                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          May 3, 2006
                                 TENTH CIRCUIT                        Elisabeth A. Shumaker
                                                                         Clerk of Court

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                    No. 05-5156
          v.                                         (N.D. Oklahoma)
 TUXA TILTON BALLARD,                             (D.C. No. 04-CR-210-C)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK, Circuit
Judges.



      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Tuxa Tilton Ballard was convicted, following a jury trial, of possession of a

firearm and ammunition while having prior felony convictions, in violation of 18


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
U.S.C. §§ 922(g)(1) and 924(e). He was sentenced to 240 months’ imprisonment,

followed by five years of supervised release, and assessed a fine of $5000 and a

special assessment of $100. He appeals his conviction and sentence. For the

reasons set forth below, we affirm.



                                 BACKGROUND

      On October 3, 2004, at approximately 10:30 p.m., Tulsa police officer Gene

Hogan was investigating an armed robbery on 62nd Street, east of Peoria Avenue,

when he heard a gunshot to his west. Shortly afterwards, according to Officer

Hogan’s later testimony, he “heard tires squealing” and saw a green Jeep turning

from Peoria eastbound onto 62nd Street, away from the direction of the gunshot,

and the Jeep then passed him “at an extremely high rate of speed.” Tr. of Mot. to

Suppress Hr’g at 7, R. Vol. III. According to Officer Hogan, the Jeep was

traveling “between 55 and 60 miles an hour” in a residential area, where the speed

limit was 25 miles per hour. Id. at 8.

      Officer Hogan then pursued the Jeep, followed by Officer Adam Ashley in

a separate vehicle. The Jeep failed to stop at a stop sign and turned south onto a

dead end street, and Officer Hogan activated his emergency lights. The Jeep then

turned around to face the oncoming police car, leaving its headlights shining into

the police car and leaving its engine running. Officer Hogan stopped and


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reported his location but could not read the Jeep’s license plate because of its

headlights. He then yelled to the driver, who was later identified as Ballard, to

turn the headlights off, but Ballard did not respond.

      Officer Hogan testified that he did not want to approach the Jeep directly

for safety reasons. He therefore told Officer Ashley, who had pulled up beside

him, to cover him while Officer Hogan went through neighboring yards to

approach the Jeep from behind. Officer Ashley did so with his gun drawn. As

Officer Hogan approached the Jeep, with his gun also drawn, he saw that the rear

wing window on the driver’s side was broken. Officer Hogan testified that, based

on his training and experience, broken windows “can . . . be an indication that the

vehicle is stolen.” Id. at 11. Officer Hogan also observed on his approach to the

Jeep that Ballard had put his hands “up in a raised position.” Id. at 14. The

officer testified that in his experience it was uncommon for a driver to put his

hands up without being commanded, and that this made him think that Ballard

“maybe . . . had had some prior . . . contact with officers.” Id. at 15.

      Officer Hogan then spoke to Ballard, asking him “why he was in such a

hurry.” Id. at 13. According to Officer Hogan’s testimony, Ballard responded

that he “was going to a friend’s apartment.” Id. Ballard further stated that the

Jeep belonged to “a friend.” Id. The officer testified that Ballard’s answers to




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these questions were “slow in coming, delayed,” and made him suspect that

Ballard was “maybe under the influence of drugs or intoxicants.” Id. at 14.

      Meanwhile, Officer Hogan had radioed in the license plate number on the

Jeep. Dispatch reported back that the license belonged to a 1985 Jeep and that

there was no report of its being stolen. However, Officer Hogan testified that,

based on his familiarity with his own 1988 Jeep, older Jeeps were “a lot more

square” whereas this Jeep was “more round.” Id. at 12-13. He was therefore

“certain that was not an ’85 Jeep,” id. at 13, and wanted to read the VIN number

on the Jeep’s dashboard in order to check whether the vehicle was stolen.

      Based on his safety concerns in looking for the VIN number while Ballard

sat in the vehicle, Officer Hogan asked Officer Ashley to get Ballard out of the

Jeep. Officer Ashley testified that he asked Ballard to step out of the Jeep, and

Ballard did so. Officer Ashley then asked Ballard if he had any weapons and if

he “could pat him down for weapons.” Id. at 58. According to Officer Ashley,

Ballard said that he did not have any weapons and responded “no problem” to the

pat-down. Id. While performing the pat-down, Officer Ashley “felt a weapon” in

Ballard’s waistband. Id. at 59. The officer then “pinned [Ballard] up against the

vehicle and yelled ‘gun’” in order to alert Officer Hogan and other officers who

were then present. Id. As two officers started running towards them, Ballard

“started bucking . . . trying to fight” and continued fighting as they fell to the


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ground, until three officers were able “to get handcuffs on him” and place him

under arrest. Id. at 59-60. The weapon was identified as a six-shot revolver and

contained five rounds of ammunition.

        Ballard was indicted on December 9, 2004, on a charge of having violated

18 U.S.C. §§ 922(g)(1) and 924(e), based on his possession of a firearm and

ammunition after having been convicted of a number of felonies. He moved to

suppress the evidence of the gun and ammunition, alleging that the pat-down

search had been in violation of the Fourth Amendment. The district court denied

the motion. A jury trial was then held, and Ballard was convicted on April 18,

2005.

        The United States Probation Office then prepared a presentence report

(“PSR”), discussing factors relevant to sentencing and sentencing options. The

PSR indicated that Ballard qualified as an Armed Career Criminal under 18

U.S.C. § 924(e) and therefore was subject to a fifteen-year statutory minimum

term of imprisonment. The PSR based this assessment on its conclusion that

Ballard had at least three prior “violent felony” convictions, based on two prior

convictions for escape from a penal institution, and two prior second-degree

burglary convictions. PSR ¶ 22, R. Vol. II.

        Ballard filed two objections to the PSR. He first argued that the court’s

acceptance of its recommendation that he be sentenced as an Armed Career


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Criminal would violate the Sixth Amendment, as interpreted by the Supreme

Court in Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v.

Booker, 543 U.S. 220 (2005). He also argued that his two prior convictions for

escape from a penal institution did not constitute “violent felon[ies]” for purposes

of § 924(e) and that he therefore did not qualify as an Armed Career Criminal.

      The district court rejected both of these objections and, based on the factors

set forth in 18 U.S.C. § 3553(a), sentenced Ballard to 240 months’ imprisonment,

as indicated above. Ballard appeals, arguing that the district court erred in

denying his motion to suppress and in rejecting his two objections to the PSR.



                                   DISCUSSION

I.    Motion to Suppress

      “When reviewing the district court’s denial of a motion to suppress, we

view the evidence in the light most favorable to the government and accept the

district court’s factual findings unless they are clearly erroneous.” United States

v. Grimmett, 439 F.3d 1263, 1268 (10th Cir. 2006). “The ultimate question of

reasonableness under the Fourth Amendment is a legal conclusion that we review

de novo.” Id. In the context of traffic stops, we determine reasonableness using

the framework set forth in Terry v. Ohio, 392 U.S. 1 (1968), “asking first

‘whether the officer’s action was justified at its inception,’ and second ‘whether it


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was reasonably related in scope to the circumstances which justified the

interference in the first place.’” United States v. Bradford, 423 F.3d 1149, 1156

(10th Cir. 2005) (quoting Terry, 392 U.S. at 20).

      Here, Ballard does not contest the reasonableness of the initial stop.

However, he argues, as he did below, that Officer Ashley’s pat-down search was

not justified. We disagree.

      During the course of a traffic stop, police may “perform a ‘patdown’ of a

driver . . . upon reasonable suspicion that the[] [driver] may be armed and

dangerous.” Knowles v. Iowa, 525 U.S. 113, 118 (1998); see also United States

v. Dennison, 410 F.3d 1203, 1211 (10th Cir. 2005). “[R]easonableness is

measured in objective terms by examining the totality of the circumstances.”

United States v. Holt, 264 F.3d 1215, 1220 (10th Cir. 2001) (en banc) (internal

quotation omitted). There must exist “specific articulable facts” to support the

officer’s reasonable suspicion. United States v. Williams, 403 F.3d 1203, 1206

(10th Cir. 2005).

      The district court held that the following facts justified Officer Ashley’s

patdown search in this case:

      (1) [Ballard] pulled over facing the police car; (2) he put his hands in
      the air . . . without being directed to do so; (3) he failed to follow
      instructions; (4) he appeared to be under the influence of drugs; and
      finally (5) he [had been] speeding through a residential
      neighborhood, moving away from a location from whence the
      officers had just moments earlier heard a gunshot.

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Order at 5, R. Vol. I, doc. 30. Ballard argues that these facts do not support a

reasonable suspicion that he was armed and dangerous. He suggests that pulling

around to face the officers was natural based on the cul-de-sac nature of the road,

and that raising his hands in the air was a normal response to the officers’ having

drawn their guns. We have stated, however, that “[a] law enforcement officer

may rely upon his training and experience [to identify suspicious actions] without

inquiring of a defendant as to innocent explanations.” Williams, 403 F.3d at

1207.

        Based on our de novo review, we conclude Officer Ashley had reasonable

suspicion to perform the patdown search. As the district court found, Ballard not

only left the headlights of the Jeep on but also left the engine running. The fact

that he stopped at all does not, as Ballard contends, strongly suggest his

willingness to comply with the officers’ instructions, given that he had turned into

a dead end street. The totality of the circumstances here, including these facts,

together with the gunshot, Ballard’s speeding away from the direction where the

shot was heard, and failing to comply with the officers’ orders to turn off his

headlights, were sufficient to raise a reasonable suspicion that Ballard might be

armed and dangerous. We therefore affirm the district court’s denial of Ballard’s

motion to suppress.




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II.   PSR Objections

      The issues Ballard raises in regard to his sentence under the Armed Career

Criminal Act, 18 U.S.C. § 924(e), are legal issues subject to de novo review.

United States v. Dowell, 430 F.3d 1100, 1109 (10th Cir. 2005) (Sixth Amendment

issue); United States v. King, 422 F.3d 1055, 1057 (10th Cir. 2005) (issue

regarding qualification of “violent felony” under Armed Career Criminal Act).

However, as Ballard concedes, our review of these issues cannot result in a

resolution in his favor because both issues have already been decided to the

contrary in this circuit. See United States v. Brothers, 438 F.3d 1068, 1074 (10th

Cir. 2006) (“We cannot overturn [our] prior decisions barring en banc

reconsideration, a superseding contrary Supreme Court decision, or authorization

of all currently active judges on the court.” (internal quotation omitted)).

      Specifically, Ballard’s argument that his prior convictions for escape from

a penal institution do not qualify as “violent felon[ies]” for purposes of the Act

was resolved to the contrary in United States v. Moudy, 132 F.3d 618, 620 (10th

Cir. 1998) (holding that the rationale “for holding escape to be a [violent felony]

appl[ies] to all escapes, whether or not violence was actually involved”).

Similarly, Ballard’s argument that the district court’s application of the Armed

Career Criminal Act to his sentence violates the Sixth Amendment and Apprendi

was resolved to the contrary in United States v. Moore, 401 F.3d 1220, 1225 (10th


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Cir. 2005) (holding that “[b]ecause determining whether a given felony

constitutes a ‘violent felony’ is a question of law and not fact, the Sixth

Amendment does not require that determination to be made by a jury”). As

Ballard states that he raises these arguments here only for the purpose of

preserving them for further appeal, we need not address them further, and we

affirm the district court’s rejection of these objections.



                                   CONCLUSION

      For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                 ENTERED FOR THE COURT


                                                 Stephen H. Anderson
                                                 Circuit Judge




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