United States v. Jennings

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 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).

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 *984Miranda2 rights, and then you can tell us your side of the story.” After the agent read the Miranda warnings, Korn asked Jennings if he understood his rights, and Jennings said yes. Korn asked Jennings if he was willing to waive those rights and talk to the agents; Jennings nodded yes. Jennings then told the agents that he had purchased the handgun recovered during his arrest from a white, blonde-haired male for $300.

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 eviden-tiary 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)3 for purposes of determining the mandatory minimum sentence. The superseding indictment alleged that Jennings had a number of adult felony convictions under Washington law, including a 1995 first degree theft conviction, a 1998 second degree assault conviction, and a 2002 conviction for attempting to elude a pursuing police vehicle.4 Count Two of the superseding indictment charged Jennings with possession of a firearm with an obliterated serial number in violation of 18 U.S.C. § 922(k).5

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 *985another” within the meaning of 18 U.S.C. § 924(e)(2)(B)(ii). As it was undisputed that Jennings’ 1998 assault conviction was a violent felony, the court concluded that Jennings had three predicate offenses, qualifying him as an armed career criminal under 18 U.S.C. § 924(e).

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.

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 supervi-sees 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.

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 *986could not properly question him unless Jennings himself initiated the conversation. Jennings claims that it was the federal agents who initiated communications with him, which rendered his subsequent waiver of his Fifth Amendment rights invalid. Our review of the voluntariness of a Miranda waiver is de novo, but we will not disturb the district court’s underlying factual findings unless they are clearly erroneous. United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir.), amended by 416 F.3d 939 (9th Cir.2005).

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.6 Id.

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.

*987III. Armed Career Criminal Classification

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 hnd 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 *988that prior convictions qualify as violent felonies for purposes of increasing the statutory maximum under 18 U.S.C. § 924(e). He contends that, due to this supposed constitutional doubt, the ACCA should be interpreted to require formal pleading and proof of prior convictions and their nature as violent felonies. This contention is squarely foreclosed by Supreme Court and Ninth Circuit precedent, which rejects Sixth Amendment challenges to the judicial categorization of prior convictions under the ACCA. See James v. United States, — U.S. —, 127 S.Ct. 1586, 1600, 167 L.Ed.2d 532 (2007) (holding that application of the Taylor categorical approach to determine whether an offense presents a serious potential risk of physical injury to others “raises no Sixth Amendment issue”); Shepard, 544 U.S. at 24-26, 125 S.Ct. 1254 (four justices stating that limiting documents regarding a prior conviction that a court may consider was necessary to avoid the Sixth Amendment problems that might otherwise result if a judge were to make findings as to disputed facts underlying the conviction); id. at 36-38, 125 S.Ct. 1254 (O’Connor, J., dissenting) (three more justices concluding that there would have been no constitutional problem with a rule that allowed judges to consult documents such as police reports and complaint applications, where the underlying facts were undisputed); United States v. Von Brown, 417 F.3d 1077, 1079 (9th Cir.2005) (per curiam) (“When the Taylor approach is followed, the categorization of a prior conviction as a “violent felony’ or a ‘crime of violence’ is a legal question, not a factual question coming within the purview of Apprendi, Blakely, and Booker.”);8 Smith, 390 F.3d at 666-67 (holding that application of modified categorical approach to determine whether prior offenses fell under ACCA did not violate defendant’s Sixth Amendment rights). We thus reject Jennings’ “constitutional doubt” contention.

B. Theft

Jennings was convicted of theft under Wash. Rev.Code § 9A.56.030(l)(b), which states; “A person is guilty of theft in the first degree if he or she commits theft of ... [pjroperty 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(l)(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 *989the position that the property must have been on the victim’s person when taken and the other group holding that it is sufficient if the property was merely within the victim’s immediate presence.”); see also United States v. Reina-Rodriguez, 468 F.3d 1147, 1152 (9th Cir.2006) (stating that in applying the categorical approach, “we are bound by the state court’s interpretation of the statute”), overruled on other grounds by United States v. Grisel, 488 F.3d 844, 851 (9th Cir.2007) (en banc). Therefore, because, as Jennings surmises, a person could be convicted of theft from the person under Washington law without “direct physical contact between the perpetrator and the victim,” he argues that the Washington offense of theft from a person need not present a serious potential risk of physical injury to another. See Wofford, 122 F.3d at 793 (noting that element of direct physical contact between thief and victim creates heightened risk of confrontation).

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, 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(l)(b) is categorically a violent felony under the ACCA.

C. Attempting to Elude a Pursuing Police Vehicle

Under our binding precedent, Jennings’ conviction for attempting to elude a pursuing police vehicle under Wash. Rev.Code § 46.61.024 is not categorically a violent felony.9 United States v. Kelly, 422 F.3d 889, 895 (9th Cir.2005) (holding that an offense under Wash. Rev. Code § 46.61.024 does not invariably involve “conduct that presents a serious po*990tential risk of physical injury to another”).10 Normally, following Shepard,, we would determine whether a different outcome results under the modified categorical approach. That is, we would examine the judicially noticeable documents that establish the factual basis for Jennings’ conviction to determine if Jennings’ offense conduct presented a serious potential risk of physical injury to another.

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. § 9U(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)(B)(ii).11 See Kelly, 422 F.3d at 895; United States v. Fish, 368 F.3d 1200, 1204 & n. 4 (9th Cir.2004); United States v. Parker, 5 F.3d 1322, 1325-26 (9th Cir.1993).

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)(B)(ii) because we concluded that even assuming that the modified categorical approach applied, the *991offense in question did not qualify as a violent felony. Id. at 1326-27. In Fish and Kelly we followed a similar route, leaving undecided the question of the modified categorical approach’s applicability. Kelly, 422 F.3d at 895; Fish, 368 F.3d at 1204.

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 “[although 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).12

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 *992any concrete reason to conclude that Congress intended otherwise, we believe that it is more sensible to apply the modified categorical approach uniformly in evaluating whether a conviction falls under any portion of the ACCA definition of a “violent felony.”

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 CaLPenal 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:

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 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 *993inference about the defendant’s ‘disposition or mental state.’ ” (citations omitted)).14 In other words, Washington’s attempting to elude a pursuing police vehicle statute “is missing an element of the generic crime” — here, the actual or potential risk of harm to another — “altogether.” Navarro-Lopez, 503 F.3d at 1073. A jury would not have to find that such a risk was posed for any conviction under Wash. Rev.Code § 46.61.024 — it simply is not an element of the crime.

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 18 U.S.C. § 924(e). The judgment of conviction is affirmed, but the sentence is vacated and the case remanded for resentencing.

Conviction AFFIRMED, sentence VACATED and REMANDED.