                                                                 FILED
                                                     United States Court of Appeals
                      UNITED STATES COURT OF APPEALS         Tenth Circuit

                             FOR THE TENTH CIRCUIT                        November 19, 2014
                         _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 13-6195
                                                     (D.C. No. 5:12-CR-00102-F-1)
KENTRIEL DEJUAN THOMPSON,                                    (W.D. Okla.)

      Defendant - Appellant.
                      _________________________________

                             ORDER AND JUDGMENT*
                        __________________________________

Before MATHESON, PHILLIPS, and MORITZ, Circuit Judges.
                  _________________________________

       After the district court denied his motion to suppress, Kentriel Dejuan Thompson

entered a conditional plea of guilty to one count of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1), reserving his right to appeal from the

district court’s denial of the motion to suppress. Over defense counsel’s objection, the

district court sentenced Thompson pursuant to the Armed Career Criminal Act (ACCA),

18 U.S.C. § 924(e)(1), imposing a 240-month prison sentence and five years of

supervised release. Thompson appeals, claiming the district court committed reversible

error in denying his motion to suppress and in sentencing him pursuant to the ACCA.

*
       This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Exercising our jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       At approximately 7:30 P.M. on February 18, 2012, Master Sergeant Mark

Teachman was patrolling the northeast quadrant of Oklahoma City when he witnessed a

black male, the driver and sole occupant of a black Buick LaCrosse, make a right-hand

turn without signaling. Teachman pursued the Buick but briefly lost sight of it before

locating what appeared to be the same vehicle, with its headlights still on, parked less

than a block from where the traffic infraction had occurred. Teachman approached the

driver’s side of the vehicle on foot and rapped on the driver’s window, but received no

response. He then opened the door and found Kentriel Dejuan Thompson sitting in the

driver’s seat. Thompson, who was unable to produce a driver’s license, was alone in the

vehicle, and Teachman saw no one else in the vicinity.

       Intending to arrest Thompson for driving without a license, Teachman thrice

ordered Thompson out of the Buick. When Thompson, who was “getting fidgety and

nervous,” refused to comply, Teachman removed him from the vehicle and initiated a

pat-down search. During the search, he felt what he believed to be a gun in Thompson’s

pocket. Without informing Thompson of his Miranda1 rights, Teachman asked

Thompson what the item was, and Thompson confirmed it was a gun. Teachman seized

the firearm, placed Thompson in handcuffs, and seated him in the backseat of his patrol

car.

       1
           Miranda v. Arizona, 384 U.S. 436, 460, 86 S. Ct. 1602, 1620, 16 L. Ed. 2d 694
(1966).

                                              2
       After he was indicted for one count of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1), Thompson moved to suppress both the gun and his

statement. He argued Teachman’s version of the events lacked credibility, Teachman

lacked reasonable suspicion to stop and search Thompson, and Teachman failed to

inform Thompson of his Miranda rights before questioning him.

       At the hearing on the motion, Teachman doggedly asserted that despite the time of

year, it had been light enough outside at 7:30 P.M. to permit him to see the driver’s face

through the windshield of the Buick and to later recognize Thompson as that driver.

Teachman also testified the keys to the Buick were in the vehicle at the time of the stop, a

fact corroborated by the impounding wrecker service but disputed by three of

Thompson’s witnesses.

       Collectively, these witnesses maintained that Thompson’s acquaintance, Horatio

Coates, had been driving the vehicle immediately before the stop and removed the keys

from the vehicle after parking it; that Thompson had only entered the parked vehicle in

order to retrieve a cigar from its center console; and that Coates never relinquished the

keys to law enforcement or to the wrecker service during the encounter.

       Although the district court rejected Teachman’s testimony that it had been light

enough outside to allow him to see the driver of the Buick and to subsequently identify

Thompson as that individual, it accepted most of Teachman’s remaining testimony.

Based on GPS information from Teachman’s patrol vehicle, the district court also

accepted the Government’s argument that only moments elapsed between Teachman’s

witnessing of the traffic infraction and his finding Thompson seated alone in the driver’s

                                             3
seat of the Buick. The district court ultimately denied Thompson’s motion to suppress,

finding reasonable suspicion to support the initial stop and the subsequent pat-down

search, and finding Thompson’s statement regarding the gun in his pocket admissible

under the public safety exception to the Miranda requirement.

       Thompson subsequently entered a conditional plea of guilty to one count of being

a felon in possession of a firearm, but reserved the right to appeal from the district court’s

denial of his motion to suppress. Over defense counsel’s objection, the district court

sentenced Thompson pursuant to the ACCA, and imposed a 240-month prison sentence.

Thompson appeals.

       We conclude Teachman (1) had reasonable suspicion to stop Thompson; (2) did

not exceed the scope of that stop by requesting Thompson’s driver’s license; (3) had

probable cause to arrest Thompson, justifying a search incident to arrest; and (4) was not

required to inform Thompson of his Miranda rights before questioning him during the

search about what appeared to be a gun in his pocket. Thus, we affirm the district court’s

denial of Thompson’s motion to suppress. Finding no error in the district court’s

application of the ACCA, we also affirm Thompson’s sentence.

                                       DISCUSSION

       Thompson first argues the district court erred in denying his motion to suppress.

In reviewing the district court’s denial of that motion, we consider the evidence in the

light most favorable to the Government, accept the district court’s findings unless they

are clearly erroneous, and exercise unlimited review over the “ultimate determination of

the reasonableness of a search under the Fourth Amendment.” United States v. Garcia,

                                              4
751 F.3d 1139, 1142 (10th Cir. 2014). A district court’s findings are clearly erroneous

only if they are without support in the record, or if, after reviewing the evidence, we are

“left with a definite and firm conviction that a mistake has been made.” Plaza Speedway,

Inc. v. United States, 311 F.3d 1262, 1266 (10th Cir. 2002) (internal quotation marks and

citation omitted).

       The Stop

       “In analyzing the constitutionality of a traffic stop under the Fourth Amendment,

we apply the ‘reasonable suspicion’ standard for investigative detentions originally set

forth in Terry v. Ohio, [392 U.S. 1, 27 (1968)].” United States v. Winder, 557 F.3d 1129,

1133 (10th Cir. 2009). An investigative detention is based on reasonable suspicion if the

detaining officer has “‘a particularized and objective basis’ for suspecting the person

stopped of criminal activity.” Ornelas v. United States, 517 U.S. 690, 696 (1996)

(quoting United States v. Cortez, 449 U.S. 411, 417–18 (1981)).

       Thompson maintains that because the district court rejected some of Teachman’s

testimony at the hearing on the motion to suppress, it clearly erred in failing to reject all

of his testimony, including Teachman’s claim that he witnessed a traffic infraction. As

factfinder, however, the district court could accept or reject any portion of Teachman’s

testimony. See Holt v. Deere & Co., 24 F.3d 1289, 1295 (10th Cir. 1994) (“As sole

judges of the witnesses’ credibility, the jurors were entitled to accept or reject the

testimony of any witness in whole or in part.”). Although the district court rejected some

of Teachman’s testimony, it rejected only that part of his testimony that was illogical, i.e.,



                                              5
Teachman’s claim that there was sufficient “daylight” at 7:30 P.M. on February 18, 20122

to permit him to identify the driver of the Buick. While the district court rejected this

claim as “doubtful,” it did not clearly err in crediting Teachman’s remaining testimony,

which was not similarly implausible. See Holt, 24 F.3d at 1295.

       Alternatively, Thompson argues that even accepting Teachman’s remaining claims

as true, Teachman lacked reasonable suspicion to stop him. Although Thompson’s

“temporal and geographic proximity to the crime alone” was insufficient to give rise to

reasonable suspicion to support the stop, we may consider those factors in our

reasonable-suspicion analysis. See Romero v. Story, 672 F.3d 880, 887 (10th Cir. 2012)

(italics in original). See also United States v. Goodrich, 450 F.3d 552, 553-54, 562 (3d

Cir. 2006) (affirming finding of reasonable suspicion to stop vehicle one or two blocks

from reported theft when there were no other occupied vehicles in the area and officers

responded within seven minutes of the initial report); United States v. Fisher, 597 F.3d

1156, 1157, 1159 (10th Cir. 2010) (citing defendant’s presence in lone car at scene of

recent shooting as sufficient to establish reasonable suspicion).


       2
         According to the website of the United States Naval Observatory
(www.usno.navy.mil), the sun set at 6:15 P.M. in Oklahoma City on February 18, 2012,
and civil twilight ended at 6:41 P.M. “[A]fter the end of civil twilight, artificial
illumination is normally required to carry on ordinary outdoor activities.”
http://aa.usno.navy.mil/faq/docs/RST_defs.php. We take judicial notice of this fact. See
Shahar v. Bowers, 120 F.3d 211, 214 (11th Cir. 1997) (“[T]he kinds of things about
which courts ordinarily take judicial notice” include “scientific facts: for instance, when
does the sun rise or set”); Delaware, L. & W.R. Co. v. Koske, 279 U.S. 7, 12, 49 S. Ct.
202, 73 L. Ed. 578 (1929) (“The [C]ourt takes judicial notice of the fact that for some
weeks immediately before the accident the sun rose and it was light for some time before
plaintiff’s quitting hour.”).

                                              6
       Viewing the evidence in the light most favorable to the Government, as we must,

we conclude the district court did not err in finding Teachman possessed a particularized

and objective basis to suspect the individual sitting in the driver’s seat of the Buick had

committed a crime. Teachman encountered the black Buick LaCrosse within moments of

witnessing the driver and sole occupant of a black Buick LaCrosse commit a traffic

infraction. The stop occurred less than a block from the location where the infraction

occurred, there was no one else in the area at the time of the stop and no one else in the

car. Any reasonable police officer in Teachman’s position would have had a

particularized and objective basis for detaining Thompson’s vehicle, even without

knowledge that Thompson matched the general description of the individual Teachman

witnessed committing a traffic infraction. See Fisher, 597 F.3d at 1159. Therefore, the

stop was valid at its inception.

       The Scope

       Next, Thompson argues Teachman exceeded the scope of the stop when he

immediately requested Thompson’s driver’s license instead of asking whether Thompson

had been driving the Buick at the time of the traffic infraction. According to Thompson,

this violated Teachman’s obligation, under Florida v. Royer, 460 U.S. 491, 498, 500

(1983), to use the “least intrusive means reasonably available to verify or dispel the

officer’s suspicion in a short period of time.”

       Even if we consider this argument, which Thompson raises for the first time on

appeal, Royer does not stand for the proposition that the “reasonableness of the officer’s

decision to stop a suspect … turn[s] on the availability of less intrusive investigatory

                                              7
techniques.” United States v. Sokolow, 490 U.S. 1, 11 (1989). Instead, the Court’s

statement in Royer “was directed at the length of the investigative stop, not at whether the

police had a less intrusive means to verify their suspicions before stopping” the

defendant. Sokolow, 490 U.S. 1 at 11. (Emphasis added). See also Vernonia Sch. Dist.

47J v. Acton, 515 U.S. 646, 663 (1995) (“We have repeatedly refused to declare that only

the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.”).

       More importantly, this court has held that a law enforcement “officer conducting a

routine traffic stop may … ‘request a driver’s license and vehicle registration, run a

computer check, and issue a citation’” as long as “the officer, at the time he or she asks

questions or requests the driver’s license and registration, still has some ‘objectively

reasonable articulable suspicion’ that a traffic violation ‘has occurred or is occurring.’”

United States v. McSwain, 29 F.3d 558, 561 (10th Cir. 1994) (quoting United States v.

Soto, 988 F.2d 1548, 1554 (10th Cir. 1993)); United States v. Elliott, 107 F.3d 810, 813

(10th Cir. 1997). Because Teachman had reasonable suspicion to believe Thompson had

committed a traffic violation at the time he requested Thompson’s driver’s license, his

request did not exceed the scope of the stop.

       The Search

       Next, Thompson claims Teachman lacked the requisite reasonable suspicion to

justify a pat-down search, arguing Thompson’s commission of a minor traffic infraction

and his “passive failure to respond” to Teachman’s commands were insufficient to give

rise to reasonable suspicion he was armed. Thompson neglects to mention that he was

also “fidgety and nervous,” and this Court has “recognize[d] that … ‘nervous, evasive

                                                8
behavior is a pertinent factor in determining reasonable suspicion.’” United States v.

Harris, 313 F.3d 1228, 1236 (10th Cir. 2002) (quoting Illinois v. Wardlow, 528 U.S. 119,

124 (2000)). In any event, we need not determine whether Teachman had such reasonable

suspicion here. Instead, we conclude the search was valid as a search incident to arrest.

See Arizona v. Gant, 556 U.S. 332 (2009) (“Among the exceptions to the warrant

requirement is a search incident to a lawful arrest.”). See also Swoboda v. Dubach, 992

F.2d 286, 291 (10th Cir. 1993) (“[T]his court can affirm for reasons other than those

relied on by the district court, as long as those reasons find support in the record.”).

       “[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment

where there is probable cause to believe that a criminal offense has been or is being

committed.” Devenpeck v. Alford, 543 U.S. 146, 152 (2004). Thompson argues

Teachman could not have possibly known Thompson was the individual driving the

Buick at the time of the traffic infraction and thus lacked probable cause to suspect him

of driving without a license. In support, Thompson cites Romero v. Story, 672 F.3d 880

(10th Cir. 2012) and Fogarty v. Gallegos, 523 F.3d 1147 (10th Cir. 2008).

       But in Romero, no one actually saw the commission of the crime for which the

officers arrested the plaintiff; someone simply reported the presence of a Hispanic male

in the general vicinity of a vandalized vehicle after hearing a loud noise. Romero, 672

F.3d at 883, 886. Similarly, in Fogarty, no one actually saw the plaintiff commit a crime;

officers simply arrested him based on their general characterization of the protest in

which he had been involved. Fogarty, 523 F.3d at 1158. Neither case applies here, where

Teachman found Thompson (a black male) sitting alone in the driver’s seat of a vehicle

                                              9
(a black Buick LaCrosse) only moments after Teachman had actually seen a lone black

male driving a black Buick LaCrosse commit a traffic infraction. The keys were in the

car, there was no one else in the vicinity, and Thompson was unable to produce a license.

       Under these circumstances, we conclude Teachman had probable cause to believe

Thompson had committed the offense of driving without a license.

       The Statement

       Finally, Thompson argues that the district court erred in refusing to suppress his

post-arrest admission that the object in his pocket was a gun because Teachman never

informed him of his Miranda rights. As the Government points out in its brief, however,

we have “applied the … public safety exception to allow an officer to ask a suspect, ‘Do

you have any guns or sharp objects on you?’ without first giving the Miranda warnings.”

United States v. DeJear, 552 F.3d 1196, 1201 (10th Cir. 2009); United States v. Lackey,

334 F.3d 1224, 1225 (10th Cir. 2003). Thus, the district court did not err in refusing to

suppress Thompson’s statement.

       In sum, the stop was valid at its inception because Teachman had reasonable

suspicion to believe the individual sitting in the parked Buick had just committed a traffic

infraction. Given the basis for the stop, Teachman’s request for Thompson’s license did

not exceed the scope of the stop. Further, Teachman had probable cause to arrest

Thompson for driving without a license, justifying the search as a valid search incident to

arrest. Finally, the public safety exception to Miranda applies to Thompson’s statement.

Thus, the district court did not err in denying Thompson’s motion to suppress.



                                             10
        The Sentence

        Thompson also raises four challenges to his ACCA-based sentence. We review

legal challenges to the ACCA de novo, but review any factual findings for clear error.

United States v. Doe, 398 F.3d 1254, 1257 (10th Cir. 2005) (clear error standard); United

States v. Green, 55 F.3d 1513, 1515 (10th Cir. 1995) (de novo review).

        Thompson first argues the district court erred in using his prior convictions to

increase his mandatory minimum sentence under the ACCA without requiring the

Government to include those convictions in the indictment and prove them to a jury

beyond a reasonable doubt. But we have previously held that determining whether a prior

conviction constitutes a predicate offense for ACCA purposes “involves an inquiry

intimately related to whether a prior conviction exists, and therefore falls within the prior

convictions exception to the Apprendi rule.” United States v. Moore, 401 F.3d 1220, 1225

(10th Cir. 2005) (citing Apprendi v. New Jersey, 530 U.S. 466, 466 (2000), for rule that

Government “need not charge the ‘fact’ of a prior conviction in an indictment and submit

it to a jury.”).

        Second, although Thompson acknowledges that he was convicted in CF-2005-

4722 of four counts of distributing cocaine on different occasions, he relies on the

language of U.S.S.G. § 4A1.2(a)(2) to argue those convictions, in the absence of

intervening arrests, do not qualify as “separate” for purposes of triggering the ACCA’s

mandatory minimum sentence.

        But as the Government points out, while courts occasionally look to the language

of the USSG for guidance in interpreting the ACCA, this court has declined to apply

                                             11
U.S.S.G. § 4A1.2’s test for determining whether prior offenses are “separate” under the

USSG to the question of whether prior offenses occurred on “different occasions” under

the ACCA. See, e.g., United States v. Delossantos, 680 F.3d 1217, 1220 n.3 (10th Cir.

2012) (“Whether a case is ‘related’ under the USSG ‘is broader than the category of cases

in which the prior offenses will be deemed to have occurred on the same occasion for

purposes of the ACCA.’” (quoting United States v. Hobbs, 136 F.3d 384, 388 (4th Cir.

1998))).

       Unlike U.S.S.G. § 4A1.2(a)(2), which asks whether prior offenses were separated

by an intervening arrest or arrests, 18 U.S.C. § 924(e)(1) asks only whether the offenses

were “committed on occasions different from one another.” Because Thompson does not

dispute that he has at least three convictions for serious drug offenses that occurred on

different dates, the absence of intervening arrests between those offenses is irrelevant,

and his argument to the contrary fails.

       Third, Thompson argues he received illegal sentences for three of his prior

convictions. Because those sentences are illegal, he contends the convictions are invalid

as well, and cannot support an enhanced sentence under the ACCA. Even assuming the

illegality of the challenged sentences, however, collateral challenges to prior convictions

outside post-conviction habeas proceedings are limited to claims alleging violations of

the Sixth Amendment right to counsel. See United States v. Smith, 652 F.3d 1244, 1246

n.3 (10th Cir. 2011) (“A defendant may not collaterally attack a previous state conviction

used to enhance his [or her] sentence under the ACCA outside habeas proceedings except

in the limited circumstances where his right to appointment of counsel has been

                                             12
violated.”). Because Thompson cannot use this appeal as a vehicle to collaterally attack

his previous convictions, we reject his argument.

       Finally, Thompson complains he received inadequate notice of the Government’s

intent to request an enhanced sentence under the ACCA. Although the Government filed

written notice that it intended to seek application of the ACCA’s enhanced penalty

section based on Thompson’s convictions in several cases, Thompson correctly asserts

that the written notice did not specifically mention his conviction in CF-2000-1029. Thus,

Thompson argues, the Government’s subsequent reliance on that conviction in asking the

district court for an enhanced sentence under the ACCA deprived him of adequate notice

under the Due Process Clause.

       But “due process does not require the government to provide formal, pretrial

notice of its intention to seek a sentence under the ACCA.” United States v. Martinez, 30

F. App’x 900, 908 (10th Cir. 2002) (unpublished). See also United States v. Johnson, 973

F.2d 857, 860 (10th Cir. 1992) (“Once the sentencing court was aware that the

requirements of § 924(e)(1) were satisfied, the enhancement was mandatory. The statute

does not require government action to trigger its application nor does it vest discretion in

the sentencing court not to apply its mandate.”). Moreover, even if due process required

such notice, any error resulting from the Government’s failure to include Thompson’s

conviction in CF-2000-1029 in its written notice was harmless.

       Because the district court could have relied solely on Thompson’s convictions in

CF-2005-4722 to trigger the ACCA’s enhanced penalty section, its consideration of

Thompson’s conviction in CF-2000-1029 had no impact on its decision. See United

                                             13
States v. Small, 423 F.3d 1164, 1190 (10th Cir. 2005) (constitutional error is harmless if

government can demonstrate beyond a reasonable doubt that the error did not affect

defendant’s substantial rights). Thus, the Government’s failure to specify Thompson’s

conviction in CF-2000-1029 in its written notice does not require that we vacate

Thompson’s sentence.

                                     CONCLUSION

       Because none of Thompson’s challenges warrant reversal, we affirm his

conviction and sentence.


                                                 Entered for the Court


                                                 Nancy L. Moritz
                                                 Circuit Judge




                                            14
