                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                December 17, 2008
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                    Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 07-3296
                                                (D.C. No. 2:06-20172-JWL-1)
 v.
                                                          (D. Kan.)
 TIMOTHY JOE JAMES,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, HOLLOWAY, and HOLMES, Circuit Judges.


                                   I. INTRODUCTION

      Timothy Joe James pled guilty to the offense of being a felon in possession of

firearms and ammunition in violation of 18 U.S.C. § 922(g)(1), and reserved his right

to appeal the denial of a motion to suppress. Because he had three prior violent

felony convictions, the district judge imposed the Armed Career Criminal Act’s

(ACCA) mandatory minimum 15 year sentence. Mr. James now appeals and argues

that (1) his motion to suppress was improperly denied, and (2) the minimum sentence


      *
       This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
is inapplicable, or if applicable, violates the Eighth Amendment.         We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(1), and affirm.

                               II. BACKGROUND

                      A. Mr. James’s Motion to Suppress 1

      On October 30, 2006, Officer Trent McKinley of the Lawrence, Kansas, police

department responded to a call from a local nursery. At the nursery, an employee

informed him that two men had bought shrubbery and other items with a bad check.

Both men were dressed as bail enforcement officers and had badges around their

necks. The employee described one man as a white male between 42 to 50 years old,

and described the other as a 35 year old white male. Their vehicle was described as

an almost new white Jeep Cherokee with black trim that may have been rented.

      Officer McKinley then determined after further investigation that Brian

Schneider may have been one of the men responsible for the bad check. Officer

McKinley also read a bulletin describing Mr. James as an associate of Mr. Schneider,

and discovered that a parole violation warrant had been issued for Mr. Schneider.

      Later that evening, Officer McKinley noticed a white male driving a white

Jeep Cherokee with black trim. He determined the car was rented by using his in-car


      1
        We summarize the pertinent evidence offered at the suppression hearing in
the light most favorable to the government. See United States v. Carter, 511 F.3d
1264, 1267 (10th Cir. 2008) (“In reviewing a district court’s denial of a motion to
suppress, we view the evidence in the light most favorable to the government . . .
.”).


                                        -2-
computer, and stopped the car. Officer McKinley thought the driver might be one

of the two men involved in the nursery transaction. He did not recognize who the

driver was until he saw the driver’s identification.

      When asked for his license, the driver gave Officer McKinley a state ID card

that identified the driver as Timothy James. Officer McKinley thought it was

significant that a state ID was produced rather than a driver’s license. Officer

McKinley explained that often if police are handed an ID card when a driver’s

license is requested, it indicates the person has had their license suspended or

revoked. When the driver pulled out his state ID, Officer McKinley noticed a badge

in the driver’s wallet, and the driver said that he was a bail enforcement agent.

Officer McKinley then requested the assistance of other officers. Officer McKinley

asked if the car belonged to the driver, and the driver explained that it was leased to

his friend, Mr. Schneider. Officer McKinley then checked Mr. James’s state ID,

found that his driving privileges were suspended, and arrested Mr. James. A firearm

was then discovered in plain view between the driver’s seat and the center console.

      After taking Mr. James into custody, Officer McKinley interviewed him, and

Mr. James told Officer McKinley that he worked in the bonding business for Jim

Price. Officer McKinley asked where Mr. Schneider lived and Mr. James explained

that Mr. Schneider lived in the Wichita area but came into town unannounced to do

jobs for Mr. Price and always stayed in hotels.

      After the interview, an officer familiar with Mr. Price, Officer Hamilton, went

                                          -3-
to Mr. Price’s apartment to obtain more information. Officer McKinley later arrived

and the officers learned that Mr. James lived with “Brian” and had been planting

bushes at his apartment that afternoon.

      Both officers went to Mr. James’s apartment and knocked on the door, and

Officer Hamilton looked through a window and saw a white forearm pointing what

looked like either a taser or a handgun at him. Shortly after that, Officer McKinley

was able to get in contact with Mr. James on Mr. James’s cell phone, and Mr. James

acknowledged that Brian Schneider might be in the apartment. However, although

Mr. James indicated that he was on his way to Kansas City, Officer McKinley was

not certain that Mr. James was not also in the apartment.

      Officer McKinley was eventually able to contact Mr. Schneider, and Mr.

Schneider admitted he was the one with the taser. Officer McKinley agreed with Mr.

Schneider that Mr. Schneider could see his girlfriend and smoke a cigarette before

being taken to jail. Mr. Schneider then surrendered, was taken into custody, and then

Mr. Schneider asked if they could wait inside the apartment. The officers granted

the request. Officers then swept the apartment for other individuals and discovered

a rifle and ammunition in plain view. Although Mr. Schneider told the officers that

nobody else was in the apartment, Officer McKinley testified that before the sweep

they had still not positively identified the person holding the taser.       Officer

McKinley explained that he was “absolutely not going inside that apartment to sit at

a kitchen table with [Mr. Schneider] unless [he was] reasonably certain that there

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[was] not another person inside with a weapon.”

      Mr. James filed a motion to suppress, contending that the vehicle stop and the

sweep of his apartment violated the Fourth Amendment, and the motion was denied.

He then pled guilty to being a felon in possession of firearms and ammunition in

violation of 18 U.S.C. § 922(g)(1), but reserved the right to appeal the denial of his

motion to suppress. He now appeals that denial and challenges the scope and

duration of the vehicle stop and the sweep of his apartment.

                                   B. Sentencing

      The presentence report indicated that Mr. James had been sentenced on three

second-degree burglary convictions. The sentences were imposed on the same day

in March 1983. Two of the underlying offenses had occurred on the same day, and

another had occurred four days later, each without an intervening arrest.         All

occurred at structures with different addresses.

      Because of Mr. James’s convictions, the presentence report indicated that a

minimum sentence of 15 years was applicable under the ACCA. At sentencing on

October 1, 2007, the district judge rejected Mr. James’s argument that the mandatory

minimum sentence did not apply and, alternatively, that its application would violate

the Eighth Amendment as cruel and unusual punishment. Mr. James was sentenced

to 15 years in prison, and reasserts the same arguments on appeal.




                                         -5-
                                 III. DISCUSSION

                            A. The Motion to Suppress

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

evidence in the light most favorable to the government and accept the court’s factual

findings unless they are clearly erroneous.” Carter, 511 F.3d at 1267. However, the

court’s conclusions as to whether a seizure was supported by reasonable suspicion

are reviewed de novo. United States v. Alarcon-Gonzalez, 73 F.3d 289, 291 (10th

Cir. 1996).    Moreover, “[w]e review de novo the ultimate determination of

reasonableness under the Fourth Amendment.” Carter, 511 F.3d at 1267. Mr. James

argues that the district judge erred in denying his motion to suppress. He asserts that

the scope and duration of the vehicle stop and the sweep of his apartment violated

the Fourth Amendment.

 1. Whether the scope and duration of Mr. James’s detention were improper

      Although Mr. James challenged the initial stop in the district court, he now

concedes that the initial stop was valid and instead challenges the scope and duration

of the stop. In essence, Mr. James argues that once Officer McKinley realized

during the stop that Mr. Schneider was not the driver of the Jeep, and that the only

justification for the stop (i.e., finding Mr. Schneider because of his outstanding

parole violation warrant) was therefore dispelled, he should have allowed Mr. James

to leave the scene. Mr. James did not challenge the scope and duration of the stop

in his motion to suppress, and we therefore review the district judge’s ruling for

                                          -6-
plain error. See United States v. Ramirez, 63 F.3d 937, 947 (10th Cir. 1995)

(explaining that because the appellant failed to include an argument in his motion to

suppress he had waived it, and the court would therefore review the admission of the

evidence for plain error). We conclude that there was no error here.

      We agree with the parties that the stopping of Mr. James while he was driving

was an “investigative detention.” See United States v. Brown, 496 F.3d 1070, 1074

(10th Cir. 2007) (recognizing that an investigative detention is a Fourth Amendment

seizure of limited scope and duration). In evaluating the validity of an investigative

detention, we consider the totality of the circumstances. Id. To determine whether

the detention was constitutionally permitted, we ask whether the officer’s actions

were justified at their inception, and whether they were reasonably related in scope

to the circumstances which justified the interference in the first place. Id.

      At the moment an officer stops an individual, the officer must possess

“reasonable articulable suspicion that the occupants had been, were, or were about

to be engaged in criminal activity.” See United States v. Ortiz, 63 F.3d 952, 954

(10th Cir. 1995) (“Examining, as we must, the totality of the circumstances, . . . we

think it clear that at the moment the police stopped the truck, they possessed the

requisite reasonable articulable suspicion that the occupants had been, were, or were

about to be engaged in criminal activity.”). Further, “reasonable suspicion must

exist at all stages of the detention, although it need not be based on the same facts

throughout.” United States v. Soto-Cervantes, 138 F.3d 1319, 1322 (10th Cir. 1998).

                                          -7-
An officer must be able to point to specific and articulable facts to support a finding

of reasonable suspicion. Id.

      Mr. James concedes that the initial stop of the Jeep Cherokee driven by him

was valid. However, we conclude that the remainder of the detention was also valid.

After the initial stop Officer McKinley continued to possess sufficient reasonable

suspicion to detain Mr. James for questioning about the bad check transaction. At

that moment, Officer McKinley knew the driver was in a car that matched the

nursery employee’s description of the car used by the writer of the bad check (i.e.,

a white Jeep Cherokee with black trim that was rented). Further, the driver was a

white male, and Officer McKinley knew that an unknown white male other than Mr.

Schneider had been involved in the bad check transaction. With this knowledge, it

was reasonable for Officer McKinley to ask for identification to gather information

about a possible participant in the bad check transaction.

      Further, after Mr. James gave Officer McKinley a state ID rather than a

driver’s license, it was reasonable to suspect Mr. James had been driving unlawfully

and to detain him until his license was checked. Officer McKinley testified that

when a person hands the officer an ID card when asked for a driver’s license, it often

indicates the person has had their driving privileges suspended or revoked. Officer

McKinley confirmed that Mr. James’s driver’s license was suspended and arrested

him, and this arrest lead to the finding of the gun in the car.

      Viewing the totality of the circumstances, we conclude that although the facts

                                          -8-
supporting reasonable suspicion were not the same throughout Mr. James’s detention,

reasonable suspicion based on specific and articulable facts existed at all stages of

Officer McKinley’s detention of Mr. James, and Officer McKinley’s actions were

reasonably related to the circumstances that gave rise to suspicion. Therefore, it was

not error to admit the evidence discovered during the vehicle stop.

    2. Whether the protective sweep of Mr. James’s apartment was proper

      Mr. James also argues that the sweep of his apartment following Mr.

Schneider’s arrest violated the Fourth Amendment because the officers were

motivated by a desire to seize evidence, and the officers could not have reasonably

believed they faced an imminent threat to their safety. We cannot agree.

      “‘A “protective sweep” is a quick and limited search of premises, incident to

an arrest and conducted to protect the safety of police officers or others.’” United

States v. Freeman, 479 F.3d 743, 750 (10th Cir. 2007) (quoting Maryland v. Buie,

494 U.S. 325, 327 (1990)). For a protective sweep to be upheld under the Fourth

Amendment, an officer must have possessed a reasonable belief based on specific

and articulable facts which, taken together with the rational inferences from those

facts, reasonably warranted the officer in believing that the area swept harbored an

individual posing a danger to the officer or others. Id. The search must not be

motivated by an intent to seize evidence. Fishbein v. City of Glenwood Springs,

Colorado, 469 F.3d 957, 961 (10th Cir. 2006). Reasonable suspicion to support a

protective sweep may arise when officers know an occupant has a weapon, has

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threatened to use it in an unlawful manner, and may be present in the residence.

United States v. Torres-Castro, 470 F.3d 992, 998 (10th Cir. 2006), cert. denied, 127

S. Ct. 2285 (2007).

      Immediately after the standoff concluded, Mr. Schneider asked if he and the

police could wait inside the apartment for his girlfriend. The request was granted,

and shortly there was a protective sweep of the apartment.        Officer McKinley

testified that before the sweep they had not yet positively identified the person who

was holding the taser, and he was “absolutely not going inside that apartment to sit

at a kitchen table with [Mr. Schneider] unless [he was] reasonably certain that there

[was] not another person inside with a weapon.” Although Mr. Schneider had

admitted that he pointed the taser at Officer Hamilton, and had said he was the only

person in the apartment, the police were not required to believe him. When Officer

Hamilton had looked through the window he saw only a white forearm holding

something that was possibly a gun, leaving open the possibility that there was

another person in the apartment. Further, although Mr. James told Officer McKinley

he was on his way to Kansas City, Officer McKinley was uncertain whether Mr.

James was actually in the apartment. This uncertainty was reasonable because Mr.

James had been dishonest with Officer McKinley during their interview about where

Mr. Schneider was living.

      There is no evidence that the officers were motivated by anything other than

a reasonable belief that the apartment harbored a dangerous and as yet unidentified

                                        -10-
individual.   See Torres-Castro, 470 F.3d at 998 (concluding that reasonable

suspicion to support a protective sweep may arise when officers know an occupant

has a weapon, has threatened to use it in an unlawful manner, and may be present in

the residence). The protective sweep was justified.

          B. Sentencing Challenges–The Armed Career Criminal Act

      Mr. James argues that the ACCA’s mandatory minimum sentence should not

have been applied to him, and even if it was proper to apply it, it violates the Eighth

Amendment. We review de novo the district judge’s application and interpretation

of the ACCA. United States v. Michel, 446 F.3d 1122, 1133 (10th Cir. 2006). We

also review de novo the question whether a criminal sentence violates the Eighth

Amendment. United States v. Angelos, 433 F.3d 738, 750 (10th Cir. 2006), cert.

denied, 127 S. Ct. 723 (2006).

 1. Whether the ACCA mandatory minimum sentence applies to Mr. James

      Mr. James argues that his burglary convictions were not committed on

different occasions for purposes of the ACCA, and therefore the minimum 15 year

sentence does not apply. We, however, conclude that the minimum sentence applies.

      The ACCA, 18 U.S.C. § 924(e), provides that a person who violates § 922(g)

and has three violent felony convictions (e.g., a burglary conviction punishable for

more than one year) “committed on occasions different from one another” must be

imprisoned for a minimum of 15 years. 18 U.S.C. § 924(e)(1), (2)(B)(ii). The prior

convictions must arise from “‘separate criminal transactions.’” United States v.

                                         -11-
Tisdale, 921 F.2d 1095, 1098 (10th Cir. 1990) (quoting United States v. Bolton, 905

F.2d 319, 323 (10th Cir. 1990)). Further, § 924(e)(1) was intended to reach multiple

criminal episodes distinct in time. Id. at 1098–99.

      Mr. James acknowledges that our decisions interpreting § 924(e) do not

support his argument that the mandatory minimum sentence does not apply here, but

he nevertheless asks this court to revisit those decisions, particularly our decision in

United States v. Tisdale. 2 However, “‘[a]bsent an intervening Supreme Court or en

banc decision justifying such action, we lack the power to overrule’ our own

precedent.” United States v. Hernandez-Rodriguez, 352 F.3d 1325, 1333 (10th Cir.

2003) (quoting Berry v. Stevinson Chevrolet, 74 F.3d 980, 985 (10th Cir. 1996)).

There is no such intervening decision here, and we therefore address his argument

applying pertinent circuit precedent.

      Our decision in United States v. Tisdale controls our resolution of Mr. James’s

argument. In Tisdale, the appellant had three burglary convictions for conduct which

occurred on the same date. 921 F.2d at 1098. The appellant had broken into a

shopping mall and burglarized two private businesses and a post office located

inside. Id. The trial court used the burglary convictions to enhance the appellant’s

sentence under § 924(e)(1). Id. We noted that it was clear that the appellant could

not simultaneously burglarize three separate businesses. Id. at 1099. Further, we

observed that after the appellant had successfully completed burglarizing one

      2
          Mr. James does not contest the underlying facts of his prior convictions.

                                          -12-
business, he was free to leave, and the fact that he chose, instead, to burglarize

another business was evidence of his intent to engage in a separate criminal episode.

Id. We also noted that the burglaries did not occur at the same location–although the

appellant entered only one mall, he had to break into three separate structures. Id.

We therefore concluded that the crimes were committed at different locations, and

the trial court had properly enhanced the appellant’s sentence. Id.

      Mr. James’s burglaries are more separate than those in Tisdale. Here, only

two of Mr. James’s three burglaries occurred on the same day, and all three occurred

at structures with different addresses. Further, similarly to the appellant in Tisdale,

Mr. James could not have committed the burglaries simultaneously, and he was free

to avoid committing the successive burglaries. His choice to instead burglarize

another address evinces his intent to engage in a separate criminal episode. The

district judge properly concluded that the burglaries were committed on separate

occasions.

      2. Whether the mandatory minimum sentence is cruel and unusual

      Mr. James further argues that even if the mandatory minimum sentence

applies, it violates the Eighth Amendment because it is grossly disproportionate to

his crime. He explains that all of his previous convictions were more than 24 years

old at the time of sentencing, and since those convictions he has been an employed,

constructive member of society. However, we find no Eighth Amendment violation.

      In reviewing Eighth Amendment proportionality challenges, we examine the

                                         -13-
sentence at issue in relation to the crime for “gross disproportionality.” United

States v. Gurule, 461 F.3d 1238, 1247 (10th Cir. 2006).          If we find no gross

disproportionality, our analysis ends. Id. It is only in a rare case that a threshold

comparison of the crime committed and the sentence imposed leads to an inference

of gross disproportionality.      Id.   For example, we have held not grossly

disproportional the imposition of a life sentence after a carjacking conviction when

the appellant had two robbery convictions and one of the robbery convictions was

over 30 years old. Id. at 1240, 1242, 1247–48. Further, we have acknowledged that,

“[i]n general, a sentence within the limits imposed by statute is neither excessive nor

cruel and unusual under the Eighth Amendment,” and a legislature is justified in

punishing a recidivist more severely than it punishes a first offender. Id. at 1247;

United States v. Delacruz-Soto, 414 F.3d 1158, 1168 (10th Cir. 2005).

      Here, we conclude that this is not a rare case in which the sentence imposed

is grossly disproportionate to the crime. The 15 year sentence imposed on Mr. James

following his three previous felony convictions is much less harsh than the life

sentence we upheld in Gurule, which followed only two felony convictions, one of

which was older than Mr. James’s burglary convictions. See Gurule, 461 F.3d at

1240, 1242, 1247–48. In addition, his sentence is not only within the limits imposed

by the ACCA, it is the minimum sentence available to him under § 924(e)(1). See

§ 924(e)(1) (requiring imprisonment for “not less than” 15 years). Importantly, Mr.

James’s sentence was not enhanced under the ACCA only because he was caught

                                         -14-
with firearms; rather, his sentence was enhanced because he was caught with

firearms after having committed three violent felonies. Congress is justified in

punishing a recidivist, such as Mr. James, more severely than a first offender. See

Gurule, 461 F.3d at 1247. His sentence does not violate the Eighth Amendment.

                              IV. CONCLUSION

      We conclude that the investigative detention of Mr. James and the later

protective sweep of the apartment he shared with Mr. Schneider did not violate the

Fourth Amendment. Further, the district judge properly applied the mandatory

minimum sentence as required by the Armed Career Criminal Act, and in doing so

the Eighth Amendment was not violated. Accordingly, we AFFIRM the district

judge’s denial of Mr. James’s motion to suppress, and the conviction and the

sentence imposed under the Armed Career Criminal Act.

                                                   IT IS SO ORDERED.


                                                   Entered for the Court,


                                                   William J. Holloway, Jr.
                                                   Circuit Judge




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