                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   July 11, 2012
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 12-6001
          v.                                           W.D. Oklahoma
 GLENN MERRILL DENSON III,                     (D.C. No. 5:11-CR-00212-F-1)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before PORFILIO and ANDERSON, Circuit Judges, and BRORBY, Senior
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.

      Defendant and appellant, Glenn Merrill Denson III, pled guilty to one count

of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).


      *
       This order and judgment is not binding precedent, except under the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.
He was subsequently declared to be an armed career criminal, and was

accordingly sentenced to the statutory mandatory minimum sentence of 180

months’ imprisonment, pursuant to the Armed Career Criminal Act (“ACCA”), 18

U.S.C. § 924(e). Denson appeals the denial of his motion to suppress evidence

seized from him, as well as his sentence under the ACCA. For the following

reasons, we affirm.



                                 BACKGROUND

      On June 6, 2011, officers from the Oklahoma City Police Department were

patrolling the Garden Oaks neighborhood in Oklahoma City, as part of a gang

enforcement program. Six police vehicles were involved in the patrol, which

contained a total of twelve police officers. Officer Chris Grimes testified that this

particular neighborhood had a high concentration of Shotgun Crips gang

members, and that there had been several drive-by shootings in the preceding

months, which had led to the death of one Shotgun Crip member.

      The officers in the police car in front of Officer Grimes stopped their car to

make contact with two juveniles who were walking in the street. While providing

back-up to those officers, Officer Grimes and his partner, Officer Frank Walsh,

spotted Denson crossing the street at the intersection of Northeast 15th and

Washington. Officer Grimes testified that, as Denson crossed the street, he

reached in his waistband. The officer also testified that, once Denson had seen

                                         -2-
the officer, he increased his speed from a walk to a jog and began heading

towards a nearby house. Although the officers asked to speak to Denson, Denson

continued to hurry towards the house. Officer Grimes testified that Denson

seemed frantic and continued to hold his waistband as he went towards the house.

      Officer Grimes met up with Denson on the front porch of the house, where

Denson attempted to open the locked door of the house. As the two made contact,

Denson apparently told Grimes that he “had a MAC” on him. The officer

interpreted this to mean that Denson claimed to have a MAC-10 or MAC-11

firearm. The two struggled, and Denson attempted to get away, until Officers

Grimes and Walsh were able to place Denson on the ground and handcuff him.

When they rolled Denson over and grabbed his shirt to pick him up, the officers

saw a weapon tucked into Denson’s waistband. When Grimes took possession of

the weapon, he noticed that the safety was off and a bullet had been loaded in the

chamber. Office Grimes admitted on cross-examination at Denson’s motion to

suppress hearing that his police report contained nothing about Denson reaching

for his waistband or running towards the house.

      Denson was subsequently arrested and charged with being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Denson filed a

motion to suppress the gun found in his waistband, arguing that the search, which

led to the seizure of the gun, violated the Fourth Amendment. The government

responded that there was reasonable suspicion to conduct a stop pursuant to Terry

                                        -3-
v. Ohio, 392 U.S. 1 (1968), and, when Denson stated that he had a “MAC,” the

officers had reasonable suspicion to believe that Denson was armed and

dangerous.

      The district court held an evidentiary hearing on the motion to suppress on

August 4, 2011. After hearing testimony from Officer Grimes, the district court

denied the motion to suppress.

      Denson subsequently pled guilty, pursuant to a plea agreement, to being a

felon in possession of a firearm, but he reserved the right to appeal the denial of

his motion to suppress and his characterization as a career criminal for the

purpose of sentencing under the ACCA. In preparation for sentencing, the United

States Probation Office prepared a presentence report (“PSR”). The PSR

identified three predicate “violent felonies” for purposes of the ACCA, one of

which was a conviction for eluding the police. Denson objected, arguing that his

Washington state conviction for “Attempting to Elude a Pursuing Police Vehicle”

did not constitute a “violent felony.”

      The district court then held a sentencing hearing, where, after hearing

arguments from both sides, the court determined that Denson’s conviction for

attempting to elude a pursuing police vehicle was categorically a violent felony

under the ACCA. Accordingly, applying the ACCA, the district court sentenced

Denson to the statutory minimum of 180 months’ imprisonment. This appeal

followed.

                                         -4-
                                  DISCUSSION

      I. Denial of Motion to Suppress

      When reviewing the denial of a motion to suppress, “we review the district

court’s factual findings for clear error and consider the evidence in the light most

favorable to the Government.” United States v. Haymond, 672 F.3d 948, 958

(10th Cir.) (further quotation omitted), cert. denied, 2012 WL 1834333 (U.S.

June 18, 2012) (No. 11-10397). “[W]e review de novo the district court’s

ultimate determination of reasonableness under the Fourth Amendment.” United

States v. McGehee, 672 F.3d 860, 866 (10th Cir. 2012) (further quotation

omitted).

      Denson first argues that the officers violated the Fourth Amendment when

they stopped him and seized his gun. As a general matter, under Terry and

subsequent cases, “police can stop and briefly detain a person for investigative

purposes if the officer has a reasonable suspicion supported by articulable facts

that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.”

United States v. Sokolow, 490 U.S. 1, 7 (1989) (quoting Terry, 392 U.S. at 30);

see also United States v. Neff, 2012 WL 1995064, at *3 (10th Cir. June 5, 2012).

When we review an investigatory stop for reasonable suspicion, we must consider

“the totality of the circumstances of each case to see whether the detaining officer

has a particularized and objective basis for suspecting legal wrongdoing.” United

States v. Arvizu, 534 U.S. 266, 273 (2002) (further quotation omitted).

                                         -5-
Furthermore, “[w]hile certain facts, taken in isolation, may be quite consistent

with innocent travel, these facts may, in the aggregate, add up to reasonable

suspicion. Indeed, Terry itself involved a series of acts, each of them perhaps

innocent if viewed separately, but which taken together warranted further

investigation.” Neff, 2012 WL 1995064, at *3 (further quotations and citations

omitted). Finally, “[w]hen determining whether reasonable suspicion justifies a

stop, ‘we defer to the ability of a trained law enforcement officer to distinguish

between innocent and suspicious actions.’” United States v. Whitley, 2012 WL

1959555, at *5 (10th Cir. June 1, 2012) (quoting United States v. McHugh, 639

F.3d 1250, 1256 (10th Cir.) (further quotation omitted), cert. denied, 132 S. Ct.

278 (2011)).

      Besides conducting a Terry stop when faced with suspicious behavior,

police officers may detain and search an individual when they have a reasonable

suspicion that he is armed and dangerous. See United States v. Garcia, 459 F.3d

1059, 1064 (10th Cir. 2006) (“[W]e have . . . allowed ‘an officer [to] conduct a

pat-down search (or frisk) if he or she harbors an articulable and reasonable

suspicion that the person is armed and dangerous.’” (quoting United States v.

Hishaw, 235 F.3d 565, 570 (10th Cir. 2000) (further quotation omitted))).

      An initial question, as the district court noted, is whether there was, in fact,

a Terry stop in this case; if so, when did it occur; if it did occur, was it justified;




                                           -6-
and, if there was no such Terry stop, was the ultimate detention and search of

Denson on the porch of the residence valid on some other basis.

      On the question of whether there was a valid Terry stop, both parties agree

that the Supreme Court’s decision in Illinois v. Wardlow, 528 U.S. 119 (2000), is

instructive. In that case, an individual who was in an “area known for heavy

narcotics trafficking” suddenly took off in “unprovoked flight upon noticing the

police.” Id. at 124. The Court held that such “nervous, evasive behavior [was] a

pertinent factor in determining reasonable suspicion,” and found the officers had

reasonable suspicion to briefly detain the suspect for further investigation. Id.

      The government argues that Wardlow mandates the same conclusion here.

We compare the two scenarios. In Wardlow, the officers were patrolling an area

known for heavy narcotics trafficking; here, the officers were patrolling an area

known for gang activity. As in Wardlow, the suspect in this case (Denson)

immediately began to move rapidly away from the officers when he noticed their

presence. Although the Court described the suspect’s action in Wardlow as

“headlong flight,” in this case, Denson at most jogged or moved away from the

approaching officers at an increased pace. 1 Nonetheless, Denson’s actions can be




      1
       As the district court found, Denson “immediately started to go away. He
wanted nothing to do with these [police] cars. He immediately started walking
and then jogging toward [the residence].” Tr. of Mot. to Suppress at 57, R. Vol. 3
at 57.

                                         -7-
characterized as “nervous” and “evasive,” as in Wardlow Id. 2 Furthermore, as

the district court found, Officer Grimes testified that Denson reached for his

waistband while he was evading the police, thus also engaging in activity which

can be characterized as suspicious and contributing to the totality of the

circumstances facing the officers. 3

      Accordingly, arguably, in this case as in Wardlow, the officers reasonably

developed a suspicion regarding Denson’s activity when he, upon seeing the

police approaching him, appeared to be avoiding an encounter, while acting

suspicious and furtive, in a high-crime area. 4 Nonetheless, even if we conclude

that the officers were justified in conducting a brief investigatory detention of



      2
      The district court described Denson’s conduct as “skittish.” Tr. of Mot. to
Suppress at 57, R. Vol. 3 at 57.
      3
        We note that Officer Grimes apparently failed to include in his arrest
report the information about Denson reaching for his waistband and/or running or
jogging away from the officers. Nonetheless, the officer testified to these matters
in the hearing on Denson’s motion to suppress, and the district court was able to
evaluate his credibility. The court specifically found the officer credible and
denied Denson’s motion. See United States v. Hunnicutt, 135 F.3d 1345, 1348
(10th Cir. 1998) (“Judging the credibility of the witnesses, determining the weight
to be given to evidence, and drawing reasonable inferences and conclusions from
the evidence are within the province of the district court.”); see also United States
v. Cooper, 654 F.3d 1104, 1123 (10th Cir. 2011).
      4
       We note that Denson reminds us that the encounter in this case occurred in
the early evening, an arguably less dangerous time of day, as opposed to late in
the night or in the early morning. We have “held that the fact that an incident
occurred late at night or early in the morning is relevant to the Terry analysis.”
McHugh, 639 F.3d at 1257. That is, of course, but one factor in the totality of the
circumstances.

                                         -8-
Denson, the question remains at what point they actually detained or “seized”

him. “When an officer does not apply physical force to restrain a suspect, a

Fourth Amendment seizure occurs only if (a) the officer shows his authority; and

(b) the citizen ‘submit[s] to the assertion of authority.’” United States v. Salazar,

609 F.3d 1059, 1064 (10th Cir. 2010) (quoting California v. Hodari D., 499 U.S.

621, 626 (1991)). Here, while the officers asked to speak to Denson while he was

walking/jogging to the residence, Denson failed to submit to their assertion of

authority until the officers actually physically encountered him on the porch.

Virtually simultaneously with that, however, Denson told the officers he had a

weapon, thereby giving them clear authority to seize and search him, at which

point they found the gun.

      In sum, whether we view the encounter between the police and Denson as a

Terry stop with the actual seizure occurring on the porch, or as a consensual

encounter followed by a search and subsequent arrest based upon the officers’

reasonable belief (obtained when Denson told them that he had a “Mac”) that

Denson was armed, the search and arrest did not violate the Fourth Amendment.

At a minimum, “the officers had reasonable suspicion, which ripened into

probable cause to detain and search [Denson].” United States v. Charles, 576

F.3d 1060, 1065 (10th Cir. 2009). We therefore affirm the district court’s denial

of Denson’s motion to suppress the evidence seized from him.




                                          -9-
      II. Sentence Under ACCA

      “We review a sentence enhancement imposed under the ACCA de novo.”

United States v. Delossantos, 2012 WL 1948645, at *1 (10th Cir. May 30, 2012).

“The government carries the burden of proving by a preponderance of the

evidence that an enhancement is appropriate.” Id. (further quotation omitted).

      Under the ACCA, 18 U.S.C. § 924(e)(1), a sentence enhancement applies

when a person has been convicted of violating § 922(g) and has three previous

convictions for a violent felony or a serious drug offense. An offense is

considered a violent felony if it is punishable by more than one year of

imprisonment and

      (i) has as an element the use, attempted use, or threatened use of
      physical force against the person of another; or
      (ii) is burglary, arson, or extortion, involves use of explosives, or
      otherwise involves conduct that presents a serious potential risk of
      physical injury to another.

18 U.S.C. § 924(e)(2)(B).

      Denson was convicted in 2006 of violating the following statute:

      Any driver of a motor vehicle who willfully fails or refuses to
      immediately bring his or her vehicle to a stop and who drives his or
      her vehicle in a reckless manner while attempting to elude a pursuing
      police vehicle, after being given a visual or audible signal to bring
      the vehicle to a stop, shall be guilty of a Class C felony. The signal
      given by the police officer may be by hand, voice, emergency light,
      or siren. . . .

Wash. Rev. Code § 46.61.024 (2003). Prior to 2003, the first sentence provided

that “[a]ny driver of a motor vehicle who fails or refuses to immediately bring his

                                        -10-
vehicle to a stop and who drives his vehicle in a manner indicating a wanton or

wilful disregard for the lives or property of others while attempting to elude a

pursuing police vehicle, . . . .” Id. (2001). Denson argues the district court erred

in concluding that his conviction under the amended (post-2003) statute

constitutes a conviction for a violent felony under 18 U.S.C. § 924(e)(2)(B).

      Our standards for evaluating whether a prior conviction is a conviction for

a violent felony under the ACCA are well known. 5 “We review de novo the legal

question of whether prior convictions qualify as violent felonies under the

ACCA.” United States v. Scoville, 561 F.3d 1174, 1176 (10th Cir. 2009). In

doing so, “we apply a categorical approach, generally looking 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.” Id. (internal

quotation marks omitted). “That is, we consider whether the elements of the

offense are of the type that would justify its inclusion within the ACCA, without

inquiring into the specific conduct of this particular offender.” Id. (internal

quotation marks omitted).


      5
       The ACCA sets minimum sentences for firearms offenders who have been
convicted of “violent felonies.” The United States Sentencing Guidelines
Commission, Guidelines Manual, provides enhanced penalties for firearms
offenders who have been convicted of “crimes of violence.” The definitions of
the two crimes are essentially identical. That “nearly identical language . . .
allows us to consider precedent involving one in construing the other.” United
States v. McConnell, 605 F.3d 822, 828 (10th Cir. 2010), cert. denied, 131 S. Ct.
3021 (2011).

                                         -11-
      We apply a modified categorical approach, however, if the “criminal statute

proscribes conduct broader than that which would satisfy the ACCA’s definition

of a violent felony.” Id. (internal quotation marks omitted). In such a situation,

we “look at the charging documents and documents of conviction to determine

whether the defendant in a particular case was convicted of an offense that falls

within the ACCA.” Id. (internal quotation marks omitted). It is not required

“that every conceivable factual offense covered by a statute . . . necessarily

present a serious potential risk of injury before the offense can be deemed a

violent felony.” James v. United States, 550 U.S. 192, 208 (2007). “Rather, the

proper inquiry is whether the conduct encompassed by the elements of the

offense, in the ordinary case, presents a serious potential risk of injury to

another.” Id.

      The Washington statute at issue here does not have any of the elements set

forth in § 924(e)(2)(B)(i), nor does it encompass any of the crimes enumerated in

subsection (ii). Accordingly, it describes a violent felony under the ACCA only if

it satisfies the so-called residual clause prohibiting crimes which “otherwise

involve[] conduct that presents a serious potential risk of physical injury to

another.” 18 U.S.C. § 924(e)(2)(B)(ii). In determining whether the Washington

offense of eluding a police officer is a violent felony under the residual clause,

“we rely on the Supreme Court’s holding that the Indiana offense of resisting law

enforcement by fleeing in a vehicle is a violent felony under the ACCA’s residual

                                         -12-
clause.” United States v. Thomas, 643 F.3d 802, 805 (10th Cir. 2011) (citing

Sykes v. United States, 131 S. Ct. 2267 (2011)). The statute at issue in Sykes

provided as follows:

      (a) A person who knowingly or intentionally:

                                           ...

               (3) flees from a law enforcement officer after the officer
               has, by visible or audible means, identified himself and
               ordered the person to stop;

      commits resisting law enforcement, a Class A misdemeanor, except
      as provided in subsection (b).

      (b) The offense under subsection (a) is a:

               (1) Class D felony if:

                     (A) the offense is described in subsection
                     (a)(3) and the person uses a vehicle to
                     commit the offense.

Ind. Code § 35-44-3-3 (2004). Sykes was convicted under § 35-44-3-3(b)(1)(A)

for using a vehicle to flee after the police ordered him to stop. See Sykes, 131 S.

Ct. at 2271.

      As we noted in Thomas, the Supreme Court concluded that Sykes’s offense

“present[ed] a serious potential risk of physical injury to another,” because

“[w]hen a perpetrator defies a law enforcement command by fleeing in a car, the

determination to elude capture makes a lack of concern for the safety of property

and persons of pedestrians and other drivers an inherent part of the offense.” Id.


                                          -13-
at 2273; see Thomas, 643 F.3d at 806. Furthermore, the Court observed that

fleeing by vehicle creates a strong likelihood that the police will, in turn, pursue

and create an even more dangerous situation, and statistical studies show that

vehicular flight is actually more dangerous to the police and to bystanders than

burglary or arson, two felony crimes which the ACCA specifically enumerates as

violent felonies. Sykes, 131 S. Ct. at 2273. Finally:

      the Court stated that the Indiana offense was not excluded from the
      residual clause by the exception set forth in Begay v. United States,
      553 U.S. 137 (2008), for “strict liability, negligence, and
      recklessness crime[s]” even when they present serious risks of
      physical injury; it explained that the Indiana statute had the
      “stringent mens rea requirement” that the defendant act “knowingly
      or intentionally.”

Thomas, 643 F.3d at 806 (citation and further quotation marks omitted). 6

      We concluded in Thomas that Sykes controlled our decision in that case.

We reach that same conclusion in this case. As in Thomas, we find that the

elements of the statute at issue in Sykes are, in relevant part, substantially

identical to the elements of the Washington offense for which Denson was

      6
        In Begay, the Supreme Court held that driving under the influence (“DUI”)
is not a violent felony under the residual clause of the ACCA because the crimes
listed in the residual clause all involve “purposeful, violent, and aggressive
conduct,” which suggests a “higher degree of intent than negligent or merely
accidental conduct” usually present in a DUI. Begay, 553 U.S. at 144-45. Sykes
distinguished Begay by explaining that vehicle flight “has a stringent mens rea
requirement and violators must act knowingly or intentionally.” Sykes, 131 S. Ct.
at 2275 (internal quotations omitted). Thus, under Begay, crimes like DUI, which
are strict liability, negligence or recklessness crimes, as opposed to knowing or
intentional crimes, are excepted from the ACCA residual clause and are not
violent felonies.

                                         -14-
convicted. Sykes was convicted of using a vehicle to “flee[] from a law

enforcement officer after the officer ha[d], by visible or audible means, identified

himself and ordered the person to stop.” Ind. Code § 35-44-3-3. Denson was

convicted of “fail[ing] or refus[ing] to immediately bring his . . . vehicle to a stop

and . . . driv[ing] his . . . vehicle in a reckless manner while attempting to elude a

pursuing police vehicle, after being given a visual or audible signal to bring the

vehicle to a stop. . . .” Wash. Rev. Code § 46.61.024. Thus, as with the

defendant in Thomas, Denson and Sykes “were each convicted of fleeing in a

motor vehicle from a police officer who was readily identifiable as a police

officer and who visibly or audibly signaled him to stop.” Thomas, 643 F.3d at

806.

       Additionally, Sykes’ conduct was “knowing[] or intentional[],” Ind. Code

§ 35-44-3-3(a), and Thomas and Denson engaged in “willful[]” conduct. Wash.

Rev. Code § 46.61.024; Kan. Stat. Ann. § 8-1568(a). Both defendants therefore

had a comparable mens rea. While Denson argues that the relevant mental state is

“recklessness,” citing the statute’s description of the accused’s manner of driving,

we disagree. 7 As in Thomas and other cases, we focus on the mental state of the

       7
       Denson also argues that his prior conviction should not be characterized as
a violent felony conviction because two Ninth Circuit decisions held that the prior
version of the Washington statute (previous to its amendment in 2003) did not
prohibit a violent felony. See United States v. Jennings, 515 F.3d 980 (9th Cir.
2008); United States v. Fisher, 2005 WL 2464207 (9th Cir. Oct. 6, 2008)
(unpublished). As indicated above, Denson was convicted of the amended (post-
                                                                     (continued...)

                                          -15-
defendant in fleeing or eluding law enforcement. See Thomas, 643 F.3d at 805-

06 (statute provides that a person commits a felony if he “knowingly or

intentionally . . . flees. . . .”); see also, e.g., United States v. Holston, 2012 WL

1992373 (5th Cir. June 1, 2012) (unpublished) (statute prohibits “intentional[]”

flight from police); United States v. Doyle, 2012 WL 1560394 (6th Cir. 2012)

(statute prohibits “intentional[]” flight); United States v. Hudson, 673 F.3d 263

(4th Cir. 2012) (statute prohibits “willful[]” flight); cf., United States v. Eatman,

2012 WL 401525 (10th Cir. Feb. 9, 2012) (unpublished) (noting that while the

dangers of serious risk of injury to places, property and persons are “particularly

acute in cases involving vehicular flight, they are likewise inherent in resisting an

arrest [without vehicular involvement”). 8

      In short, the district court correctly held that Denson’s 2006 conviction for

eluding the police in a vehicle qualified as a violent felony. We therefore affirm




      7
       (...continued)
2003) version of the statute. For several reasons, those Ninth Circuit cases do not
undermine our conclusion in this case: (1) while informative, a decision of a
fellow circuit court does not control our decision; (2) those cases addressed the
pre-amendment version of the relevant statute; (3) those cases pre-dated Sykes.
      8
        Our cases prior to Sykes had held that statutes prohibiting vehicular flight
from a police officer described violent felonies, in part because the flight was
knowing, intentional or willful. See McConnell, 605 F.3d at 826-28, 830 (and
citing cases from other circuits in agreement); United States v. Wise, 597 F.3d
1141,1146 (10th Cir. 2010) (noting that statute at issue “requires deliberate
action”).

                                          -16-
the district court’s conclusion that Denson is an armed career criminal under the

ACCA.



                                 CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s denial of

Denson’s motion to suppress and we AFFIRM the sentence imposed.

                                               ENTERED FOR THE COURT


                                               Stephen H. Anderson
                                               Circuit Judge




                                        -17-
