UNITED STATES of America, Plaintiff-Appellee, v. Devin JENNINGS, Defendant-Appellant.
No. 06-30190.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 8, 2007. Filed Feb. 4, 2008.
515 F.3d 980
Before: DIARMUID F. O‘SCANNLAIN, A. WALLACE TASHIMA, and MARSHA S. BERZON, Circuit Judges.
Further proceedings in our court on the certified question are stayed pending the Oregon Supreme Court‘s decision whether it will accept review, and if so, our receipt of the answer to the certified question. The case is withdrawn from submission, in pertinent part, until further order from this Court. The panel will resume control and jurisdiction on the certified question upon receiving an answer to the certified question or upon the Oregon Supreme Court‘s decision to decline to answer the certified question. When the Oregon Supreme Court decides whether or not to accept the certified question, the parties shall file a joint report informing us of the decision. If the Oregon Supreme Court accepts the certified question, the parties shall file a joint status report every six months after the date of the acceptance, or more frequently if circumstances warrant.
IT IS SO ORDERED.
Carl Andrew Colasurdo, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee.
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 minimum sentence under
We have jurisdiction pursuant to
BACKGROUND
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.1 Outside the jail, as the agents walked Jennings to the agents’ vehicle, Jennings made a statement to the effect of: “If this is about the missing serial number, I didn‘t know that it was missing.” He said that he had not learned that the handgun found in his waistband during his arrest was missing its serial number until he was in jail. Agent Korn told him, “Let me read your
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
In a superseding indictment, Jennings was charged in Count One with being a felon in possession of a firearm in violation of
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
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
DISCUSSION
I. Motion to Suppress the Firearm
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.
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.
II. Motion to Suppress Statements
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 willing-ness 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. Id.6
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.7 Up until then, the agents had spoken with Jennings only to tell him who they were and to ask him whether he had personal property to retrieve, communications which were wholly unrelated to the charge against Jennings. Therefore, the district court‘s factual finding that it was Jennings who initiated communication about the investigation was not clearly erroneous. See United States v. Most, 789 F.2d 1411, 1416 (9th Cir. 1986) (reviewing question of whether defendant initiated conversation under clearly erroneous standard).
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
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
To determine whether a prior conviction qualifies as a violent felony under
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.
A. Sixth Amendment Challenge to Judicial Categorization of Prior Offenses as Violent Felonies
Preliminarily, Jennings contends that there is constitutional doubt as to whether a district court may determine
B. Theft
Jennings was convicted of theft under
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
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 Wash. App. 698, 150 P.3d 617, 621 (2007), the court interpreted the term “from the person” in Washington‘s robbery definition,
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
C. Attempting to Elude a Pursuing Police Vehicle
Under our binding precedent, Jennings’ conviction for attempting to elude a pursuing police vehicle under
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
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
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
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.” Parker, 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
Second, the Parker decision emphasized language in Taylor stating that the modified categorical approach would apply in a “narrow range of cases.” Parker, 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, Shepard, 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
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.13 As a consequence, and lacking
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
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
Navarro-Lopez then went on to consider whether the modified categorical approach was applicable to the crime at issue. We stated:
The modified categorical approach, however, only applies when the particular elements in the crime of conviction are broader than the generic crime. When the crime of conviction is missing an element of the generic crime altogether, we can never find that “a jury was actually required to find all the elements of” the generic crime.
Id. (citing Li v. Ashcroft, 389 F.3d 892, 899-901 (9th Cir. 2004) (Kozinski, J., concurring) (providing examples)). We further noted that “[t]his 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
Applying Navarro-Lopez to the case at bench, it is clear that the modified categorical approach cannot be used to conform Jennings’ conviction under
The ACCA‘s catchall provision applies to “conduct that presents a serious potential risk of physical injury to another.”
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.
CONCLUSION
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
Conviction AFFIRMED, sentence VACATED and REMANDED.
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, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), and James v. United States, 550 U.S. 192, 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.
I
A
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“):
We do not view that approach as requiring that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony. Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a serious potential risk of injury to another.... As long as an offense is of a type that, by its nature, presents a serious potential risk of injury to another, it satisfies the requirements of
§ 924(e)(2)(B)(ii) ‘s residual provision.
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 three-judge 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 reli-
B
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
Generally speaking, a wanton and willful disregard will only be established by circumstantial evidence of the way a defendant drives.... [T]he State is only interested in punishing such a mental state when it is exhibited. A misanthrope may sit quietly in his room feeling wanton and willful disregard for the world, but unless he demonstrates his feelings through conduct—or in this statutory context drives “in a manner indicating” his feelings—the State is content to let him brood. The language “drives his vehicle in a manner indicating a wanton and wilful disregard” expresses the State‘s interest in proscribing conduct exhibiting a certain disposition.
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 “[t]here 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.
C
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.2 Indeed, every other circuit that has
For example, in United States v. Orisnord, 483 F.3d 1169 (11th Cir. 2007), the Eleventh Circuit considered whether a virtually identical Florida statute3 constituted a categorical crime of violence under U.S.S.G. § 4B1.2(a)(2). The court reasoned:
[T]he language of the Guidelines makes clear that the ‘potential risk’ of injury, rather than actual violence or actual injury, is the touchstone of a ‘crime of violence.’ The dangerous circumstances surrounding a person‘s attempt to flee from law enforcement coupled with the person‘s operation of a motor vehicle most assuredly presents a ‘potential risk of physical injury’ to others. And the stress and urgency of the situation will likely cause the person fleeing to drive recklessly, turning any pursuit into a high-speed chase with the potential for serious harm to pedestrians, other drivers, and the pursuing officers. Indeed, collisions between fleeing vehicles and pedestrians or other vehicles sharing the road are common. Moreover, by deliberately disobeying a law enforcement officer, the fleeing motorist provokes an inevitable, escalated confrontation with the officer when he is finally apprehended.
Id. at 1182-83 (internal citations omitted) (emphasis added).
Similarly, in United States v. James, 337 F.3d 387, 390-91 (4th Cir. 2003),4 the Fourth Circuit had no difficulty concluding that “failing to stop for a blue light generally proscribes conduct that poses the potential for serious injury to another.” The court noted that “[m]ost cases of failing to stop for a blue light involve the deliberate choice by the driver to disobey the police officer‘s signal. This disobedience poses the threat of a direct confrontation between the police officer and the occupants of the vehicle, which, in turn, creates a potential for serious physical injury to the officer, other occupants of the vehicle, and even bystanders.” Id. at 391. Accord United States v. Kendrick, 423 F.3d 803, 809 (8th Cir. 2005) (holding that felony fleeing from a police officer is categorically a crime of violence because the defendant‘s “vehicle has the potential to become a deadly or dangerous weapon“); United States v. Martin, 378 F.3d 578, 583 (6th Cir. 2004) (“Because fleeing and eluding an officer while in a car generally will present serious potential risks of physical injury to third parties... it necessarily qualifies as a ‘crime of violence’ under the Guidelines.“); United States v. Howze, 343 F.3d 919, 922 (7th Cir. 2003) (“[A]ll flights [from police] involve... risk-creating conduct.“).
Washington cases applying
Even the most seemingly benign cases involve a serious potential risk of physical injury. See, e.g., State v. Treat, 109 Wash.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 Wash.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 ” ‘rooster-tailing’ effect... potentially creating a hazard for vehicles following behind“) (emphasis added).5
Because Washington consistently applies
II
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
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 992-93.6
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 at 893. While the court acknowledged that “the defendant‘s conduct must have been sufficient to permit an inference about his ‘disposition or mental state,‘” it did not in any way indicate that this quantum of conduct is insufficient to create a potential risk of injury. Id. (quoting Whitcomb, 753 P.2d at 568). Furthermore, in interpreting the “wanton or wilful disregard” language of the statute, the Washington Court of Appeals noted that ” [t]he usual meaning assigned to “willful,” “wanton,” or “reckless” ... is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow....” Whitcomb, 753 P.2d at 568 (quoting PROSSER & KEETON, TORTS § 34 at 213 (5th ed. 1984)) (emphasis added). As long as the statute contains a risk element, the modified categorical approach can be applied. See Navarro-Lopez, 503 F.3d at 1073 (“The modified categorical approach... only applies when the particular elements in the crime of conviction are broader than the generic crime.“). Even if the state need not prove that this risk be so serious as to create a “high probability of harm,” id., the overbreadth of the risk element is precisely why application of the modified categorical approach is appropriate.
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
III
Because Kelly is no longer binding on this Court, I would affirm Jennings’ sentence based on my conclusion that
Notes
In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years....
Any driver of a motor vehicle who wilfully fails or refuses to immediately bring his vehicle to a stop and who drives his vehicle in a manner indicating a wanton or wilful disregard for the lives or property of others while attempting to elude a pursuing police vehicle, after being given a visual or audible signal to bring the vehicle to a stop, shall be guilty of a class C felony. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such a signal shall be in uniform and his vehicle shall be appropriately marked showing it to be an official police vehicle.