United States v. McCauley

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 08a0421p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellee, -

UNITED STATES OF AMERICA,

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No. 07-3935

v.

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THOMAS L. MCCAULEY, -

Defendant-Appellant. -

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Appeal from the United States District Court

for the Southern District of Ohio at Dayton.

No. 06-00154—Walter H. Rice, District Judge.

Argued: October 31, 2008

Decided and Filed: November 25, 2008

Before: KENNEDY, SUTTON, and McKEAGUE, Circuit Judges

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COUNSEL

ARGUED: Andrew J. King, LAW OFFICES, Columbus, Ohio, for Appellant. Benjamin C.

Glassman, ASSISTANT UNITED STATES ATTORNEY, Cincinnati, Ohio, for Appellee.

ON BRIEF: Andrew J. King, LAW OFFICES, Columbus, Ohio, for Appellant. Sheila Gay

Lafferty, ASSISTANT UNITED STATES ATTORNEY, Dayton, Ohio, for Appellee.

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OPINION

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KENNEDY, Circuit Judge. Thomas McCauley appeals the district court’s denial of his

motion to suppress evidence discovered during a search of his residence and vehicle, arguing that

police did not have reasonable suspicion to stop his vehicle and that his wife did not validly consent

to the search of their residence and vehicle. He further contends that, even if he is convicted, his

prior offenses do not subject him to sentencing under the Armed Career Criminals Act. 18 U.S.C.

§ 924(e). Upon review we find that reasonable suspicion that appellant was involved in criminal

activity supported the stop and that his wife validly consented to a search of his residence and

vehicle. Because his prior offenses constitute “occasions different” under 18 U.S.C. § 924(e), he

was properly sentenced under the ACCA. Accordingly, we AFFIRM the district court’s judgment.

BACKGROUND

Just after midnight on June 19, 2006, Deputy Douglas Phillips of the Montgomery County

Sheriff’s Office was dispatched to recover a stolen vehicle on Riverside Drive in Dayton, Ohio. J.A.

1

No. 07-3935 United States v. McCauley Page 2

at 66. While he was on the scene, a vehicle pulled up behind him and a male and female exited the

vehicle. Id. The female, later identified as Laurie Mitchell, was “very hysterical” and “crying,” and

told Deputy Phillips that a man whom she knew had just chased her with a gun. She described her

assailant and told Deputy Phillips that he had been driving a small black SUV. She further related

that the man lived on Riverside Drive, south of their current location. Deputy Phillips, based on this

information, contacted his dispatch and made a broadcast in which he described the suspect as an

armed black male driving a small black SUV.

Officer Helthinstine, a Five Rivers Metro Parks park ranger in uniform and driving a marked

police car, responded that he was on duty in the area and had just passed the deputy’s location.

Officer Helthinstine pulled off the road a little further up Riverside Drive. A few minutes later,

Officer Helthinstine received another broadcast from Deputy Phillips who relayed that he had

observed a vehicle matching the description of the suspect vehicle drive past him, heading south on

Riverside Drive. A few seconds later, Officer Helthinstine, who was on Riverside Drive, observed

a small black SUV drive past him. He pulled up behind it, activating his lights in an attempt to stop

the vehicle.

Officer Helthinstine chased the vehicle a short distance until it entered the driveway of a

residence at 2219 Riverside Drive and pulled into a garage. As Officer Helthinstine pulled up

directly behind the SUV, the garage door began to close. Before the door closed completely, the

officer observed a black male, later identified as appellant, exiting the front passenger side door.

Officer Helthinstine exited the cruiser and ordered him to stop, but the appellant ignored him and

ran inside the house through a door inside the garage, yelling loudly.

Seconds later, the garage door reopened and the officer saw Denise McCauley, appellant’s

wife, exit the driver’s side door of the SUV. Mrs. McCauley identified the man who ran into the

house as her husband. As the officer was speaking to her, appellant exited the house and, continuing

to yell and curse, approached the officer. Officer Helthinstine pointed his weapon at appellant and

ordered him to raise his hands. Within three minutes, additional law enforcement officers arrived

on the scene, secured appellant with handcuffs, and took him into custody.

Montgomery County Sheriff’s Office Detective Matthew Snyder was among the officers who

had arrived. He asked appellant’s wife if anyone was inside the house. The wife, whose demeanor

was “cooperative,” replied that no one else was inside and added that the officers could go inside

and check. In response, Detective Snyder and Officer Helthinstine entered the residence. Almost

immediately, Detective Snyder observed narcotics sitting out in plain view on top of a bar and

informed Officer Helthinstine.

Officer Heiser, a Dayton Police Department Officer, arrived at the scene and spoke with

appellant’s wife. Officer Heiser then observed Deputy Snyder ask appellant’s wife if the vehicle

belonged to her and if she would grant the officers permission to look inside the vehicle for

weapons. She responded to both questions in the affirmative. Officer Heiser looked inside the

vehicle and recovered a firearm from the back seat.

Officers arrested appellant and transported him to the Dayton police station, where he

admitted both orally and in writing to possessing a firearm. Officers also interviewed appellant’s

wife, who confirmed that she had consented to the search of both her residence and vehicle.

On September 12, 2006, the grand jury for the Southern District of Ohio returned a two-

count indictment against appellant charging him with (1) possession of a firearm by a felon in

violation of 18 U.S.C. 922(g)(1); and (2) possession of cocaine in violation of 21 U.S.C. 844. Two

months later, the government filed a notice of enhanced sentencing under the Armed Career

Criminal Act (ACCA) based on appellant’s prior convictions. On March 12, 2007, appellant filed

No. 07-3935 United States v. McCauley Page 3

a Motion to Suppress seeking to suppress evidence recovered during the search of his residence and

vehicle. The district court judge denied the motion following an evidentiary hearing held the

following day. On March 15, 2007, appellant entered conditional guilty pleas to both counts of the

indictment pursuant to a plea agreement which preserved appellant’s right to appeal the suppression

ruling.

The Presentence Investigation Report (PSR) prepared by the United States Probation Office

indicated that appellant would1be sentenced under the ACCA and was thus subject to a minimum

of 15 years of imprisonment. Applying Sentencing Guideline 4B1.4, the Guideline provision

implementing the ACCA, the PSR assigned appellant a total offense level of 31 and a criminal

history category of IV, resulting in a sentencing range of 180 to 199 months of imprisonment. On

June 22, 2007, appellant objected pro se to being sentenced under the ACCA, arguing that his two

burglary convictions could not qualify as two separate felonies because he was sentenced for them

both on the same day. J.A. at 57. The district court disagreed and found that fact irrelevant for

purposes of determining qualifying offenses under the ACCA. On July 16, 2007, the district court

sentenced appellant on count one to a mandatory 15-year term of imprisonment followed by 5 years

of supervised release and on count two to time served. Appellant timely appealed.

ANALYSIS

I. The district court properly denied appellant’s motion to suppress.

A. Standard of Review

In reviewing a district court’s ruling on a motion to suppress, the appellate court must

consider the evidence in the light most favorable to the district court’s decision. United States v.

Moncivais, 401 F.3d 751, 754 (6th Cir. 2005). “In an appeal of the denial of a motion to suppress,

we review the district court’s factual findings for clear error and its legal conclusions de novo.”

United States v. Hudson, 405 F.3d 425, 431 (6th Cir. 2005).

B. The district court properly held that police officers could stop and investigate where they

had reasonable suspicion of criminal activity

Under Terry v. Ohio, a police officer may stop a vehicle if specific and articulable facts give

him reasonable suspicion that an occupant is committing a crime. 392 U.S. 1, 20-21 (1968). The

proof required to indicate “reasonable suspicion” is “obviously less demanding” than that needed

for probable cause. United States v. Sokolow, 490 U.S. 1, 7 (1989). To assess the validity of a Terry

stop, the court considers the totality of the circumstances. United States v. Martin, 289 F.3d 392, 396

(6th Cir. 2002).

We determine whether reasonable suspicion existed at the point of seizure—not, as

appellant’s counsel contended at oral argument, at the point of attempted seizure. “A person is

seized by the police and thus entitled to challenge the government action under the Fourth

Amendment when the officer, by means of physical force or show of authority, terminates or

restrains his freedom of movement.” Brendlin v. California, 127 S.Ct. 2400, 2405 (2007) (internal

citations omitted); see California v. Hodari D., 499 U.S. 621, 626 (1991) (“[The Fourth

Amendment] does not remotely apply, however, to the prospect of a policeman yelling ‘Stop, in the

name of the law!’ at a fleeing form that continues to flee. That is no seizure.”); United States v.

1

This assessment was based on appellant’s prior convictions for (1) one count of Aggravated Robbery and one

count of Felonious Assault which were committed on October 18, 1976; (2) one count of Aggravated Robbery which

was committed on February 6, 1987; and (3) one count of Aggravated Robbery occurring on May 15, 1987. Appellant

stipulated in writing that he was convicted in all three of these cases.

No. 07-3935 United States v. McCauley Page 4

Washington, 12 F.3d 1128, 1132 (D.C. Cir. 1994). “[T]here is no seizure without actual

submission.” Brendlin, 127 S.Ct. at 2405. Here, appellant was not seized until he exited the house

and complied with Officer Helthinstine’s orders to hold his hands in the air. Before that, he had not

submitted to any show of authority. True, he did not have an effective way to signal submission

until the vehicle his wife was driving, and in which he was a passenger, stopped moving. See id.

at 2409 (noting that Brendlin, the passenger, “had no effective way to signal submission while the

car was still moving on the roadway.”). But even once the vehicle had pulled into the garage,

appellant exited it and ran inside the house despite Officer Helthinstine’s orders; he clearly did not

submit. See id. (noting that “once [the vehicle] came to a stop [Brendlin] could, and apparently did,

submit by staying inside”). Accordingly, although Officer Helthinstine may have had reasonable

suspicion when he activated his lights, we need only determine whether reasonable suspicion existed

at the time appellant actually submitted—when he exited the house and complied with Officer

Helthinstine’s orders.

When Officer Helthinstine testified at the suppression hearing, he articulated several facts

which led Officer Helthinstine to reasonably suspect that appellant was engaged in criminal activity

at the time he was seized. The Government’s brief lists the facts which led to Officer Helthinstine’s

reasonable suspicion conclusion:

(1) shortly after the incident, the victim...relayed to a deputy sheriff that she had just been

robbed at gunpoint and provided a description of her assailant, Thomas McCauley, whom

she apparently knew, and the vehicle in which he was driving;

(2) the deputy made a broadcast over the police radio of the black male suspect and his

vehicle, described as a small black SUV;

(3) shortly thereafter, the same deputy observed the car drive past him on Riverside Drive,

consistent with the information provided by Laurie Mitchell, and relayed that to Officer

Helthinstine;

(4) Officer Helthinstine, who was stationary at an intersection on Riverside Drive, then

observed a number of cars drive past him including a small black SUV, the only car

matching the description given by Deputy Phillips;

(5) Officer Helthinstine then fell in behind the SUV and activated his overhead lights;

(6) the SUV did not stop, but rather pulled into a driveway and entered a garage of a

residence on Riverside Drive...

Final Brief for Plaintiff-Appellee at 14-15, United States v. Thomas L. McCauley, No. 07-3935 (6th

Cir. March 14, 2008).

Our court’s precedent confirms that these uncontroverted facts give rise to something more

than an “unparticularized suspicion” or a “hunch” that criminal activity was afoot. See, e.g., Terry,

392 U.S. at 27; United States v. Cortez, 449 U.S. 411, 417-18 (1981); United States v. Hurst, 228

F.3d 751, 757 (6th Cir.2000); United States v. Molina, 226 Fed. Appx. 523 (2007). In United States

v. Cortez, 449 U.S. 411, 417-18 (1981), the Court interpreted the Terry requirement that

characteristics be “particularized” to mean that viewed in their entirety, the descriptive

characteristics must “raise a suspicion that the particular individual being stopped is engaged in

wrongdoing.” Cortez, 449 U.S. at 418-419. It is not necessary for the characteristics to be

uncommon or especially unique in order to be particularized. United States v. Molina, 226 Fed.

Appx. 523 (2007).2

2

In our unpublished opinion in United States v. Molina, we held that a victim’s description of the suspect’s

vehicle as a “small, black Nissan” was sufficient to create reasonable suspicion. 226 Fed. Appx. 523 (2007). In Molina,

we held that a police officer had reasonable suspicion where one minute after he received a dispatch regarding a drive-by

shooting in which assailant was driving a “small, black Nissan,” the officer stopped a car matching that description four

blocks from where the shooting had occurred. In determining whether the victim’s description was sufficiently

No. 07-3935 United States v. McCauley Page 5

Additionally, the experience of the law enforcement officer must be taken into account in

the reasonable suspicion analysis:

The process does not deal with hard certainties, but with probabilities. Long before the law

of probabilities was articulated as such, practical people formulated certain common sense

conclusions about human behavior; jurors as factfinders are permitted to do the same-and

so are law enforcement officers.... the evidence thus collected must be seen and weighed not

in terms of library analysis by scholars, but as understood by those versed in the field of law

enforcement.

Cortez, 449 U.S. at 418. In determining whether reasonable suspicion exists, we allow officers to

make inferences from the information available to them that “might well elude an untrained person.”

United States v. Arvizu, 534 U.S. 266, 273 (2002)(quoting Cortez, 449 U.S. at 418).

From the perspective of Officer Helthinstine, reasonable suspicion certainly existed that

McCauley was engaged in criminal activity. He relied on the specific, articulable facts relayed to

him by Deputy Phillip. These facts, together with reasonable inferences drawn based on his

experience as a police officer, led him to correctly conclude that an occupant of the vehicle was

engaged in criminal activity. The suspect vehicle was found just minutes after the victim described

the SUV’s location and characteristics to Deputy Phillips. Officer Helthinstine observed a vehicle

matching the description at a location consistent with the time needed to travel to that point and

traveling in a direction consistent with Deputy Phillips’ description of its path. Additionally, the

failure of the vehicle to pull over once Officer Helthinstine activated his lights and the subsequent

conduct of appellant provided additional reason for him to conclude that criminal activity was

indeed underfoot.3

In United States v. Hurst, we found that reasonable suspicion existed where there were more

occupants in the stopped car than were reported by the dispatcher. 228 F.3d 751, 757 (6th Cir.2000).

In Hurst, the victim described the suspect’s car as a “dark-colored Thunderbird” with a broken grill.

Id. at 755. Police later stopped the suspect who was driving a dark blue Mercury Cougar and was

twenty-five minutes in driving time from the victim’s home. Id. Despite the discrepancies between

the actual car stopped and the victim’s description of the car, as well as the fact that the car held a

different number of occupants than originally described, we held that reasonable suspicion existed.

Id. at 757. Appellant distinguishes the present case by pointing out that the car stopped in Hurst had

a broken grill. However, the accompanying facts in this case overcome this distinction. In making

a reasonable suspicion determination, we must consider “all circumstances surrounding the actions

of a suspected wrongdoer.” United States v. Garza, 10 F.3d 1241 (1993). In this “totality of the

“particularized,” we stated, “Black cars are certainly common, as are small ones and as are Nissans. However, all of these

descriptors taken together and viewed in the totality of the circumstances with the location of the car being consistent

with the location of the shooting create a particularized basis giving rise to reasonable suspicion.” Molina, 226 Fed.

Appx. at 528.

3

The Government’s brief lists the facts that created sufficient reasonable suspicion in Officer Helthinstine after

the vehicle failed to stop:

(7) as the SUV pulled in and the garage door was closing, Officer Helthinstine observed a black male exit the

front passenger seat of the vehicle and curse and yell at the top of his lungs;

(8) Officer Helthinstine exited his vehicle and ordered the subject to stop and place his hands in the air;

(9) the suspect failed to comply and ran into the residence through a door in the garage as the exterior door

of the garage closed;

(10) seconds later, the exterior garage door opened and Officer Helthinstine observed a black female exit

from the driver’s seat of the SUV; and

(11) seconds later, Officer Helthinstine observed the suspect exit from the door inside the garage and once

again, observed the suspect cursing and yelling.

No. 07-3935 United States v. McCauley Page 6

circumstances” analysis, no one fact is dispositive. In this case there are certainly “specific and

articulable” facts which, in addition to the car’s description, are sufficient to form a reasonable

suspicion in Officer Helthinstine.

The district court properly held that Officer Helthinstine could stop and investigate appellant

where he had reasonable suspicion of criminal activity. Considering the totality of the

circumstances, we hold that reasonable suspicion existed such that stopping appellant was

constitutionally permissible.

C. The district court did not err in finding that the Government met its burden in showing

that valid consent was obtained

While the Fourth Amendment protects citizens from unreasonable searches and seizures, a

search is not unreasonable if an individual with a privacy interest in the item to be searched gives

voluntary consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). Valid consent may be

provided not only by the defendant but also by “a third party who possessed common authority over

or other sufficient relationship to the premises or effects sought to be inspected.” United States v.

Matlock, 415 U.S. 164, 171 (1974).

The government bears the burden of proving that the consent was voluntary by “clear and

positive testimony.” United States v. Erwin, 155 F.3d 818, 823 (6th Cir.1998). Voluntariness is

determined by examining the totality of the circumstances. Schneckloth, 412 U.S. at 227. Relevant

factors in determining voluntariness, none of which are dispositive, include the repeated and

prolonged nature of questioning, the use of physical punishment such as the deprivation of food or

sleep, and the length of detention. Schneckloth, 412 U.S. at 226 (citations omitted). While

knowledge of the right to refuse may be considered as a factor, it is not a necessary finding. Id. at

227. A subjective belief of coercion is not sufficient to destroy voluntariness. United States v.

Crowder, 62 F.3d 782 (6th Cir. 1995).

Despite the district court’s finding that consent to search the house was voluntarily given by

his wife, appellant argues that valid consent was not obtained. Appellant attempts to attack the

credibility of various testifying police officers by finding inconsistencies between their testimonies.

He disputes the credibility of the testimony of Deputy Snyder and Officer Helthinstine based on the

fact that both testified that they could not remember the exact words that [Denise McCauley] spoke

in consenting. A closer look at the officers’ testimony reveals their consistency. Deputy Snyder

recalled that when asked if anyone else was inside the residence, Denise McCauley replied “go

ahead and search” or “take a look.” Officer Helthinstine testified that her response was “you can

go ahead and check” or “help yourself.” This consistent testimony certainly does not defeat the

officers’ credibility. Additionally, several officers testified that Denise McCauley was

“cooperative” when they were asked about her demeanor. This clear and positive testimony, absent

any evidence of coercion, establishes that appellant’s wife in fact consented to the search of their

house.

Additionally, the district court correctly determined that Denise McCauley gave consent to

search the car. Appellant presents no evidence to dispute Officer Heiser’s testimony that Denise

McCauley consented to a search of the car. Despite Officer Snyder’s failure to recall speaking any

further with Denise McCauley after exiting the house, Officer Heiser testified in detail about her

statements expressing free and voluntary consent. Further, Detective Ritchey testified that later that

same day, Denise McCauley confirmed that she had provided consent to search both the house and

vehicle. Appellant does not argue that any coercion was used in obtaining this admission of consent.

In reviewing the denial of a motion to suppress, “we accord considerable deference to the

credibility findings of the trial court.” U.S. v. Cooke, 915 F.2d 250, 252 (6th Cir. 1990). To attack

a district court’s suppression hearing credibility determination, a defendant must establish that the

No. 07-3935 United States v. McCauley Page 7

district court’s conclusion was clearly erroneous. Id. The district court's determination that the

consent was knowing and voluntary is a factual determination that is not clearly erroneous and is

supported by the evidence. The “clear and positive” testimony in this case establishes that Denise

McCauley did consent to the search of the house and vehicle. Through the testimony of Deputy

Snyder and Officer Helthinstine, the government satisfied its burden of showing that appellant

voluntarily consented to the search. There is no basis in the record to conclude that the district court

clearly erred in finding that appellant voluntarily consented to the search.

II. The district court properly ruled that appellant’s prior convictions met the requirements

of the Armed Career Criminal Act.

This court reviews questions of law de novo, Weimer v. Kurz-Kasch, Inc., 773 F.2d 669, 671

(6th Cir.1985), and questions of fact under the clearly erroneous standard. Loudermill v. Cleveland

Bd. of Education, 844 F.2d 304, 308 (6th Cir. 1988), cert. denied, 488 U.S. 941. On this issue, the

key facts are not in dispute. J.A. at 34. The issue of whether a defendant’s prior conduct constitutes

two predicate offenses or a “single occasion” pursuant to the ACCA is a legal issue subject to de

novo review. United States v. Graves, 60 F.3d 1183, 1185. (6th Cir. 1995).

The Armed Career Criminal Act imposes a mandatory minimum sentence of fifteen years

on career criminals. The statute provides:

In the case of a person who violates section 922(g) of this title and has three previous

convictions ... for a violent felony or a serious drug offense, or both, committed on occasions

different from one another, such person shall be...imprisoned not less than fifteen years....

18 U.S.C. § 924(e)(1). The statute defines career criminals as those people who have committed

three predicate violent felonies “on occasions different from one another.” This circuit has further

clarified that under the ACCA, a career criminal is one who has been convicted of three criminal

“episodes.” United States v. Graves, 60 F.3d 1183, 1185 (6th Cir. 1995)(quoting United States v.

Hughes, 924 F.2d 1354, 1361 (6th Cir.1991)). “An episode is an incident that is part of a series, but

forms a separate unit within the whole. Although related to the entire course of events, an episode

is a punctuated occurrence with a limited duration.” Id.

Appellant’s prior convictions include (1) one count of Aggravated Robbery and one count

of Felonious Assault which were committed on October 18, 1976; (2) one count of Aggravated

Robbery which was committed on February 6, 1987; and (3) one count of Aggravated Robbery

which was committed on May 15, 1987. We need not consider whether the 1976 convictions

constitute one or two predicate offenses under the ACCA. Treating either felony in the 1976

conviction as one predicate offense and combining it with the two 1987 qualifying offenses would

require sentencing under the ACCA. As such, we focus on appellant’s arguments involving the

1987 offenses.

Appellant was convicted of two counts of aggravated robbery at a hearing that took place

on November 16, 1987. At that hearing, he was convicted of the offenses which had occurred on

February 6, 1987 and May 16, 1987. Appellant argues that, under the ACCA, his two 1987

convictions were not “committed on occasions different from one another” because they were

consolidated for sentencing purposes.

The clear language of the ACCA reveals that appellant’s prior convictions in fact satisfy its

requirements. The word “committed” in § 924(e) indicates that the criminal acts must have occurred

on separate occasions, not that their resulting convictions must take place on separate dates. That

the two 1987 offenses occurred on different dates is not in dispute. Appellant expressly stipulated

No. 07-3935 United States v. McCauley Page 8

that he was convicted of both aggravated robbery and felonious assault in 1976 and two counts of

aggravated robbery in 1987 occurring on May 15, 1987 and February 6, 1987.

Beyond the statute’s clear language, this court has held that the fact that a defendant was

convicted for two offenses during the same judicial proceeding does not prevent those offenses from

constituting “occasions different” under the ACCA. In United States v. Brady, we stated that the

ACCA “imposes no conditions as to the timing of the convictions,” and explicitly held that the

ACCA “requires only three qualifying prior convictions without regard to the order in which those

convictions were obtained.” 988 F.2d 664, 667-668, 670 (6th Cir. 1993). In Brady, we held that

two armed robberies committed thirty minutes apart and with the same weapon were “occasions

different” within the meaning of the ACCA. Id. at 665. The court reasoned that because the crimes

were committed against “different victims at different places and at distinctly different times” the

two robberies correctly counted as separate predicate offenses, and he was sentenced under the

ACCA. Id.

In United States v. Roach, a defendant was convicted of two drug offenses which had been

committed 15 days apart in a single proceeding. 958 F.2d 679, 683 (6th Cir. 1992). Both offenses

involved the sale of controlled substances to the same undercover agent. Id. These convictions were

held to constitute “occasions different” under the ACCA. In light of Brady and Roach, appellant

cannot argue that two distinct offenses committed over three months apart constitute a single offense

solely because he was convicted of both offenses in a single proceeding.

Our precedent on this issue is clear, as is the language of the ACCA. Appellant’s two 1987

convictions were properly treated as separate qualifying convictions under the ACCA. Accordingly,

we hold that the district court correctly ruled that appellant should be sentenced under the ACCA.

CONCLUSION

The district court did not err in finding that reasonable suspicion existed such that appellant’s

Fourth Amendment rights were not violated. Additionally, they correctly held that his residence and

vehicle were searched pursuant to the valid consent of his wife, rendering the search constitutional.

Based on clearly established precedent and the language of the ACCA, his prior offenses clearly

subject him to sentencing under the ACCA. For the foregoing reasons, we AFFIRM the ruling of

the district court.