United States v. Marshall , 273 F. App'x 682 ( 2008 )

MEMORANDUM ^*

Wayne Jason Marshall pleaded guilty to one count of bank robbery, in violation of 18 U.S.C. § 2113(a). At sentencing, the district court found that Marshall qualified as a “career offender” under U.S.S.G. § 4B1.1, and sentenced him to 120 months’ imprisonment. Marshall appeals his sentence contending that he does not qualify as a career offender because the district court erred in finding that his prior conviction under California Vehicle Code § 2800.2 (“§ 2800.2”) was a “crime of violence” under U.S.S.G. § 4B1.2(a). We agree.

We hold that Marshall’s conviction under § 2800.2, for flight from a pursuing police officer in willful or wanton disregard for the safety of persons or property, is not categorically a crime of violence. See United States v. Jennings, 515 F.3d 980, 989-91 (9th Cir.2008); United States v. Kelly, 422 F.3d 889, 895 (9th Cir.2005) (holding that a Washington state conviction for attempting to elude a pursuing police officer was not a crime of violence because the statute criminalized conduct that did not “present[ ] a serious potential risk of physical injury to another,” as required by U.S.S.G. § 4B1.2(a)(2)).

Under the modified categorical approach, we also hold that Marshall’s § 2800.2 conviction is not a crime of violence. Marshall’s statement in his plea agreement that he was “driving recklessly” is insufficient to establish that he was convicted of a crime of violence. See Kelly, 422 F.3d at 896.

Because Marshall’s prior conviction under § 2800.2 does not, under our court’s case law, constitute a crime of violence, the district court erred in sentencing him as a career offender. We therefore vacate Marshall’s sentence and remand for resentencing.

VACATE and REMAND.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.