                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 14a0282p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 UNITED STATES OF AMERICA,                              ┐
                                  Plaintiff-Appellee,   │
                                                        │
                                                        │       No. 14-5048
        v.                                              │
                                                         >
                                                        │
 DERRICK MONTEZ BALL,                                   │
                               Defendant-Appellant.     │
                                                        ┘
                        Appeal from the United States District Court
                     for the Eastern District of Kentucky at Lexington.
                   No. 5:13-cr-00070-1—Danny C. Reeves, District Judge.
                                   Argued: October 3, 2014
                           Decided and Filed: November 17, 2014

                    Before: SILER, CLAY, and GRIFFIN, Circuit Judges.

                                     _________________

                                         COUNSEL

ARGUED: Jeffrey C. Rager, RAGER LAW FIRM, PLLC, Lexington, Kentucky, for Appellant.
Kate K. Smith, UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.
ON BRIEF: Jeffrey C. Rager, RAGER LAW FIRM, PLLC, Lexington, Kentucky, for
Appellant. Charles P. Wisdom, Jr., Ron L. Walker, Jr., UNITED STATES ATTORNEY’S
OFFICE, Lexington, Kentucky, for Appellee.

                                     _________________

                                          OPINION
                                     _________________

       SILER, Circuit Judge. This case concerns whether a Kentucky conviction for fleeing in a
motor vehicle from the police qualifies as a violent felony under the Armed Career Criminal Act
(ACCA). In 2013, Derrick Ball pleaded guilty to being a felon in possession of a firearm




                                               1
No. 14-5048                    United States v. Ball                                  Page 2

pursuant to 18 U.S.C. § 922(g)(1). The district court enhanced his sentence under the ACCA on
account of three previous Kentucky state convictions: (1) 1st degree trafficking in a controlled
substance in Boyle County; (2) 1st degree fleeing or evading police in Boyle County; and (3) 1st
degree fleeing or evading police in Mercer County. Ball’s primary argument is that his Mercer
County conviction does not qualify as a crime of violence under the ACCA. We AFFIRM.

                                                  I.

       Ball’s Presentence Report identified three prior state convictions that rendered him
eligible for a 15-year minimum sentence as an “armed career criminal.” His sentencing range
under the Guidelines was 188-235 months; the court sentenced him to 211 months.

       Concerning his three Kentucky predicate convictions, Ball does not contest that his
cocaine trafficking conviction qualifies as a “serious drug offense” under the ACCA. He waived
his challenge to the designation of his Boyle County fleeing and evading conviction as a violent
felony, but he claims his 2008 conviction for fleeing and evading in Mercer County does not
qualify as a violent felony.

       The background for Ball’s 2008 conviction was that he was arrested in Mercer County at
the end of an automobile police chase. He was charged with, among other crimes, fleeing or
evading. At the time, Ball was subject to an arrest warrant from Boyle County for cocaine
trafficking and another incident of fleeing and evading. As part of his plea deal to these three
charges, the other charges were dismissed. His three convictions were consolidated into a single
sentence.

       At his federal plea hearing, Ball made no specific admissions, and the court made no
specific findings of fact regarding the circumstances underlying Ball’s Mercer County fleeing
and evading conviction. The crime, “Fleeing or evading police in the first degree,” is defined in
Ky. Rev. Stat. § 520.095 as follows (emphases added):

       (1) A person is guilty of fleeing or evading police in the first degree:
       (a) When, while operating a motor vehicle with intent to elude or flee, the person
       knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given
       by a person recognized to be a police officer, and at least one (1) of the following
       conditions exists:
No. 14-5048                   United States v. Ball                                      Page 3

       1. The person is fleeing immediately after committing an act of domestic violence
       as defined in KRS 403.720;
       2. The person is driving under the influence of alcohol or any other substance or
       combination of substances in violation of KRS 189A.010;
       3. The person is driving while his or her driver’s license is suspended for violating
       KRS 189A.010; or
       4. By fleeing or eluding, the person is the cause, or creates substantial risk, of
       serious physical injury or death to any person or property; or
       (b) When, as a pedestrian, and with intent to elude or flee, the person knowingly
       or wantonly disobeys an order to stop, given by a person recognized to be a peace
       officer, and at least one (1) of the following conditions exists:
       1. The person is fleeing immediately after committing an act of domestic violence
       as defined in KRS 403.720; or
       2. By fleeing or eluding, the person is the cause of, or creates a substantial risk of,
       serious physical injury or death to any person or property.

The indictment for the Mercer County offense reads as follows (emphasis added):

       That on or about the 24th day of October, 2008 in Mercer County, Kentucky the
       above named defendant, Derrick Ball, committed the offense of Fleeing or
       Evading in the First Degree when he knowingly disobeyed a police officer’s order
       to stop his vehicle in an attempt to elude the police and by fleeing or eluding, the
       defendant creates a substantial risk of serious physical injury to another person.

       Ball argues we should look to the facts of his “fleeing or evading” arrest (or lack thereof
in the record) and find that it was not a violent felony. The government argues we should look to
the indictment, which specifies that Ball pleaded to “fleeing or evading” under Ky. Rev. Stat.
§ 520.095(1)(a)(4), which necessarily involved a “substantial risk” of “serious physical injury” to
others. Under the ACCA’s “residual clause,” 18 U.S.C. § 924(e)(2)(B)(ii), the government
argues, this conviction qualifies as a felony that “otherwise involves conduct that presents a
serious potential risk of physical injury to another.”

       Ball’s conviction qualifies as a violent felony for two reasons. First, we have previously
indicated that the act of fleeing police in a motor vehicle is so inherently risky that felony
convictions for this behavior will always qualify as “violent” under the ACCA’s residual clause.
See, e.g., United States v. Martin, 378 F.3d 578, 582-83 (6th Cir. 2004). Second, even if this
were not the case, one element of Ball’s conviction was that his vehicle flight created “a
No. 14-5048                   United States v. Ball                                    Page 4

substantial risk of serious physical injury to another person.” This element tracks the language
of the residual clause and renders his conviction a violent felony.

                                                II.

       The relevant issues are all legal questions subject to de novo review. These include the
interpretation and application of the ACCA and the narrower question of whether a prior
conviction qualifies as a violent felony. United States v. Stafford, 721 F.3d 380, 395-96 (6th Cir.
2013). While we are bound by a state court’s interpretation of its own criminal statutes, whether
a state crime is a violent felony under the ACCA is a question of federal law. United States v.
Rede-Mendez, 680 F.3d 552, 555-56 (6th Cir. 2012); see also Johnson v. United States, 559 U.S.
133, 138 (2010). We also review challenges to the constitutionality of a statute de novo. United
States v. Bowers, 594 F.3d 522, 527 (6th Cir. 2010).

                                                III.

       Ball claims his sentence enhancement was unwarranted because his 2008 conviction for
fleeing in a motor vehicle from the police was not a violent felony.           Under the ACCA,
specifically 18 U.S.C. § 924(e)(1), when a person is convicted of being a felon in possession of a
firearm and also has three prior convictions “for a violent felony or a serious drug offense, or
both, committed on occasions different from one another,” the defendant “shall be fined under
this title and imprisoned not less than fifteen years . . . .” The ACCA then defines “violent
felony” in § 924(e)(2)(B):

       (B) the term “violent felony” means 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.

       Ball does not contest that his Mercer County conviction was “punishable by
imprisonment for a term exceeding one year.”
No. 14-5048                   United States v. Ball                                     Page 5

       We have adopted an analytical process for determining whether a predicate conviction
qualifies as a violent felony under the ACCA. We take a “categorical approach,” which means
we only consider the statutory elements of the predicate crime. The specific facts underlying the
conviction are irrelevant. United States v. Davis, 751 F.3d 769, 774-75 (6th Cir. 2014).

       However, some statutory crimes are “divisible,” meaning they encompass different
crimes embedded in one statute. If a divisible statute contains multiple crimes, and if at least one
of the crimes is categorically a violent felony and at least one of the crimes is not, then we
employ a “modified categorical approach.” See Descamps v. United States, 133 S. Ct. 2276,
2281-85 (2013). Under this approach, we may review a narrow category of documents, known
as Shepard materials, to determine which crime within the statute formed the basis of the
defendant’s predicate conviction. See Rede-Mendez, 680 F.3d at 556. Shepard materials include
only the terms of the charging document, the terms of a plea agreement, the transcript of the plea
colloquy, or some comparable judicial record of this information. Shepard v. United States,
544 U.S. 13, 26 (2005).

       The “modified categorical approach” is simply a tool that enables a court to pinpoint the
elements of the crime that the defendant “necessarily admitted” so the court can apply the
categorical approach. Davis, 751 F.3d at 775-77. Application of the ACCA turns upon the
defendant’s prior “convictions,” not upon the defendant’s prior conduct, see 18 U.S.C.
§ 924(e)(1), so the purpose of the modified categorical approach is to determine not what the
defendant did when he committed his prior offense but simply which part of a divisible statute he
was convicted under. Davis, 751 F.3d at 776-77. Again, the modified categorical approach is
appropriate only when a divisible statute can be violated in at least one way that would be a
violent felony and at least one way that would not be a violent felony. United States v. Mitchell,
743 F.3d 1054, 1065 (6th Cir. 2014).

       In this case, the Kentucky statute at issue contains several sub-parts. See Ky. Rev. Stat.
§ 520.095. It has two main divisions. Subsection (1)(a) encompasses fleeing in a motor vehicle,
while subsection (1)(b) encompasses fleeing “as a pedestrian.” Subsection (1)(a), in turn, has
four sub-parts, and subsection (1)(b) has two subparts. Applying the standards we will discuss
below, it appears that a violation of subsection (1)(a) would be a categorical violent felony, but a
No. 14-5048                  United States v. Ball                                     Page 6

violation of subsection (1)(b) would not. This is particularly true of subsection 520.095(1)(b)(1),
which criminalizes fleeing on foot “immediately after committing an act of domestic violence.”
Because a person can violate section 520.095 in at least one manner that may not qualify as a
categorical violent felony under the ACCA, we must apply the modified categorical approach to
ascertain which sub-part of the statute formed the basis of Ball’s conviction.

       The record in this case contains the indictment for Ball’s Mercer County fleeing or
evading conviction. Ball pleaded guilty to subsection (1)(a)(4) of Ky. Rev. Stat. § 520.095. This
subsection makes it a crime to flee police in a motor vehicle in a manner that “cause[s] or creates
substantial risk[] of serious physical injury or death to any person or property.” Using nearly
identical language, the indictment accuses Ball of fleeing or evading in “his vehicle” in a manner
that “create[d] a substantial risk of serious physical injury to another person.” Having pinpointed
the elements of Ball’s predicate crime, the question then becomes whether a violation of this
subsection (a Class-D felony) qualifies as a violent felony under the ACCA.

       There are three ways a felony may qualify as “violent” under the ACCA. First, the
felony can satisfy the “use of physical force” clause of 18 U.S.C. § 924(e)(2)(B)(i). Second, the
felony may be among the four enumerated offenses in the first part of § 924(e)(2)(B)(ii)
(burglary, arson, extortion, or crimes involving explosives). Third, the felony could satisfy the
residual clause at the end of § 924(e)(2)(B)(ii) (a crime that “otherwise involves conduct that
presents a serious potential risk of physical injury to another”). The government in this case
does not invoke the “use of physical force” clause. See Sykes v. United States, 131 S. Ct. 2267,
2273 (2011) (“Resisting law enforcement through felonious vehicle flight does not meet the
requirements of [the physical force clause]”). And the crime is not among the four enumerated
offenses. Rather, the government’s position is that Ball’s Mercer County conviction qualifies as
a violent felony under the “residual clause” of § 924(e)(1)(B)(ii). The language of the ACCA’s
residual clause is almost identical to language that defines a “crime of violence” under the
“career offender” enhancement of the United States Sentencing Guidelines (USSG §§ 4B1.1,
4B1.2), so we handle both provisions identically. United States v. Arnold, 58 F.3d 1117, 1121
(6th Cir. 1995).
No. 14-5048                  United States v. Ball                                      Page 7

       Determining whether a crime fits within the ACCA’s residual clause involves a two-step
inquiry. See Stafford, 721 F.3d at 399. The first step asks whether the predicate offense, as
defined by statute, “presents a serious potential risk of physical injury to another.” Mitchell,
743 F.3d at 1060. The crime need not actually result in physical injury; the residual clause
requires only “a serious potential risk of physical injury.” United States v. Taylor, 696 F.3d 628,
632 (6th Cir. 2012); United States v. Payne, 163 F.3d 371, 375 (6th Cir. 1998).

       The Kentucky statute meets the standard of step one for two reasons. First, the relevant
subsection criminalizes fleeing in a motor vehicle from the police when the defendant “is the
cause of, or creates substantial risk, of serious physical injury or death to any person or
property.”    Ky. Rev. Stat. § 520.095(1)(a)(4).     The Kentucky Supreme Court has defined
“substantial risk” under section 520.095 as risk that is ample, considerable in degree or extent,
and true or real, as opposed to imaginary. Bell v. Commonwealth, 122 S.W.3d 490, 497 (Ky.
2003). Additionally, Ky. Rev. Stat. § 500.080(15) defines “serious physical injury” as “physical
injury which creates a substantial risk of death, or which causes serious and prolonged
disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function
of any bodily organ.” Clearly, behavior that poses an ample, considerable, and true risk of
physical injury or death under Kentucky law also poses “a serious potential risk of physical
injury” under the ACCA.

       Second, we have previously explained that all felonies that involve fleeing from the
police in a motor vehicle qualify as violent felonies under the ACCA. “When a motorist
disobeys an officer and flees in his car . . . that person creates a conspicuous potential risk of
injury to pedestrians, vehicles sharing the road, passengers in the fleeing car and the pursuing
officer.” Martin, 378 F.3d at 582. Not only does the “flight itself” create a “palpable risk of
physical injury to others,” but “so too does the suspect’s eventual apprehension,” because the
motorist has provoked an “inevitable, escalated confrontation” with the pursuing officer. Id.
Even if a vehicular flight statute may technically be violated by conduct that is “passive, non-
violent, and non-threatening,” this does not diminish the inherent potential risk of vehicle flight.
Id. at 583. Vehicle flight from an officer is “inherently an aggressive and violent act.” United
States v. Young, 580 F.3d 373, 378 (6th Cir. 2009) (quoting United States v. Roseboro, 551 F.3d
No. 14-5048                  United States v. Ball                                    Page 8

226, 240 (4th Cir. 2009)). Because fleeing in a motor vehicle from the police always carries
serious potential risk of injury, Ball’s crime would create “a serious potential risk of physical
injury,” even without the Kentucky statute’s standalone element of “substantial risk[] of serious
physical injury.” See Sykes, 131 S. Ct. at 2276; United States v. Doyle, 678 F.3d 429, 435 (6th
Cir. 2012).

       We have determined under the first step of the residual clause analysis that Ball’s Mercer
County conviction was for a felony that “presents a serious potential risk of physical injury to
another.” We therefore proceed to step two.

       For a crime to qualify as a violent felony under step two of the residual clause analysis,
the crime “must also be similar ‘in kind as well as in degree of risk posed’” to the crimes
enumerated in 18 U.S.C. § 924(e)(2)(B)(ii), e.g., burglary, arson, extortion, and crimes involving
explosives. United States v. Vanhook, 640 F.3d 706, 710 (6th Cir. 2011) (quoting Begay v.
United States, 553 U.S. 137, 143 (2008)). The Supreme Court has proffered two different
standards for determining whether a given crime’s riskiness is comparable to the enumerated
crimes. First, in Begay, the Court held that driving under the influence (DUI) was not an ACCA
violent felony because DUI is not “purposeful, violent, and aggressive.” Begay, 553 U.S. at 144-
45. But later, in Sykes, the Court distinguished DUI from “flight from a law enforcement
officer” under an Indiana statute. The Court explained that DUI was “a crime akin to strict
liability, negligence, and recklessness crimes.” 131 S. Ct. at 2276. When a crime carries a
specific mens rea, the Court explained, the inquiry is not whether the crime was purposeful,
violent, and aggressive. Instead, courts should compare the risk posed by the crime in question
to the risk posed by its closest analog among the ACCA’s enumerated offenses. Id. at 2273. We
have interpreted Sykes to mean that the Begay standard applies only to crimes that lack a specific
mens rea. See Mitchell, 743 F.3d at 1061; United States v. Evans, 699 F.3d 858, 865 (6th Cir.
2012); United States v. Meeks, 664 F.3d 1067, 1070-71 (6th Cir. 2012); see also United States v.
Spencer, 724 F.3d 1133, 1139 & n.4 (9th Cir. 2013) (collecting cases from various Circuits
holding that the Begay formula “is only dispositive in cases involving a strict liability,
negligence, or recklessness offense”). But see United States v. Covington, 738 F.3d 759, 765
(6th Cir. 2014) (reasoning that the Sykes and Begay standards are “supplementary” and that the
No. 14-5048                    United States v. Ball                                     Page 9

Begay standard may still apply to crimes that include a specific mens rea when doing so would
not be redundant).

          Ball’s crime does not lack a specific mens rea. The statute says the fleeing must be done
“knowingly or wantonly.” Ky. Rev. Stat. § 520.095(1)(a). Kentucky law differentiates wanton
behavior from reckless behavior. Ky. Rev. Stat. § 501.020 (explaining that wanton behavior
involves a “conscious[] disregard” for a substantial and unjustifiable risk, while reckless
behavior involves a failure to perceive the risk). Because the statute has a specific mens rea that
does not encompass strict liability, negligence, or recklessness, we will apply the Sykes test.

          The question for step two under Sykes is whether the crime carries a level of risk similar
to crimes such as burglary, arson, extortion, or explosives. Here, we find no reason to depart
from the Supreme Court’s observation that “[s]erious and substantial risks are an inherent part of
vehicle flight.” Sykes, 131 S. Ct. at 2276. As it explained, “Risk of violence is inherent to
vehicle flight.      Between the confrontations that initiate and terminate the incident, the
intervening pursuit creates high risks of crashes.” Id. at 2274. The Court in Sykes therefore
reasoned, and illustrated from statistics, that vehicle flight poses a greater risk to human life than
burglary and arson. Id. at 2273-75. The Court upheld Mr. Sykes’s ACCA designation, even
though he was not prosecuted under the subsection of the Indiana “resisting law enforcement
statute” that specified the offense “create[d] a substantial risk of bodily injury.” Id. at 2276; see
also Doyle, 678 F.3d at 434 (finding that vehicle flight under a Tennessee statute qualified as a
violent felony, even when it did not involve the element of “creat[ing] a risk of death or injury to
. . . third parties”).

          We also have held that vehicle flight inherently carries an enormous risk of potential
injury.     We previously considered analogous vehicle flight statutes from Michigan and
Tennessee, and found them to be categorically violent felonies. Doyle, 678 F.3d at 432-33
(considering Tenn. Code Ann. § 39-16-603(b)(1), a Class-E felony); Young, 580 F.3d at 376-78
(considering Mich. Comp. L. § 257.602a, and finding that even an “ordinary violation” of
Michigan’s vehicle flight statute “is inherently an aggressive and violent act . . . that poses a
serious potential risk of physical injury to others” (internal quotation marks and citation
omitted)); United States v. LaCasse, 567 F.3d 763 (6th Cir. 2009) (considering Mich. Comp. L.
No. 14-5048                   United States v. Ball                                  Page 10

§ 750.479a); Martin, 378 F.3d at 582-84 (considering Mich. Comp. L. § 750.479a); see also
United States v. Bass, 378 F. App’x 551, 552 (6th Cir. 2010) (explaining that all three
subsections of Michigan’s third-degree vehicle flight statute are “categorically crimes of
violence”).

       We therefore conclude that Kentucky’s vehicle flight statute likewise qualifies as a
violent felony under the ACCA—regardless of whether the violation entailed subsection (a)(4)’s
additional element of causing or creating a substantial risk of serious physical injury or death.
As we found in Doyle and Young, even vehicle flight simpliciter presents a risk similar in degree
and kind to both burglary and arson. Doyle, 678 F.3d at 435-36 (quoting Sykes, 131 S. Ct. at
2273-74); Young, 580 F.3d at 376-79.

       Even were this not the case, Ball’s indictment makes clear that he pleaded guilty to a
crime that not only carried a potential risk similar in magnitude to the ACCA’s enumerated
crimes, he actually created a “substantial”—or ample, considerable, and true—risk of serious
injury or death to others. See Bell, 122 S.W.3d at 497. We find no legal basis to overrule the
district court’s determination that Ball’s predicate crime qualifies as a violent felony under the
ACCA.

                                                 IV.

       Next, Ball argues that the ACCA is unconstitutional because it is void for vagueness. He
says the residual clause of 18 U.S.C. § 924(e)(2)(B)(ii) “simply does not give a person of
ordinary intelligence the proper notice of what types of crimes would ‘otherwise involve[]
conduct that presents a serious potential risk of physical injury to another.’” See Kolender v.
Lawson, 461 U.S. 352, 361 (1983) (finding a criminal statute “unconstitutionally vague on its
face because it encourages arbitrary enforcement by failing to describe with sufficient
particularity what a suspect must do in order to satisfy the statute”).

       We have previously found this argument unpersuasive and upheld the constitutionality of
the residual clause. United States v. Phillips, 752 F.3d 1047, 1051 (6th Cir. 2014); Stafford,
721 F.3d at 403; see also Sykes, 131 S. Ct. at 2277; James v. United States, 550 U.S. 192, 210 n.
6 (2007). We do not revisit that conclusion here.
No. 14-5048                  United States v. Ball                                   Page 11

                                                V.

       Ball argues that because the sentencing court must consider additional facts beyond the
felon-in-possession conviction to determine whether the ACCA enhancement applies, and
because the finding raises the penalty for being a felon in possession of a firearm, the Sixth
Amendment requires that the facts be found by a jury beyond a reasonable doubt. We have also
rejected this argument. See United States v. Elliott, 757 F.3d 492, 496-97 (6th Cir. 2014); United
States v. Barnett, 398 F.3d 516, 524-25 (6th Cir. 2005); see also United States v. Hollingsworth,
414 F.3d 621, 624 (6th Cir. 2005). A court may enhance a defendant’s sentence when that
enhancement is based on the fact of a prior conviction. Alleyne v. United States, 133 S. Ct. 2151,
2160 n.1 (2013) (citing Almendarez-Torres v. United States, 523 U.S. 224 (1998)).

                                                VI.

       The next issue is whether the residual clause creates an unconstitutional delegation of
legislative powers to the courts. Ball argues that the ACCA impermissibly “delegates to Courts
the power to set the minimum and maximum penalty for an offense by deciding which of
thousands of state and federal offenses” qualify under the residual clause. See Mistretta v.
United States, 488 U.S. 361, 396 (1989) (finding the USSG constitutional). But we have
previously rejected the argument that the residual clause entails “an unconstitutional delegation
of legislative power to the courts.” United States v. Castner, 19 F.3d 1434, 1994 WL 102963, at
*2 (6th Cir. 1994) (unpublished table opinion); see also United States v. Baker, 850 F.2d 1365,
1372 (9th Cir. 1988).

                                               VII.

       Ball claims the mandatory nature of the ACCA sentence enhancement makes it
unconstitutional. He says the minimum-sentence provision unconstitutionally limits judicial
discretion in sentencing. We have already “flatly rejected” that argument. United States v.
Cecil, 615 F.3d 678, 696 (6th Cir. 2010). Congress “has the power to fix the sentence for a
federal crime, and the scope of judicial discretion with respect to a sentence is subject to
congressional control.” Mistretta, 488 U.S. at 364 (internal citation omitted).
No. 14-5048                  United States v. Ball                                    Page 12

                                               VIII.

        Ball next points to 18 U.S.C. § 3553(a). Known as the “parsimony provision,” this
statute directs courts to “impose a sentence sufficient, but not greater than necessary,” to reflect
several factors:

        (1) the nature and circumstances of the offense and the history and characteristics
        of the defendant; (2) the need for the sentence imposed (A) to reflect the
        seriousness of the offense, to promote respect for the law, and to provide just
        punishment for the offense; (B) to afford adequate deterrence to criminal conduct;
        (C) to protect the public from further crimes of the defendant; and (D) to provide
        the defendant with needed educational or vocational training, medical care, or
        other correctional treatment in the most effective manner.

Ball says the ACCA’s minimum sentence provision conflicts with the parsimony provision. He
says this conflict creates an ambiguity which should be resolved in the defendant’s favor under
the rule of lenity.

        However, when it comes to rigid minimum sentences, while “we acknowledge the
tension with section 3553(a), . . . that very general statute cannot be understood to authorize
courts to sentence below minimums specifically prescribed by Congress.” United States v.
Marshall, 736 F.3d 492, 500-01 (6th Cir. 2013) (quoting Cecil, 615 F.3d at 695). In other words,
the ACCA controls, despite the existence of the parsimony provision.

        The rule of lenity, which counsels that hopelessly ambiguous statutes are to be construed
in favor of defendants, is not applicable here because the ACCA is insufficiently vague. “In
evaluating whether a statute is ambiguous for rule-of-lenity purposes, it is not enough for the
plain language to be unclear; only when the plain language, structure, and legislative history
provide no guidance will we apply the rule of lenity.” United States v. King, 516 F.3d 425, 432
(6th Cir. 2008) (quoting United States v. Wagner, 382 F.3d 598, 610 (6th Cir. 2004)).

                                                IX.

        The final issue concerns notice. Ball complains that the government failed to alert him
prior to his plea colloquy that it planned to seek an ACCA sentence enhancement. He admits he
failed to preserve this claim, so we may review it only for plain error. See United States v.
Brock, 501 F.3d 762, 773 (6th Cir. 2007).
No. 14-5048                  United States v. Ball                                   Page 13

       There is no error here, plain or otherwise, because the government is not required to
provide notice of an ACCA sentence enhancement. United States v. Mauldin, 109 F.3d 1159,
1163 (6th Cir. 1997). Ball relies on 21 U.S.C. § 851(a)(1) (emphasis added), which states that
“[n]o person who stands convicted of an offense under this part shall be sentenced to increased
punishment by reason of one or more prior convictions” unless the government serves notice.
Ball’s federal conviction is a firearm violation under Title 18, not Title 21. The notice provision
from Title 21 is inapplicable to Ball’s conviction because being a felon in possession is not “an
offense under this part.”

       AFFIRMED.
