                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 14a0863n.06

                                           No. 13-5753
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS                           Nov 17, 2014
                               FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk

UNITED STATES OF AMERICA,                                )
                                                         )
       Plaintiff-Appellee,                               )
                                                                ON APPEAL FROM THE
                                                         )
                                                                UNITED STATES DISTRICT
v.                                                       )
                                                                COURT FOR THE WESTERN
                                                         )
                                                                DISTRICT OF TENNESSEE
CHRISTOPHER JOHN CLARK,                                  )
                                                         )
       Defendant-Appellant.                              )


BEFORE: GUY, CLAY, and WHITE, Circuit Judges.

       HELENE N. WHITE, Circuit Judge. A federal jury found Christopher J. Clark guilty

of one count of transporting a stolen vehicle in interstate commerce, 18 U.S.C. § 2312; three

counts of carjacking, 18 U.S.C. § 2119; three counts of using a firearm during and in relation to a

violent crime, 18 U.S.C. § 924(c); one count of felon in possession of a firearm, 18 U.S.C.

§ 922(g)(1); one count of possessing a firearm as a fugitive, 18 U.S.C. § 922(g)(2); and three

counts of assaulting a federal officer, 18 U.S.C. § 111. The district court imposed an aggregate

sentence of 919 months. Clark appeals his convictions and sentence. We AFFIRM Clark’s

conviction and sentence and REMAND for the administrative task of correcting the judgment.

                                                I.

       In early September 2006, Clark was an inmate at a jail in Franklin County, Alabama.

The jail had a work-release program that allowed inmates to work offsite and return in the

evening. Through the program, a contractor hired Clark and another inmate, Ronald Vernon, to

clean, paint, and lay sheetrock at a lake house. Clark and Vernon completed the project during
No. 13-5753
United States v. Clark

the Labor Day weekend, but they did not return to the jail Sunday evening, September 3. The

next day, jail officials discovered their absence and informed the contractor and law

enforcement. Escape warrants later issued for their arrest.

       After learning of Clark and Vernon’s disappearance, the contractor went to the shop and

discovered Vernon’s truck stored inside. He noticed bloodstains on the truck and on clothing

inside the truck. Later, the contractor realized a BMW 5-series, which a friend had stored on the

property, was missing. When the contractor went to the lake house to see if Clark and Vernon

were there, he saw that bungee cords used to secure trashcans were missing. The contractor’s

friend reported the stolen BMW to police.

       An investigation revealed that Clark strangled Vernon with the bungee cords, transported

Vernon’s body in Vernon’s truck, disposed of the body, abandoned the truck at the shop, and

stole the BMW. After killing Vernon, Clark drove the BMW to Memphis, Tennessee, and met

with his ex-girlfriend Michelle Phillips on Monday morning, September 4. As she watched him

change clothes, she noticed blood on the clothes and scratches on his back and arms. Two men,

Timothy Flemmons and Clarence Teal, also saw Clark driving the BMW in Memphis.

       Sometime on Wednesday, September 6, Clark pawned the BMW to Flemmons for drugs.

That evening, as Laila Leggette waited at a red light, Clark jumped into her Cadillac Deville and

ordered her to take him to a specific hospital. He later confessed to her, “I’m going to be honest

with you, this is a robbery.” Clark opened Leggette’s wallet, removed her identification card,

and said, “[I]f you’re going to call the police, I know where you live.” He then directed her to

turn down a dark alley, but she refused, fearing for her safety. After he again instructed her to

turn, she pulled over, jumped out of the Cadillac, and ran away into oncoming traffic. Clark

moved into the driver’s seat and drove off.


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United States v. Clark

       In the early morning of Thursday, September 7, Memphis police stopped Flemmons and

Teal in the BMW for speeding, and discovered that the vehicle was reported stolen in Alabama.

Memphis police also learned Clark was a fugitive from Alabama and suspected him of

carjacking Leggette. While conducting an investigation at an address associated with Clark, an

officer spotted a man matching Clark’s description driving a Cadillac. Police followed the

Cadillac to a gas station, where they found it parked at a gas pump. As officers approached the

vehicle, Clark came running out of the store, jumped into the driver’s seat, and sped off.

       Clark soon crashed the Cadillac into a telephone pole. He ran to a nearby Hyundai

Tiburon and ordered the driver, Devonia Banks, out of the car at gunpoint. Banks obliged, and

Clark took off in the Hyundai. A bystander approached the abandoned Cadillac and asked the

woman sitting in the passenger seat (later identified as Clark’s mother) if she needed assistance.

She responded, “I’m fine. That’s my son. He just told me he killed somebody.”

       Clark drove the Hyundai to the house where his ex-girlfriend Phillips was staying. After

speaking with her, Clark went into the nearby house of his friends Earl and Ruth Ann Millican.

Inside the Millican’s home, Clark aimed a gun at Ruth Ann Millican and pulled the trigger, but it

did not “go off.” He then entered the room in which Earl Millican was sleeping, pointed the gun

at his head and demanded money. Clark took over $3000 from the Millicans. Ruth Ann

Millican reported to police that Clark told her, “I don’t have nothing to lose anyway because I

done killed two people.” He then returned to Phillips’ residence and told her he would not turn

himself into authorities and “wasn’t going back to jail.”

       After Clark left Phillips, police picked up the pursuit. Several times Clark directed the

Hyundai at law enforcement vehicles, including at a U.S. Marshals Service special deputy,

causing police to take evasive actions to avoid collision. During the chase, Clark called Phillips.


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No. 13-5753
United States v. Clark

With sirens blaring in the background, Clark told her that “he would not pull over” and “was

going out in a blaze of glory.”

       Police pursued Clark to a gas station, where Clark abandoned the Hyundai after a tire

popped. At the gas station, he ran towards Mattie McKinney, who had just exited her Ford

Taurus, and pointed a gun at her. She backed away from him, and Clark hopped into her car. As

he tried to escape in the Ford—and with McKinney’s mother in the passenger seat—Clark ran

the car into a vehicle operated by another U.S. Marshals Service special deputy and pointed a

gun at the special deputy. After police stopped the Ford, Clark attempted to flee on foot, but

officers apprehended him.         Police investigators recovered the firearm, a .45 caliber, semi-

automatic pistol with a live bullet jammed inside, on the street near the gas station. A local news

helicopter recorded Clark leading the chase in the Hyundai and continued recording through his

eventual arrest.

       On September 12, 2006, a federal grand jury returned a twelve-count indictment against

Clark. Clark filed a motion in limine, seeking to bar the Government from introducing any

evidence regarding Vernon’s murder. The court found that the evidence was “intertwined and

relevant,” but concluded that it had “obvious potential prejudice.”        The court allowed the

evidence “for the limited purpose of demonstrating that Defendant was a fugitive from justice

under suspicion of murder,” but forbade the Government from offering “any pictures or videos

of the deceased or any testimony directly relating to the murder.”

       Sometime before trial, Clark’s mother died. The Government filed a motion in limine

seeking permission to introduce Clark’s mother’s statement, “He just told me he killed

somebody,” through the bystander to whom she made the statement. On the first morning of

trial, the court stated that it would admit some evidence of Vernon’s murder, but advised the


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No. 13-5753
United States v. Clark

Government it wanted to hear background from each witness before the Government elicited any

statements about the murder, and ordered the Government not to mention the mother’s statement

in opening statement or the fact that Vernon was murdered. The court later allowed testimony

about the bloodstains on the truck, and, over objection, permitted the jury to hear Clark’s

mother’s statement as evidence of Clark’s state of mind.

       During jury selection, Clark expressed his dissatisfaction with his counsel and requested

to proceed pro se. The court questioned Clark on his request, including asking whether he was

making the decision to waive his right to counsel voluntarily, and advised Clark several times

that it would be wise to keep his appointed counsel. After the colloquy, the court granted Clark’s

request to waive counsel and proceed pro se, designating his lawyer as standby counsel.

       At the start of the second day of trial, Clark witnessed a sidebar conversation between

Government counsel and the court. Expressing his disagreement, Clark stated he was “removing

[him]self from this case.” He declined representation and refused to represent himself. He then

suggested that he would “crawl under the table and lay under the table for a little while.” The

court cautioned Clark “to act right,” then took a recess.

       After the recess, the court asked Clark whether he was going to participate in the trial

proceedings, but Clark refused to answer. The court then asked Clark if he was still going to

crawl under counsel’s table. When Clark refused to answer, the court responded: “Okay. Well,

as long as you are quiet and not disruptive, you may remain in the courtroom . . . .” Clark then

stood, prompting the court to ask, “By standing, are you telling me that you will not be quiet and

you will be disruptive? You may be seated. Are you going to be compliant with the Court’s

orders?” Clark again voiced his refusal to participate in the proceedings. The court revoked his

pro se status and asked standby counsel to resume representation. Frustrated, Clark asked to


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United States v. Clark

leave. The court warned him: “[I]f you’ll just behave, we will leave you here. Otherwise, I’m

going to be forced to remove you . . . .” The court instructed Clark to sit, but Clark again

refused. The court found that it could not “proceed with the trial in the manner in which he’s

behaving,” and ordered the Marshals to remove Clark from the courtroom.

        Sometime after Clark’s removal, Marshals informed the court that Clark was not

watching the proceedings in his holding cell as directed. Instead, he had flooded the cell and

banged his head against the wall until he drew blood. The court ordered Clark returned to the

courtroom. When he returned, Clark made several requests to go back to jail. The court found

that Clark had “voluntarily waived [his] right to be present for this trial on more than one

occasion,” allowed him to return to jail, and proceeded with trial.

        Clark returned to the courtroom for the remaining two days of trial. The jury found him

guilty on all twelve counts. The court sentenced Clark to 919 months of imprisonment.

                                                 II.

        Clark first contends that his waiver of the right to counsel and the right to be present at

trial were invalid.


                                                 A.

        Clark argues his waiver of the right to counsel was invalid because the district court was

unaware of its authority to question his competency to waive the right. More specifically, Clark

infers from the district court’s statement “I can’t force you to have the attorney[,]” that the court

was unaware that, although Clark was competent to stand trial, the court nevertheless had

discretion to inquire whether Clark had the separate mental competency to represent himself.

Clark reads the court’s statement out of context.




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No. 13-5753
United States v. Clark

       Before a district court accepts a waiver of counsel, it “‘must ask the defendant a series of

questions drawn from, or substantially similar to, the model inquiry set forth in the Bench Book

for United States District Judges.’”1 United States v. Ross, 703 F.3d 856, 867 (6th Cir. 2012)

(quoting United States v. Williams, 641 F.3d 758, 766 (6th Cir. 2011)). Here, the district court

conducted the required colloquy, suggesting it was aware it could deny Clark’s request.

       During the colloquy, the district court pressed Clark on his request, inquiring whether he

had any legal training, had ever tried a case, or had any familiarity with the Rules of Evidence.

Clark displayed an understanding of the charges against him and the possible sentences, and

acknowledged he knew the facts of his case.

       The court also cautioned Clark on the consequences of self-representation and urged him

to keep his appointed counsel. The court reminded him that he did not “know anything about the

law” and that a “trained lawyer could defend you far better than you think you can defend

yourself.” The court advised Clark that it would hold him to the same legal standards as the

Government’s lawyers.

       Despite the court’s urgings, Clark persisted in his request, which he said he had

voluntarily made. And after again advising Clark that he should keep his attorney, the court

granted Clark’s request, concluding, “You don’t seem to want [an attorney]. I can’t force you to

have the attorney.” Fairly read, the record shows that the court found that it could not “force”

Clark to keep his attorney because it had determined that he validly waived his right to counsel.

       Clark also suggests that, based on his responses to the court and his mental-health history,

the court had reason to doubt his competence to represent himself and, therefore, should have

       1
         See Fed. Jud. Ctr., Benchbook for U.S. District Court Judges § 1.02(C) (6th ed., Mar.
2013), available at http://www.fjc.gov/public/pdf.nsf/lookup/Benchbook-US-District-Judges-
6TH-FJC-MAR-2013-Public.pdf/$file/Benchbook-US-District-Judges-6TH-FJC-MAR-2013-
Public.pdf.
                                               -7-
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United States v. Clark

made further inquiry into his competence to do so. We review for abuse of discretion whether

there was reasonable cause to question a defendant’s competence to waive counsel. United

States v. Abdulmutallab, 739 F.3d 891, 903 (6th Cir. 2014) (citing United States v. Ross, 703 F3d

856, 867 (6th Cir. 2012)).

       Clark clearly and lucidly engaged in the colloquy with the court. He understood the risks

of self-representation, the charges against him, and the possible sentences he faced. Even after

the court accepted the waiver, Clark’s conduct continued to raise no doubts. At various times,

the court explained how the trial would proceed, and Clark responded with appropriate

questions. He participated in jury selection, provided an opening statement, stated objections,

and conducted cross-examinations. The court even praised him on his performance at the

conclusion of the first day. We conclude the court had no reason to doubt Clark’s mental

competency to represent himself.

       Finally, Clark argues for reversal because the district court did not know it could have

rejected Clark’s request for self-representation because the request was untimely. The record

does not suggest the court was unaware of its options.

                                                  B.

       Clark next asserts that the district court violated his right to be present at trial when it first

removed him from the courtroom, arguing that his conduct was not so disruptive as to justify

removal.

       This court has recognized that district courts have discretion to employ the best method

for dealing with disruptive defendants, Gray v. Moore, 520 F.3d 616, 623 (6th Cir. 2008) (citing

Illinois v. Allen, 397 U.S. 337, 343 (1970)), and that “district courts are vested with power to

control their courtrooms,” United States v. Meacham, 65 F. App’x 529, 533 (6th Cir. 2003)


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United States v. Clark

(reviewing summary criminal contempt finding and sentence). We review the district court’s

exercise of its authority to control its courtroom for abuse of discretion. Id. at 533–34; United

States v. Powers, 500 F.3d 500, 506 (6th Cir. 2007) (citing McMillan v. Castro, 405 F.3d 405,

409 (6th Cir. 2005)). “It is an abuse of discretion for a district court to commit legal error or find

clearly erroneous facts.” United States v. Ford, 761 F.3d 641, 651 (6th Cir. 2014) (internal

quotation marks omitted). If the court erred, we ask whether the error was harmless. See United

States v. Gallagher, 57 F. App’x 622, 627 (6th Cir. 2003).

       “A defendant’s right to be physically present at every stage of his trial has a longstanding

tradition in this country’s criminal jurisprudence, with roots in both the Due Process Clause and

the Confrontation Clause of the Sixth Amendment.” Gray, 520 F.3d at 622 (citing Allen,

397 U.S. at 338; Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). That right, however, is not

absolute. Id. A defendant waives his continued presence at trial “if, after he has been warned by

the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists

on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that

his trial cannot be carried on with him in the courtroom.” Allen, 397 U.S. at 343; see also Fed.

R. Crim. P. 43(c)(1)(C).

       The record does not support Clark’s contention that his behavior was not disruptive.

During the second day of trial, Clark stood, prompting the court to ask: “By standing up, are you

telling me that you will not be quiet and you will be disruptive? You may be seated. Are you

going to be compliant with the Court’s orders?” Clark did not comply. The court then cautioned

him:

       [I]f you’ll just behave, we will leave you here. Otherwise, I’m going to be forced
       to remove you to the facility where you can see what’s going on here and hear
       what’s going on here. And if you change your mind and decide that you will
       behave and not be disruptive, then we can bring you back.

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No. 13-5753
United States v. Clark

The court again asked Clark to sit. And after the third request—and third refusal to comply—the

court had Clark removed from the courtroom. The court made clear that if Clark would “follow

the direction[s] of the Court and not be disruptive,” he could return. The court expressly found

that Clark’s noncompliance interfered with its ability to carry on with the trial, and that finding is

not clearly erroneous.

       Further, Clark was not involuntarily removed from the courtroom; rather he affirmatively

waived his right to be present. As with other constitutional rights, a defendant can waive the

right to be present if the waiver is “knowing and voluntary.” United States v. Riddle, 249 F.3d

529, 534 (6th Cir. 2001) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)); see also Fed. R.

Crim. P. 43(c)(1)(A). Several times, Clark expressed to the court his desire to return to jail.

When the court finally ordered him removed, Clark neither indicated a desire to remain nor did

he accept the court’s invitation to return if he decided he would “act appropriately in the

courtroom.” After the disturbance in the holding cell, Clark asked to go back to jail at least

seventeen times. The district court allowed Clark to leave after finding that Clark waived his

right to be present “on more than one occasion.” Thus, we find no error, and any alleged error is

waived.

                                                 III.

       Clark next argues the district court erred when it allowed the jury to hear evidence

regarding bloodstains found on Vernon’s truck and on clothes found in the truck and Clark’s

mother’s statement that Clark told her he killed a person. Clark asserts the evidence was

irrelevant, and that even if relevant, the danger of unfair prejudice from the evidence

substantially outweighed its probative value, because the evidence, taken together, left the jury

with the impression that he had killed someone. Clark Br. 24, 28. This court generally reviews a


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No. 13-5753
United States v. Clark

ruling on the admissibility of evidence for abuse of discretion. United States v. Tragas, 727 F.3d

610, 614 (6th Cir. 2013) (citing United States v. Yu Qin, 688 F.3d 257, 261 (6th Cir. 2012)); cf.

United States v. Bell, 516 F.3d 432, 440 (6th Cir. 2008) (reviewing Rule 404(b) determination

under a three-part test).

        Federal Rule of Evidence 404(b) bars “[e]vidence of a crime, wrong, or other act . . . to

prove a person’s character in order to show that on a particular occasion the person acted in

accordance with the character.” Fed. R. Evid. 404(b)(1). The Rule “does not apply to evidence

that is ‘intrinsic to’ or ‘inextricably intertwined with evidence of’ the central alleged wrong,”

Flagg v. City of Detroit, 715 F.3d 165, 175 (6th Cir. 2013) (citing United States v. Henderson,

626 F.3d 326, 338 (6th Cir.2010)). Intrinsic evidence includes acts that are “part of a single

episode” and

        “background evidence” that “has a causal, temporal or spatial connection with the
        charged offense, is a prelude to the central allegation, is directly probative of the
        central allegation, arises from the same events as the central allegation, forms an
        integral part of a witness’s testimony, or completes the story of the central
        allegation.”

Id. at 175–76 (quoting United States v. Gonzalez, 501 F.3d 630, 639 (6th Cir. 2007); United

States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000)).

        Federal Rule of Evidence 403 allows a court to “exclude relevant evidence if its

probative value is substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid.

403. “Unfair prejudice ‘does not mean the damage to a defendant’s case that results from the

legitimate probative force of the evidence; rather it refers to evidence which tends to suggest

decision on an improper basis.’”      Ford, 761 F.3d at 648 (quoting United States v. Gibbs,

182 F.3d 408, 430 (6th Cir. 1999)).




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United States v. Clark

       We need not decide whether the district court properly admitted all or part of the

evidence because we conclude any error is harmless. “Error is ‘harmless unless it is more

probable than not that the error materially affected the verdict.’” United States v. Pritchett,

749 F.3d 417, 433 (6th Cir. 2014) (quoting United States v. Clay, 667 F.3d 689, 700 (6th Cir.

2012)). “[A]dmission of evidence of prior bad acts is ‘harmless error’ if the record evidence of

guilt is overwhelming, eliminating any fair assurance that the conviction was substantially

swayed by the error.” Clay, 667 F.3d at 700 (quoting United States v. Hardy, 643 F.3d 143, 153

(6th Cir. 2011)).

       The jury heard ample evidence to support that Clark intended to kill or seriously injure

his carjacking victims. For example, the jury heard his other, unchallenged admission to Ruth

Ann Millican that he “done killed two people.” It also heard Millican testify that Clark aimed a

gun at her and pulled the trigger, and that Clark robbed Earl Millican at gunpoint. The jury

additionally heard Clark’s statements that he “was going out in a blaze of glory,” had “nothing to

lose,” and was not “going back to jail.” We conclude any error in admitting the challenged

testimony was harmless.

       Finally, Clark asserts that the district court violated the Confrontation Clause when it

admitted, through the bystander, his mother’s statement that “he killed somebody.” The parties

agree that this court reviews Confrontation Clause challenges de novo. United States v. Boyd,

640 F.3d 657, 665 (6th Cir. 2011).2

       The Confrontation Clause generally bars the admission of testimonial out-of-court

statements. Id. (citing Crawford v. Washington, 541 U.S. 36, 53–54 (2004)). “A statement is

       2
          A reported decision of this court recently stated that “[w]e review for abuse of
discretion a challenge to the district court’s evidentiary rulings, even on Confrontation Clause
grounds.” Ford, 761 F.3d at 651. Under either the abuse-of-discretion or de novo standard of
review, we conclude there was no Confrontation Clause violation.
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No. 13-5753
United States v. Clark

testimonial if a reasonable person in the declarant’s position would have anticipated the use of

the statement in a criminal proceeding.” Id. (citing United States v. Cromer, 389 F.3d 662, 675

(6th Cir. 2004)).

       A reasonable person in Clark’s mother’s position would not have anticipated that the

Government would use her statement in a criminal proceeding. She made the statement to a

bystander who had just witnessed Clark crash the Cadillac into a telephone pole. After the crash,

the bystander approached Clark’s mother, who was sitting in the passenger seat of the Cadillac,

and who the bystander described as “an older woman with oxygen,” out of concern—“to see how

she was.” She was “hysterical and crying and having a hard time breathing.” He assumed she

was another carjacking victim, and asked “[D]id he hurt you?” She responded, “[N]o, I’m fine.

That’s my son. He just told me he killed somebody.” The statement is a classic excited

utterance and was “not procured with a primary purpose of creating an out-of-court substitute for

trial testimony.” Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011). It is non-testimonial

hearsay, and the court did not err when it admitted the statement.

                                                IV.

       Clark also challenges his sentence. Among other offenses, the jury convicted Clark of

felon-in-possession of a firearm, 18 U.S.C. § 922(g)(1), and fugitive-in-possession of a firearm,

18 U.S.C. § 922(g)(2). A violation of 18 U.S.C. § 922(g) usually carries a ten-year maximum

term of imprisonment. 18 U.S.C. § 924(a)(2). However, under the Armed Career Criminal Act

(ACCA), if a defendant has “three previous convictions . . . for a violent felony . . . committed on

occasions different from one another,” the ACCA imposes a mandatory fifteen-year minimum

sentence. § 924(e)(1). Multiple prior convictions must involve separate criminal episodes to

trigger the ACCA’s sentence enhancement. United States v. Martin, 526 F.3d 926, 938 (6th Cir.


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No. 13-5753
United States v. Clark

2008). Clark asserts that the district court erroneously found that two of his prior felonies arose

from separate criminal episodes. This court reviews “de novo a district court’s determination

that a defendant should be sentenced as an armed career criminal.” United States v. Vanhook,

640 F.3d 706, 709 (6th Cir. 2011) (internal quotation marks omitted).3

       A defendant commits felony offenses on different occasions if:

       (1) it is possible to discern the point at which the first offense is completed, and
       the subsequent point at which the second offense begins; (2) it would have been
       possible for the offender to cease his criminal conduct after the first offense; or
       (3) the offenses are committed in different residences or business locations.

United States v. Jones, 673 F.3d 497, 503 (6th Cir. 2012). The court must consider the totality of

the circumstances when applying the Jones test. United States v. Mann, 552 F. App’x 464, 470

(6th Cir. 2014). “[G]enerally when a defendant is evading or resisting arrest for an offense

immediately following that offense, we will view subsequent offenses arising out of the evasion

or resistance as part of the same criminal episode.” Id. at 470.

       In October 1994, Clark was involved in a police chase that crossed county lines. Police

pursued Clark after he drove away from a gas station without paying. During the chase, Clark

intentionally drove towards a Texas State Trooper. He then continued to drive, crossed county

lines, and again intentionally drove towards another law enforcement officer. Clark was indicted

in both counties for aggravated assault on a Texas State Trooper. He pleaded guilty in both

jurisdictions and received five-year prison terms for each offense.




       3
         This court has elsewhere said that “where the inquiry turns upon the determination
whether the defendant’s prior convictions are distinct criminal episodes that should be counted
separately under statutory provisions, the standard of review is clear error.” United States v.
Martin, 526 F.3d 926, 938 (6th Cir. 2008) (citations omitted). We discern clear error here.
                                               -14-
No. 13-5753
United States v. Clark

       Based on these convictions—and a third in Tennessee for facilitating a robbery—the

presentence report (PSR) treated him as a career offender and calculated the guidelines range as

292 to 365 months, in addition to consecutive statutory mandatory sentences totaling 57 years.

       At sentencing, Clark argued his prior convictions did not qualify under the ACCA. The

district court concluded that the PSR’s armed-career-criminal calculation was “technically

correct,” even though it found that the convictions arose from “one event in which two crimes

occurred in different counties.” It noted that the ACCA would not have applied to Clark had the

assaults occurred in the same county. Reasoning that Clark’s situation was “atypical,” the court

exercised its discretion and sentenced Clark based on a category IV criminal history (rather than

category VI), resulting in a guidelines range of 235 to 293 months.             The court imposed

concurrent 235-month terms for each of the two counts eligible for enhancement under the

ACCA.

       As the district court found, Clark’s two assaults occurred during one “continuous chase.”

Generally, when a person is evading or resisting arrest immediately following the actions giving

rise to the arrest, subsequent offenses arising out of the evasion or resistance are part of the same

criminal episode. Mann, 552 F. App’x at 470. Because Clark assaulted the two troopers while

attempting to evade arrest, we conclude that the resulting aggravated assault convictions were

part of the same criminal episode, and the ACCA does not apply.

       Notwithstanding, there is no need for resentencing because the error did not affect

Clark’s aggregate sentence of 919 months’ imprisonment.              After the court applied the

enhancement, it varied downward from the Guidelines and sentenced Clark under a criminal

history category IV, the Guidelines range without the ACCA enhancement. Although the 235-

month sentences on the two § 922(g) counts at issue here—counts five and six—are in excess of


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No. 13-5753
United States v. Clark

the statutory maximum in the absence of the ACCA enhancement, the court also imposed 235-

month sentences on counts nine and ten, all running concurrent with each other. Therefore, the

district court’s ACCA ruling did not control the duration of Clark’s confinement. But, because

the judgment provides that the court sentenced Clark to 235 months’ imprisonment on counts

five and six, in excess of the statutory maximum of 120 months, we remand to the district court

to correct the judgment.

                                                V.

       For the reasons stated, we AFFIRM Clark’s conviction and sentence and REMAND for

the administrative task of correcting the judgment.




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