dissenting:
The court’s opinion is premised on the mistaken assumption that United States v. Kelly, 422 F.3d 889 (9th Cir.2005), remains good law after the Supreme Court effectively overruled it in Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007), and James v. United States, — U.S. —, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Not only does the majority put our court at odds with the Supreme Court, but it also perpetuates a split with every other circuit that has considered whether attempting to elude a police officer is categorically a violent felony. I respectfully dissent from the majority’s reliance on this wrongly decided and now untenable case.
I
A
In Duenas-Alvarez, 127 S.Ct. at 822, the Supreme Court held that “to find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute’s language. It requires *994a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” The Court thus rejected the notion that the Taylor categorical approach requires that every possible scenario covered by the state statute fall within the generic definition of a crime. See Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1072 (9th Cir.2007) (en banc) (acknowledging that Duenas-Alvarez “cautioned against employing ‘legal imagination’ ” when applying the Taylor categorical approach).
In James, the Court further clarified the Taylor categorical approach as it applies to the residual provision of the Armed Career Criminal Act (“ACCA”):
We do not view that approach as requiring that every conceivable factual offense covered by a statute must necessarily present a serious potential risk of injury before the offense can be deemed a violent felony. Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary ease, presents a serious potential risk of injury to another.... As long as an offense is of a type that, by its nature, presents a serious potential risk of injury to another, it satisfies the requirements of § 924(e)(2)(B)(ii)’s residual provision.
127 S.Ct. at 1597 (internal citations omitted) (emphasis added). The Court explicitly recognized that “ACCA does not require metaphysical certainty” but “speaks in terms of ‘potential risk,’ ” which “are inherently probabilistic concepts.” Id. “Indeed, the combination of the two terms suggests that Congress intended to encompass possibilities even more contingent or remote than a simple ‘risk,’ much less a certainty.” Id.
In contrast, the court in Kelly conceived of the categorical approach as an all-or-nothing proposition: “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 qualifies as a ‘violent felony.’ ” 422 F.3d at 894 (emphasis added). While the Washington attempting to elude statute criminalizes conduct that “might have involved actual endangerment,” the Kelly court insisted that “Taylor requires ‘must have.’ ” Id. at 893-94 (emphasis added).
Not only did Kelly misread the ACCA, which by its terms (“potential risk”) does not require actual endangerment, much less an actual risk of endangerment, it also fundamentally misconstrued the Taylor categorical approach as requiring that every imaginable fact pattern falling within the ambit of the state statute also satisfy ACCA’s definition of a violent felony. Indeed, Kelly’s misconstruction of the categorical approach is evidenced by its rejection of a Fourth Circuit opinion that “bas[ed] its analysis on the factual situation ‘in most cases’ ” as “not engaging in a Taylor categorical analysis.” Id. at 894 (quoting United States v. James, 337 F.3d 387, 391 (4th Cir.2003)) (emphasis added).
The law of our circuit is that a three-judge panel may “reject [a] prior opinion of this court as having been effectively overruled” when an intervening Supreme Court case “ha[s] undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.2003) (en banc). Because the Supreme Court unequivocally rejected Kelly’s interpretation of the categorical approach in Duenas-Alvarez and James, I cannot join in the majority’s reli-*995anee on Kelly as “our binding precedent.” Maj. op. at 989.
B
Notwithstanding its flawed application of the Taylor categorical approach, Kelly also contains, serious errors in construing both the generic crime and state statute of conviction.
As James made clear, the ACCA residual clause speaks in terms of “serious potential risk,” not actual risk or actual endangerment. Nevertheless, the Kelly court apparently ignored the plain language of the identical phrase' contained in United States Sentencing Guideline (“U.S.S.G.”) § 4B1.2(a)(2) in concluding that RCW § 46.61.024 is not categorically a crime of violence. See, e.g., Kelly, 422 F.3d at 893 (noting that under the state statute, “the conduct of the defendant need not pose any actual danger or create a serious risk of harm to anyone”) (emphasis added); id. at 894 (stating that the “federal ‘crime of violence’ guideline ... requires ehdangerment of another person”) (emphasis added). Hence, Kelly failed to recognize that the statutory language “encompass[es] possibilities even more contingent or remote than a simple ‘risk,’ much less a certainty.” James, 127 S.Ct. at 1597; see also United States v. Martin, 378 F.3d 578, 583 (6th Cir.2004) (“To require crimes of violence in all fact patterns to lead to a violent or harmful end not only would ignore our categorical approach to this inquiry, but it would read the ‘serious potential risk of physical injury’ language out of the Guideline.”).
Furthermore, Kelly erred in reading a key phrase out of RCW § 46.61.024, which prohibits “driv[ing][a] vehicle in a manner indicating a wanton or wilful disregard for the lives or property of others.” RCW § 46.61.024 (emphasis added). By its very terms (“in a manner indicating”), the statute criminalizes conduct sufficient to create an inference about the defendant’s mental state.
In State v. Sherman, 98 Wash.2d 53, 653 P.2d 612, 616 (1982) (en banc), the seminal Washington Supreme Court case interpreting RCW § 46.61.024, the court emphasized that the phrase “in a manner indicating a wanton and wilful1 disregard” contains “both an objective and subjective component”:
Generally speaking, a wanton and willful disregard will only be established by circumstantial evidence of the way a defendant drives.... [T]he State is only interested in punishing such a mental state when it is exhibited. A misanthrope may sit quietly in his room feeling wanton and willful disregard for the world, but unless he demonstrates his feelings through conduct — or in this statutory context drives “in a manner indicating” his feelings — the State is content to let him brood. The language “drives his vehicle in a manner indicating a wanton and wilful disregard” expresses the State’s interest in proscribing conduct exhibiting a certain disposition.
Id. (emphasis added). The court went on to explain that while a defendant’s manner of driving provided circumstantial evidence of his mental state, he could rebut the inference of “wanton and wilful disregard” by showing, for example, that he “had a seizure while driving.” Id. Hence, Sherman makes clear that “the State is proscribing both the ‘conduct’ and the ‘disposition.’ ” Id.
*996State v. Whitcomb, 51 Wash.App. 322, 753 P.2d 565 (1988), on which the Kelly court relied, is no different. In Whitcomb, the Washington Court of Appeals quoted the above language from Sherman and concluded that the statute prohibits “certain conduct, from which a particular disposition or mental state — that of ‘wanton or wilful disregard for the lives or property of others’ — may be inferred.” 753 P.2d at 568 (emphasis added). Whitcomb thus reaffirmed that both conduct and mental disposition are essential elements of the statute.
Although Kelly acknowledged that “the defendant’s actual conduct must have been sufficient to permit an inference about his ‘disposition or mental state,’ ” 422 F.3d at 893 (quoting Whitcomb, 753 P.2d at 568), it is evident that the court gave short shrift to the dual requirements of the statute. For example, in distinguishing a Sixth Circuit case interpreting Michigan’s eluding statute, Kelly stated that “[t]here 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.” 422 F.3d at 894 (citing United States v. Martin, 378 F.3d 578 (6th Cir.2004)) (emphasis added). By elevating mental state over objectively reckless conduct, Kelly ignored both the plain language of the statute and the Washington Supreme Court’s construction of the statutory text.
C
Kelly, which was wrongly decided to begin with, cannot survive the Supreme Court’s assault on its “ ‘mode of analysis.’ ” Miller, 335 F.3d at 900 (quoting Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1177 (1989)). Because we are bound by the Supreme Court’s mode of analysis as set forth in Duenas-Alvarez and James, we must decide on a clean slate whether Washington’s attempting to elude statute is categorically a crime of violence under the ACCA.
The issue boils down to whether, in the ordinary ease, “driv[ing][a] vehicle in a manner indicating a wanton and wilful disregard for the lives or property or others while attempting to elude a pursuing police vehicle” creates a “serious potential risk of physical injury to another.” Although the “State need not prove that anyone else was endangered by the defendant’s conduct, or that a high probability of harm actually existed,” Whitcomb, 753 P.2d at 568, James makes clear that the ACCA “speaks in terms of ‘potential risk,’ ” 127 S.Ct. at 1597 (emphasis added).
A common-sense reading of the Washington statute compels the conclusion that conduct sufficient to create an inference of “wanton or wilful disregard” by its nature creates a serious potential risk of injury to others, including any passengers in the fleeing car, any drivers or passengers in other vehicles on the road, any pedestrians or bystanders in the area, and at the very least, the pursuing police officer who is attempting to bring the defendant to a stop.2 Indeed, every other circuit that has *997considered a similar statute has concluded that the proscribed conduct generally creates a serious potential risk of physical injury.
For example, in United States v. Orisnord, 483 F.3d 1169 (11th Cir.2007), the Eleventh Circuit considered whether a virtually identical Florida statute3 constituted a categorical crime of violence under U.S.S.G. § 4B1.2(a)(2). The court reasoned:
[T]he language of the Guidelines makes clear that the ‘potential risk’ of injury, rather than actual violence or actual injury, is the touchstone of a ‘crime of violence.’ The dangerous circumstances surrounding a person’s attempt to flee from law enforcement coupled with the person’s operation of a motor vehicle most assuredly presents a ‘potential risk of physical injv/ry’ to others. And the stress and urgency of the situation will likely cause the person fleeing to drive recklessly, turning any pursuit into a high-speed chase with the potential for serious harm to pedestrians, other drivers, and the pursuing officers. Indeed, collisions between fleeing vehicles and pedestrians or other vehicles sharing the road are common. Moreover, by deliberately disobeying a law enforcement officer, the fleeing motorist provokes an inevitable, escalated confrontation with the officer when he is finally apprehended.
Id. at 1182-83 (internal citations omitted) (emphasis added).
Similarly, in United States v. James, 337 F.3d 387, 390-91 (4th Cir.2003),4 the Fourth Circuit had no difficulty concluding that “failing to stop for a blue light generally proscribes conduct that poses the potential for serious injury to another.” The court noted that “[m]ost cases of failing to stop for a blue light involve the deliberate choice by the driver to disobey the police officer’s signal. This disobedience poses the threat of a direct confrontation 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. Accord United States v. Kendrick, 423 F.3d 803, 809 (8th Cir.2005) (holding that felony fleeing from a police officer is categorically a crime of violence because the defendant’s “vehicle has the potential to become a deadly or dangerous weapon”); United States v. Martin, 378 F.3d 578, 583 (6th Cir.2004) (“Because fleeing and eluding an officer while in a car generally will present serious potential risks of physical injury to third parties ... it necessarily qualifies as a ‘crime of violence’ under the Guidelines.”); United States v. Howze, 343 F.3d 919, 922 (7th Cir.2003) (“[A]ll flights [from police] involve ... risk-creating conduct.”).
Washington cases applying RCW § 46.61.024 confirm that the proscribed *998conduct ordinarily involves a serious potential risk of harm to others. In the typical case, the eluding driver not only drives at high speeds but also runs through stop signs or red lights and/or weaves in and out of traffic.5 See, e.g., State v. Refuerzo, 102 Wash.App. 341, 7 P.3d 847, 851 (2000) (upholding conviction of a driver who “weaved through traffic,” “disregarded several stop signs and lights, cut across four lanes of traffic while turning, and went through a series of crosswalks in the presence of heavy pedestrian traffic”).
Even the most seemingly benign cases involve a serious potential risk of physical injury. See, e.g., State v. Treat, 109 Wash.App. 419, 35 P.3d 1192, 1196-97 (2001) (upholding conviction of a driver who eluded police for only a quarter mile before stopping, where the driver “sped down the road,” “stopped briefly, accelerated at a deputy, and then attempted to once again drive away” even after deputies shot out two of his tires) (emphasis added); State v. Nearing, 103 Wash.App. 1049 (2000) (unpublished opinion) (upholding conviction of a driver who eluded police for two miles by “aceelerat[ing] over the 25 mile per hour speed limit” and “ma[king] a number of sharp, high speed turns, including one through a deserted parking lot,” where the vehicle lacked seatbelts and the driver’s “speed and erratic driving made him a danger to himself, his passenger, and anyone who might have been in his way”) (emphasis added); Whitcomb, 753 P.2d at 568 (upholding conviction of a driver who went only 5 mph over the posted limit in an ATV, “which can be handled better than a normal car under [the] adverse conditions of snow and ice,” where the driver ran a red light at a deserted intersection, used “inadequate lighting” despite fog and darkness, and created a “ ‘rooster-tailing’ effect ... potentially creating a hazard for vehicles following behind”) (emphasis added).
Because Washington consistently applies RCW § 46.61.024 to conduct creating a “serious potential risk of physical injury to another,” I would join our sister circuits in holding that attempting to elude a pursuing police officer is categorically a crime of violence. Therefore, I would affirm Jennings’ sentence as an armed career criminal.
II
Even if Kelly were still the binding law of our court, I could not agree with the majority that Navarro-Lopez forecloses the application of the modified categorical approach to RCW § 46.61.024.
Relying on Kelly’s observation that “the conduct of the defendant need not pose any actual danger or create a serious risk of harm to anyone,” 422 F.3d at 893, the majority cursorily concludes that the modified categorical approach cannot apply because “Jennings’ crime of conviction ... is missing an element of the generic crime,” i.e., “the actual or potential risk of harm to another.” Maj. op. at 992-93.6
However, the court in Kelly did not hold that the statute lacks a risk element altogether, just that the statute does not require a “serious risk of harm.” 422 F.3d *999at 893. While the court acknowledged that “the defendant’s conduct must have been sufficient to permit an inference about his ‘disposition or mental state,’ ” it did not in any way indicate that this quantum of conduct is insufficient to create a potential risk of injury. Id. (quoting Whitcomb, 753 P.2d at 568). Furthermore, in interpreting the “wanton or wilful disregard” language of the statute, the Washington Court of Appeals noted that “ ‘[t]he usual meaning assigned to “willful,” “wanton,” or “reckless” ... is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow....’” Whitcomb, 753 P.2d at 568 (quoting Prosser & Keeton, Torts § 34 at 213 (5th ed. 1984)) (emphasis added). As long as the statute contains a risk element, the modified categorical approach can be applied. See Navarro-Lopez, 503 F.3d at 1073 (“The modified categorical approach ... only applies when the particular elements in the crime of conviction are broader than the generic crime.”). Even if the state need not prove that this risk be so serious as to create a “high probability of harm,” id., the overbreadth of the risk element is precisely why application of the modified categorical approach is appropriate.
Although I do not express any opinion as to whether the judicially noticeable documents in this case are sufficient to establish all of the elements of the generic crime, I respectfully dissent from the majority’s conclusion that RCW § 46.61.024 can never be considered a predicate violent felony under the ACCA.
Ill
Because Kelly is no longer binding on this Court, I would affirm Jennings’ sentence based on my conclusion that RCW § 46.61.024 is categorically a crime of violence under the ACCA. Even if Kelly were still good law, I could not agree with the majority’s blanket rejection of its modified categorical approach to the Washington statute. I respectfully dissent.
. The statute originally used the term “wanton and wilful,” which was changed to "wanton or wilful” effective June 10, 1982. Laws of 1982, 1st Ex. Sess., ch. 47, § 25. See State v. Stayton, 39 Wash.App. 46, 691 P.2d 596, 597 n. 1 (1984).
. That the Washington statute criminalizes conduct showing disregard for either persons or property does not render it categorically overbroad, since conduct that evinces a wanton or wilful disregard for the property of others will ordinarily also create a serious potential risk of injury to passengers, bystanders, or the pursuing police officer. As the Supreme Court cautioned in Duenas-Alvarez, it is not enough to hypothesize some farfetched scenario that might potentially endanger only property and not persons; there must be a "realistic probability, not a theoretical possibility, that the State would apply its statute to conduct” that only endangers property. 127 S.Ct. at 822; United States v. Vidal, 504 F.3d 1072, 1099 (9th Cir.2007) (en banc) (Kozinski, J., dissenting) ("[Petitioner] cannot *997point to his own case, nor to any other case in the ... history of the statute, where the state has applied [the statute] in such an idiosyncratic manner.”); see also United States v. Orisnord, 483 F.3d 1169, 1182-83 (11th Cir.2007) (holding that an attempting to elude statute with a similar "persons or property” provision is categorically a crime of violence).
. The Florida statute provided that one commits a second-degree felony if he "willfully flees or attempts to elude a law enforcement officer ... and during the course of the fleeing or attempted eluding ... [d]rives at high speed, or in any manner which demonstrates a wanton disregard for the safety of persons or property." Fla. Stat. § 316.1935(3) (quoted in Orisnord, 483 F.3d at 1182) (emphasis added).
. As noted above, the Kelly court mistakenly concluded that “the Fourth Circuit was not engaging in a Taylor categorical analysis,” 422 F.3d at 894, even though the Supreme Court endorsed the Fourth Circuit's "most cases” approach in James and Duenas-Alvarez.
. Washington courts hold that evidence of speeding alone is insufficient to prove that the defendant drove in a wanton or wilful manner. See State v. Delmarter, 68 Wash.App. 770, 845 P.2d 1340, 1353 (1993), overruled on other grounds in State v. Brunson, 128 Wash.2d 98, 905 P.2d 346 (1995).
. The majority's adherence to Kelly as our binding precedent for purposes of rejecting the application of the categorical approach is ironic given its casual rejection of the modified categorical approach, which Kelly faithfully applied.