In this appeal, Devin Jennings challenges the district court's denial of his motions to suppress evidence and the district court's determination that he was subject to a fifteen-year mandatory mini mum sentence under 18 U.S.C. § 924(e), the Armed Career Criminal Act ("ACCA"). Jennings entered a conditional guilty plea to charges of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. § 922(k). He was sentenced to a fifteen-year term of imprisonment for the felon-in-possession charge, and a five-year concurrent sentence for the second charge.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm Jennings' conviction, but vacate his sentence. We conclude that Jennings did not suffer a violation of his Fourth or Fifth Amendment rights; thus, the challenged evidence was properly held to be admissible. We further conclude, however, that Jennings did not qualify for a fifteen-year mandatory minimum sentence under the ACCA because he has not suffered three prior convictions for "violent felonies" within the meaning of 18 U.S.C. § 924(e)(2)(B).
In August 2003, Jennings was released from Washington state prison after serving seventeen months for attempting to elude a pursuing police vehicle. After his release, Jennings was under community supervision by the Washington State Department of Corrections.
In March 2004, Seattle police found photographs in an impounded car that showed Jennings holding a handgun in February 2004. Jennings' prior felony convictions barred him from possessing a firearm under state and federal law, and a condition of his supervised, release included the same restriction. The photos prompted Jennings' community corrections officer, Steven Lambert, to request a Department of Corrections felony warrant for Jennings' arrest. Later that month, Lambert and Seattle police encountered Jennings on a public street and arrested him. During a search incident to the arrest, the officers found a loaded handgun in Jennings' waistband.
Jennings was initially charged with unlawful possession of a firearm under Washington law, and assigned a public defender as counsel for that proceeding. However, a federal criminal complaint was subsequently filed against Jennings, and the state charge was dismissed. On May 7, 2004, two federal Bureau of Alcohol, Tobacco, and Firearms ("ATF") agents arrested Jennings at the King County Jail in. Seattle in order to transfer him to federal custody.
At the jail, the ATF agents introduced themselves to Jennings, told him they had a federal warrant for his arrest, and asked if he had any personal property:
Jennings moved to suppress the firearm seized during his arrest by Seattle police as the product of an illegal arrest, and to suppress the statements he made to the ATF agents as obtained in violation of the Fifth and Sixth Amendments. The district court denied both motions after an evidentiary hearing. The court found that the arrest was valid based on legal authority under Wash. Rev.Code § 9.94A.631 and/or § 9.94A.740. It also found that Jennings' statements were not obtained in violation of his constitutional rights, because Jennings had initiated the conversation with the ATF agents and because his subsequent waiver of his. Miranda rights was valid.
In a superseding indictment, Jennings was charged in Count One with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and qualifying as an armed career criminal under 18 U.S.C. § 924(e)
Jennings filed a motion to dismiss the armed career criminal allegation, which the district court denied. It held that both Jennings' 1995 theft conviction and his 2002 eluding police conviction were "violent felonies" and thus predicate offenses under 18 U.S.C. § 924(e), because court documents regarding Jennings' guilty pleas in both cases showed that Jennings admitted to conduct that presented a "serious potential risk of physical injury to
Jennings then pleaded guilty to Counts One and Two, reserving his right to contest his classification as an armed career criminal for sentencing purposes and the right to appeal the denial of his suppression motions. At sentencing, the court again found that Jennings qualified as an armed career criminal, and sentenced him to the mandatory minimum sentence of 180 months' imprisonment under 18 U.S.C. § 924(e)(1) for Count One, and to a concurrent sentence of 60 months' imprisonment for Count Two. This appeal followed.
Jennings first argues that his arrest in March 2004 was illegal under Washington state law because it was based on an invalid arrest warrant issued by his community corrections officer. He contends that his arrest was therefore unreasonable under the Fourth Amendment and that the firearm recovered from him during the arrest should be suppressed as the fruit of an unlawful search. See United States v. Mota, 982 F.2d 1384, 1388-89 (9th Cir.1993) (holding a search incident to arrest unconstitutional where the arrest itself was not authorized by state law). We review de novo whether a search or seizure was lawful. United States v. Morales, 252 F.3d 1070, 1073 (9th Cir.2001).
In this case, we need not address the validity of the warrant because Washington law authorized Jennings' arrest even without a warrant, on two distinct grounds. See United States v. Cox, 475 F.2d 837, 841 n. 2 (9th Cir.1973) ("[I]f the arresting officer himself originally had ample probable cause to arrest, the invalidity of the warrant would not be fatal to the government's cause."). First, Washington law authorizes community corrections officers, such as Lambert, to arrest or cause the arrest without a warrant of their supervisees for violations of their conditions of supervision. Wash. Rev.Code §§ 9.94A.631, 9.94A.740(1). The photographs of Jennings brandishing a handgun which was clearly loaded gave Lambert ample basis to believe that Jennings had violated the conditions of his supervision. Second, Washington police officers possess statutory authority to make. warrantless public arrests for felonies. Wash. Rev. Code § 10.31.100. Officer Cobane, one of the arresting Seattle police officers, had seen the photographs and knew that Jennings had prior felony convictions. This knowledge gave the officer probable cause to arrest Jennings for, the crime of being a felon in possession of a firearm (a felony under both state and federal law). See Wash. Rev.Code § 9.41.010(11)-(12); Wash. Rev.Code § 9.41.040(1); see also 18 U.S.C. § 922(g)(1).
Jennings' argument that his arrest was invalid under Washington law, and that the resulting search was unreasonable under the Fourth Amendment, fails. The district court did not err in denying his motion to suppress the fruits of the search incident to his arrest.
Jennings also contends that the district court should have suppressed the statements he made to the ATF agents on May 7, 2004, because those statements were obtained in violation of his rights under the Fifth Amendment. Jennings argues that because he was represented by counsel at that point, the federal agents
Under Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), a suspect in custody who has "expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." In Oregon v. Bradshaw, 462 U.S. 1039, 1045-46, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), a plurality of the Supreme Court found that the defendant had initiated further communication by asking police, during a transfer from the police station to jail, "What is going to happen to me now?" Because the question "evinced a willingness and a desire for a generalized discussion about the investigation . . . [and] was not merely a necessary inquiry arising out of the incidents of the custodial relationship," the plurality concluded that the Edwards rule had not been violated.
Here, the undisputed evidence shows that Jennings initiated the conversation regarding his case by bringing up the subject of the gun and the missing serial number to the agents.
As the Edwards rule against police-initiated communications does not apply, we must determine whether Jennings validly waived his Fifth Amendment rights by evaluating whether Jennings'"waiver [was] made voluntarily, knowingly and intelligently." Miranda, 384 U.S. at 444, 86 S.Ct. 1602; see also Bradshaw, 462. U.S. at 1046, 103 S.Ct. 2830. The evidence shows that the agents administered the necessary warnings under Miranda, and Jennings has not argued that his waiver was involuntary. Moreover, Agent Korn's response to Jennings' initial statements—"Let me read your Miranda rights, and then you can tell us your side of the story"—was not coercive, leaving Jennings with the option of continuing the conversation or not, as he desired. We therefore conclude that Jennings' Fifth Amendment rights were not violated; consequently, there was no basis for suppressing his statements to the ATF agents.
Jennings would ordinarily have faced a statutory maximum sentence of ten years for the offense of being a felon in possession of a firearm under 18 U.S.C. § 922(g). See 18 U.S.C. § 924(a)(2). Under the ACCA, however, a person convicted of violating 18 U.S.C. § 922(g) faces a mandatory minimum sentence of fifteen years if he has three previous convictions for "a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). The burden is on the government to show that the defendant has three qualifying offenses. United States v. Franklin, 235 F.3d 1165, 1172 (9th Cir. 2000). A "violent felony" includes "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)(ii).
Here, the district court found that both Jennings' 2002 eluding police conviction and his 1995, theft conviction qualified as violent felonies because they involved "conduct that presents a serious potential risk of physical injury to another." Jennings argues that the district court was incorrect as to both convictions. We review de novo whether a conviction is a predicate felony under § 924(e). United States v. Smith, 390 F.3d 661, 663 (9th Cir.2004), amended by 405 F.3d 726 (9th Cir.), cert. denied, 546 U.S. 905, 126 S.Ct. 252, 163 L.Ed.2d 230 (2005).
To determine whether a prior conviction qualifies as a violent felony under 18 U.S.C. § 924(e), we apply the "categorical approach" outlined by the Supreme Court in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Under that approach, we initially evaluate whether a defendant's prior conviction corresponds to an offense enumerated as a violent felony in § 924(e)(2) by examining only "the fact of conviction and the statutory definition of the prior offense." Id. at 602, 110 S.Ct. 2143. Where the statute of conviction is overinclusive, criminalizing some conduct that would qualify as a predicate offense and other conduct that would not, Taylor authorizes courts to "go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of [the enumerated offense]." Id. In such cases, we employ the "modified categorical approach" and examine the charging paper and jury instructions to determine whether the defendant was necessarily convicted of an offense corresponding to one listed in § 924(e)(2). Id.
In Shepard v. United States, 544 U.S. 13, 19, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the Court affirmed that the Taylor categorical and modified categorical approaches apply to prior convictions obtained through guilty pleas. The Court held that in applying the modified categorical approach to pleaded convictions, courts were limited to examining "the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or . . . some comparable judicial record of this information." Id. at 26, 125 S.Ct. 1254. By contrast, courts may not review police reports, complaint applications, and similar documents. Id. at 16, 21-23, 125 S.Ct. 1254.
Preliminarily, Jennings contends that there is constitutional doubt as to whether a district court may determine
Jennings was convicted of theft under Wash. Rev.Code § 9A.56.030(1)(b), which states: "A person is guilty of theft in the first degree if he or she commits theft of . . . [p]roperty of any value . . . taken from the person of another." We have previously held that the crime of grand theft from a person under California law categorically constitutes a violent felony under the ACCA. United States v. Wofford, 122 F.3d 787, 794 (9th Cir.1997). The statute at issue in Wofford defined the offense as "theft committed . . . when the property is taken from the person of another." Id. at 792 (quoting Cal.Penal Code § 487(2)). We now hold that the crime of first degree theft from a person under Washington law also categorically constitutes a violent felony under the ACCA.
Despite Wofford and the facial similarity between the California and Washington definitions of theft from the person of another, Jennings argues that an offense under Wash. Rev.Code § 9A.56.030(1)(b) is not categorically a crime of violence. Jennings attempts to distinguish Wofford by arguing that the Washington offense of theft from the person, unlike the California offense considered in Wofford, may not require that the property "be in some way actually upon or attached to the person, or carried or held in actual physical possession." Cf. Wofford, 122 F.3d at 792 (discussing California case law); James O. Pearson, Jr., Annotation, What Constitutes "Larceny From a Person", 74 A.L.R.3d. 271 (1976 & Supp.) ("[T]he courts have split, one group taking
A recent Washington case, however, forecloses Jennings' argument that Washington may interpret "from the person of another" more broadly than California. In State v. Nam, 136 Wn.App. 698, 150 P.3d 617, 621 (2007), the court interpreted the term "from the person" in Washington's robbery definition, Wash. Rev. Code § 9A.56.19, to mean "something on or attached to a person's body or clothing." The court concluded that the state failed to meet its burden of proving that a defendant took something "from [the victim's] person" when, in attempting to show that the defendant robbed the victim of her purse, the state presented evidence only that the defendant took a purse sitting next to the victim on the passenger seat of the car, but no evidence that the purse was attached to the victim at any point during the encounter. Id.
We see no basis to conclude that the Washington courts would depart from this interpretation of the phrase "from the person" in the context of applying the theft statute. Thus, we conclude that theft from the person of another under Washington law means theft of "something on or attached to a person's body or clothing." This definition is indistinguishable from the California definition of grand theft at issue in Wofford; therefore, Wofford's holding directly controls. We hold that first degree theft from a person under Wash. Rev.Code 9A.56.030(1)(b) is categorically a violent felony under the ACCA.
Under our binding precedent, Jennings' conviction for attempting to elude a pursuing police vehicle under Wash. Rev.Code § 46.61.024 is not cate-gorically a violent felony.
Jennings, however, argues that we should not use the modified categorical approach when we are inquiring whether a crime is one that "otherwise involves conduct that presents a serious potential risk of physical injury to another" under 18 U.S.C. § 924(e)(2)(B)(ii). Jennings also argues that, even if we do apply the modified categorical approach, the judicially noticeable documents regarding his eluding police conviction do not establish that the conviction was in fact for conduct presenting a serious potential risk of physical injury to others. We reject Jennings' first argument, but find it unnecessary to reach the second.
1. Applicability of the Modified Categorical Approach to the "Otherwise" Clause of 18 U.S.C. § 924( e)(2)(B)(ii)
We conclude that generally the modified categorical approach may be applied in determining whether a conviction qualifies as a violent felony under § 924(e)(2)(B)(ii)'s "otherwise" clause (sometimes termed the catchall clause). In the past, we have expressed doubt as to whether the modified categorical approach applies to the catchall clause in U.S.S.G. § 4B1.2(a), as well as in § 924(e)(2)(8)(ii).
This uncertainty can be traced to Parker, in which we noted that Ninth Circuit precedent required a strict categorical approach to characterizing convictions as predicate offenses under the ACCA, looking only to the statutory elements and the fact of conviction. We then suggested that Taylor might have overruled that precedent to permit a modified categorical approach only in evaluating offenses potentially corresponding to the generic crime of burglary. Parker, 5 F.3d at 1325-26 ,(discussing United States v. Sherbondy, 865 F.2d 996 (9th Cir.1988)). We ultimately avoided ruling on whether the modified categorical approach applied to the catchall clause of § 924(e)(2)(13)(ii) because we concluded that even assuming that the modified categorical approach applied, the
The reasons we originally suggested in Parker for interpreting Taylor narrowly, and restricting the modified categorical approach to convictions potentially corresponding to the generic offense of burglary, are no longer particularly strong ones in light of subsequent developments. The first reason given in Parker was that "nothing in Taylor suggests that the Court intended to approve a general departure [from the strict categorical approach] in all cases." 5 F.3d at 1326. Since then, however, in Shepard, the Court has explicitly stated otherwise, writing that "[a]lthough Taylor involved prior burglaries, as this case does, our holding in Taylor covered other predicate ACCA offenses." Shepard, 544 U.S. at 17 n. 2, 125 S.Ct. 1254. In fact, in Taylor itself, the Court stated that it was addressing "a . . . general issue— whether the sentencing court in applying § 924(e) must look only to the statutory definitions of the prior offenses, or whether the court may consider other evidence concerning the defendant's prior crimes." 495 U.S. at 600, 110 S.Ct. 2143. The Supreme Court's decisions thus give every indication that both the categorical and modified categorical approaches apply to all types of prior offenses, considered under any portion of § 924(e)(2).
Second, the Parker decision emphasized language in Taylor stating that the modified categorical approach would apply in a "`narrow range of cases.'" 5 F.3d at 1326 (quoting Taylor, 495 U.S. at 602, 110 S.Ct. 2143). However, the Taylor Court's statement in its entirety was that the "categorical approach . . . may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary." Taylor, 495 U.S. at 602, 110 S.Ct. 2143. The more natural reading of that sentence suggests that the. Court believed that there would only be a "narrow range of cases" in which juries were required to find facts extending beyond the statutory definition of the offense, so that the modified categorical approach would often be unavailable—not that the modified categorical approach would be limited in application to burglary offenses. This view is borne out by the Shepard Court's characterization of its holding in Taylor as applying to all predicate ACCA offenses, 544 U.S. at 17 & n. 2, 125 S.Ct. 1254, as well as by other circuits' subsequent willingness to apply the modified categorical approach broadly to offenses potentially falling under any clause of 18 U.S.C. § 924(e)(2).
Thus, Parker's rationale for questioning the applicability of the modified categorical approach to offenses other than burglary no longer withstands scrutiny. Jennings himself does not provide any rationale for why the modified categorical approach should not be applied to the ACCA's catchall clause.
2. Application of the Modified Categorical Approach to Jennings' Offense
Although we conclude that the modified categorical approach applies under the catchall clause, we nonetheless further conclude that it cannot be applied to Wash. Rev.Code § 46.61.024.
In our recent en banc decision in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir.2007) (en banc), we considered whether a conviction under Cal.Penal Code § 32 (accessory after the fact), was a crime involving moral turpitude ("CIMT"). First, we determined that § 32 was not categorically a CIMT because the statute prohibits conduct that is "broader than the generic definition of a [CIMT]." Id. at 1073. We then noted that "where a state statute is categorically broader than the generic definition of a crime, we employ a modified categorical approach." Id. (citing Kepilino v. Gonzales, 454 F.3d 1057, 1062 (9th Cir.2006)).
Navarro-Lopez then went on to consider whether the modified categorical approach was applicable to the crime at issue. We stated:
Id. (citing Li v. Ashcroft, 389 F.3d 892, 899-901(9th Cir.2004) (Kozinski, J., concurring)(providing examples)). We further noted that "Mills same analysis applies in cases, as the one currently before us, where courts review plea agreements instead of jury verdicts." Id. at 1073 n. 10.
We then held that because Cal.Penal Code § 32 lacks an element of the generic crime—specifically, the requisite depravity—to constitute moral turpitude, "[t]he crime of conviction can never be narrowed to conform to the generic crime because the jury is not required—as Taylor mandates—to find all the elements of the generic crime." Id. (footnote omitted). Thus, we concluded that the modified categorical approach could not be used to conform the defendant's conviction to the generic definition of a CIMT. Id.
Applying Navarro-Lopez to the case at bench, it is clear that the modified categorical approach cannot be used to conform Jennings' conviction under Wash. Rev.Code § 46.61.024 to the generic definition of a "violent felony" under the ACCA, 18 U.S.C. § 924(e), because Jennings' crime of conviction, like Navarro-Lopez's, is missing an element of the generic crime.
The ACCA's catchall provision applies to "conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). Wash, Rev.Code § 46.61.024, however, does not require proof of any actual or potential risk of harm to others for a conviction. See Kelly, 422 F.3d at 893-94 (stating that to support a conviction under Wash. Rev.Code § 46.61.024, "the conduct of the defendant need not pose any actual danger or create a serious risk of harm to anyone. The conduct need only be such as to permit an
We thus conclude that Jennings was not convicted of all of the elements of a generic violent felony.
Because of our conclusion, we need not decide whether certain admissions that Jennings made as to his conduct for sentencing purposes can be considered in applying the modified categorical approach. Even if those admissions amounted to an admission that Jennings' conduct presented a serious potential risk of physical injury to another, "those admissions could not be used to modify the crime because they were not necessary for a conviction," Navarro-Lopez, 503 F.3d at 1073 (citing Shepard, 544 U.S. at 24, 125 S.Ct. 1254).
As a consequence, Jennings has suffered only two predicate violent felonies for purposes of the ACCA: his 1995 theft conviction and his 1998 assault conviction. Because Jennings' 2002 attempting to elude a pursuing police vehicle conviction is not a qualifying violent felony, the district court erred in holding that Jennings was subject to the fifteen-year mandatory minimum sentence under the ACCA.
Because Jennings' Fourth and Fifth Amendment rights were not violated, the district court did not err in denying his motions to suppress. However, because Jennings has not suffered the requisite number of qualifying convictions, the district court erred in sentencing him as an armed career criminal under 18 U.S.C. § 924(e). The judgment of conviction is affirmed, but the sentence is vacated and the case remanded for resentencing.
O'SCANNLAIN, Circuit Judge, dissenting:
The court's opinion is premised on the mistaken assumption that United States v. Kelly, 422 F.3d 889 (9th Cir.2005), remains good law after the Supreme Court effectively overruled it in Gonzales v. Duenas-Alvarez, ___ U.S. ___, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), and James v. United States, ___ U.S. ___, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Not only does the majority put our court at odds with the Supreme Court, but it also perpetuates a split with every other circuit that has considered whether attempting to elude a police officer is categorically a violent felony. I respectfully dissent from the majority's reliance on this wrongly decided and now untenable case.
In Duenas-Alvarez, 127 S.Ct. at 822, the Supreme Court held that "to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires
In James, the Court further clarified the Taylor categorical approach as it applies to the residual provision of the Armed Career Criminal Act ("ACCA"):
127 S.Ct. at 1597 (internal citations omitted) (emphasis added). The Court explicitly recognized that "ACCA does not require metaphysical certainty" but "speaks in terms of `potential risk,'" which "are inherently probabilistic concepts." Id. "Indeed, the combination of the two terms suggests that Congress intended to encompass possibilities even more contingent or remote than a simple `risk,' much less a certainty." Id.
In contrast, the court in Kelly conceived of the categorical approach as an all-or-nothing proposition: "Under Taylor, the question is not whether, based on the facts in `most cases' in which convictions are obtained under the statute, the conduct was a `violent felony' under federal law. Rather, the question is whether all conduct—including the most innocent conduct—prohibited by the state statute qualifies as a `violent felony.'" 422 F.3d at 894 (emphasis added). While the Washington attempting to elude statute criminalizes conduct that "might have involved actual endangerment," the Kelly court insisted that "Taylor requires `must have.'" Id. at 893-94 (emphasis added).
Not only did Kelly misread the ACCA, which by its terms ("potential risk") does not require actual endangerment, much less an actual risk of endangerment, it also fundamentally misconstrued the Taylor categorical approach as requiring that every imaginable fact pattern falling within the ambit of the state statute also satisfy ACCA's definition of a violent felony. Indeed, Kelly's misconstruction of the categorical approach is evidenced by its rejection of a Fourth Circuit opinion that "bas[ed] its analysis on the factual situation `in most cases'" as "not engaging in a Taylor categorical analysis." Id. at 894 (quoting United States v. James, 337 F.3d 387, 391 (4th. Cir.2003)) (emphasis added).
The law of our circuit is that a threejudge panel may "reject [a] prior opinion of this court as having been effectively overruled" when an intervening Supreme Court case "ha[s] undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable." Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). Because the Supreme Court unequivocally rejected Kelly's interpretation of the categorical approach in Duenas-Alvarez and James, I cannot join in the majority's reliance
Notwithstanding its flawed application of the Taylor categorical approach, Kelly also contains serious errors in construing both the generic crime and state statute of conviction.
As James made clear, the ACCA residual clause speaks in terms of "serious potential risk," not actual risk or actual endangerment. Nevertheless, the Kelly court apparently ignored the plain language of the identical phrase contained in United States Sentencing Guideline ("U.S.S.G.") § 4B1.2(a)(2) in concluding that RCW § 46.61.024 is not categorically a crime of violence. See, e.g., Kelly, 422 F.3d at 893 (noting that under the state statute, "the conduct of the defendant need not pose any actual danger or create a serious risk of harm to anyone") (emphasis added); id. at 894 (stating that the "federal `crime of violence' guideline . . . requires endangerment of another person") (emphasis added). Hence, Kelly failed" to recognize that the statutory language "encompass[es] possibilities even more contingent or remote than a simple `risk,' much less a certainty." James, 127 S.Ct. at 1597; see also United States v. Martin, 378 F.3d 578, 583 (6th Cir.2004) ("To require crimes of violence in all fact patterns to lead to a violent or harmful end not only would ignore our categorical approach to this inquiry, but it would read the `serious potential risk of physical injury' language out of the Guideline.").
Furthermore, Kelly erred in reading a key phrase out of RCW § 46.61.024, which prohibits "driv[ing][a] vehicle in a manner indicating a wanton or wilful disregard for the lives or property of others." RCW § 46.61.024 (emphasis added). By its very terms ("in a manner indicating"), the statute criminalizes conduct sufficient to create an inference about the defendant's mental state.
In State v. Sherman, 98 Wn.2d 53, 653 P.2d 612, 616 (1982) (en banc), the seminal Washington Supreme Court case interpreting RCW § 46.61.024, the court emphasized that the phrase "in a manner indicating a wanton and wilful
Id. (emphasis added). The court went on to explain that while a defendant's manner of driving provided circumstantial evidence of his mental state, he could rebut the inference of "wanton and wilful disregard" by showing, for example, that he "had a seizure while driving." Id. Hence, Sherman makes clear that "the State is proscribing both the `conduct' and the `disposition.'" Id.
Although Kelly acknowledged that "the defendant's actual conduct must have been sufficient to permit an inference about his `disposition or mental state,'" 422 F.3d at 893 (quoting Whitcomb, 753 P.2d at 568), it is evident that the court gave short shrift to the dual requirements of the statute. For example, in distinguishing a Sixth Circuit case interpreting Michigan's eluding statute, Kelly stated that "Where is nothing in the Sixth Circuit's opinion to indicate that a bad mental state is a sufficient basis for a conviction under the Michigan statute." 422 F.3d at 894 (citing United States v. Martin, 378 F.3d 578 (6th Cir. 2004)) (emphasis added). By elevating mental state over objectively reckless conduct, Kelly ignored both the plain language of the statute and the Washington Supreme Court's construction of the statutory text.
Kelly, which was wrongly decided to begin with, cannot survive the Supreme Court's assault on its "`mode of analysis.'" Miller, 335 F.3d at 900 (quoting Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1177 (1989)). Because we are bound by the Supreme Court's mode of analysis as set forth in Duenas-Alvarez and James, we must decide on a clean slate whether Washington's attempting to elude statute is categorically a crime of violence under the ACCA.
The issue boils down to whether, in the ordinary case, "driv[ing][a] vehicle in a manner indicating a wanton and wilful disregard for the lives or property or others while attempting to elude a pursuing police vehicle" creates a "serious potential risk of physical injury to another." Although the "State need not prove that anyone else was endangered by the defendant's conduct, or that a high probability of harm actually existed," Whitcomb, 753 P.2d at 568, James makes clear that the ACCA "speaks in terms of `potential risk,'" 127 S.Ct. at 1597 (emphasis added).
A common-sense reading of the Washington statute compels the conclusion that conduct sufficient to create an inference of "wanton or wilful disregard" by its nature creates a serious potential risk of injury to others, including any passengers in the fleeing car, any drivers or passengers in other vehicles on the road, any pedestrians or bystanders in the area, and at the very least, the pursuing police officer who is attempting to bring the defendant to a stop.
For example, in United States v. Orisnord, 483 F.3d 1169 (11th Cir.2007), the Eleventh Circuit considered whether a virtually identical Florida statute
Similarly, in United States v. James, 337 F.3d 387, 390-91 (4th Cir.2003),
Washington cases applying RCW § 46.61.024 confirm that the proscribed
Even the most seemingly benign cases involve a serious potential risk of physical injury. See, e.g., State v. Treat, 109 Wn.App. 419, 35 P.3d 1192, 1196-97 (2001) (upholding conviction of a driver who eluded police for only a quarter mile before stopping, where the driver "sped down the road," "stopped briefly, accelerated at a deputy, and then attempted to once again drive away" even after deputies shot out two of his tires) (emphasis added); State v. Nearing, 103 Wn.App. 1049 (2000) (unpublished opinion) (upholding conviction of a driver who eluded police for two miles by "accelerat[ing] over the 25 mile per hour speed limit" and "ma[king] a number of sharp, high speed turns, including one through a deserted parking lot," where the vehicle lacked seatbelts and the driver's "speed and erratic driving made him a danger to himself, his passenger, and anyone who might have been in his way") (emphasis added); Whitcomb, 753 P.2d at 568 (upholding conviction of a driver who went only 5 mph over the posted limit in an ATV, "which can be handled better than a normal car under [the] adverse conditions of snow and ice," where the driver ran a red light at a deserted intersection, used "inadequate lighting" despite fog and darkness, and created a "`roostertailing' effect . . . potentially creating a hazard for vehicles following behind") (emphasis added).
Because Washington consistently applies RCW § 46.61.024 to conduct creating a "serious potential risk of physical injury to another," I would join our sister circuits in holding that attempting to elude a pursuing police officer is categorically a crime of violence. Therefore, I would affirm Jennings' sentence as an armed career criminal.
Even if Kelly were still the binding law of our court, I could not agree with the majority that Navarro-Lopez forecloses the application of the modified categorical approach to RCW § 46.61.024.
Relying on Kelly's observation that "the conduct of the defendant need not pose any actual danger or create a serious risk of harm to anyone," 422 F.3d at 893, the majority cursorily concludes that the modified categorical approach cannot apply because "Jennings' crime of conviction . . . is missing an element of the generic crime," i.e., "the actual or potential risk of harm to another." Maj. op. at 992-93.
However, the court in Kelly did not hold that the statute lacks a risk element altogether, just that the statute does not require a "serious risk of harm." 422 F.3d
Although I do not express any opinion as to whether the judicially noticeable documents in this case are sufficient to establish all of the elements of the generic crime, I respectfully dissent from the majority's conclusion that RCW § 46.61.024 can never be considered a predicate violent felony under the ACCA.
Because Kelly is no longer binding on this Court, I would affirm Jennings' sentence based on my conclusion that RCW § 46.61.024 is categorically a crime of violence under the ACCA. Even if Kelly were still good law, I could not agree with the majority's blanket rejection of its modified categorical approach to the Washington statute. I respectfully dissent.
18 U.S.C. § 924(e)(1).
Wash. Rev.Code § 46.61.024 (2001).