance of responsibility, see id. § 3E1.1, combined with Mr. Begay’s prior convictions, which placed him in criminal-history category VI, resulted in a sentencing range of 188 to 235 months.

At sentencing, Mr. Begay contended that the Guidelines range was higher than necessary to accomplish the goals set forth in the list of sentencing factors in 18 U.S.C. § 3553(a). He requested a sentence of 180 months, the minimum permitted under the ACCA. His counsel noted that Mr. Begay had been plagued by alcoholism “for the better part of his life,” and that “he has almost no other conviction other than drinking and — while driving, and also, that his DWI cases do not — have not resulted in physical injury to another.” R. Vol. Ill at 10. He also noted that Mr. Begay’s father and brother had died in a car accident and Mr. Begay “had assumed almost completely the role of caretaker in the family compound.... He was responsible for taking care of all the livestock, for hauling wood and water for the family.” Id. at 11. The district court considered each of the sentencing factors in 18 U.S.C. § 3553(a) and concluded that “in order for me to go below the guidelines, I have to make a finding that, under the sentencing factors, the sentence of 188 months is unreasonable.” Id. at 15. The court continued:

Again, taking a look at the guidelines, the way they’re formulated and how they apply, how the Sentencing Commission has formulated the calculation of the guidelines if the armed career criminal enhancement applies, I cannot make a finding that 188 months is unreasonable under 18 U.S.C., under the sentencing factors of 18 U.S.C. 3553(a).

Id. at 16. The court sentenced Mr. Begay to 188 months’ imprisonment and adjourned.

II. DISCUSSION

A. Violent Felony

1.

The relevant portion of the ACCA definition of violent felony is:

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that—

(I) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves condtict that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). To determine whether an offense is a “violent felony” under the ACCA, we follow the categorical approach set forth by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), and Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); that is, we look only to the statutory definition of the crime. See United States v. Moore, 420 F.3d 1218, 1220 (10th Cir.2005). Mr. Begay’s three felony convictions were for violations of N.M. Stat. Ann. § 66-8-102(A), which states: “It is unlawful for a person who is under the influence of intoxicating liquor to drive a vehicle within this state.” Mr. Begay contends that this crime is not a “violent felony” under the ACCA. We review questions of statutory interpretation de novo. See Moore, 420 F.3d at 1220.

Mr. Begay argues that the “otherwise” clause in § 924(e)(2)(B)(ii) embraces only offenses “that present[ ] a serious potential risk of physical injury to another” in the same way as the specifically enumerated crimes — burglary, arson, extortion, or crimes involving explosives. Because DWI is dissimilar to these enumerated crimes, he concludes, it is not a violent felony under the ACCA.

Mr. Begay cites as authority the Eighth Circuit’s opinion in United States v. Walker, 393 F.3d 819 (8th Cir.2005), overruled by United States v. McCall, 439 F.3d 967 (8th Cir.2006) (en banc). The issue in Walker was “whether Iowa’s offense of Operating While Intoxicated (‘OWI’) is a ‘crime of violence’ under the United States Sentencing Guidelines.” 393 F.3d at 820. The district court had ruled that Mr. Walker was a career offender under USSG § 4Bl.l(a), which provides that a defendant is a career offender if he “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” The Guidelines definition of crime of violence appears in USSG § 4B1.2(a):

The 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.

(emphasis added). As Walker noted, “The portions of U.S.S.G. § 4B1.2 at issue are identical to the corresponding portions of 18 U.S.C. § 924(e)(2)(B), except that the guideline provision adds the phrase of a dwelling after the word burglary.” Walker, 393 F.3d at 823. It then said, “Since the pertinent language is substantially identical, ... we will construe [the] guideline language at issue to be consistent with the corresponding language in the [ACCA].” Id. at 823.

The court began its analysis of the definition as follows:

The “otherwise” clause of § 4B1.2[(a)](2) follows an enumeration of specific crimes: burglary of a dwelling, arson, extortion, and crimes that involve the use of explosives. Where general words follow specific words in a statutory enumeration, the established interpretative canons of noscitur a sociis and ejusdem generis provide that the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words.

Id. at 824. This conclusion, the court stated, “is reinforced by the legislative history of the statute from which the guideline was derived,” the ACCA. Id. After quoting two paragraphs from the relevant Report of the House Committee on the Judiciary, it observed:

For present purposes, the most important sentence of this lengthy quotation is the last one, which states that the legislation would add “burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person.” ... Thus, the legislative history reinforces the view that the intent of the “otherwise” clause in 18 U.S.C. § 924(e)(2)(B)(ii) was to encompass crimes similar to burglary, arson, extortion, and crimes that involve the use of explosives.

Id. at 824-25 (quoting H.R.Rep. No. 99-849, at 3 (1986)).

Walker also relied on language in Leocal v. Ashcroft, 543 U.S. 1, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004), in which the Supreme Court held that the offense of driving under the influence (DUI) under Florida law was not a “crime of violence” as defined in 18 U.S.C. § 16, and therefore not an “aggravated felony” under § 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F). Section 16 defines crime of violence as

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The court in Walker quoted the following from Leocal:

In construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of the term “crime of violence.” The ordinary meaning of this term, combined with § 16’s emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses. Cf. United States v. Doe, 960 F.2d 221, 225 (1st Cir.1992) (Breyer, C.J.) (observing that the term “violent felony” in 18 U.S.C. § 924(e) ... “calls to mind a tradition of crimes that involve the possibility of more closely related, active violence”). Interpreting § 16 to encompass accidental or negligent conduct would blur the distinction between the “violent” crimes Congress sought to distinguish for heightened punishment and other crimes.

Leocal, 543 U.S. at 11, 125 S.Ct. 377. Deeming it particularly important that the Supreme Court had “cited with approval [a] passage from then Chief Judge Breyer’s opinion in Doe stating that drunk driving should not be considered as a ‘violent felony’ under 18 U.S.C. § 924(e),” the court in Walker quoted the pertinent passage from the future Justice’s opinion holding that possession of a firearm is not a “violent felony” under the ACCA:

[T]o read the statute ... to cover firearm possession [ ] would also bring within the statute’s scope a host of other crimes that do not seem to belong there. To include possession [of a firearm], one would have to focus upon the risk of direct future harm that present conduct poses. But how could one then exclude, say, drunken driving or unlawful transportation of hazardous chemicals or other risk-creating crimes very unlike the burglary, arson, extortion, and explosives use that the statute mentions? There is no reason to believe that Congress meant to enhance sentences based on, say, proof of drunken driving convictions. Rather, we must read the definition in light of the term to be defined, “violent felony,” which calls to mind a tradition of crimes that involve the possibility of more closely related, active violence.

Walker, 393 F.3d at 826 (ellipsis and brackets in Walker) (quoting Doe, 960 F.2d at 225).

The Walker court reasoned: “It is common sense that OWI is not the same kind of offense as the crimes specifically listed in U.S.S.G. § 4B1.2(a)(2).... The latter are hostile, aggressive acts. They create a significant risk of violent confrontation between the criminal and the victim or the law enforcement officer.” Id. at 825. It concluded, “Since drunken driving — or more precisely, operating while intoxicated — is very unlike the crimes specifically named in § 4B1.2(a)(2), under the rule of ejusdem generis, OWI is not encompassed by the general language that follows.” Id. at 826.

Finally, Walker stated that its interpretation of the definition of crime of violence complied with “the elementary canon of construction that a statute should be interpreted so as not to render one part inoperative.” Id. (internal quotation marks omitted).

Here, the government construes U.S.S.G. § 4B1.2(a)(2) to encompass all conduct that presents a serious potential risk of physical injury to another. That construction not only ignores the list of specific crimes that precede this general language and therefore modify it, that construction also would render the list of specific crimes redundant or superfluous.

Id. at 827. In addition, said the court, the government’s interpretation would

render superfluous the distinction in § 4B1.1(a) and § 4B1.2 between a felony that is a crime of violence and a felony that is a controlled substance offense .... On the government’s argument, the inclusion of controlled substance offenses as separately named predicate offenses for career offender status would be superfluous because those offenses involve a substantial risk of physical injury to another and therefore would be included in the “otherwise” provision of § 4B1.2(a). Our interpretation of § 4B1.2(a)(2), however, preserves the distinction between subsections (a)(1), (a)(2), and (b); and it avoids a construction that renders any part of § 4B1.2 superfluous.

Id. Mr. Begay raises these same arguments in hope that this court will reach the same conclusion.

The government contends that we are bound by our rejection of Walker in Moore, 420 F.3d at 1221-22. Moore held that “felony [driving under the influence] is a crime of violence under USSG § 4B1.2.” Id. at 1220. “Driving while intoxicated,” we stated, “clearly presents a ‘serious potential risk of physical injury to another.’ ” Id. at 1221. If we were addressing whether DWI is a “crime of violence” under § 4B1.2 of the Guidelines, the Government would be correct. But on this appeal we are not applying that guideline; rather, we are construing a provision under the ACCA.

At first blush this seems to be a distinction without a difference, because the lan guage we are considering is virtually identical to the language considered in Moore. Moore, however, relied on more than the plain language of § 4B1.2. It also pointed to commentary to that Guidelines provision. We observed that “the analysis in Walker ignores the more flexible articulation of § 4B1.2’s ‘crime of violence’ definition explained in its commentary section.” Id. We noted that in that commentary,

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. 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 “[ojther 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. at 1221-22 (internal citation omitted). Ordinarily, such “commentary is a binding interpretation of the phrase ‘crime of violence’ ” in the Guidelines. Stinson v. United States, 508 U.S. 36, 47, 113 S.Ct. 1913, 123 L.Ed.2d 598 (1993). But, of course, Guidelines commentary is not binding with respect to the ACCA, even if the language in that statute is identical to Guidelines language interpreted in the commentary. Thus, Moore is not controlling.

Nevertheless, we believe that Moore’s construction of § 4B1.2 is also correct for the ACCA. We reach the same conclusion as the en banc decision of the Eighth Circuit in McCall, 439 F.3d at 969, which overturned Walker, and the decisions of the other circuits to address the language at issue, see United States v. Sperberg, 432 F.3d 706 (7th Cir.2005) (felony DWI is a violent felony under the ACCA), United States v. DeSantiago-Gonzalez, 207 F.3d 261, 264 (5th Cir.2000) (DUI is a crime of violence under USSG § 4B1.2(a)(2)); United States v. Veach, 455 F.3d 628 (6th Cir.2006) (same); United States v. McGill, 450 F.3d 1276, 1280 (11th Cir.2006) (same).

McCall addressed “whether a felony DWI conviction in Missouri is a violent felony under the ‘otherwise involves’ provision in § 924(e)(2)(B)(ii).” 439 F.3d at 969. The court rejected Walker’s reliance on Leocal, noting that Leocal

held that the plain language of [18 U.S.C.] § 16(b) ... limits that statute to “violent, active crimes” because the word “used” incorporates a mens rea component and thus requires that an offender’s conduct be more than “merely accidental or negligent.” By contrast, as the Leocal opinion noted, [543 U.S.] at 10 n. 7, 125 S.Ct. 377 ¹, the “otherwise involves” provision in § 924(e)(2)(B)(ii) is not so limited. It focuses on “conduct that presents a serious potential risk of physical injury to another,” not on the intent of the offender.

Id. at 971.

The McCall court also thought that Walker’s reliance on noscitv/r a sociis and ejusdem generis was misplaced, because “[w]hen a statute’s plain language is this clear, it is controlling, ... without the need to refer to [these] canons of construction .... ” Id. Likewise, it said, “contrary hints in the legislative history” could not overcome the clear statutory language, id., and in any event, that history undermines, rather than supports Walker’s reliance on canons of construction. McCall explained:

[T]he enumerated crimes and the word “otherwise” were added to the “involves conduct” language. The form of the addition made the “otherwise involves” provision look like a catchall when in fact it was initially the operative provision. Adding the enumerated crimes served the obvious purpose of including all prior convictions for those crimes (burglary, arson, extortion, use of explosives), regardless of whether they present a serious potential risk of physical injury. Given this drafting sequence, it is wrong to infer that Congress intended to limit the “otherwise involves” provision to offenses that are similar to the enumerated add-ons.

Id. (internal citation omitted). (This circuit relied on this same legislative history in United States v. King, 979 F.2d 801, 803 (10th Cir.1992), to declare that the crimes covered by the “otherwise” clause were not restricted to property crimes.)

Finally, addressing the First Circuit’s opinion in Doe, McCall stated: “[T]hough we give due regard to contrary dicta in Doe which cautioned against construing the ‘otherwise involves’ provision to include risk-creating crimes ‘that do not seem to belong there,’ we conclude that we must construe the provision consistent with its plain language.” Id. (internal citation omitted). Thus, the court concluded that “a violent felony within the meaning of § 924(e)(2)(B)(ii) includes any crime whose - elements involve conduct that necessarily presents a serious potential risk of physical injury to another.” Id.

2.

We agree with the holdings of McCall and the Seventh Circuit in Sperberg. First, DWI is encompassed by the natural meaning of the statutory language “any crime ... that ... involves conduct that presents a serious potential risk of physical injury to another.” DWI certainly presents such a risk. Many would say that the gravest risk to their physical safety from criminal misconduct is from drunken drivers. When the dissent states that its construction of § 924(e) captures “ordinary meaning,” it is apparently referring not to the meaning of the above-quoted language but to the term defined by that language — namely, violent felony. Surely, however, we should look to the statutory definition of the term and begin with the ordinary meaning of that language rather than with the “ordinary meaning” of the term that Congress thought it advisable to define. Even less should we rely on the short title of the statute, “The Armed Career Criminal Act.” The term armed career criminal appears nowhere in the United States Code, not even in the heading to any codified provision. It would be rather unusual, and disrespectful to legislative drafting, to let such a title override statutory language. The Racketeer Influenced and Corrupt Organizations chapter of the Criminal Code, 18 U.S.C. §§ 1961 et seq., is not interpreted by restricting its reach to entities that are described by the ordinary meaning of the title; instead, courts refer to the statutory language. We should do likewise here.

3.

Second, statutory purpose does not suggest a different definition. Section 924(e) is a punishment provision. It states that particularly severe sentences should be imposed on certain violators of 18 U.S.C. § 922(g) (which prohibits the possession of firearms by various classes of people, including, and typically, convicted felons)— namely, those who have repeatedly committed “violent felonies.” But how to define such felonies for this purpose?

It is revealing that Congress could have adopted the same language that appears in the definition of crime of violence in the very same statutory section, 18 U.S.C. § 924(c)(3). (This statutory definition of crime of violence was added by Pub.L. No. 99-308 on May 19, 1986; it is a slight variation of the definition of crime of violence in 18 U.S.C. § 16, which was enacted in 1984. The definition of violent felony was added by Pub.L. No. 99-570 on October 27, 1986.) The definition of crime of violence is:

an offense that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial i’isk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). A detailed examination of the differences between the definitions of crime of violence and violent felony is less important than the observation that there are differences. The reason for the differences must be that the definitions serve distinct purposes. The definition in § 924(c) was used to create a criminal offense. Under § 924(c)(1)(A), “any person who, during and in relation to any crime of violence ..., uses or carnes a firearm, or who, in furtherance of any such crime, possesses a firearm” is subject to punishment for a separate offense with a minimum sentence of five years’ imprisonment. In other words, when someone while committing a “crime of violence” uses or carries a firearm or possesses a firearm in furtherance of that crime, then that person has violated § 924(c). Undoubtedly, Congress defined crime of violence in this context to capture those crimes in which the danger is magnified by the firearm. It is not surprising that DWI is not a “crime of violence,” because a firearm in the car does not increase the danger from the DWI offense. The dissent’s view of violent felony would seem to conform to the purpose for defining crime of violence as it appears in § 924(c).

But the term violent felony serves a different purpose. The definition of violent felony in § 924(e)(2)(b) is used to identify persons who should be sentenced to very long terms for their present offense (possession of a firearm by a convicted felon) because of their criminal history. One may disagree with the choice, but it seems perfectly reasonable to include within the definition those who have a confirmed history of displaying contempt for human life or safety — those who, in the statutory language, have repeatedly committed felonies “involving] conduct that presents a serious potential risk of physical injury to another.” From this perspective, there is nothing remarkable about including felony DWI as a “violent felony.”

In that regard, it is significant that the five circuits to address the issue have held that the term crime of violence in the Sentencing Guidelines, USSG § 4B1.2(a), which is defined identically to the term violent felony in § 924(e) (and, ironically, not identically to the statutory definition of crime of violence in § 924(c)) encompasses DWI. To be sure, as already noted above, our construction of § 924(e) is not controlled by our decision in Moore, 420 F.3d 1218, interpreting USSG § 4B1.2(a), because Moore relied, at least in part, on Sentencing Commission commentary to the definition- — commentary which is ordinarily binding in interpreting the Guidelines. Nevertheless, one may well ask why the Sentencing Commission apparently adopted a definition in this context broad enough to include felony DWI. And the answer must again lie in the context; the Sentencing Commission was considering what type of criminal history indicates that a person is so dangerous that a long term of incarceration is appropriate, regardless of the present offense of conviction. That is essentially the same context for which Congress defined violent felony. The Sentencing Commission’s expertise on sentencing issues counsels us to defer to its construction of the same language confronting us in this case, even though the formal grounds for deference are inapplicable.

Thus, both the natural meaning of the statutory language and the apparent statutory purpose support a construction of the term violent felony to include felony DWI. Neither the legislative history nor canons of construction persuade otherwise. The only legislative history referred to by disputants on this issue is, as usual, of little help, nor do canons of construction assist in distinguishing between the constructions of the statutory language embraced by the parties on this appeal.

The legislative history relied upon by the opposing opinions in the Eighth Circuit’s McCall case is a statement in a report by the House Committee on the Judiciary:

[One] major question involved in these hearings was as to what violent felonies involving physical force against propeHy should be included in the definition of “violent” felony. The Subcommittee agreed to add the crimes punishable for a term exceeding one year that involve conduct that presents a serious potential risk of physical injury to others. This will add State and Federal crimes against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person.

H.R.Rep. No. 99-849, at 3 (1986). To begin with, it is worth noting that the committee report does not say that the definition includes only the enumerated and similar crimes. The emphasis placed in legislative history on one effect of a statute does not mean that it has no others. For example, when Congress imposed limits on civil-rights suits by prisoners, Members repeatedly noted problems caused by suits challenging prison conditions. Nevertheless, the statutory language compelled us also to apply those limits on other civil-rights claims. Cf. Robbins v. Chronister, 435 F.3d 1238 (10th Cir.2006) (rejecting contention that it would be absurd to apply the provision to civil-rights claim that arose before prisoner was incarcerated).

More importantly, the quoted committee report did not address the final language of the statute, but rather the version before addition to § 924(e)(2) of the language “is burglary, arson, or extortion, involves use of explosives, or otherwise” (what I will call the “specific language”). In other words, it referred only to the language “involves conduct that presents a serious potential risk of physical injury to another” (what I will call the “general language”). One can speculate from this history either (1) that the addition of the specific language was to make clear (in case one disagreed with the committee report’s view of the general language) that the term violent felony encompassed the newly listed offenses, from which one can infer that the general language is to be read broadly as not being limited to crimes like the newly added offenses (the view of the McCall majority) or (2) the addition of the specific language was to suggest that the general language should be read narrowly to encompass only offenses similar to the newly listed ones (the view of the McCall dissent). I think the McCall majority view is the more plausible, but it is impossible to know. This ambiguous history is not particularly persuasive either way.

Nor are canons of construction — in particular, ejusdem generis and noscitur a sociis — helpful in this case. These two canons state that a term in a series should be understood in a limited sense that the term shares with the others in the series. The word to be so limited in the phrase “conduct that presents a serious potential risk of physical injury to another” is the word conduct. But how is the meaning of conduct to be limited? The statute itself says that the conduct must “presentf] a serious potential risk of physical injury to another.” One could certainly say that this limitation is also a feature, perhaps the essential common feature, of the enumerated crimes: burglary, arson, extortion, and crimes involving the use of explosives. But the dissent would be more restrictive. “Each of the[] enumerated crimes,” it says, “involves violent, aggressive conduct.” Dissent Op. 980. It is questionable, however, whether opening an unlocked front door to a home for the purpose of committing larceny is “violent” conduct (and if not, should burglary count only if committed in a “violent” manner?); and one could reasonably describe felony DWI as both “violent” and “aggressive.” It is important to recognize the rather limited role of the ejusdem and noscitur canons in the enterprise of statutory construction. The Supreme Court appears to reject their application as often as it embraces them. See, e.g., Garcia v. United States, 469 U.S. 70, 105 S.Ct. 479, 83 L.Ed.2d 472 (1984) (rejecting application of ejusdem generis when terms in series are each separated by “or”). And when it embraces them, one wonders whether they are critical to the Court’s reasoning or makeweight additions to an argument based on deeper principles. Whatever the value of these two canons, they cannot be used to make fine distinctions regarding what common features of terms in a series should be imposed on a more general term in the series. I do not see how these canons can inform us that the word conduct should be restricted any more than it is by the statute’s modifying phrase “that presents a serious potential risk of physical injury to another.”

Moreover, there is a particularly compelling reason not to apply these two canons in this case. The statutory language at issue defines violent felony as “any crime punishable by imprisonment for a term exceeding one year ... that ... is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B) (emphasis added). Mr. Be-gay contends that “conduct that presents a serious potential risk of physical injury to another” should be interpreted as restricted to conduct like burglary, arson, etc. But the primary definition of otherwise is “in a different way or manner.” Webster’s Third New International Dictionary 1598 (2002). Thus, the otherwise clause is best understood not as saying “conduct that presents (in the same way that burglary, arson, etc., do) a serious risk of physical injury to another,” but rather “conduct that presents (in a manner different from burglary, arson, etc.) a serious risk of physical injury to another.” The use of otherwise in the statute negates the two canons.

In sum, the ordinary, natural meaning of § 924(e)(2)(B) encompasses DWI. Although other considerations can, and do, override ordinary meaning in some circumstances, I am not persuaded that such circumstances are present here. I therefore would apply ordinary meaning and reject Mr. Begay’s argument. See Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194, 105 S.Ct. 658, 83 L.Ed.2d 582 (1985) (“Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose.”)

B. Reasonableness of Sentence

Mr. Begay contends that the district court violated Booker at sentencing when it stated that it could not impose a sentence below the Guidelines range unless a sentence within that range would be unreasonable. Counsel for Mr. Begay had requested a sentence of 180 months and proffered several reasons why such a sentence would fulfill the purposes of sentencing set forth in 18 U.S.C. § 3553(a). After hearing these arguments, the court stated:

Now, in order at this point and noting the defendant’s continuing objection, the low end of the guideline — applicable guideline range is 188 months. The statutory minimum is 180 [months], and so in order for me to go below the guidelines, I have to make a finding that, under the sentencing factors, the sentence of 188 months is unreasonable.

Again, taking a look at the guidelines, the way they’re formulated and how they apply, how the Sentencing Commission has formulated the calculation of the guidelines if the armed career criminal enhancement applies, I cannot make a finding that 188 months is unreasonable under 18 U.S.C., under the sentencing factors of 18 U.S.C. § 3553(a).

Therefore, the sentence imposed, the defendant will be committed to the custody of the Bureau of Prisons for a term of 188 months.

R. Vol. III at 15-16. The court then addressed the terms of supervised release, imposed a fine, notified Mr. Begay of his right to appeal, and adjourned the hearing.

1. Merits

We agree with Mr. Begay that the district court erred. In Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621, the Supreme Court held that mandatory application of the Guidelines violated the Sixth Amendment. To remedy the violation, it made the Guidelines advisory. Appellate review of a sentence would henceforth be for “unreasonableness.” Booker, 543 U.S. at 261-62, 125 S.Ct. 738. In other words, so long as the district court’s sentence is reasonable, we will affirm it. See United States v. Kristi, 437 F.3d 1050, 1053-54 (10th Cir.2006).

Although the Guidelines “continue to be the ‘starting point’ for district courts and for this court’s reasonableness review on appeal,” United States v. Terrell, 445 F.3d 1261, 1264 (10th Cir.2006), they impose no rigid boundaries on what sentences are permissible. In any given case there could be a range of reasonable sentences that includes sentences both within and outside the Guidelines range. Booker and § 3553(a) do not require the district court to limit itself to those reasonable sentences within the Guidelines range. The court may impose a non-Guidelines sentence if the sentencing factors set forth in § 3553(a) warrant it, even if a Guide lines sentence might also be reasonable. The district court misconceived Booker when it said otherwise.

2. Relief/Preservation

Having determined that the district court erred, we must next resolve whether Mr. Begay is entitled to relief. He failed to object in district court to the court’s error. Ordinarily, this failure would require that we limit our review to plain error, see United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.2005) (en banc), so that we could set aside Mr. Begay’s sentence only if he demonstrates that “there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings,” id. (internal quotation marks omitted). In this case, we doubt that Mr. Begay could surmount the final requirement. See id. at 736-37.

Nevertheless, in certain circumstances we have excused a defendant’s failure to object to an error by the district court when imposing sentence. We have relied on the provision in Fed.R.Crim.P. 51(b) that states, “If a party does not have the opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.” Mr. Begay argues: “The district court did not explain until it announced Mr. Begay’s sentence that it would not impose a sentence below the guideline range unless it found the guideline range to be unreasonable. Thus, the error was not apparent until it was too late to object.” Aplt. Br. at 33.

In support of his position Mr. Begay cites United States v. Bartsma, 198 F.3d 1191 (10th Cir.1999). In Bartsma the district court imposed a special condition of supervised release without giving notice to the defendant. The defendant did not object to the condition, but this court ruled that the issue had not been waived. We stated:

Mr. Bartsma had no notice the district court was considering the special condition until the court stated its tentative sentence near the beginning of the sentencing hearing.... [T]he complete lack of notice made it impossible for the parties to anticipate the nature of the special condition and short-circuited the significance of any opportunity to comment.

Bartsma, 198 F.3d at 1198; accord United States v. Bruce, 458 F.3d 1157, 1166-67 (10th Cir.2006). Although the sentencing error in this case was not imposition of a special condition of supervised release, it was an error that Mr. Begay would have had no reason to anticipate. Cf. United States v. Barajas, 331 F.3d 1141, 1144 (10th Cir.2003) (issue was not preserved when “defense counsel had constructive notice that the challenged conditions of release might be imposed” and failed to object); United States v. Lopez-Flores, 444 F.3d 1218, 1220-21 (10th Cir.2006) (reviewing for plain error the defendant’s claim that his sentence was unreasonable because the district court did not justify it under the § 3553(a) factors). Nothing in the record suggests that Mr. Begay should have been prepared for the district court’s novel interpretation of Booker. Indeed, the government makes no attempt to distinguish Bartsma. Accordingly, we will follow Bartsma in excusing Mr. Begay’s failure to object to the district court’s error at the time of pronouncing sentence.

We must reverse and remand for resentencing unless the government can establish that the error was harmless. See Fed.R.Crim.P. 52(a). But the government fails to argue harmless error. Nor could it do so successfully. The sentence imposed was at the bottom of the Guidelines range. We cannot say whether the district court would have imposed the same sentence if it had properly understood the post -Booker legal landscape. This “places us in the zone of speculation and conjecture.” United States v. Labastida-Segura, 396 F.3d 1140, 1143 (10th Cir.2005). Thus, remand is required so that the district court can determine whether it should impose a lower sentence, even though a sentence within the Guidelines range may indeed be reasonable.

III. CONCLUSION

We AFFIRM the district court’s ruling that Mr. Begay is subject to a mandatory minimum sentence under 18 U.S.C. § 924. We REVERSE and REMAND for resen-tencing in light of our holding that the district court violated Booker at sentencing.

Footnotes

1

. Footnote 7 in Leocal states:

Thus, § 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 [USSG] § 4B1.2(a)(2) ... (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.