                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-1974
                                  ___________

United States of America,              *
                                       *
            Appellee,                  *
                                       * Appeal from the United States
    v.                                 * District Court for the
                                       * District of Minnesota.
Larry Darnell Armstrong,               *
                                       *
            Appellant.                 *
                                  ___________

                             Submitted: November 11, 2008
                                Filed: February 10, 2009
                                  ___________

Before MURPHY, RILEY, and GRUENDER, Circuit Judges.
                            ___________

RILEY, Circuit Judge.

      Larry Darnell Armstrong (Armstrong) was charged with being a felon in
possession of a firearm and an armed career criminal. The district court1 denied
Armstrong’s motion to suppress the firearm under the Fourth Amendment, and
Armstrong pled guilty. At sentencing, the district court found Armstrong was an
armed career criminal under the Armed Career Criminal Act (ACCA), and Armstrong
was sentenced to the ACCA mandatory minimum of 180 months imprisonment.

      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Arthur J.
Boylan, United States Magistrate Judge for the District of Minnesota.
Armstrong challenges the denial of his motion to suppress, and his sentence as an
armed career criminal. We affirm.

I.    BACKGROUND
      On June 29, 2006, a search warrant was issued by the District Court of Blue
Earth County, Minnesota, granting police officers the authority to search the residence
and vehicle of Armstrong and his girlfriend, Vera Gant (Gant). The police officers had
probable cause to believe Armstrong and Gant used a stolen credit card to make several
purchases, including the purchase of wheel rims on their vehicle. The warrant
authorized the police officers to look for evidence of the fraudulent purchases made by
Armstrong and Gant.

       On the same day the warrant was issued, Mankato, Minnesota, police officers
executed the warrant. Officer William Reinbold (Officer Reinbold), a member of the
Minnesota Valley Drug Task Force, assisted in the execution of the warrant. Officer
Reinbold entered the residence and searched the bedroom. Upon entering the
bedroom, Officer Reinbold noticed a small plastic container which resembled a hotel
ice bucket. Officer Reinbold searched the container looking for stolen credit cards and
receipts. In the bucket, Officer Reinbold found a small electronic digital scale and a
razor blade with white residue. Officer Reinbold field tested the white residue, and the
test revealed the residue contained cocaine. Officer Reinbold told his partner about the
field test results, and his partner and another officer immediately arrested Armstrong
and Gant for possession of narcotics. During the same search, other officers found
cocaine residue in a small jeweler-sized plastic bag in the center console of
Armstrong’s vehicle, and also found approximately ten unused jeweler-sized bags in
the residence’s kitchen closet.

       After Officer Reinbold finished searching the container, he proceeded to search
the bedroom closet about three to five feet from the container. Officer Reinbold moved
clothes on the floor of the closet and uncovered a small black case. Officer Reinbold

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opened the unlocked end of the case to look for credit cards and receipts, and noticed
a Bersa Thunder .380 handgun with ammunition in the case. Officer Reinbold seized
the handgun and gave it to another officer to compare the serial number with serial
numbers of stolen firearms. The serial number check revealed the handgun was stolen,
and a subsequent background check of Armstrong revealed Armstrong was a convicted
felon.

       Armstrong was indicted on one count of being a felon in possession of a firearm
under 18 U.S.C. § 922(g). The indictment also charged Armstrong with being an
armed career criminal under 18 U.S.C. § 924(e). Armstrong moved the district court
to suppress the handgun because it was obtained in violation of the Fourth
Amendment. The district court referred the motion to a magistrate, and on February
13, 2007, the magistrate conducted a hearing on the motion to suppress. During the
hearing, the government called Officer Reinbold. Officer Reinbold testified about his
participation in the search, and stated his training and experience led him to believe
Armstrong and Gant were engaged in narcotics dealing when he found the electronic
digital scale and razor blade with cocaine residue. Officer Reinbold also testified the
handgun in the vicinity of the narcotics on the scale and razor blade evidenced
narcotics dealing. The magistrate recommended the district court deny Armstrong’s
motion to suppress the handgun because the handgun’s incriminating character was
immediately apparent under the plain view doctrine after the scale and razor blade with
cocaine residue provided probable cause to suspect drug trafficking.

       The district court reviewed the magistrate’s recommendation and remanded the
motion for the magistrate to elicit expert testimony on whether the small electronic
digital scale would be a tool of drug trafficking, and whether the scale in combination
with the other items found at the residence supported a conclusion of probable cause
to suspect drug trafficking. On remand, the magistrate conducted a hearing at which
the government called Officer Keith Mortensen (Officer Mortensen) and Officer John
Boulger (Officer Boulger). Officer Mortensen testified he had been an officer for over

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eleven years and participated in approximately thirty drug related search warrants.
Officer Mortensen explained the jeweler-sized plastic bags found in Armstrong’s
kitchen and vehicle were sometimes used for controlled substances, and the electronic
digital scale would be a useful tool in drug distribution. Officer Boulger, a stipulated
expert in the drug trade, reported he had seen the type of scale found in the residence
used for drug trafficking “on hundreds of occasions,” and opined the electronic digital
scale, razor blade, and plastic bags found in Armstrong’s kitchen and in the car’s center
console would lead him to believe drug trafficking was occurring.

       Based upon the testimony of Officer Mortensen and Officer Boulger, the
magistrate issued a supplemental report to the district court recommending
Armstrong’s motion to suppress be denied, because the small electronic digital scale
and cocaine residue were sufficient evidence to establish probable cause that drug
trafficking was occurring. On July 10, 2007, the district court adopted the magistrate’s
supplemental recommendation, and denied Armstrong’s motion to suppress the
handgun. The district court found the testimony of Officer Boulger and Officer
Mortensen established a reasonable officer would have probable cause to believe drug
trafficking was occurring based on the small electronic digital scale, razor blade and
the cocaine residue, together with the absence of any evidence indicating personal
cocaine use.

       After the district court denied Armstrong’s motion to suppress, Armstrong
entered a conditional plea of guilty, reserving the right to appeal the district court’s
ruling on his motion to suppress. At sentencing, the government argued Armstrong
should be classified as an armed career criminal subject to the mandatory minimum
sentence of 180 months imprisonment under 18 U.S.C. § 924(e)(1). The government
claimed Armstrong’s presentence investigation report (PSR) contained five prior
felony convictions in Minnesota state court which qualified as “violent felon[ies]”
under § 924(e)(2)(B). These convictions included a 1990 theft of a motor vehicle, a
1990 residence burglary, a 1992 simple robbery involving the mugging of a woman

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and stealing her purse, a 1997 theft of a motor vehicle, and a 2004 third degree
attempted burglary of a store.

        Armstrong objected to the use of his auto thefts and attempted burglary
convictions as predicate offenses under the ACCA. Armstrong claimed the auto thefts
were not violent felonies, and the attempted burglary conviction should not be used
because Armstrong had not sufficiently waived his Sixth Amendment right to counsel
during the state court plea and sentencing proceedings. In response to Armstrong’s
arguments, the district court found Armstrong’s auto theft convictions were violent
felonies and determined Armstrong was an armed career criminal based upon the auto
thefts, burglary, and simple robbery convictions. In its ruling, the district court did not
include Armstrong’s attempted burglary conviction in the ACCA determination,
because the district court found Armstrong was not represented by counsel and had not
sufficiently waived his right to counsel for this offense. Armstrong was sentenced to
the ACCA mandatory minimum 180 months imprisonment. This appeal follows.

II.    DISCUSSION
       A.     Motion to Suppress the Handgun
       Armstrong first appeals the district court’s denial of his motion to suppress the
handgun. Armstrong argues the handgun should have been suppressed because the
handgun was not named in the warrant and does not fall within the plain view
exception to the Fourth Amendment. Armstrong contends the incriminating nature of
the handgun was not immediately apparent to fit within the plain view exception,
because the small electronic digital scale and razor blade with cocaine residue did not
establish probable cause Armstrong was trafficking drugs. We review “the district
court’s factual determinations in support of its denial of a motion to suppress for clear
error and its legal conclusions de novo.” United States v. Hogan, 539 F.3d 916, 921
(8th Cir. 2008) (quoting United States v. Harper, 466 F.3d 634, 643 (8th Cir. 2006)).




                                           -5-
       Under the plain view doctrine, evidence may be seized without a warrant if the
following three conditions are met: “(1) ‘the officer did not violate the Fourth
Amendment in arriving at the place from which the evidence could be plainly viewed,’
(2) the object’s incriminating character is immediately apparent, and (3) the officer has
‘a lawful right of access to the object itself.’” United States v. Hughes, 940 F.2d 1125,
1126-27 (8th Cir. 1991) (quoting Horton v. California, 496 U.S. 128, 136-37 (1990)).

       The only dispute in this appeal is whether the handgun’s incriminating character
was immediately apparent. Evidence is immediately apparent “if there is ‘probable
cause to associate the property [seized] with criminal activity.’” United States v.
Newton, 788 F.2d 1392, 1395 (8th Cir. 1986) (quoting Texas v. Brown, 460 U.S. 730,
741-42 (1983)). “In determining whether this requirement is met, we may consider the
collective knowledge of the officers executing the searches.” Id. (citations omitted).

       The circumstances surrounding the seizure of the handgun persuade us there was
probable cause to believe drug trafficking was occurring. Officer Reinbold testified
the small electronic digital scale and razor blade with cocaine residue led him to
believe drug trafficking was occurring. Officer Reinbold’s belief was strengthened
when he found the gun and ammunition three to five feet from the scale and razor
blade. Officer Mortensen and Officer Boulger corroborated Officer Reinbold’s
conclusion. Officer Mortensen, using the “collective knowledge of the officers
executing the searches,” id., testified the jeweler-sized bags and the electronic digital
scale were indicative of drug distribution. Officer Boulger affirmed the scale was a
tool of the drug trade, and the scale, razor blade, and jeweler-sized bags collectively
evidenced drug trafficking. Based on this record, we conclude a reasonable officer
would have probable cause to believe Armstrong was engaging in drug trafficking.
Because it is unlawful to use, carry, or posses a firearm in furtherance of a drug
trafficking crime, see 18 U.S.C. § 924(c)(1)(A), the handgun’s incriminating nature




                                          -6-
was immediately apparent and admissible under the plain view doctrine.2 The district
court did not err in denying Armstrong’s motion to suppress.

       B.    Application of the ACCA
       Armstrong also challenges the district court’s determination he is an armed
career criminal subject to a mandatory minimum of 180 months imprisonment under
18 U.S.C. § 924(e)(1). Armstrong claims his auto theft crimes are not violent felonies
under the ACCA, and without his auto theft convictions, he does not have three violent
felony convictions necessary to be classified as an armed career criminal. We review
de novo whether a prior offense is a violent felony under the ACCA. United States v.
Vincent, 519 F.3d 732, 733 (8th Cir. 2008).

        Under 18 U.S.C. § 924(e)(1), a person convicted of being a felon in possession
of a firearm is subject to a mandatory minimum fifteen year sentence if the person has
three previous convictions for a violent felony or serious drug offense. A crime is a
violent felony if it is punishable by more than one year imprisonment, and “has as an
element the use, attempted use, or threatened use of physical force against the person
of another” or “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).

      The district court determined Armstrong’s Minnesota auto theft convictions
were violent felonies under the ACCA. Subsequently, the Supreme Court held driving
while intoxicated was not a violent felony for the purposes of the ACCA. See Begay
v. United States, __ U.S. __, 128 S. Ct. 1581, 1583 (2008). After Begay, this court


      2
       The government argues, in the alternative, the incriminating nature of the
handgun was immediately apparent because it is unlawful to possess a firearm while
being a drug user. See 18 U.S.C. § 922(g)(3). Because we find there was sufficient
evidence to support probable cause of drug trafficking, we recognize, but choose not
to discuss, the government’s alternative argument.

                                           -7-
held auto theft is not a violent felony under Minn. Stat. § 609.52. United States v.
Miller, No. 06-1407, 2008 WL 5397754, at *1 (8th Cir. Dec. 30, 2008) (per curium);
see also United States v. Aleman, 548 F.3d 1158, 1168 (8th Cir. 2008) (holding auto
theft under Minnesota law is not a crime of violence under the U.S.S.G.); United States
v. Williams, 537 F.3d 969, 973-75 (8th Cir. 2008) (another panel of this court using
Begay to overrule circuit precedent and holding an inquiry regarding a “crime of
violence” under the U.S.S.G. is the same as a violent felony under the ACCA, and auto
theft by deception or without consent under Missouri law is not a violent felony under
the ACCA). Based on Miller, the district court erred in using Armstrong’s auto thefts
as predicate offenses under the ACCA.

       Although the district court committed error, our review is not complete.
Because Begay altered the interpretation of the ACCA’s violent felony definition while
Armstrong’s appeal was pending, we review Armstrong’s classification as an armed
career criminal for plain error. See United States v. Heikes, 525 F.3d 662, 664 (8th
Cir. 2008) (citing United States v. Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc))
(“When the Supreme Court changes the law while a defendant’s case is pending on
appeal, the plain error principle applies.”). Under plain error review, if Armstrong “has
at least three other qualifying ACCA predicate offenses,” he is not entitled to relief
even though the district court based its ACCA sentence on the auto thefts. United
States v. Comstock, 531 F.3d 667, 679 (8th Cir. 2008).

      There is no dispute Armstrong’s convictions for burglary and simple robbery are
qualifying violent felonies under the ACCA. The parties disagree whether
Armstrong’s attempted burglary serves as a third ACCA predicate offense. The
government claims the district court erred in excluding the attempted burglary as a
countable offense because the entire record demonstrates Armstrong made a sufficient
waiver of his right to counsel for this conviction. The government concludes
Armstrong’s convictions for burglary, simple robbery, and attempted burglary satisfy
§ 924(e).

                                          -8-
       Armstrong contends the district court correctly excluded his attempted burglary
conviction from the ACCA consideration because the Minnesota state court failed to
obtain an adequate waiver of Armstrong’s right to counsel. Armstrong asserts his
waiver was inadequate because (1) the Minnesota state court failed to give a detailed
colloquy to Armstrong advising him of the dangers of self representation, and (2) the
entire record shows Armstrong did not understand he was waiving his right to counsel,
because Armstrong has a low IQ and made the “flippant response,” “Why not,” during
the sentencing hearing. Armstrong concludes the exclusion of the attempted burglary
conviction, along with the auto theft convictions, renders his criminal history deficient
for armed career criminal status.

       We review de novo whether Armstrong validly waived his right to counsel,
thereby making his attempted burglary conviction a predicate offense for the ACCA.
See Vincent, 519 F.3d at 733 (“This court reviews de novo the finding that a
defendant’s prior conviction constitutes a violent felony.”); United States v. Crawford,
487 F.3d 1101, 1105 (8th Cir. 2007) (“This Court reviews de novo a district court’s
decision to allow a defendant to proceed pro se.” (citing United States v. Mahasin, 442
F.3d 687, 691 (8th Cir. 2006)). As a general rule, prior convictions used for sentencing
under the ACCA cannot be collaterally attacked. See United States v. Levering, 431
F.3d 289, 294 (8th Cir. 2005) (quoting Moore v. United States, 178 F.3d 994, 997 (8th
Cir. 1999)). However, “[a] narrow exception to this rule applies if the prior conviction
was obtained in violation of the defendant’s right to counsel.” Id. (citing Moore, 178
F.3d at 997).

       The Sixth Amendment provides a criminal defendant the right to counsel and the
corresponding right to waive the right to counsel and proceed pro se. See United States
v. Patterson, 140 F.3d 767, 774 (8th Cir. 1998) (citing Faretta v. California, 422 U.S.
806, 807 (1975)). If the defendant waives the right to counsel, the waiver must be
voluntary, intelligent, and knowing. See Crawford, 487 F.3d at 1105 (quoting Meyer
v. Sargent, 854 F.2d 1110, 1114 (8th Cir. 1988)). This standard is met if the trial court

                                          -9-
specifically informed the defendant of the dangers and disadvantages of self-
representation, or if the entire record evidences the defendant knew and understood the
disadvantages. See id. at 1105-06. When analyzing the entire record for a valid
waiver, we look to “the background, experience, and conduct of the
accused . . . [including] the defendant’s past contacts with the criminal justice system
and his performance at the proceeding at which he represented himself.” Ferguson v.
Bruton, 217 F.3d 983, 985 (8th Cir. 2000) (per curium) (quoted source and internal
marks omitted).

       Although the state court did not engage in a specific colloquy with Armstrong
regarding the dangers and disadvantages of proceeding unrepresented on the attempted
burglary charge, a review of the entire record convinces us Armstrong made a
voluntary, intelligent, and knowing waiver of his right to counsel for this conviction.
When Armstrong waived his right to counsel for the attempted burglary charge,
Armstrong had extensive prior contact with the criminal justice system. Up to that
date, Armstrong had six juvenile adjudications followed by twenty adult convictions
spanning approximately twenty-two years, including at least two burglaries.
Armstrong is a lengthy veteran of the criminal justice system. Armstrong also had
previous experience representing himself. Before his 2004 waiver on the attempted
burglary charge, Armstrong had proceeded pro se three times on driving after
revocation charges.

      Armstrong’s conduct at the plea and sentencing hearing on the attempted
burglary charge further demonstrates his valid waiver of his right to counsel. At the
beginning of the hearing, the district court asked Armstrong a series of questions
regarding his choice to be unrepresented. During these questions, Armstrong
confirmed (1) he had discharged his counsel, (2) he did not want counsel at the
proceeding, (3) he believed he had no reason for counsel, and (4) he understood
counsel would not be present “to advise” him and “represent [his] interests.”
Armstrong ratified these answers later in the hearing, confirming he was ready to

                                         -10-
proceed without his attorney. The district court also asked Armstrong three times
throughout the hearing if he understood the proceedings and what was occurring. Each
time, Armstrong answered he understood.

        Finally, Armstrong’s sophisticated and intelligent performance at the state plea
and sentencing hearing evidence Armstrong’s valid waiver. During the hearing,
Armstrong acknowledged one of his counts was being dismissed and confirmed he
initiated and negotiated the plea agreement. Armstrong also ensured his sentence on
the attempted burglary charge would run concurrent with a prior sentence he was
serving, and ensured he would get time served credit for other jail time he had served
on a probation violation. In addition, Armstrong successfully petitioned the court for
production of notes and discovery on a related receiving stolen goods charge. These
facts demonstrate Armstrong had a significant background in, and experience with, the
criminal justice system, and made an intelligent, knowing, and voluntary waiver of his
right to counsel. Under our supervisory review of federal courts, our review could be
stricter, but our review of this state proceeding is limited to a constitutional analysis
alone. See Smith v. Phillips, 455 U.S. 209, 221 (1982) (“Federal courts hold no
supervisory authority over state judicial proceedings and may intervene only to correct
wrongs of constitutional dimension.” (citations omitted)). Thus, Armstrong’s criminal
history, along with his conduct and performance at his plea and sentencing hearing,
persuade us his waiver was constitutional.

      Because Armstrong constitutionally waived his right to counsel on the attempted
burglary conviction, the conviction is counted in Armstrong’s armed career criminal
determination. See United States v. Solomon, 998 F.2d 587, 590 (8th Cir. 1993)
(holding attempted second degree burglary under Minnesota law is a violent felony
under § 924(e)). Armstrong’s burglary, simple robbery, and attempted burglary
convictions are three qualifying offenses under the ACCA, and the district court’s 180-
month sentence was not erroneous.



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III.   CONCLUSION
       The district court’s judgment and sentence are affirmed.
                         ______________________________




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