                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      October 2, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                        Clerk of Court
                                 TENTH CIRCUIT
                            __________________________

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                        No. 08-6192
                                                           (W.D. Okla.)
 NATHANIEL RAY STOTTS,                            (D.Ct. No. 5:08-CR-00042-D-1)

          Defendant - Appellant.
                         ____________________________

                              ORDER AND JUDGMENT *


Before HARTZ, McKAY, and O’BRIEN, Circuit Judges.



      The parties have waived oral argument. See Fed. R. App. P. 34(f); 10th

Cir. R. 34.1(G). We accept this case for submission on the briefs.

      Nathaniel Ray Stotts was convicted of being a felon in possession of a

firearm and ammunition. He was sentenced to 210 months imprisonment under

the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and USSG §4B1.4.

He appeals from the district court’s denial of his motion to suppress and the


      *
         This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
except when related to law of the case, issue preclusion or claim preclusion. Any citation
to an order and judgment must be accompanied by an appropriate parenthetical notation –
(unpublished). 10th Cir. R. 32.1(A).
application of the ACCA. We affirm.

                                 I. BACKGROUND

         On November 18, 2007, Stotts spent the day at his home in Oklahoma City

with his wife, one of her female relatives named Angel, and Michael Gardner, one

of his stepsons. At one point in the evening, Michael and Stotts went fishing.

While at the river they fired a handgun Stotts was carrying. After firing the gun

Stotts put it in the waistband of his pants. When they returned home at

approximately 11:45 PM Stotts became upset because he could not find a bottle of

liquor. An argument ensued during which Stotts told Angel he was going to get

family “to take care of her.” (R. Vol. 3 at 188.) Angel called 911 at 11:59 PM to

report a domestic disturbance at the residence. A police officer responded but no

arrests were made.

         Sometime between 12:30 and 1:00 AM on November 19, 2007, Michael

called his brother, Christopher Gardner, in Alaska and told him of the evening’s

events - including the threat against Angel. Based upon that information

Christopher called the Oklahoma City Police Department at 2:02 AM and

requested officers visit Stotts’ residence to check the welfare of those present.

Christopher told dispatch Stotts was a convicted felon, intoxicated, passed out in

the backyard, carrying a firearm, and had made threats against people in his

house.

         When officers arrived at Stotts’ residence, they interviewed Michael who

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confirmed Stotts was a felon who had a gun, had threatened to kill someone, and

had hurt Michael’s mother in the past. Michael told the officers Stotts was passed

out in a lawn chair in the backyard. He warned an officer to be careful “because

[Stotts] might wake up slinging.” (R. Vol. 3 at 196.) Three officers entered the

backyard through the unlocked gate of a chain-link fence. Two officers grabbed

Stotts by his arms, woke him, and identified themselves as police officers. One

asked Stotts if he had a weapon. He said he did. The police recovered the loaded

gun from his waistband. The officers then conducted a pat-down search of Stotts’

person and discovered a bag containing live rounds of .380 caliber ammunition.

Stotts was arrested and indicted for being a felon in possession of a firearm and

ammunition in violation of 18 U.S.C. § 922(g)(1).

      Prior to trial, Stotts moved to suppress the evidence seized when the police

entered his backyard. 1 He argued there was no probable cause justifying police

encroachment onto his property. The government maintained Stotts’ intoxication,

threat to kill another individual and possession of a firearm created an exigent

circumstance allowing the police to enter the property. The government stressed

the search was limited in manner and scope and was necessary to investigate the

welfare of those on the property. The district court agreed and denied Stotts’

motion to suppress.

      1
         Stotts also moved to suppress statements he made before he was advised of his
rights under Miranda v. Arizona, 384 U.S. 436 (1966). The district court granted the
motion in part and denied in part. Neither party has appealed from this ruling.

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       After Stotts was convicted by a jury, the United States Probation Office

compiled a Presentence Investigation Report (PSR). The PSR recommended

Stotts be sentenced as an armed career criminal under 18 U.S.C. § 924(e), which

provides for a mandatory minimum sentence of 15 years imprisonment, 2 because

he had previously been convicted of at least three violent felonies. 3 Applying

USSG §4B1.4, the armed career criminal guideline, the PSR determined Stotts’

total offense level was 33. With a total offense level of 33 and a Criminal

History Category V, the resulting advisory guideline range was 210 to 262 months

imprisonment.

       Stotts objected to the PSR. Relying on Apprendi v. New Jersey, 530 U.S.

466 (2000), and Shepard v. United States, 544 U.S. 13 (2005), Stotts argued only

the jury could determine whether his previous convictions were violent felonies or

serious drug offenses and whether they were committed on different occasions as

required by the ACCA. The district court rejected this argument and sentenced

Stotts to 210 months incarceration.

       2
        18 U.S.C. § 924(e) reads in relevant part: “In the case of a person who violates
section 922(g) of this title and has three previous convictions . . . for a violent felony or a
serious drug offense, or both, committed on occasions different from one another, such
person shall be . . . imprisoned not less than fifteen years . . . .”
       3
         In support of the application of the ACCA, the PSR relied upon Stotts’ previous
convictions for (1) assault with a dangerous weapon in 1982 for attempting to stab an
Oklahoma City police officer with a butcher knife, (2) rape in 1983 for having sexual
intercourse with a girl under the age of 14, (3) escape from a penitentiary in 1995 for
failing to report to a pre-parole officer, and (4) assault and battery with a dangerous
weapon in 2005 for threatening to kill his wife and cutting her throat.

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                                 II. DISCUSSION

      Stotts appeals from the denial of his motion to suppress and the court’s

application of the ACCA.

A. Warrantless Entry onto Stotts’ Property

      The Fourth Amendment generally prohibits a warrantless entry into a

person’s home, whether to make an arrest or to search for specific objects.

Illinois v. Rodriguez, 497 U.S. 177, 181 (1990). But there are exceptions to the

general rule. “The need to protect or preserve life or avoid serious injury is

justification for what would be otherwise illegal absent an exigency or

emergency.” United States v. Najar, 451 F.3d 710, 714 (10th Cir. 2006)

(quotations omitted). To justify a search based on exigent circumstances we

require: “(1) the officers have an objectively reasonable basis to believe there is

an immediate need to protect the lives or safety of themselves or others, and (2)

the manner and scope of the search is reasonable . . . .” Id. at 718.

      “The existence of exigent circumstances is a mixed question of law and

fact.” United States v. Anderson, 981 F.2d 1560, 1567 (10th Cir. 1992). We

review the district court’s factual findings for clear error, viewing the evidence in

the light most favorable to those findings. United States v. Rhiger, 315 F.3d

1283, 1287 (10th Cir. 2003). “The ultimate question regarding the reasonableness

of the search is a question of law which we review de novo.” Id. “We evaluate

whether the officers were confronted with reasonable grounds to believe there

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was an immediate need guided by the realities of the situation presented by the

record from the viewpoint of prudent, cautious, and trained officers.” Najar, 451

F.3d at 718-19 (quotations omitted). We are not limited to considering only the

evidence introduced at the suppression hearing; we may also consider any

evidence properly admitted at trial, even though that evidence may not have been

introduced at the pretrial hearing. United States v. Harris, 313 F.3d 1228, 1233

(10th Cir. 2002).

       Stotts maintains the facts here do not establish an immediate need to enter

his property. He argues a drunken man, passed out alone in his own backyard,

does not create an exigent circumstance, especially when the officers did not

observe a threat or even a weapon. He omits relevant facts.

       This was the second 911 call from Stotts’ residence in two hours. The

police were responding to a call requesting the police check on the welfare of the

people at Stotts’ home because Stotts had threatened at least one of them. The

caller had informed the police Stotts was drunk, armed, a felon, and had

threatened an individual in the home. Michael confirmed this information when

the officers arrived at the residence and further informed them Stotts had a history

of violence. Michael told the officers he was “scared.” (R. Vol. 2 at 8.) “He was

afraid that if Mr. Stotts found out that he . . .was talking to the police . . . he

would be retaliated against by Mr. Stotts.” (Id.) His nervousness when speaking

with the police, his quiet tone, and his warning that Stotts “might wake up

                                            -6-
slinging” supported these statements. (Id. at 196.) The officers had reasonable

grounds to believe the situation needed to be diffused immediately.

      Similarly, the search satisfied the second prong of our test because it was

reasonably limited in nature. The police walked through an unlocked chain-link

fence and approached Stotts directly. They restrained him for their own safety

and asked if he had a gun. When Stotts admitted he had a weapon, they retrieved

it and conducted a pat-down search of his person to determine if he possessed

other weapons. When they found the ammunition, the search ended and Stotts

was arrested. Neither the manner nor the scope of the search was unreasonable.

It was confined to Stotts’ person and involved no other intrusion into his privacy.

      The officers had reasonable grounds to believe the welfare of a person on

the premises presented an immediate need to investigate and they reasonably

effected the search. Consequently, the entry and search of Stott’ backyard was

lawful.

B. Application of ACCA

      Stotts also challenges the district court’s authority to enhance his sentence

under the ACCA. The ACCA mandates a minimum 15-year prison sentence for

anyone possessing a firearm after three prior convictions for serious drug offenses

or violent felonies. See 18 U.S.C. § 924(e). In Apprendi, the Supreme Court

held: “Other than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury,

                                         -7-
and proved beyond a reasonable doubt.” 530 U.S. at 490. Stotts does not claim

his prior convictions are not separate prior violent felony convictions. Rather, he

argues that under Apprendi and its progeny, the court was prohibited from

applying the ACCA because a jury had not determined beyond a reasonable doubt

the predicate facts—his previous convictions were committed “on occasions

different from one another” and involved a “violent felony.” 18 U.S.C. § 924(e).

      However, in Shepard, the Supreme Court determined if the district court

confines itself to consideration of only “the terms of the charging document, the

terms of a plea agreement or transcript of colloquy between judge and defendant

in which the factual basis for the plea was confirmed by the defendant, or to some

comparable judicial record of this information,” a district court’s determination to

apply the ACCA to a defendant who has pled guilty does not run afoul of

Apprendi. 544 U.S. at 26. Stotts’ argument relies on Justice Thomas’s

concurrence in Shepard which expressed growing doubt within the Supreme Court

regarding the practice of allowing sentencing judges to determine whether a prior

conviction involved a violent felony. See Shepard, 544 U.S. at 27-28 (Thomas,

J., concurring in part). While these words may foreshadow future action by the

Court, as we explained in United States v. Harris, Shepard did not announce a

departure from earlier precedent. 447 F.3d 1300, 1303 n.1 (10th Cir. 2006).

      Under our precedent, a district court may properly determine whether a

defendant has three previous violent felony convictions which occurred on

                                         -8-
separate occasions for purposes of applying the ACCA. See United States v.

Moore, 401 F.3d 1220, 1225-26 (10th Cir. 2005) (violent felony and number of

convictions); United States v. Michel, 446 F.3d 1122, 1133 (10th Cir. 2006)

(different occasions); see also Harris, 447 F.3d at 1303-06 (reaffirming both

Moore and Michel after Shepard). “Unless and until the Supreme Court

determines otherwise, we will continue to follow [this] applicable precedent.”

Harris, 447 F.3d at 1303 n.1. Because Stotts does not argue the district court

impermissibly considered documents outside Shepard’s purview, the district court

did not err in concluding his convictions were sufficient predicates for the

application of the ACCA.

      AFFIRMED.


                                       Entered by the Court:

                                       Terrence L. O’Brien
                                       United States Circuit Judge




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