           United States Court of Appeals
                        For the First Circuit

No. 13-2292

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

                           CLETUS E. DAVIS,

                         Defendant, Appellant.


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF MAINE

              [Hon. D. Brock Hornby, U.S. District Judge]


                                 Before
                     Kayatta, Baldock,* and Selya,
                            Circuit Judges.



     Jeffrey W. Langholtz on brief for appellant.
     Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on brief,
for appellee.



                           December 9, 2014




     *
         Of the Tenth Circuit, sitting by designation.
     BALDOCK,   Circuit   Judge.     A   federal    grand    jury   indicted

Defendant Cletus Davis on one count of being a felon in possession

of two firearms in violation of 18 U.S.C. § 922(g)(1).              Prior to

trial, Defendant filed a motion to suppress.        He moved to suppress

the firearms as products of an unlawful search of his residence.

He also moved to suppress a statement he made while in transport to

the county jail regarding the presence of the firearms in his

residence. The district court in an oral ruling denied Defendant’s

motion to suppress.     Thereafter, Defendant entered a conditional

plea of guilty pursuant to Federal Rule of Criminal Procedure

11(a)(2), reserving the right to appeal the denial of his motion.

At sentencing, the district court, over Defendant’s objection,

found he qualified as an armed career criminal under 18 U.S.C.

§ 924(e), and sentenced him to the mandatory minimum fifteen years

in prison.

     Defendant now appeals both his conviction and sentence.              In

challenging   his   conviction,    Defendant   no   longer    contests   the

validity of the search itself under the Fourth Amendment.            Rather,

Defendant now argues that two statements he made regarding the

presence of firearms inside the residence should be suppressed

under the Fifth Amendment based on alleged Miranda violations.            As

noted above, Defendant objected to only one of those statements in

the district court.    As for his sentence, Defendant continues to

object to being labeled an armed career criminal.               Exercising


                                   -2-
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291, we

affirm.

                                        I.

      The     following   facts,      taken    from    the   transcript     of     the

suppression hearing, are consistent with the district court’s oral

findings. Robert Omiecinski is a state probation officer in Maine.

In   April    2011,   Officer    Omiecinski      was    supervising      Defendant.

Defendant was on state probation as a result of felony convictions

for unlawfully “furnishing and trafficking in prison contraband.”

Defendant’s      conditions      of   probation       included     the   following:

(1) “[a]nswer all questions by your probation officer and permit

the officer to visit you at your home or elsewhere,” (2) “not own,

possess or use any firearm or dangerous weapon,” and (3) “submit to

random search and testing for drugs at the direction of a probation

or law enforcement officer.”

      On April 5, 2011, Defendant was released from prison after

serving time for a probation violation, and he went to live with

his girlfriend, Elizabeth Hicks, in Wales, Maine.                  That same day,

Officer Omiecinski received a phone call from Hicks’ mother.                       She

advised      Omiecinski   that    “there      were    guns   and   drugs”     at   her

daughter’s residence. Omiecinski decided to conduct a “home visit,

a probation check” the next day to “investigate and find out what

the situation was.”

      Officer     Omiecinski     contacted      Chris    Libby,     another    state


                                        -3-
probation officer, for assistance in conducting the planned visit

to Hicks’ residence.    He also contacted the local sheriff’s office

for assistance.     Omiecinski informed Sergeant Rielly Bryant that

safety concerns prompted him to request the assistance of uniformed

officers.    Omiecinski testified that Defendant’s criminal history

included “an armed standoff prior to his probation.   Knowing there

potentially were guns [and] drugs in the house, for officer safety

I wanted as much manpower as possible in case something went

wrong.”1     Omiecinski, Libby, and Bryant agreed they would go to

Hicks’ residence and, for safety reasons, place Defendant “into

restraints” as soon as they made contact with him.

     On April 6, 2011, Omiecinski, Libby, Bryant, and Deputy Travis

Lovering, also with the sheriff’s department, arrived at Hicks’

residence.     Officer Libby, who knew Hicks, knocked on the door.

Hicks answered.    Libby identified himself, asked if Defendant was

present, and told Hicks they wanted to search the home.       Hicks

invited the four inside.      Defendant, who was in the kitchen,

acknowledged Officer Omiecinski.    In the house with Defendant and

Hicks were her three children and her mother.          According to



     1
      In 2010, Libby was supervising a female probationer with whom
Defendant was living at the time. At some point that year, Libby
received information indicating Defendant “was abusive and that he
dealt drugs and there was a gun and some knives” in the
probationer’s residence.      After a three-hour standoff with
Defendant and the probationer, authorities gained access to the
residence and located a “big bag” of cocaine in a vacuum cleaner
and a gun in a safe under Defendant’s control.

                                 -4-
Sergeant Bryant, Hicks’ mother “asked for permission to be able to

remove the children from the home and [the officers] quickly

granted” her request.          Omiecinski approached Defendant and told

him:     “I’m going to place you in restraints and handcuffs for my

safety.     I’m here to do a probation check and we’re going to do a

search . . . .”        Omiecinski also informed Defendant “he was not

under arrest,” and if everything checked out okay he would be “free

to go.”     Omiecinski then handcuffed Defendant.            By all accounts,

Defendant was “extremely cooperative” throughout the encounter.

        Officer Omiecinski asked Defendant if any firearms were inside

the home.       Defendant responded that a .22 rifle could be found in

the bedroom belonging to one of the children.                Omiecinski asked

Hicks    the    same   question.      Hicks,    who   also   was   cooperative

throughout, responded that another rifle was in the bathroom off

the    master    bedroom.      Omiecinski     and   Lovering    remained   with

Defendant      while   Libby   and   Bryant    searched   for   the   firearms.

Officer Libby retrieved “an M44” Polish rifle from the bathroom.

Sergeant Bryant retrieved a .22 caliber rifle from the child’s

bedroom.       Bryant asked Hicks if she had ammunition for the .22

caliber rifle.      Hicks removed some .22 caliber ammunition from the

dresser drawer.        Hicks told Libby that she had no ammunition for

the M44 rifle.         Omiecinski then informed Defendant that he was

under arrest.      Bryant escorted Defendant, who remained handcuffed,

to his squad car for transport to the sheriff’s station.


                                       -5-
        At this point, none of the officers had provided Defendant a

Miranda warning.       Sergeant Bryant testified that “[m]y intention

was to go to the jail and advise him of his rights and record any

conversation that we had.”        After Bryant informed Defendant of his

intention, Defendant “indicated that he would want to discuss with

his attorney prior to talking to me.”           In response to the question

of whether he and Defendant “exhange[d] any small talk” en route,

Bryant stated:     “Yes.   We had a brief discussion.         I talked about

—it’s    a   general   question   I   usually   ask   when   somebody   is   on

probation, how much time they have that’s possibly over their head

remaining, those types of questions, whether he was working or

anything at that particular point in time.”

        When asked whether Defendant made any statements about the

rifles during their conversation, Sergeant Bryant again responded

yes:     “At one point during the transport he uttered a statement

that maybe it was apparent that he was angry at his fiancé because

he knew the firearms were in the house and she was . . . supposed

to get those out of the house.”             Bryant testified Defendant’s

statement was not in response to any question he asked. And Bryant

did not respond to Defendant’s statement.             Bryant explained:      “I

knew that [Defendant] did not want to talk to me about the case

itself and he had not been issued his Miranda warning at that point

so I wasn’t going to further any questioning into that unless he

had been read Miranda and changed his mind.”


                                      -6-
                                   II.

     We first address Defendant’s conviction.             In doing so, we

assume some familiarity with Miranda v. Arizona, 384 U.S. 436

(1966), and its progeny.       The Fifth Amendment requires police to

provide a criminal suspect a Miranda warning before subjecting him

to “custodial interrogation.”      See Dickerson v. United States, 530

U.S. 428, 432 (2000).        Otherwise, any incriminating statement a

suspect makes as a result of such interrogation may be inadmissible

at trial.    See Rhode Island v. Innis, 446 U.S. 291, 297 (1980).

The ultimate question of whether an interrogation is “custodial” is

a mixed question of law and fact and, where preserved by proper

objection in the district court, subject to de novo review. United

States v. Fernandez-Ventura, 132 F.3d 844, 846 (1st Cir. 1998).

This standard “is not applied mechanically, but in view of the

totality of the circumstances.” Id. Similarly, “the determination

as to whether police ‘interrogation’ occurred [at all] depends on

the totality of the circumstances, a balancing analysis commonly

considered   amenable   to    plenary    review”   where,   as    here,   the

underlying historical facts are not in dispute.           United States v.

Taylor, 985 F.2d 3, 7 n.5 (1st Cir. 1993).

                                    A.

     We   initially   consider    the    statement   to   which   Defendant

objected in the district court, that is, the statement about the

rifles Defendant made to Sergeant Bryant during transport to the


                                   -7-
sheriff’s station. The district court ruled such statement was not

the product of “interrogation”:

     [I]t is conceded that the defendant was under arrest and
     was in custody and the question is whether . . . the
     single statement was the product of an interrogation,
     [or] was a volunteered statement, that statement to the
     effect that [Defendant] was angry at his girlfriend
     because he knew there were guns in the house and she was
     supposed to get rid of them.

     I find, based on the evidentiary record, that was a
     volunteered statement.     It was not a response to a
     question. . . . [I]t would be too much speculation, based
     on the record here, to conclude that really it was a coy
     or devious procedure by the police officer to acquire
     that information.

     I do not agree that [Defendant’s statement] flows from
     the question of how much time do you have left on
     probation, are you working, family questions and so I
     find that [the statement] is not the product of custodial
     interrogation.

     Undoubtedly, Defendant was “in custody” at the time he made

his statement to Sergeant Bryant.       Officer Omiecinski earlier had

informed Defendant of his arrest based upon probable cause.        But

“the special procedural safeguards outlined in Miranda are required

not where a suspect is simply taken into custody, but rather where

a suspect in custody is subjected to interrogation.”       Innis, 446

U.S. at 300.   “Miranda safeguards come into play whenever a person

in custody is subjected to either express questioning or its

functional equivalent.” Id. at 300-01 The “functional equivalent”

of questioning is “any words or action on the part of the police

. . . that the police should know are reasonably likely to elicit

an incriminating response from the suspect.”      Id. at 301.   “[T]he

                                  -8-
mere fact that a police officer may be aware that there is a

possibility that a suspect may make an incriminating statement is

insufficient       to     establish    the      functional        equivalent        of

interrogation.”         Taylor, 985 F.2d at 8 (internal quotation marks

omitted).

     The district court concluded, based on the totality of the

circumstances, that the brief conversation between Defendant and

Sergeant Bryant, during which Bryant asked Defendant a few general

questions about his status, was not the impetus for Defendant’s

subsequent statement regarding the presence of firearms in Hicks’

home.     We agree that nothing in the record suggests a reasonable

officer    under   these    circumstances       would    have     understood   that

general questions directed at Defendant’s status prior to his

arrest would elicit Defendant’s comment regarding his anger towards

Hicks for failing to remove the rifles from the home.                     Defendant

remained    calm   from    the    outset   of   the     ordeal.      He   exhibited

knowledge of the criminal justice system when he told Bryant prior

to commenting about the rifles that he wanted to speak with an

attorney before talking to him at the police station.                     We cannot

say a reasonable officer in Sergeant Bryant’s position would have

anticipated Defendant’s comment as a result of their exchange. Cf.

Innis, 446 U.S. at 302 n.8 (recognizing that an officer’s knowledge

“concerning    the      unusual   susceptibility        of   a    defendant    to   a

particular form of persuasion might be an important factor in


                                       -9-
determining whether the [officer] should have known that [his]

words or actions were reasonably likely to elicit an incriminating

response”).   Accordingly, because Sergeant Bryant’s questions

during that exchange did not constitute the “functional equivalent”

of interrogation, Defendant’s statement made during transport to

the sheriff’s station did not violate his Fifth Amendment right to

be free from self-incrimination.

                                 B.

     Next we consider the statement to which Defendant did not

object in the district court.   Defendant did not move to suppress

the initial statement he made to Officer Omiecinski regarding

the rifle in the child’s bedroom.2      At best then, our review

of this belated challenge is for plain error.    “Plain error is a

very stiff standard that is famously difficult to meet.”    United

States v. Rodriguez, 759 F.3d 113, 118 (1st Cir. 2014) (internal

citation, quotation marks, and ellipsis omitted).     To meet this

“rigorous standard,” Defendant “must identify: 1) an error 2) that

was clear and obvious 3) that affected his substantial rights, and



     2
        In his written motion to suppress, Defendant did not
challenge the admissibility of his statement to Omiecinski. At the
suppression hearing, Defendant confirmed the absence of any
challenge to this statement. The district court asked Defendant’s
counsel “which statements are you concerned with?” Counsel
responded: “There is one statement I’m concerned about primarily
which is the statement made in [Sergeant Bryant’s] car. There is
tangentially the statement that’s later made at the jail about use
of the drugs, but I don’t see any real relevance of that to this
case.”

                                -10-
4) that seriously impaired the fairness, integrity, or public

reputation of the judicial proceeding.”          United States v. Farrell,

672 F.3d 27, 29 (1st Cir. 2012).

     Here, we bypass the initial question of whether Defendant was

“in custody” for purposes of Miranda at the time he answered

Officer Omiecinski’s inquiry about the presence of firearms in the

home, and proceed to the plain error standard’s latter three

requirements.     To   satisfy   the    standard’s    second   requirement,

Defendant must show that any error was clear and obvious under the

established law at the time of our consideration.             Id. at 36.    To

satisfy the standard’s third requirement, Defendant must establish

prejudice or, in other words, an error that “likely affected the

outcome of the district court proceedings.” Rodriguez, 759 F.3d at

118 (emphasis in original) (internal quotation marks omitted).

Finally, under the fourth requirement, any error that is plain and

affected    Defendant’s    substantial    rights     must   have   caused   a

miscarriage of justice.     Id. (noting that we have used the phrases

“caused a miscarriage of justice” and “seriously undermined the

integrity    or   public     reputation     of     judicial    proceedings”

interchangeably).

                                   1.

     We first ask whether any error the district court may have

committed in failing to suppress Defendant’s statement to Officer

Omiecinski was plain.       In Miranda, the Supreme Court described


                                  -11-
“custodial   interrogation”   as    “questioning     initiated   by   law

enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant

way.”   Miranda, 384 U.S. at 444.         We have said that the level of

physical control officers exercise over a suspect “carries the most

weight” in determining whether such suspect was “in custody” at the

time of interrogation. United States v. Mittel-Carey, 493 F.3d 36,

40 (1st Cir. 2007).     To be sure, when Omiecinski handcuffed

Defendant, he deprived Defendant of his freedom of action, thereby

exercising a significant degree of physical control over him.         See

id.     (identifying some factors that inform the “in custody”

question as 1) where the suspect was questioned, 2) the number of

officers present, 3) the degree of physical restraint placed upon

the suspect, and 4) the character of the interrogation).         But, we

have never held that the use of handcuffs necessarily renders a

probationer in custody for Miranda purposes.         Nor has the Supreme

Court so held.

      Notably, our sister circuits appear divided on the issue of

whether the use of handcuffs necessarily renders a criminal suspect

in custody for Miranda purposes. Indeed, the D.C. Circuit recently

referred to the question (without answering it) of whether the use

of handcuffs renders a suspect in custody within the meaning of the

Fifth Amendment as a “constitutional thicket.”          United States v.

Brinson-Scott, 714 F.3d 616, 621 (D.C. Cir. 2013) (“The parties


                                   -12-
focus their arguments on the significance of the handcuffs, an

issue about which some of our sister circuits have reached opposite

conclusions.” (citing cases)); see also Oregon v. Elstad, 470 U.S.

298, 309 (1985) (recognizing that “the task of defining ‘custody’

[for Miranda purposes] is a slippery one”).

       Making the question still more problematic is the fact that

this case arises in a probationary context where a condition of

Defendant’s       probation   required   him    to   answer    his   probation

officer’s questions in the course of what undoubtedly was a lawful

home visit.       Moreover, Officer Omiecinski told Defendant “he was

not under arrest,” but merely being placed in handcuffs as a safety

precaution, and if everything checked out okay he would be “free to

go.”       “To a greater or lesser degree,” probationers “enjoy . . .

only       conditional   liberty   properly   dependent   on   observance   of

special probation restrictions.”          Griffin v. Wisconsin, 483 U.S.

868, 874 (1987) (internal quotation marks, brackets, and ellipsis

omitted). Surely a probationer suspected of recidivism has no more

rights than the ordinary criminal suspect referred to by the D.C.

Circuit.3


       3
       A reported case presenting a factual scenario somewhat
similar to ours is United States v. Newton, 369 F.3d 659 (2d Cir.
2004). In that case, the Second Circuit, applying de novo review,
held a parolee was “in custody” for Miranda purposes. The court
identified “the handcuffs” as the “problematic factor.” Id. at
675. The court deemed the presence of three parole officers and
three police officers relatively insignificant.      The court’s
discussion, however, at least partially distinguishes that case
from this one:

                                      -13-
       Fortunately, under plain error review we need not decide

whether Defendant was “in custody” for purposes of Miranda when he

informed Officer Omiecinski about the rifle in the child’s bedroom.

We need only conclude that whether Defendant was “in custody” for

purposes of Miranda at the time he answered Omiecinski’s inquiry

about the presence of firearms in the home is subject to reasonable

debate under the present state of the law, making the answer far

from clear or obvious.     Accordingly, any Fifth Amendment violation

that   may   have   occurred   when    Omiecinski   failed   to   administer

Defendant a Miranda warning prior to questioning him about firearms

in the residence was not plain.

                                       2.

       Furthermore, we fail to see how any violation of Defendant’s

Fifth Amendment right to be free from self-incrimination prejudiced

Defendant or constituted a miscarriage of justice as demanded by

the third and fourth requirements of the plain error standard


       The record does not indicate whether Newton was told that
       the specific reason for a safety concern in his case was
       that the officers were searching for a gun. Thus, we
       cannot assume that a reasonable person in his situation
       would have understood that the handcuffing would likely
       last only until the officers had completed their search.
       Neither can we assume an understanding that removal or
       maintenance of the handcuffs depended on the outcome of
       the search rather than on the suspect’s responding to
       questions posed. . . . [H]andcuffing Newton, though
       reasonable to the officers’ investigatory purpose under
       the Fourth Amendment, nevertheless placed him in custody
       for purposes of Miranda.

Id. at 677 (emphasis added).

                                      -14-
respectively.    Here, Defendant’s conditions of probation permitted

the officers on the scene to search for drugs, a search to which

Defendant   no   longer    objects   and    that   undoubtedly    would      have

revealed the presence of the firearms in the home.               Omiecinski’s

suspicion   became   all   the   more   real   when   Hicks,     who   was    not

restrained, informed Omiecinski of the rifle in the bathroom off

the master bedroom.

     Thus, even absent Defendant’s statement to Officer Omiecinski,

the evidence is quite sufficient to sustain his conviction for

possessing firearms in violation of 18 U.S.C. § 922(g)(1).                   Just

recently in United States v. Ridolfi, 768 F.3d 57, 62 (1st Cir.

2014), we explained in upholding a § 922(g) conviction:

     Constructive possession of a firearm may be established
     when a person knowingly has the power and intention at a
     given time of exercising dominion and control over it
     either directly or through others.          Constructive
     possession may be sole or joint and does not require
     actual ownership of the firearm. However, a person must
     have actual knowledge of the weapon in order to have
     constructive possession.

(internal brackets, citations, and quotation marks omitted).

     Of course, “mere presence with or proximity to weapons, or

association with another who possesses a weapon, is not enough” to

sustain a § 922(g) conviction.          Id. at 768 F.3d at 61–62.              To

establish Defendant’s constructive possession of the firearms

inside the residence, he must have had knowledge of those firearms.

And while “knowledge can be inferred in some circumstances from

control of the area,” United States v. Booth, 111 F.3d 1, 2 (1st

                                     -15-
Cir. 1997) (per curiam), we need not rely on any such permissible

inference in this case.              Defendant on the way to the sheriff’s

station plainly stated to Sergeant Bryant that he knew the firearms

were   inside       the   residence.        We   have   already     held    that   this

statement did not infringe Defendant’s right to be free from self-

incrimination.        Therefore, we fail to see how the district court’s

failure   to    suppress      Defendant’s        initial   statement       to   Officer

Omiecinski “affected his substantial rights” or “seriously impaired

the fairness, integrity, or public reputation” of his criminal

proceedings.         Rodriguez, 759 F.3d at 118.

                                         III.

       Next, we turn to Defendant’s sentencing and, in particular,

his objection to being labeled an armed career criminal and

sentenced      to     a   mandatory    minimum      fifteen   years        in   prison.

According to the Presentence Investigation Report, Defendant is an

armed career criminal subject to an enhanced sentence pursuant to

18 U.S.C. § 924(e), otherwise known as the Armed Career Criminal

Act (ACCA).     Among other things, § 924(e)(1) provides that where a

defendant (1) is convicted of being a felon in possession of a

firearm in violation 18 U.S.C. § 922(g)(1), and (2) has three prior

“violent felony” convictions, the defendant shall be imprisoned not

less than fifteen years.              Subsection (e)(2)(B) defines “violent

felony” as “any crime punishable by imprisonment for a term

exceeding      one    year”   that    “is    burglary,     arson,    or    extortion,


                                         -16-
involves the use of explosives, or otherwise involves conduct that

presents a serious potential risk of physical injury to another.”4

Id. § 924(e)(2)(B)(ii) (emphasis added).

        Where the statute of conviction is “indivisible,” we employ a

“categorical approach” to determine whether such crime constitutes

a   “violent       felony”   under    the    residual     clause   of    subsection

(e)(2)(B):

        Under this approach, we look only to the fact of
        conviction and the statutory definition of the prior
        offense, and do not generally consider the particular
        facts disclosed by the record of conviction. That is, we
        consider whether the elements of the offense are of the
        type that would justify its inclusion within the residual
        provision, without inquiring into the specific conduct of
        th[e] particular offender.

James       v.   United   States,    550    U.S.   192,   202   (2007)   (internal

emphasis, citations, and quotation marks omitted).

        Alternatively, where a statute is “divisible,” or comprises

multiple, alternative versions of a crime not all of which qualify

as an ACCA predicate, we apply a “modified categorical approach” to

determine which crime formed the basis of a defendant’s conviction.

See Descamps v. United States, 133 S. Ct. 2276, 2283–85 (2013).

Where a defendant has pled guilty, this approach permits us to look

beyond the statute of conviction to the indictment, as well as to



        4
      Defendant’s argument that the ACCA’s residual clause is void
for vagueness is meritless. See James v. United States, 550 U.S.
192, 210 n.6 (2007); United States v. Anderson, 745 F.3d 593, 596
(1st Cir. 2014). But see Derby v. United States, 131 S. Ct. 2858,
2859–60 (2011) (Scalia, J., dissenting from denial of cert.).

                                           -17-
any plea agreement and plea colloquy, to determine whether a

particular conviction qualifies under the ACCA.   Id.

                                A.

     The § 924(e) predicate to which Defendant objects on appeal

arises out of his 2007 Florida conviction for vehicular flight in

violation of Florida Statutes § 316.1935(1):5

     It is unlawful for the operator of any vehicle, having
     knowledge that he or she has been ordered to stop such
     vehicle by a duly authorized law enforcement officer, [1]
     willfully to refuse or fail to stop the vehicle in
     compliance with such order, or [2] having stopped in
     knowing compliance with such order, willfully to flee in
     an attempt to elude the officer, and a person who
     violates this subsection commits a felony of the third
     degree . . . .

     Defendant does not dispute that the “[r]isk of violence is

inherent to vehicle flight,” and for good reason.       See Sykes v.

United States, 131 S. Ct. 2267, 2274 (2011) (holding Indiana’s

vehicular flight crime constitutes a “violent felony” under the

ACCA). In Sykes, the Supreme Court explained:

     Confrontation with police is the expected result of
     vehicle flight.    It places property and persons at
     serious risk of injury.

     . . . . Between the confrontations that initiate and
     terminate the incident, the intervening pursuit creates


     5
      The two predicate convictions which Defendant does not object
to on appeal are (1) a 2003 Florida conviction for burglary of a
dwelling (the record provides no statutory cite), and (2) a 2007
Florida conviction for vehicular flight to elude police in
violation of Florida Statutes § 316.1935(2). Defendant objected to
his convictions under both § 316.1935(1) and (2) in the district
court as improper predicates under the ACCA, but objects only to
his conviction under subsection (1) on appeal.

                               -18-
      high risks of crashes. . . . It is well known that when
      offenders use motor vehicles as their means of escape
      they create serious potential risks of physical injury to
      others.

Id.   Subsequently, in United States v. Travis, 747 F.3d 1312, 1317

(11th Cir. 2014), the Eleventh Circuit held that “vehicle flight”

in violation of Florida Statutes § 316.1935(1) constitutes a crime

of violence for purposes of the sentencing guidelines.6

                                 B.

      Surely the Eleventh Circuit knows more about Florida law than

we do.    So instead of making a futile argument that a conviction

for vehicular flight under § 316.1935(1) does not constitute a

“violent felony” within the meaning of the ACCA, Defendant argues

subsection (1) is a divisible statute which may be violated absent

vehicular flight under the subsection’s second provision.   Without

citation to authority, Defendant says a motorist violates the

statute by fleeing on foot after having been stopped by police.

And, according to Defendant, because the state indictment under

which he was charged does not refer to vehicular flight, his

conviction under subsection (1) does not constitute a “violent




      6
      “We have repeatedly noted that the ‘substantial similarity’
between the definition of ‘violent felony’ for sentencing
enhancement purposes under the ACCA and the definition of ‘crime of
violence’ under the Guidelines’ career offender provision [U.S.S.G.
§ 4B1.2(a)] makes decisions interpreting one phrase frequently
persuasive in interpreting the other.” United States v. Ramirez,
708 F.3d 295, 301 n.4 (1st Cir. 2013) (internal quotation marks,
brackets, and ellipsis omitted).

                                -19-
felony” within the meaning of § 924(e).           We disagree.7

      To be sure, § 316.1935(1) provides alternative means by which

a motorist may violate the statute.           To elude police, the motorist

may flee outright, or stop and then flee.             But, as we read the text

of the statute, either means is sufficient to qualify as an ACCA

predicate because both require vehicular flight.               And that renders

the modified categorical approach inapplicable to Defendant’s case.

See Descamps, 133 S. Ct. at 2285.         We thus need not address whether

fleeing on foot constitutes a “violent felony” under the ACCA.

Absent its first provision, subsection (1) reads:               “It is unlawful

for the operator of any vehicle, . . . having stopped in knowing

compliance with [the] order [of law enforcement], willfully to flee

in   an   attempt   to   elude   the    officer   .    .   .   .”   Fla.   Stat.

§ 316.1935(1) (emphasis added).          One who flees on foot surely acts

unlawfully but does not do so as the “operator of any vehicle” and

therefore does not violate the statute.           See Florida Standard Jury

Instruction (Criminal) 28.6 (2013) (recognizing vehicular flight as

an element of § 316.1935(1) in all instances).

      For all the foregoing reasons, the judgment and sentence of

the district court are AFFIRMED.




      7
       We also disagree with Defendant’s argument that prior
convictions used to enhance a sentence pursuant to the ACCA must be
charged in the indictment. See United States v. Paladin, 748 F.3d
438, 451–52 (1st Cir. 2014).

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