                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 20 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30094

              Plaintiff - Appellee,              D.C. No. 6:10-cr-60109-AA-1

 v.
                                                 MEMORANDUM*
DANIEL CARL ERNST,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                     Argued and Submitted November 2, 2015
                                Portland, Oregon

Before: FISHER, BERZON, and WATFORD, Circuit Judges.

      1. Daniel Carl Ernst validly waived his Sixth Amendment right to counsel.

At Ernst’s request, the district court granted his lawyer’s motion to withdraw so

that Ernst could represent himself. At the February 23, 2012, hearing, the district

court conducted a thorough colloquy to ensure that Ernst’s waiver of his right to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                            Page 2 of 4
counsel was knowing, intelligent, and voluntary. See Faretta v. California, 422

U.S. 806, 835 (1975). The court informed Ernst of the nature of the charges

against him, the possible penalties he faced if convicted, and the dangers and

disadvantages of self-representation. See United States v. Neal, 776 F.3d 645,

657–59 (9th Cir. 2015). Ernst has not argued that the district court’s participation

in plea negotiations violated Federal Rule of Criminal Procedure 11, and to the

extent the court cautioned him of the serious risks of proceeding to trial, its

warnings contributed to his understanding of the important choice he faced. See

United States v. French, 748 F.3d 922, 929 (9th Cir. 2014).

      Ernst’s subsequent “Notice of Court Deficiency as to Assistance of Counsel”

did not invalidate his prior waiver. Ernst continued to reject the services of any

licensed attorney and insist on representation by a non-lawyer. Ernst’s rejection of

“every constitutionally recognized form of counsel while simultaneously refusing

to proceed pro se” amounted to an unequivocal waiver of the right to counsel.

United States v. Massey, 419 F.3d 1008, 1010 (9th Cir. 2005).

      2. We need not decide whether the district court erred in denying Ernst’s

motion to suppress evidence discovered during the 2006 search. Any alleged error

was harmless beyond a reasonable doubt, see Chapman v. California, 386 U.S. 18,

24 (1967), given that Ernst does not contest the legality of the evidence obtained
                                                                          Page 3 of 4
during the 2010 search. The evidence from the 2010 search independently

supported Ernst’s conviction under 18 U.S.C. § 922(g)(1), and Ernst stipulated to

facts rendering him guilty of that offense. To the extent Ernst contends that the

denial of his suppression motion unduly influenced his decision to stipulate to facts

rendering him guilty, the record simply does not support that contention. Ernst’s

decision to stipulate to facts related to the 2010 search could not have been unduly

influenced by the district court’s denial of his suppression motion with respect to

the 2006 search. The evidence discovered during the 2006 search was no more

incriminating than the evidence from the 2010 search, the admissibility of which

was not challenged on appeal.

      3. Ernst’s prior Oregon convictions for marijuana trafficking qualify as

serious drug offenses under the Armed Career Criminal Act (ACCA). Ernst does

not dispute that those convictions involved the distribution of a controlled

substance and carried a maximum penalty under Oregon law of at least ten years’

imprisonment, as the ACCA requires. 18 U.S.C. § 924(e)(2)(A)(ii). Ernst instead

contends that, to qualify as ACCA predicates, his marijuana-trafficking offenses

had to trigger a statutory maximum of ten years or more under both Oregon and

federal law. Ernst’s contention is foreclosed by the Supreme Court’s interpretation

of § 924(e)(2)(A)(ii) in United States v. Rodriquez, 553 U.S. 377, 381–84 (2008).
                                                                          Page 4 of 4
      4. The record contains sufficient evidence to satisfy the interstate commerce

requirement under 18 U.S.C. § 922(g)(1). Ernst stipulated that the firearms and

ammunition at issue were manufactured outside of Oregon, which is sufficient to

sustain his conviction under Scarborough v. United States, 431 U.S. 563, 575

(1977). Ernst contends that the Supreme Court’s more recent Commerce Clause

and Second Amendment cases have effectively overruled Scarborough, but we

lack the authority to accept that contention. See Agostini v. Felton, 521 U.S. 203,

237 (1997).

      AFFIRMED.
