United States v. Kelly

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.