In U.S. v. McGill, No. 05-10285 (June 1, 2005), the Court (Dubina, Marcus, Cox) held that prior Alabama DUI convictions qualified as "crimes of violence" for the purpose of assigning a higher base offense level under USSG § 2K2.1(a)(2) to a sentence for being a felon in possession of a firearm.
The Court noted that the Guideline define a "crime of violence" as one punishable by more than a year of imprisonment and, inter alia, which "otherwise involves conduct that presents a serious potential risk of physical injury to another." The Court found that driving intoxicated met this definition. The Court also found that its decision was not controlled by Leocal v. Ashcroft, 542 U.S. 1 (2004), which did not involve a DUI categorization under the "crime of violence" definition in the Guidelines. The Court also noted that Alabama makes a felony the fourth and subsequent DUIs, and thus McGill’s prior DUIs counted as qualifying felonies because he had five prior DUIs. The Court also rejected the argument that mere control over the vehicle, without its operation, would make a DUI less of a "crime of violence" for sentence-enhancement purposes.
