THOMAS S. ZILLY, District Judge.
Prior to trial, the Court denied defendant's motion to dismiss the Armed Career Criminal Act ("ACCA") allegation, without prejudice, see Minute Order (docket no. 75), because the motion was premature and presented a sentencing issue. At trial, defendant John Christian Parks was convicted of being a felon in possession of a firearm, and the Court must now decide whether Parks qualifies as an armed career criminal pursuant to 18 U.S.C. § 924(e). The Court, being fully advised, enters the following order.
On March 30, 2013, Parks was arrested in the Mt. Baker-Snoqualmie National Forest, and he was subsequently charged with being a felon in possession of a firearm. On October 31, 2013, after a four-day trial, the jury found Parks guilty of Count 2 of the Indictment: Felon in Possession of Firearms. Verdict (docket no. 141).
Under the ACCA, a defendant who is found guilty of being a felon in possession of a firearm and who has three previous convictions for a violent felony and/or serious drug offense shall be imprisoned for a statutory minimum of fifteen years. 18 U.S.C. § 924(e)(1). The Government and Parks agree that Parks has two prior convictions for serious drug offenses. Parks also has a prior conviction for Escape in the Second Degree, under King County Superior Court case number XX-X-XXXXX-X, and the question before the Court is whether this conviction constitutes a third predicate under the ACCA. If it does, then Parks would be deemed an armed career criminal and would be subject to the ACCA's sentencing enhancement provisions.
The Government contends that Escape in the Second Degree constitutes a violent felony for purposes of the ACCA. Parks argues to the contrary. The Court is persuaded that Parks is correct. The ACCA defines a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year... that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) 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) (emphasis added). As statutorily defined in Washington, the crime of Escape in the Second Degree does not involve as an element the use, attempted use, or threatened use of physical force against the person of another, see RCW 9A.76.120, and thus, the offense does not constitute a violent felony under the first prong of the ACCA definition. See 18 U.S.C. § 924(e)(2)(B)(i). Moreover, the crime of Escape in the Second Degree is not specifically enumerated as a "violent felony" under the second prong of the ACCA definition. See 18 U.S.C. § 924(e)(2)(B)(ii). Therefore, the question presented is whether Escape in the Second Degree qualifies as a "violent felony" under the ACCA's "residual clause, " which includes a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. ; see also United States v. Spencer, 724 F.3d 1133, 1137 (9th Cir. 2013).
In determining whether an offense qualifies as a violent felony under the ACCA's residual clause, courts apply the "categorical approach, " unless the statute defining the crime is "divisible, " setting forth multiple, alternative means of committing the offense. Descamps v. United States, 133 S.Ct. 2276, 2284-86 (2013). In the latter circumstance, courts employ a "modified categorical approach, " and may consider "extra-statutory" materials, for example, the charging document, written plea agreement, transcript of plea colloquy, and factual findings by the trial judge, in ascertaining which version of the offense gave rise to the conviction at issue. Id. ; see Shepard v. United States, 544 U.S. 13 (2005).
Under both approaches, whether as to the statute as a whole or only the portion of the statute defining the particular crime of conviction, to determine whether the offense qualifies as a violent felony under the ACCA's residual clause, courts engage in two inquiries. First, courts analyze whether the conduct encompassed by the elements of the offense, in the ordinary case, necessarily present a serious potential risk of physical injury to another. See Spencer, 724 F.3d at 1138. Second, courts assess whether the prior crime is "roughly similar, in kind as well as in degree of risk posed" to the offenses enumerated before the residual clause, namely burglary, arson, extortion, and use of explosives. Id. An offense must satisfy both inquiries to be deemed a "violent offense."
A. Modified Categorical Approach
In this case, because Escape in the Second Degree may be accomplished in one of three alternative ways,  the Court must use the "modified categorical approach" and examine "extra-statutory" materials to determine which means Parks was found to have committed. In connection with his conviction for Escape in the Second Degree, Parks entered an Alford plea and gave the judge hearing his plea permission to review the Certification for Determination of Probable Cause to find a factual basis for the plea. Plea at ¶ 11, Ex. 6 to Gov't Resp. (docket no. 49-2). This Court therefore reviews the same Certification as part of the "modified categorical approach."
According to the Certification for Determination of Probable Cause, around noon on June 15, 2004, Parks was being transported from the Regional Justice Center to the City of Kent Correctional Facility. Upon arrival at the City of Kent Correctional Facility, while still in handcuffs, "Parks jumped from the rear of the transport van and ran away." Ex. 7 to Gov't Resp. (docket no. 49-2). The transport officer was unable to pursue Parks because he "had two other inmates to secure so he was unable to follow Parks as he fled." Id. Shortly after 4:45 p.m. on the same day, Parks was apprehended without incident. Id. Based on the Certification for Determination of Probable Cause, the Court concludes that Parks was convicted under the first alternative means identified in the statute defining Escape in the Second Degree, namely knowingly escaping from a detention facility. See RCW 9A.76.120(1)(a).
B. First Inquiry: Serious Potential Risk of Injury
Washington courts have broadly interpreted this first method of committing Escape in the Second Degree to include failure to return to jail from temporary leave granted after a plea but before sentencing, State v. Law, 110 Wn.App. 36, 38 P.3d 374 (2002), and failure to return to jail from work release or medical furlough, State v. Kent, 62 Wn.App. 458, 814 P.2d 1195 (1991). Under Washington law, to be guilty of escape, one need not run or flee from custody; rather, "one need ...