United States v. Kelly ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-30074
Plaintiff-Appellant,
v.  D.C. No.
CR-03-00066-WFN
NOBEL J. KELLY,
OPINION
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, Senior Judge, Presiding
Argued and Submitted
November 3, 2004—Seattle, Washington
Filed September 6, 2005
Before: Arthur L. Alarcón, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge William A. Fletcher
12117
12120 UNITED STATES v. KELLY
COUNSEL
Thomas O. Rice, Office of the United States Attorney, Spo-
kane, Washington, for the plaintiff-appellant.
Kimberly Deate, Federal Defenders of Eastern Washington
and Idaho, Spokane, Washington, for the defendant-appellee.
OPINION
W. FLETCHER, Circuit Judge:
The government appeals Nobel Kelly’s 120-month sen-
tence for possession with intent to distribute over 5 grams of
cocaine base. The government contends that the district court
erred in finding that Kelly’s 1998 Washington state convic-
tion for attempting to elude a police vehicle was not a “crime
of violence” under United States Sentencing Guideline
(U.S.S.G.) § 4B1.2(a), and therefore not a predicate convic-
tion for the career offender enhancement in U.S.S.G. § 4B1.1.
We hold that Kelly’s conviction for attempting to elude a
police vehicle is not a “crime of violence” within the meaning
of U.S.S.G. § 4B1.2(a)(2), and we affirm the district court’s
decision on that issue.
UNITED STATES v. KELLY 12121
I
Kelly pled guilty to possession with intent to distribute over
5 grams of cocaine base in violation of 21 U.S.C. § 841(a)(1).
The government and Kelly agreed that U.S.S.G. § 2D1.1(c)(6)
specifies a base offense level of 28 for possession with intent
to distribute 21.1 grams of cocaine base, and that the base
offense level would be increased by two levels under
U.S.S.G. § 2D1.1(b)(1) because Kelly possessed a firearm
during the offense. The government and Kelly also agreed
that the parties would be free to argue whether the career
offender enhancement in U.S.S.G. § 4B1.1 applied.
At the sentencing hearing held on January 15, 2004, the
government argued that Kelly was subject to the career
offender enhancement in U.S.S.G. § 4B1.1 because he had at
least two prior convictions for a “crime of violence” as
defined in U.S.S.G. § 4B1.2. Specifically, the government
contended that Kelly’s Washington state conviction for
attempting to elude a police vehicle was a prior conviction for
a “crime of violence” under U.S.S.G. § 4B1.2(a)(2) because
it “involve[d] conduct that present[ed] a serious potential risk
of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). The
Washington conviction stemmed from Kelly’s 1998 guilty
plea to attempting to elude a police vehicle in violation of
Revised Code of Washington (RCW) 46.61.024. The version
of RCW 46.61.024 under which Kelly was charged and con-
victed makes it a class C felony if a driver “willfully fails or
refuses to immediately bring his vehicle to a stop and . . .
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.” RCW
46.61.024 (1983).
The district court found that Kelly’s conviction for attempt-
ing to elude a police officer was not a conviction for a crime
of violence that qualified as a predicate offense under
12122 UNITED STATES v. KELLY
U.S.S.G. § 4B1.1. The district court calculated a total offense
level of 27 and a criminal history category of IV, resulting in
a guideline range of 100 to 125 months. Kelly was sentenced
to 120 months in prison, followed by four years of supervised
release. The government timely appealed Kelly’s sentence.
II
This court reviews de novo the district court’s interpreta-
tion of the United States Sentencing Guidelines and its deter-
mination of career offender status under U.S.S.G. § 4B1.1.
United States v. Shumate, 329 F.3d 1026, 1028 (9th Cir.
2003). The United States Sentencing Guidelines define a
defendant as a career offender if:
(1) the defendant was at least eighteen years old at
the time the defendant committed the instant offense
of conviction; (2) the instant offense of conviction is
a felony that is either a crime of violence or a con-
trolled substance offense; and (3) the defendant has
at least two prior felony convictions of either a crime
of violence or a controlled substance offense.
U.S.S.G. § 4B1.1. Under U.S.S.G. § 4B1.2(a)(2)’s “catchall”
clause, the term “crime of violence” encompasses not only
such enumerated offenses as burglary of a dwelling, arson,
and extortion, but also any offense, punishable by a prison
term exceeding one year, that “otherwise involves conduct
that presents a serious potential risk of physical injury to
another.” U.S.S.G. § 4B1.2(a)(2).
[1] To determine whether a prior conviction qualifies as a
predicate offense for a sentence enhancement, we use the cat-
egorical approach set forth by the Supreme Court in United
States v. Taylor, 495 U.S. 575 (1990). See, e.g., United States
v. Fish, 368 F.3d 1200, 1202 (9th Cir. 2004). In Taylor, the
Court held that the sentencing court should adopt a “categori-
cal approach” to decide whether the defendant’s Missouri bur-
UNITED STATES v. KELLY 12123
glary conviction qualified as a “violent felony,” a predicate
offense under the sentence-enhancement provision of 18
U.S.C. § 924(e). 495 U.S. at 602. The categorical approach
“generally requires the trial court to look only to the fact of
conviction and the statutory definition of the prior offense.”
Id. Therefore, the trial court should not “examine the facts
underlying the prior offense.” United States v. Corona-
Sanchez, 291 F.3d 1201, 1203 (9th Cir. 2002) (en banc).
[2] However, the sentencing court may “go beyond the
mere fact of conviction in a narrow range of cases” where a
statute criminalizes some conduct that would qualify as a
predicate offense and some conduct that would not. Taylor,
495 U.S. at 602; see also Fish, 368 F.3d at 1202-03. In such
cases, a sentencing court follows what we have characterized
as the modified categorical approach, under which the court
performs a “limited examination of documents in the record
of conviction to determine if there is sufficient evidence to
conclude that a defendant was convicted of the elements of
the generically defined crime even though his or her statute of
conviction was facially overinclusive.” Chang v. INS, 307
F.3d 1185, 1189 (9th Cir. 2002).
We have used the categorical and modified categorical
approaches in cases applying the definition of “crime of vio-
lence” contained in U.S.S.G. § 4B1.2(a)(2). See Fish, 368
F.3d at 1202-03 (in case involving catchall clause, applying
categorical approach and assuming without deciding that
modified categorical approach applies). We have also applied
the Taylor approach to cases in which the defendant pled
guilty instead of going to trial. See United States v. Bonat, 106
F.3d 1472, 1476 (9th Cir. 1997). We first apply the Taylor
categorical approach.
A. The Taylor Categorical Approach
The government contends that attempting to elude a police
vehicle in violation of RCW 46.61.024 categorically consti-
12124 UNITED STATES v. KELLY
tutes a crime of violence as defined in U.S.S.G. § 4B1.2(a).
We disagree. Under the categorical approach, this court “must
first look at the face of the statute itself and determine
whether ‘the fact of conviction and the statutory definition of
the prior offense’ demonstrate that [the defendant] could not
have been convicted of an offense outside the guideline defi-
nition.” See Shumate, 329 F.3d at 1029 (quoting Corona-
Sanchez, 291 F.3d at 1203).
[3] The version of RCW 46.61.024 in effect when Kelly
was convicted criminalized “wanton and willful disregard for
the lives or property of others while attempting to elude a pur-
suing police vehicle.” RCW 46.61.024.1 To determine
whether Kelly’s conviction categorically constitutes a “crime
of violence” under U.S.S.G. § 4B1.2(a)(2)’s catchall clause,
we must determine whether a conviction under RCW
46.61.024 necessarily “involves conduct that presents a seri-
ous potential risk of physical injury to another.” U.S.S.G.
§ 4B1.2(a)(2). If Kelly could have been convicted on the basis
of conduct that did not present a serious potential risk of
physical injury to another, his conviction cannot be a “crime
of violence” under Taylor’s categorical approach.
We first turn to the Washington state courts’ interpretation
of RCW 46.61.024. Echoing the language of the statute, the
Washington Supreme Court has held that in order to be guilty
of a violation of RCW 46.61.024, “ ‘[a] suspect must (1) will-
fully fail (2) to immediately bring his vehicle to a stop, (3) and
drive in a manner indicating a wanton and willful disregard
1
RCW 46.61.024 was amended effective July 27, 2003. The statute now
provides: “Any driver of a motor vehicle who willfully fails or refuses to
immediately bring his vehicle to a stop and who drives his vehicle in a
reckless manner 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.” RCW 46.61.024(1) (2003). We do not
decide whether a conviction under the amended version of RCW
46.61.024 categorically constitutes a “crime of violence” as defined in
U.S.S.G. § 4B1.2(a)(2).
UNITED STATES v. KELLY 12125
for the lives or property of others (4) while attempting to
elude police after being signaled to stop by a uniformed offi-
cer.’ ” State v. Tandecki, 109 P.3d 398, 400 (Wash. 2005)
(citation omitted) (emphasis in original).
[4] The Washington Court of Appeals has uniformly held
that the “wanton and wilful disregard” element of the statute
does not include a requirement that anyone actually be endan-
gered by the defendant’s conduct. In State v. Whitcomb, 753
P.2d 565 (Wash. Ct. App. 1988), the trial court had set aside
a guilty verdict under RCW 46.61.024 on the ground that the
State had presented insufficient evidence of risk of harm. The
Court of Appeals reversed, reinstating the verdict. It held:
The State need not prove that anyone else [i.e., any-
one besides the defendant] was endangered by the
defendant’s conduct, or that a high probability of
harm actually existed. Rather, the State need only
show that the defendant engaged in certain conduct,
from which a particular disposition or mental state
— that of a “wanton or wilful disregard for the lives
or property of others” — may be inferred.
Id. at 568 (emphasis added). In other words, the conduct of
the defendant need not pose any actual danger or create a seri-
ous risk of harm to anyone. The conduct need only be such
as to permit an inference about the defendant’s “disposition or
mental state.” Id.; see also State v. Treat, 35 P.3d 1192, 1197
(Wash. Ct. App. 2001) (same); State v. Refuerzo, 7 P.3d 847,
851 (Wash. Ct. App. 2000) (same).
[5] It is true that the defendant’s actual conduct must have
been sufficient to permit an inference about his “disposition
or mental state.” Such conduct might have involved actual
endangerment. But “might have” is not “must have.” Taylor
requires “must have.” Moreover, under the Washington stat-
ute as it existed at the time of Kelly’s guilty plea, such con-
duct could have involved either a person or property. The
12126 UNITED STATES v. KELLY
federal “crime of violence” guideline, by contrast, requires
endangerment of another person. Endangerment of property
does not qualify under the guideline.
We recognize that the Fourth, Sixth, and Seventh Circuits
have held that convictions under other states’ eluding statutes
are “crimes of violence” or “violent felonies” under federal law.2
However, the reasoning in these cases is not applicable to our
categorical analysis because they rely on (1) a statute that,
unlike RCW 46.61.024, requires endangerment of others for
conviction; (2) a modified categorical approach; and (3) an
application of something other than Taylor’s categorical
approach.
In United States v. Howze, 343 F.3d 919 (7th Cir. 2003),
the Seventh Circuit construed a Wisconsin eluding statute that
specifically required that the driver’s flight or attempted elud-
ing “interfere with or endanger the operation of the police
vehicle, or the traffic officer or other vehicles or pedestrians.”
Id. at 921. Thus a conviction under the Wisconsin statute,
unlike a conviction under the Washington statute, necessarily
entailed the creation of a serious potential risk of harm to oth-
ers. The Sixth Circuit reached a similar result interpreting
Michigan’s eluding statute in United States v. Martin, 378
F.3d 578 (6th Cir. 2004), but only because it relied on a modi-
fied categorical approach to establish that the defendant’s
prior conviction necessarily endangered others. The indict-
ment, to which the defendant pled guilty, charged a violation
of the statute either by causing a “collision or accident” or by
“fleeing in a 35-mile-per-hour zone (presumably a residential
or school area).” Id. at 582. The Sixth Circuit noted that either
of these circumstances “confirms the palpable risk of physical
injury to others caused by flight under the statute.” Id. There
2
The definition of a “violent felony” under the Armed Career Criminal
Act, 18 U.S.C. § 924(e)(2)(B)(ii), is identical to that of a “crime of vio-
lence” under U.S.S.G. § 4B1.2(a)(2): a conviction “involv[ing] conduct
that presents a serious potential risk of physical injury to another.”
UNITED STATES v. KELLY 12127
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.
Finally, in United States v. James, 337 F.3d 387 (4th Cir.
2003), the Fourth Circuit held that a conviction under South
Carolina’s eluding statute constituted a conviction for a “vio-
lent felony.” The court concluded:
Most cases of failing to stop for a blue light [i.e., a
police vehicle light] involve the deliberate choice by
the driver to disobey the police officer’s signal. This
disobedience poses the threat of a direct confronta-
tion 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 (emphasis added) (footnote omitted). In basing its
analysis on the factual situation in “most cases,” the Fourth
Circuit was not engaging in a Taylor categorical analysis.
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 quali-
fies as a “violent felony.” Further, even if we ignore the fact
that a Taylor approach was not used, the Fourth Circuit relied
on a South Carolina statute. The Fourth Circuit’s opinion
points to nothing in South Carolina case law specifying that
conduct presenting an actual risk of harm is not required for
a conviction, and that conduct from which a bad mental state
may be inferred is enough.
[6] By contrast, the Washington state courts’ construction
of RCW 46.61.024 — first articulated in a decision predating
Kelly’s 1998 conviction by ten years and reaffirmed twice
since then — tells us that Kelly could have been convicted for
12128 UNITED STATES v. KELLY
conduct that did not satisfy U.S.S.G. § 4B1.2(a)(2)’s require-
ment of “present[ing] a serious risk of physical injury to
another.” Because the Washington statute criminalizes con-
duct not covered by the Guideline definition, Kelly’s convic-
tion is not a “crime of violence” under Taylor’s categorical
approach. We therefore proceed to apply the modified cate-
gorical approach.
B. The Modified Categorical Approach
As a threshold matter, it is unclear whether the modified
categorical approach should be applied in cases involving
U.S.S.G. § 4B1.2(a)(2)’s “catchall” or “otherwise” clause. In
Fish, we stated that “our prior case law is skeptical as to
whether we may deviate from the categorical approach to the
modified categorical approach in cases involving the ‘catch-
all’ clause.” 368 F.3d at 1204; see also United States v. Par-
ker, 5 F.3d 1322, 1326 (9th Cir. 1993) (terming “highly
dubious” the government’s assumption that the modified cate-
gorical approach applied to the “otherwise” clause). Because
Kelly’s conviction does not constitute a crime of violence
under either approach, we assume without deciding that we
may use the modified categorical approach in this catchall-
clause case.
[7] Convictions that do not satisfy the categorical test must
meet the “rigorous standard” of the modified categorical
approach. United States v. Sandoval-Venegas, 292 F.3d 1101,
1106 (9th Cir. 2002). Under the modified categorical
approach, “the government has the burden to establish clearly
and unequivocally the conviction was based on all of the ele-
ments of a qualifying predicate offense.” United States v.
Navidad-Marcos, 367 F.3d 903, 908 (9th Cir. 2004) (applying
modified categorical approach in context of U.S.S.G. § 2L1.2
sentencing enhancement). The sentencing court determines
whether the government has fulfilled its burden by looking to
“documentation or judicially noticeable facts that clearly
establish that the conviction is a predicate conviction for
UNITED STATES v. KELLY 12129
enhancement purposes.” Sandoval-Venegas, 292 F.3d at 1106
(quoting United States v. Casarez-Bravo, 181 F.3d 1074,
1077 (9th Cir. 1999)).
[8] We have specified the documents a sentencing court
can rely on when a defendant has pled guilty. It is well settled
that a charging document alone cannot establish the elements
of conviction under the modified categorical approach. See
United States v. Wenner, 351 F.3d 969, 974 (9th Cir. 2003);
see also Parker, 5 F.3d at 1327. However, “the sentencing
court may consider the charging documents in conjunction
with the plea agreement, the transcript of a plea proceeding,
or the judgment to determine whether the defendant pled
guilty to the elements of the generic crime.” Corona-Sanchez,
291 F.3d at 1211. A presentence report (“PSR”) is insufficient
to establish the elements of the crime if “all it does is recite
the facts of the crimes as alleged in the charging papers” with-
out indicating whether the information came “from a source
that we have previously deemed acceptable, such as a signed
plea agreement, a transcript of the plea hearing, or a judgment
of conviction.” Id. at 1212; see also United States v. Franklin,
235 F.3d 1165, 1172 (9th Cir. 2000) (holding that combina-
tion of charging documents and PSR did not establish that ele-
ments of defendant’s prior convictions qualified as predicate
offense under Armed Career Criminal Act, 18 U.S.C.
§ 924(e)).
[9] The government’s modified categorical argument finds
no support in the relevant documentation of Kelly’s convic-
tion: the charging document (in this case, an information), the
transcript of the plea proceeding, the judgment of conviction,
and the signed plea agreement. The information simply tracks
the statutory language by charging that Kelly “did willfully
fail and refuse to immediately bring his vehicle to a stop and
did drive his/her vehicle in a manner indicating a willful and
wanton disregard for the lives or property of others.” The
record contains no transcript of the plea proceeding. The judg-
12130 UNITED STATES v. KELLY
ment of conviction does not set forth the elements of Kelly’s
conviction.
[10] Finally, Kelly’s signed plea agreement fails to estab-
lish that Kelly was convicted of a crime of violence. The
agreement merely lists the elements of the crime by quoting
the words of the statute. The agreement includes a handwrit-
ten statement by Kelly, but the statement does nothing to
establish that Kelly committed a crime of violence, or, indeed,
that he even violated the Washington statute. Kelly wrote:
On August 18 19198 [sic] I failed to stop for a police
vehecle [sic] who signaled me to stop and was
speeding why [sic] doing so. I stoped [sic] my vei-
hecl [sic] ass [sic] soon as I saw the police. But I am
pleding [sic] guilty to get the pled [sic].
We disregard the alleged factual circumstances of the crime
— Kelly’s alleged high rate of speed, lack of signaling, and
abrupt lane changes — upon which the government relies.
The government does not identify the source of these alleged
facts in its brief, but it is clear that they were drawn from a
Spokane Police Department affidavit introduced at the sen-
tencing hearing. This police report also formed the basis of
the factual account in the PSR for the current conviction.
Under our prior case law, neither a police report nor a PSR
based on a police report meets the “rigorous standard” of doc-
umentation required by the modified categorical approach.
[11] Nothing in the judicially noticeable record of convic-
tion clearly and unequivocally establishes that Kelly pled
guilty to the elements of a crime of violence. We therefore
conclude that under the modified categorical approach,
Kelly’s conviction for attempting to elude a police officer is
not a prior conviction for a crime of violence as defined in
U.S.S.G. § 4B1.2(a).
[12] However, we have held that “where the district court
did not treat the sentencing guidelines as advisory but the
UNITED STATES v. KELLY 12131
defendant’s sentence was not enhanced by extra-verdict find-
ings,” a nonconstitutional sentencing error has occurred. See
United States v. Ameline, 409 F.3d 1073, 1084 n.8 (9th Cir.
2005) (en banc). We therefore order supplemental briefing to
ascertain whether either party seeks a limited remand on the
ground of nonconstitutional error. Id. at 1084 (“When faced
with an unpreserved Booker/Fanfan error, the reviewing panel
must first determine if an eligible party wants to pursue the
subject.”)
III
[13] Because Kelly’s conviction for attempting to elude a
pursuing police vehicle is not a prior conviction for a crime
of violence under U.S.S.G. § 4B1.2(a), it is not a qualifying
predicate offense for career offender status under U.S.S.G.
§ 4B1.1. We therefore AFFIRM the district court’s decision
that Kelly does not qualify for career offender status under the
Guidelines. We ORDER the parties to notify the court within
14 days of the filing of this opinion if either wants to pursue
an Ameline remand.
AFFIRMED.