                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 15-4272


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

BERNARDO AUGUSTINE LLOYD,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, Senior District Judge.
(8:12-cr-00354-RWT-1)


Argued:   March 1, 2016                   Decided:   April 20, 2016


Before MOTZ, GREGORY, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Jennifer L. Mayer, Richard Alan Finci, HOULON, BERMAN,
FINCI, LEVENSTEIN & SKOK, LLC, Greenbelt, Maryland, for
Appellant.   Sujit Raman, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Hollis Raphael Weisman, Assistant United
States   Attorney,  OFFICE   OF  THE  UNITED   STATES  ATTORNEY,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

               Bernardo    Lloyd       (“Appellant”)        was   speeding    and     zig-

zagging       through    traffic       on   the   Baltimore-Washington          National

Parkway (“Parkway”) when his Lexus sedan struck the back of a

pickup truck being driven by Juan Lopez Sanchez.                              The truck

flipped    and    careened       off    the    Parkway.       Sanchez    died    at    the

scene.        On June 25, 2012, a grand jury indicted Appellant for

involuntary manslaughter.               He was not arrested until 15 months

later, on September 23, 2013.                 Eventually, his case proceeded to

trial and a jury found him guilty.                  Appellant maintains that the

15-month delay between indictment and arrest violated his Sixth

Amendment right to a speedy trial.                       He also argues that an

expert witness was improperly allowed to testify at trial as to

the cause of the accident, and he maintains he was entitled to a

sentence reduction because he accepted responsibility for his

offense.

               We affirm Appellant’s conviction and sentence.                          His

Sixth Amendment rights were not violated because the 15-month

delay     between        his     indictment        and      his    arrest     was      not

extraordinary and did not impair his defense.                           We also find

ample    support    for    the     district       court’s    decision    to   allow    an

experienced accident reconstructionist to testify, consistently

with    the    opinion    of   another        expert,    about    the   cause    of    the

accident.        And, given Appellant’s testimony at trial, during

                                              2
which he did not accept responsibility for the accident but,

rather, testified that he was not driving recklessly, we have no

quarrel with the district court’s decision not to impose a more

lenient sentence.

                                          I.

               On   January    31,   2012,       Appellant   rear-ended    Sanchez’s

pickup truck.         The front end of Appellant’s vehicle underrode

the pickup with enough force that material from the car’s bumper

was   wrapped       around    the    truck’s      rear   axle.       Sanchez’s   truck

flipped off the road.          Sanchez was killed.

               Police took statements from witnesses at the scene,

made measurements of the wreckage, photographed the crash site,

and then impounded the two vehicles.                 About six months later, on

June 25, 2012, a grand jury in the District of Maryland issued

an    indictment      charging       Appellant      with,    among    other   things,

involuntary manslaughter in violation of 18 U.S.C. § 1112(a). 1

A    warrant    for    Appellant’s      arrest      issued    the    following    day.

However, he was not arrested until September 23, 2013, roughly

15 months later.         Appellant raised the issue of the delay soon

after being arrested.               Just under a year later, he moved to



       1
       Appellant was also charged with one count of reckless
driving in violation of 36 C.F.R. § 4.2, but the jury was
instructed not to consider that offense if it convicted on the
involuntary manslaughter charge.



                                             3
dismiss       the       indictment,      alleging       a     violation       of    his    Sixth

Amendment right to a speedy trial.                            Specifically, he claimed

that,       due    to    the    delay,    his    expert       crash    reconstructionist,

Wendell Cover, had been unable to inspect the wrecked vehicles

and, therefore, could not present a theory about the cause of

the   accident.            Although      the    vehicles       had    been    released      from

impound       and        were    indeed        unavailable,          the    district       court

nevertheless            denied    the     motion,      reasoning           that    Appellant’s

defense would not be impaired.

                  The ensuing three-day trial focused on the cause of

the accident.            The evidence showed Appellant was speeding prior

to    the    collision.          He     testified      that     he    saw    a     car    rapidly

approaching in his rearview mirror and, thinking it might be a

police cruiser, moved into the right-hand lane.                                    The car, a

Nissan, sped by; Appellant pulled in behind the Nissan and hit

the gas.          At that point, according to Appellant, he was driving

fast enough to pass the other cars in the right-hand lane, but

not as fast as the Nissan, which quickly disappeared into the

distance.

                  At some point, though, Appellant caught up with the

Nissan.           Both    cars   zig-zagged          around    another       driver,      Joseph

McCann, in short succession: the Nissan passed on McCann’s left,

straddling two lanes; Appellant’s Lexus then zipped by on the

right, driving partially on the shoulder.                        And Appellant himself

                                                 4
testified that, shortly before the accident, he saw the Nissan

behind him in his side-view mirror.

              McCann estimated that Appellant and the driver of the

Nissan were traveling over 100 miles per hour.                 David Feser, an

off-duty police officer trained in speed detection, was also on

the road that day and testified as a fact witness.                He estimated

Appellant’s      Lexus   was    traveling    90   to   100    miles   per   hour,

characterized Appellant’s driving as reckless, and thought it

likely the car would be involved in an accident.                 Unfortunately,

he was right.

              Two experts testified for the Government.                Corporal

Charles       Russell,   an    experienced    accident       reconstructionist,

analyzed data from the Lexus’ airbag control module, examined

photographs and measurements taken at the scene, and reviewed

witness statements about the crash.               From this information, he

extrapolated that Appellant was driving approximately 100 miles

per hour before the crash and saw no evidence that Sanchez’s

actions contributed to the wreck.            As a result, Corporal Russell

opined, over Appellant’s objection, that the single likely cause

of the accident was “the excessive speed of the Lexus.”                     J.A.

252. 2


          2
          Citations to the “J.A.” refer to the Joint Appendix
filed by the parties in this appeal.



                                       5
               Officer      Ken    Bentivegna     of    the       United      States    Park

Police (“Park Police”) also testified as an expert.                                   He was

present at and documented the crash scene, and also examined the

vehicles in a Park Police impound lot at some point after they

were        removed   from      the    roadway.        He     reached         no    specific

conclusion       about     Appellant’s       speed,     but       he    saw    nothing      in

pictures of the tire marks and other impressions on the road

that indicated aggressive pre-impact braking by either Appellant

or Sanchez.           Therefore, he concluded, “[T]he operator of the

Lexus was going too fast to control his vehicle, failed to brake

appropriately         to   avoid      the   collision       and    was      driving    in   a

reckless manner which is what led to the collision between the

Lexus and” Sanchez’s pickup truck.                S.J.A. 446. 3

               Appellant, for his part, claimed that he rounded a

bend in the Parkway and moved into the far-right lane.                                 As he

did so, he observed Sanchez’s truck also move “suddenly” into

that lane, so Appellant began to drift back into the center

lane.        J.A. 307.      He says he then saw the Nissan in his side-

view mirror “pushing its way into the center lane,” id. at 307,

so     he    returned      to   the    right-hand      lane.           At   that     moment,

according to Appellant, Sanchez applied his brakes.                                Appellant



       3
       Citations to the “S.J.A.” refer to the Supplemental Joint
Appendix filed by the parties in this appeal.



                                             6
“tried     to    go       to    the     right    as      fast    as    [he    could],”        but    he

collided with the truck, sending both off the road.                                      Id. at 308-

09.       Appellant            denied    that       he   was     driving      recklessly.            He

presented        no       expert      testimony          of     his    own        to     counter    the

Government’s. 4

                The   jury         was    thus        presented        with        two     relatively

straightforward theories of the case:                            In the Government’s view,

the evidence indicated that Appellant’s reckless speed caused

him to rear-end Sanchez’s truck.                         Appellant allowed that he was

speeding, but denied driving recklessly and maintained he was

simply     unable         to     avoid    the       truck       when   Sanchez           applied    the

brakes.      The jury, which found Appellant guilty of involuntary

manslaughter, evidently credited the Government’s account.

                At sentencing, the district court denied Appellant’s

request     for       a        downward    adjustment            based       on        acceptance   of

responsibility            and     imposed       a    63-month         term    of        imprisonment.

This timely appeal followed.




      4Although Appellant presented Cover’s expert testimony at
the hearing on his motion to dismiss the indictment, he chose
not to present Cover’s testimony at trial.



                                                     7
                                          II.

                                           A.

                             Speedy Trial Challenge

              Appellant      first       challenges   the     district      court’s

decision denying the motion to dismiss the indictment on speedy

trial grounds.       We review the district court’s factual findings

for clear error, see United States v. Perry, 757 F.3d 166, 171

(4th Cir. 2014), and its legal conclusion about the effect of

the delay de novo, see United States v. Hall, 551 F.3d 257, 266

(4th Cir. 2009).

              The   Sixth    Amendment      guarantees     the   accused    in   all

criminal prosecutions the right to a speedy trial.                         See U.S.

Const. amend. VI.         Some delays in bringing a defendant to trial

are simply too brief to violate the Constitution.                    See Doggett

v.   United    States,      505   U.S.    647,   651-52   (1992).     But    delays

approaching -- or, as here, exceeding -- one year presumptively

surpass the bare minimum required to trigger a constitutional

inquiry.      See id. at 651-52 & 652 n.1.                So, like the district

court, we must “engage in a difficult and sensitive balancing

process” that assesses the length of the delay, the reason for

the delay, how vigorously Appellant asserted his speedy trial

rights, and the extent to which Appellant was prejudiced by the

delay.     Barker v. Wingo, 407 U.S. 514, 530-33 (1972).                    “[N]one

of the four factors . . . [is] either a necessary or sufficient

                                           8
condition to the finding of a deprivation of the right of speedy

trial.”     See id. at 533.           But if those factors, considered

collectively, weigh in Appellant’s favor, then we must dismiss

the indictment lodged against him.             See Vermont v. Brillon, 556

U.S. 81, 93 (2009) (“The factors identified in Barker have no

talismanic qualities” (internal quotation marks omitted)).

                                      1.

                     Length and Reason for Delay

            We consider the first two factors -- length and reason

for the delay -- together.        The pertinent delay is the 15-month

gap between indictment and arrest.          That period of time is long

enough to merit inquiry into the remaining factors, but not an

“extraordinary” delay.      Doggett, 505 U.S. at 657-58 (eight-and-

a-half year delay was extraordinary); Barker, 407 U.S. at 533

(delay of over five years extraordinary).                  And the delay is

attributable solely to the Government -- the authorities knew at

all times where to find Appellant; arresting him simply was not

a priority.      Being simply dilatory does not weigh as heavily

against the Government as a “deliberate attempt to delay the

trial in order to hamper the defense . . . .”               Barker, 407 U.S.

at   531.      However,   even    a    “more     neutral    reason   such   as

negligence,” id., still “falls on the wrong side of the divide

between     acceptable    and    unacceptable      reasons    for    delaying



                                       9
criminal prosecution once it has begun,” Doggett, 505 U.S. at

657.

                                            2.

                       Assertion of the Speedy Trial Right

            As for the third factor, the Government makes much of

the fact that Appellant waited nearly a year after his arrest to

move to dismiss the indictment.                  Yet there is no denying that

Appellant promptly raised the issue at his arraignment.                                See

Doggett, 505 U.S. at 654 (“[The defendant] is not to be taxed

for    invoking    his    speedy       trial   right    only   after   his      arrest,”

where it was unrebutted that defendant was unaware of indictment

until his arrest.).

                                            3.

                                         Prejudice

            That leaves the question of prejudice.                          “Negligence

over    a   sufficiently          long    period     can    establish       a   general

presumption that the defendant’s ability to present a defense is

impaired,      meaning     that    a    defendant    can    prevail    on    his     claim

despite not having shown specific prejudice.”                      United States v.

Velazquez, 749 F.3d 161, 175 (3d Cir. 2014); see also Doggett,

505 U.S. at 658.            In Doggett, for example, the Supreme Court

held    that      an     eight-and-a-half        year      delay   caused       by    the

Government’s negligence violated the Sixth Amendment because the

presumed prejudice to the defendant was “neither extenuated, as

                                            10
by    the    defendant’s        acquiescence,           . . .        nor     persuasively

rebutted.”     Id. at 658 (footnotes omitted) (citation omitted).

But     significantly      shorter     delays           arising       from        government

negligence,     like    the     15-month        delay    here,       do    not     excuse   a

defendant     from    showing    actual     prejudice.              See,    e.g.,     United

States v. Parker, 505 F.3d 323, 328-29 (5th Cir. 2007) (17-month

delay does not obviate need to inquire into prejudice); United

States v. Clark, 83 F.3d 1350, 1353-54 (11th Cir. 1996) (per

curiam)     (17-month    delay     “insufficient          to    excuse       a    defendant

from”     showing    prejudice);     United       States       v.    Beamon,       992   F.2d

1009, 1013-14 (9th Cir. 1993) (“Although the government did not

pursue Beamon and McMillin with due diligence, if the delay in

this case -- only a few months longer than the minimum -- were

sufficient as a matter of law to relieve the defendant of the

burden of coming forward with any showing of actual prejudice,

the presumption of prejudice would be virtually irrebuttable.”).

             Instead     we     consider        whether        the        delay    actually

impaired     Appellant’s      defense. 5         See,    e.g.,       United       States    v.

Gregory, 322 F.3d 1157, 1163 (9th Cir. 2003) (“[W]e have held

that when the government has been negligent and the delay does

      5Other forms of prejudice, such as pretrial incarceration
and the anxiety caused by living under threat of prosecution,
are not relevant here because the delay in this case preceded
Appellant’s arrest and he did not know about the indictment
until he was arrested.



                                           11
not far exceed the minimum time required to trigger the full

Barker inquiry, we must consider the amount of delay in relation

to      particularized        prejudice.”            (internal          quotation        marks

omitted)).         Appellant argues his defense was impaired because

the   Park      Police     released      the    wrecked          vehicles   from    impound

before    he     was     arrested.       As     a    result,       Appellant’s      expert,

Wendell Cover, was unable to inspect the vehicles and testified

at    a   pre-trial       hearing     that      he       could    not    reconstruct      the

accident or come to a conclusion about what caused the accident.

We    struggle,        however,     to   identify          any    actual    prejudice       to

Appellant’s defense.              The competing theories of this case, as we

have explained, are that Appellant was driving too fast to avoid

the truck, or that Appellant had no opportunity to avoid the

collision when Sanchez hit the brakes.                      Yet a closer examination

of Cover’s testimony simply does not establish how inspecting

the wrecked vehicles would have allowed him to prove or disprove

either of those theories.

                Like    Appellant’s      expert,         Corporal       Russell    did    not

examine      the       vehicles    involved         in    the     accident.        And     the

information on which Corporal Russell based his opinion as to

speed     was    likewise     available         to       Cover,    Appellant’s      expert.

Further, Cover testified during the pre-trial hearing that “a

simple speed calculation” was the sort of conclusion that could

be reached by examining data from the airbag control module,

                                               12
even without physically inspecting the vehicles.                                 See J.A. 79-

81.      It    is    true      that       Corporal       Russell’s       conclusions            about

Appellant’s         speed    were     based       in    part     on    assumptions         he    made

about    the    Lexus’       tire     size    and       gear     ratios,    variables           that

presumably          could      have        been        definitively        established            by

inspecting      the     vehicles.           But        defense    counsel       ably   explored

these    limitations          of    Corporal       Russell’s          testimony       on    cross-

examination.                Moreover,        Corporal          Russell’s        opinion          was

consistent      with     eyewitness         testimony          about    Appellant’s         speed,

and,    in     fact,    Appellant          did     not     deny       speeding,       contradict

Corporal Russell’s estimate, or even object to the validity of

his calculations.            We therefore fail to see how an inspection of

the     vehicles       would       have     allowed       Appellant        to    contest         the

Government’s considerable proof as to his pre-accident speed.

               Nor does Cover’s testimony explain how access to the

vehicles would have bolstered Appellant’s theory that Sanchez’s

braking contributed to the cause of the crash.                             Cover emphasized

that “when you have a case of who crossed the center line or who

was within their lane of travel at the time of impact, you must

have a factual and scientific basis as to the point of impact

and the vehicle’s relationship to those lane lines, you must

[inspect the damage to the actual vehicles].”                               J.A. 79.             Fair

enough.        But the position of the vehicles prior to the fatal

collision       in     this        case     was        never     seriously       in    dispute.

                                                  13
Appellant did not testify that Sanchez collided with him while

changing lanes.         As Appellant explained, he saw Sanchez move

ahead of him into his lane of travel.                 But, even crediting his

version of events, Appellant still had time to begin to move

back into the center lane, realize that option was not available

to him, and drift back behind the truck before Sanchez allegedly

applied his brakes.

             The relevant question, then, was whether Appellant was

simply traveling too fast to avoid the collision, or whether

Sanchez braked too aggressively.               Cross-examination of Officer

Bentivegna suggested that it may have been possible to examine

the pickup truck’s brake filaments for evidence of braking.                     But

Bentivegna    did   not   rule    out   the    possibility      that   the   truck

braked; he testified that there were no skid marks suggestive of

aggressive     pre-contact    braking,        while     allowing     that    normal

application of the brakes would not have left such marks.                      And

Cover did not explain how examining the actual vehicles involved

in   the     accident     would    have       enabled     him   to     contradict

Bentivegna’s observation that the tire marks left on the Parkway

did not indicate that Sanchez braked aggressively prior to the

crash. 6


     6 We also note that nothing in the record establishes that
the vehicles were destroyed after they were released from the
Park Police impound.      Instead, Detective Wayne Humberson
(Continued)
                                        14
           At the end of the day, the Government’s case turned on

Corporal   Russell’s       estimate   (corroborated     by   other   testimony)

that   Appellant     was   travelling    upwards   of   90   miles   per    hour,

together with Officer Bentivegna’s testimony that there was no

indication Sanchez braked aggressively before impact.                     Cover’s

testimony simply does not establish how examining the wrecked

vehicles would have allowed him to contradict those opinions.

And Appellant’s trial counsel ably pointed out the potential

weaknesses     in    the    Government’s     expert     opinions     on    cross-

examination.        We therefore fail to see how Appellant’s defense

was impaired in anything more than a speculative manner, and

speculative prejudice will not do.             See United States v. Loud

Hawk, 474 U.S. 302, 315 (1986) (“Th[e] possibility of prejudice

is not sufficient to support respondents’ position that their

speedy trial rights were violated.” (emphasis supplied)).

           We are thus left with an unremarkable delay, caused by

the Government’s negligence, to which Appellant objected, but




testified that the Lexus and the truck were turned over to the
owners’ respective insurance companies.       Appellant did not
establish that those insurers thereafter destroyed the vehicles
or refused to make them available for inspection.           And
strikingly, given the asserted importance of inspecting the
wreckage, neither Appellant nor his expert, Cover, testified
that they made any effort to contact the insurers to inquire
after the vehicles.    For all the record discloses, then, the
vehicles may not have been truly lost at all.



                                        15
which did not impair his defense.                     Under those circumstances, we

agree    with      the    district       court’s       conclusion        that   Appellant’s

Sixth Amendment right to a speedy trial was not violated.                                   See

Beamon, 992 F.2d at 1014 (“On balance, we cannot say that the

government’s        negligence,         which    caused      a    delay    less      than    [24

months],      in    light       of    the     presumption        of    prejudice     and     the

tenuous       showing      of        actual    prejudice,         entitles      Beamon       and

McMillin to relief.”).

                                                B.

              Appellant’s            remaining       challenges          can    be    readily

dispatched.

                                                1.

                          Admission of Expert Testimony

              Appellant         first       argues    Corporal        Russell   should       not

have been permitted to testify that “the excessive speed of the

Lexus”    was      “the    single       thing”       that   most       likely   caused       the

accident.          See    J.A.       252.      We    review      the     district     court’s

decision to admit expert testimony for abuse of discretion.                                  See

United States v. Fuertes, 805 F.3d 485, 495-96 (4th Cir. 2015).

Corporal Russell’s calculation of the Lexus’ likely speed was

based on observations of data and mathematical calculations to

which Appellant did not object.                      And Appellant did not dispute

that    the    Lexus      struck       the    truck.        We    take    it,   then,       that

Appellant objects to Corporal Russell’s implication that speed,

                                                16
rather    than     Sanchez’s     braking,          was    the       primary    cause      of    the

wreck.

             Federal Rule of Evidence 702 provides that an expert

qualified       by    “knowledge,           skill,        experience,          training,        or

education” may give opinion testimony if it “will help the trier

of    fact   to    understand     the       evidence          or    to     determine      a    fact

issue,” so long as the “testimony is based on sufficient facts

or data” produced by reliable principles and methods that have

been reliably applied to the facts of the case.                                    See Fed. R.

Evid.    702(a)-(d).            Corporal        Russell             has     over     20   years’

experience investigating crashes.                     He based his speed estimate

on a series of calculations using the airbag control module data

downloaded from Appellant’s Lexus.                            He also reviewed Officer

Bentivegna’s report and conclusion, as well as “all the evidence

that the [P]ark [P]olice had,” including the same photographs

and   diagrams       of   the   crash       scene    on       which       Officer    Bentivegna

based    his      testimony.          See    J.A.        227       (“I’ve     looked      at    the

photographs of the vehicles.                 I’ve looked at the data they have.

I have seen the diagrams, the witness statements.                                  You know, so

I examined all the evidence that the [P]ark [P]olice had.”).

Given    that     Appellant     did    not    object          to    the     admissibility       of

Corporal     Russell’s      speed      estimate          or    to    Officer       Bentivegna’s

testimony that Sanchez did not brake aggressively, we fail to

see   any    abuse    of   discretion         in     admitting            Corporal     Russell’s

                                              17
opinion      that     Appellant’s           speed     caused     the      accident.          See

Westfield Ins. Co. v. Harris, 134 F.3d 608, 612 (4th Cir. 1998)

(observing that an expert’s opinion may be “based, not only on

data   and    direct           observations,      but     also   on      the   opinions      and

observations of others”).

                                               2.

                                        Sentencing

             Finally,           Appellant    argues       the    district      court    should

have afforded            him    a   two-level     reduction        in    his     base   offense

level at sentencing for three reasons: he cooperated with law

enforcement         at     the      scene    of     the    accident        and       thereafter

willingly gave a statement; he never denied his involvement in

the accident or that he was speeding; and he went to trial only

to contest the speedy trial issue and the legal issue of whether

the    federal      involuntary         manslaughter        statute       applied       to   his

conduct.      We review the district court’s sentencing decision on

this point for clear error.                   See United States v. Jeffery, 631

F.3d 669, 678 (4th Cir. 2011).

             Section            3E1.1   of      the       United        States       Sentencing

Guidelines provides that a defendant who “clearly demonstrates

acceptance       of       responsibility”           is    entitled        to     a   two-level

reduction in the calculation of his offense level.                               See U.S.S.G.

§ 3E1.1.       “Conviction by trial . . . does not automatically

preclude a defendant from consideration for such a reduction.”

                                               18
Id. cmt. n.2.           “This may occur, for example, where a defendant

goes to trial to assert and preserve issues that do not relate

to factual guilt . . . .”               Id.

                In    this     case,    however,       the       evidence      supports        the

district        court’s       conclusion      that     Appellant         did      dispute      his

factual guilt.          As the district court explained, the statute in

question        required       the     Government      to    prove       that     Appellant’s

conduct was willful and wanton.                     Yet Appellant “took the stand

and   testified.             Clearly    the    thrust       of   his     testimony       was    in

denial     of    the    willful        and    wanton      nature    of      his    conduct      in

attempting       to    in     effect     blame      the    victim      in    this     case     for

changing lanes.”              J.A. 325.        Indeed, Appellant testified “the

pickup truck went in front of [him] suddenly,” id. at 307; “the

brake lights of the truck went on and that’s when the accident

occurred,” id. at 308; and he was not driving recklessly, see

id. at 311 (Q: Was the manner in which you were driving reckless

--    A.    No,        sir.).          Clearly,        Appellant         did      not     accept

responsibility          for     the    accident.          Accordingly,          the     district

court did not clearly err in denying Appellant credit for doing

so.    See United States v. Dugger, 485 F.3d 236, 239 (4th Cir.

2007) (“We must give great deference to the district court’s

decision because the sentencing judge is in a unique position to

evaluate a defendant’s acceptance of responsibility.” (internal

quotation marks omitted) (citations omitted)).

                                               19
                                  III.

          For   the   foregoing    reasons,   the   judgment    of   the

district court is

                                                               AFFIRMED.




                                   20
