               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0057n.06
                           Filed: January 24, 2007

                                         No. 03-6446

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT




UNITED STATES OF AMERICA,


       Plaintiff-Appellee,

v.                                                         ON APPEAL FROM THE
                                                           UNITED STATES DISTRICT
                                                           COURT FOR THE
RONNIE LEE HOWARD,                                         EASTERN DISTRICT OF
                                                           KENTUCKY
      Defendant-Appellant.
__________________________________________/

BEFORE:       BATCHELDER and MOORE, Circuit Judges; and COHN, District Judge.*

AVERN COHN, District Judge. This is a criminal case. Defendant-Appellant Ronnie Lee

Howard appeals from his conviction for felon in possession of a firearm and felon in possession

of ammunition, in violation of 18 U.S.C. § 922(g)(1) and § 924(e)(1) and his 293 month

sentence. Defendant, through counsel,1 raises several issues on appeal and defendant raises two


       *
      The Honorable Avern Cohn, United States District Judge for the Eastern District of
Michigan, sitting by designation.
       1
         After filing defendant’s brief on appeal, counsel moved under Anders v. California, 386
U.S. 738 (1967) for permission to withdraw. Defendant separately moved to file a pro se
supplemental brief and for the appointment of counsel. The motion to withdraw was denied
and the Clerk was directed to reinstate the briefing schedule. Defendant’s pro se motion to
file a supplemental brief was granted and the motion for appointment of new counsel was
denied.
issues pro se. The issues encompass evidentiary issues, trial procedure issues, and sentencing

and appellate issues. For the reasons that follow, defendant’s conviction is AFFIRMED and the

case is REMANDED for resentencing.

                                      I. BACKGROUND

       On September 5, 2001, a Kentucky State Police trooper received a call from Larry Brock,

an agent with the United States Bureau of Alcohol, Tobacco, and Firearms (ATF), who stated

that he had received information from a confidential informant (CI) that defendant, a convicted

felon, was shooting a gun in his backyard. The trooper responded to the call with another

trooper. The two went to defendant’s residence. Defendant was not home. The troopers asked

defendant’s wife, Lila Howard, if there was a gun in the house. She responded that there was

not, and gave the troopers permission to search the residence. The trooper’s search found a

Marlin Glenfield .22 rifle located in a bedroom closet. Lila Howard subsequently told the

troopers that she, Howard, and another person had previously shot the rifle in the backyard of the

residence.

       The police then obtained a search warrant and returned to the Howard’s residence on

September 14, 2001. AFT Agent Brock took part in the search. On this occasion, the officers

located a partial box of .22 caliber ammunition, two rounds of Winchester .380 caliber

ammunition, and a Remington .12 gauge shotgun shell. During the execution of the search

warrant, the officers again spoke with Lila Howard, who repeated that it was she; Howard, and

another person who shot the guns confiscated from the home.

       Defendant was also interviewed during the search by Agent Brock. Although the initial

interview was not recorded, a subsequent statement from defendant was recorded. Agent Brock


                                                2
testified that during the initial interview, defendant denied having shot the .22 caliber rifle, but

admitted to firing a New England 12-gauge shotgun. In defendant’s subsequent recorded

statement, however, he wavered on whether he actually fired the shotgun and, at some point,

stated that he was confused.

       On December 6, 2001, Agent Brock attempted to serve defendant with a grand jury

subpoena to fingerprint and photograph him while he was incarcerated on state charges.

Defendant had not been charged with any federal crimes at the time. When Agent Brock

explained that he was there to serve a subpoena, defendant said “All that stuff was mine.” Agent

Brock then asked defendant what he was talking about and asked him if he meant the items found

in his home. Defendant responded something to the effect of “whatever you have charged me

with.” Agent Brock explained that defendant had not been charged and that if defendant wanted

to discuss anything further, he would be advised of his rights. Defendant declined to say

anything further.

       A grand jury indicted defendant and Lila Howard for being felons in possession of a

firearm and ammunition. Lila Howard pled guilty and agreed to testify against defendant.

Before trial, defendant moved to suppress the rifle and ammunition as illegally seized. He also

challenged the admissibility of his confession. All of his motions were denied. During voir dire,

defendant moved for a mistrial due to a potential juror’s comments. The motion was denied.

Defendant was convicted as charged. A motion for acquittal was also denied.

       At sentencing, defendant was classified as an armed career offender, which raised his

offense level to 33. Combined with a criminal history category of VI, the resulting guideline




                                                   3
sentence was 235 to 293 months. The district court sentenced defendant to the top of the range,

over defendant’s numerous objections.

       Defendant appeals.

                                         II. ANALYSIS

       The government has organized the several issues on appeal in the following categories:

(1) evidentiary issues, (2) trial procedure issues, and (3) sentencing and appellate issues. We

address the issues in the order presented by the government.

                                      A. Evidentiary Issues

                                     1. Motion to Suppress

       Defendant argues that the district court should have granted the motion to suppress the

ammunition because the warrant for the September 14, 2001, search was not supported by a

sufficient affidavit. Defendant says that the affidavit contains no information regarding the

confidential informant’s reliability and the information was not corroborated. In his pro se brief,

defendant argues that the district court should have granted the motion to suppress the rifle

because his wife, Lila Howard, was under the influence of drugs and could not voluntarily

consent to the search on September 5, 2001.

       The district court’s ruling on the motion to suppress is subject to a two-part review. We

review a district court’s factual findings under the clearly erroneous standard of review and its

legal conclusions de novo. United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005). We also

view the evidence in the light most favorable to the government. United States v. Harris, 255

F.3d 288, 291 (6th Cir. 2001).




                                                 4
         We first address the warrantless search of the Howard residence on September 5, 2001

which yielded the .22 caliber rifle. Defendant argues that the search was invalid because Lila

Howard was intoxicated at the time and was therefore unable to give consent. Although it is not

clear that defendant raised this argument in his motion to suppress, the issue was presented to the

district court during the hearing on the motion. In denying the motion, the district court noted

that the government presented witnesses who testified as to Lila Howard’s consent and defendant

had an opportunity to cross-examine these witnesses. After hearing all of the testimony, the

district court held that “Lila Howard consented to the September 5, 2001 search, and therefore

evidence found during the search on that date would not be suppressed.” JA at p. 53-54.

Moreover, the government has not argued that this issue was waived. Thus, we will address the

issue.

         The Fourth Amendment states that “no warrants shall issue but upon probable cause,

supported by oath or affirmation AAAA” U.S. Const. amend. IV. “It is well-settled that a person may

waive his [or her] Fourth Amendment rights by consenting to a search. Consent to a search may

be in the form of words, gesture, or conduct. In whatever form, consent has effect only if it is

given freely and voluntarily.” United States v. Carter, 378 F.3d 584, 587 (6th Cir. 2004) (en

banc) (citations and internal quotation marks omitted). Valid consent must “be determined from

the totality of all the circumstances.” Id.

         The defendant asserts that Lila Howard was under the influence of drugs at the time of the

search. However, there is no evidence in the record to support the assertion. Here, the district

court evaluated the witnesses’ testimony and determined that Lila Howard had given consent.

The district court “is given wide latitude to assess the credibility of witnesses.” United States v.


                                                  5
Haynes, 301 F.3d 669, 679-80 (6th Cir. 2002) (citation omitted). We find no basis to conclude

that Lila Howard’s consent was involuntary. As such, the district court did not err in declining to

suppress the .22 caliber rifle.

        We also note that, despite defendant’s argument to the contrary, the United States

Supreme Court’s decision in Georgia v. Randolph, 126 S.Ct. 1515 (2006), does not apply. In

Randolph, the Supreme Court held that a warrantless search of a residence, which was conducted

on the basis of the defendant’s wife’s consent, was invalid as to the defendant who was

physically present at the time of the search and expressly refused to consent. Here, there is no

evidence that defendant was present at the time of the search or that he refused to consent.

Randolph does not require that the police specifically determine whether defendant was present

in the home before conducting the search after they obtained Lila Howard’s consent.

        Next, as to defendant’s argument regarding the sufficiency of the affidavit in support of

the search warrant, in order to demonstrate probable cause to support issuance of a search

warrant, the affidavit must contain facts that indicate “a fair probability that evidence of a crime

will be located on the premises of the proposed search.” United States v. Jenkins, 396 F.3d 751,

760 (6th Cir. 2005) (quoting United States v. Bowling, 900 F.2d 926, 930 (6th Cir. 1990)). This

is determined by the totality of the circumstances. Illinois v. Gates, 462 U.S. 213, 230 (1983).

Appellate review of the sufficiency of the evidence supporting probable cause is limited to the

information presented in the four-corners of the affidavit. Whiteley v. Warden, Wyo. State

Penitentiary, 401 U.S. 560, 565 n.8 (1971).

        The affidavit states in relevant part:




                                                  6
               1. The [CI] further stated that Howard was a convicted felon and the CS had
       previously observed Howard shooting a .22 caliber rifle at the rear of his (Howard’s)
       residence. The [CI] said that Howard owned a white Mercury Cougar bearing Kentucky
       license #888 GTR. ...
               2. On September 5, 2001, the affiant was again contacted by the confidential
       source. The CS stated that Howard and his girlfriend were currently at the rear of their
       residence shooting a rifle at targets in the backyard. ...

       The government concedes that the affidavit “does not go into great detail about the

confidential source’s past reliability.” Indeed, the affidavit contains no information regarding the

reliability of the CI. When confronted with hearsay information from a confidential informant,

“a court must consider the veracity, reliability, and the basis of knowledge for that information as

part of the totality of the circumstances for evaluating the impact of that information ...A” United

States v. Helton, 314 F.3d 812, 819 (6th Cir. 2003). “[I]n the absence of any indicia of the

informants' reliability, courts insist that the affidavit contain substantial independent police

corroboration.” United States v. Frazier, 423 F.3d 526, 532 (6th Cir. 2005) (citations omitted).

We find such corroboration. The affidavit notes that a registration check confirmed that Howard

owned a white Mercury Cougar bearing license number 888-GTR. The affidavit also noted that a

prior search of the home, which we have determined was valid based on Lila Howard’s consent,

yielded a .22 caliber rifle. The affidavit also states that a review of state court records revealed

that both defendant and Lila Howard were convicted felons. We agree with the district court that

the affidavit was supported by probable cause.

                                    2. Defendant’s Confession

       Defendant asserts that the district court erred by concluding that his confession to Agent

Brock while in state custody, namely the statement that “All that stuff was mine” was voluntary




                                                  7
and not made in violation of Miranda. Defendant alternatively argues that the district court

should have charged the jury on the issue of voluntariness under 18 U.S.C. § 3501(a).

       We review the district court’s factual findings concerning the confession for clear error,

while the issue of the voluntariness is reviewed de novo. United States v. Marks, 209 F.3d 577,

581 (6th Cir. 2000).

       In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the Supreme Court stated that “the

prosecution may not use statements, whether exculpatory or inculpatory, stemming from

custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards

effective to secure the privilege against self-incrimination.” Thus, Miranda warnings are

required only when the suspect is subject to custodial interrogation. United States v. Swanson,

341 F.3d 524, 528-30 (6th Cir. 2003). Suppression is not necessary if the defendant has not been

subjected to “either express questioning or its functional equivalent.” Rhode Island v. Innis, 446

U.S. 291, 300-01 (1980). “Interrogation” for purposes of Miranda, encompasses “not only AAA

express questioning, but also ... any words or actions on the part of the police (other than those

normally attendant to arrest and custody) that the police should know are reasonably likely to

elicit an incriminating response from the suspect.” Id. at 301. However, “where a defendant

makes a voluntary statement without being questioned or pressured by an interrogator, the

statements are admissible despite the absence of Miranda warnings.” United States v. Murphy,

107 F.3d 1199, 1204 (6th Cir. 1997).

       Here, the district court conducted a hearing outside the presence of the jury in which

Agent Brock testified that he went to the jail where defendant was being held on state charges.

Agent Brock explained he was there to collect fingerprints and photographs. Defendant


                                                 8
approached Agent Brock and stated “All that stuff was mine,” without any prompting. Agent

Brock then asked defendant, ‘What do you mean?” which was an attempt to clarify defendant’s

statement, not to coerce defendant. Defendant then replied “whatever you have charged me

with.” Agent Brock then informed defendant that he had not been charged with anything and that

if he wished to speak further, he would have to be advised on his Miranda rights. Defendant

made no further statements. Defendant does not challenge the factual truth of his statement, but

rather claims that it was involuntary. There is no indication whatsoever that defendant’s

statement was anything but voluntary and spontaneous. The district court did not err in admitting

it. Moreover, even if the district court erred, the error was harmless in light of the other evidence

of defendant’s guilt, including the location of the ammunition and firearm in his residence and

Lila Howard’s testimony. See United States v. Mack, 258 F.3d 548, 555 (6th Cir. 2001).

                                       3. Marital Privilege

       Defendant argues that the district court erred in refusing to recognize the confidential

marital communications priviledge and by permitting Lila Howard to testify against defendant

about a confidential letter he sent to Lila Howard while he was in prison. We review this issue

for an abuse of discretion. See United States v. Price, 329 F.3d 903, 905 (6th Cir. 2003).

       Under the confidential marital communications privilege, the defendant spouse “may

exclude the testimony of a witness spouse concerning confidential marital communications.”

United States v. Gray, 71 Fed. Appx. 485, 488 (6th Cir. 2003) (citing United States v. Sims, 755

F.2d 1239, 1241 (6th Cir. 1985)). However, an exception exists for “conversations regarding

joint ongoing or future patently illegal activity...” Sims, 755 F.2d at 1243.




                                                  9
       Here, the district court concluded that the exception applied. We agree. In the letter,

defendant used a ficticious name and addressed Lila Howard as “sister,” stating he was facing

19-22 years. He proposed that if “no one” testified that he was living with her, he could beat the

charges against him. He would then testify at her trial that the gun was his because the worst he

could get for lying was five years. Defendant is clearly discussing the charges against him and

Lila Howard and attempting to convince her to not testify against him at trial. There is no doubt

the letter contains communications about a joint future patently illegal activity. Defendant’s

statement about a possible sentence for lying indicates that he was aware that their testimony

would be perjury.

       Defendant also argues, rather perfunctorily, that because he and Lila Howard were not

charged as co-conspirators, the district court erred by finding that defendant had used the letter to

obstruct justice and influence Lila Howard’s testimony. The argument is not supported by any

authority. We therefore decline to address it. See United States v. Elder, 90 F.3d 1110, 1119

(6th Cir. 1996) (stating that “issues adverted to in a perfunctory manner, unaccompanied by some

effort at developed argumentation, are deemed waived”).

                                   4. Agent Brock’s Statement

       Defendant argues that the district court erred by refusing to admit into evidence either a

tape or transcript of a statement he made to Agent Brock, thus limiting his ability to cross-

examine Agent Brock. At trial, Agent Brock testified that he interviewed defendant at the time

of the September 14, 2001, search and he admitted that he had fired a shotgun which was later

traded at a flea market by a third party for a Marlin .22 rifle. Defendant sought to impeach this




                                                 10
testimony by introducing a tape or transcript of his later statement in which he allegedly said he

had not shot a shotgun and had been confused earlier.

       The district court refused to admit the tape or transcript because the second statement was

hearsay and made about an hour after the first statement. However, the district court permitted

counsel to ask Agent Brock if defendant later stated he had been confused when he gave the

earlier statement, to which Agent Brock replied that defendant had not.

       We review the district court’s ruling for an abuse of discretion. United States v. Payne,

437 F.3d 540, 544 (6th Cir. 2006). We find no error in the district court’s decision. The

statement could not be admitted as non-hearsay for impeachment under Fed. R. Evid. 801(d)(1)

because Rule 801(d)(1) permits a witness to be impeached with his or her own inconsistent

statement. Defendant’s statements do not show Agent Brock’s testimony was inconsistent, but

rather show that defendant made inconsistent statements. The rule does not provide for the

admission of an inconsistent statement by another witness. Second, defendant’s statement was

not admissible under the exception for when the declarant is unavailable under Fed. R. Evid. 804.

       Moreover, the statement was not admissible under the doctrine of completeness. This

doctrine allows a party who is prejudiced by an opponent's introduction of part of a “document,

or a correspondence, or a conversation,” to enter so much of the remainder as is necessary to

explain or rebut a misleading impression caused by the “incomplete character” of that evidence.

United States v. Costner, 684 F.2d 370, 373 (6th Cir. 1982) (quoting United States v. Littwin,

338 F.2d 141, 145 (6th Cir.1964)). It was partially codified as Federal Rule of Evidence 106:

       When a writing or recorded statement or part thereof is introduced by a party, an adverse
       party may require the introduction at that time of any other part or any other writing or
       recorded statement which ought in fairness to be considered contemporaneously with it.


                                                11
The doctrine, however, does not “make inadmissible evidence admissible.” United States v.

Shaver, 89 Fed. Appx. 529, 532 (6th Cir. Feb. 27, 2004) (unpublished) (citations omitted).

“Exculpatory hearsay may not come in solely on the basis of completeness.” Id. Because no

hearsay exceptions allowed the introduction of defendant’s later statement to Agent Brock, it

cannot be admitted under the doctrine of completeness.

       Finally, we note that even assuming the statement was admissible, there was no prejudice

given the substantial evidence of defendant’s guilt. See Argentine v. United Steelworkers of

America, 287 F.3d 476, 486 (6th Cir. 2002).

                                     5. Confrontation Clause

       Defendant argues that his right to confrontation was violated because he did not have an

opportunity to cross-examine the CI Agent Brock referred to at trial. Contrary to defendant’s

contention, review of the record does not reveal that defendant objected to Agent Brock’s

testimony in this regard. As such, we review the issue for plain error. United States v. Cromer,

389 F.3d 662, 672 (6th Cir. 2004).

       “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the

witnesses against him.” U.S. Const., amend. VI. This right includes the right to cross-examine

those witnesses. United States v. Martin, 920 F.2d 393, 396 (6th Cir. 1991). The Confrontation

Clause bars the admission of testimonial statements unless the declarant is unavailable and the

defendant had a prior opportunity to cross-examine the declarant. See Crawford v. Washington,

541 U.S. 36, 59 (2004). Under Crawford, information provided by a confidential source may

constitute testimony for purposes of the Confrontation Clause.




                                                12
       Crawford, however, does not apply here. No statements made by the CI were before the

jury. In other words, neither Agent Brock nor any other law enforcement personnel testified as to

any testimonial statement by the CI. Rather, the testimony was simply that the officers had been

given information about defendant’s residence from a CI. Moreover, the testimony was merely

background. Under these circumstances, defendant’s confrontation right was not violated. See

Cromer, 389 F.3d at 676.

                                    B. Trial Procedure Issues

                                      1. Motion for Mistrial

       Defendant argues that the district court erred in denying his motion for a mistrial based on

a prospective juror’s comments during voir dire. We review the denial of the motion for a

mistrial for an abuse of discretion. United States v. Knipp, 963 F.2d 839, 845 (6th Cir. 1992).

       During voir dire, the following colloquy took place between defendant’s counsel and a

prospective juror:

               Defense counsel:       The fact that you know Zoro [a potential witness],
                                      would that influence–
               Prospective Juror:     I wouldn’t believe the man if he laid his hands on a
                                      stack of bibles.
               Defense counsel:       You wouldn’t?
               Prospective Juror:     I’ve had dealings with Zoro before.

JA at p. 132. After the prospective juror’s remark, defendant’s counsel moved for a mistrial at

side bar. The district court determined that before ruling on the motion, it would ask some

follow-up questions of the entire panel and would excuse the prospective juror for cause, but not

until others are excused for cause, in order to not call undue attention to the remarks. The district

court then asked some questions to the entire panel as to whether they could be fair and impartial



                                                 13
and cautioned the panel “to not give any particular witness any more credibility or less credibility

based upon the voir dire” and also asked whether anyone would give more or less credibility to a

witness that might testify based on responses from other panel members. The district court then

asked both counsel if they had any additional follow up questions; defendant’s counsel replied

she did not.

       In denying defendant’s motion, the district court found that based on the circumstances

surrounding the prospective juror’s statement and the follow-up questions, the panel was not

unduly prejudiced. We agree. In Knipp, supra, we held that the district court properly denied a

motion for mistrial after a prospective juror expressed a general opinion as to a witness’s

credibility. The prospective juror stated “I have known [the witness] all my life. I believe

everything he tells me. He always tells me when his corn is ready.” Id. at 845. The prospective

juror was then excused for cause and the district court gave a curative instruction to the jury. As

in Knipp, the prospective juror’s comment was a general opinion as to a witness’s credibility and

the district court asked follow-up questions in order to ensure the panel had not been adversely

affected by the comment. No juror expressed reluctance as to whether they could be fair and

impartial. Additionally, the witnesses’s testimony was not pivotal to the case. He testified that

he had never seen defendant with a gun and that Lila Howard had a reputation for untruthfulness

but had never lied to him. Overall, the district court did not abuse its discretion in denying the

motion for mistrial.

                              2. Motion for Judgment of Acquittal

       Defendant argues that the district court erred in denying his motion for judgment of

acquittal. We review the decision de novo. United States v. Keeton, 101 F.3d 48, 52 (6th Cir.


                                                 14
1996). “In reviewing the denial of a motion for acquittal, ‘the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” United States

v. Landham, 251 F.3d 1072, 1083 (6th Cir. 2001)(quoting Jackson v. Virginia, 443 U.S. 307, 319

(1979)).

         18 U.S.C. § 922(g) provides in pertinent part:

         It shall be unlawful for any person-who has been convicted in any court of, a crime
         punishable by imprisonment for a term exceeding one year; ... to ship or transport in
         interstate or foreign commerce, or possess in or affecting commerce, any firearm or
         ammunition; or to receive any firearm or ammunition which has been shipped or
         transported in interstate or foreign commerce.

18 U.S.C. § 922(g)(1). The essential elements of the crime of being a felon in possession of a

firearm or ammunition are: (1) that the defendant had a previous felony conviction, (2) that the

defendant possessed a firearm or ammunition, and (3) that the firearm or ammunition traveled in

or affected interstate commerce. See United States v. Walker, 160 F.3d 1078, 1087 (6th Cir.

1998).

         Here, defendant admitted that the firearm and ammunition traveled in interstate

commerce and that he had previously been convicted of a felony. Contrary to defendant’s

argument, the fact that the firearms and ammunition were found in his home was not the only

evidence of possession. The government also presented testimony from Lila Howard that she

and defendant fired the rifle on September 5, 2001. Although defendant argues that Lila Howard

was not credible, it is not for us to assess credibility. Viewing the evidence in the light most

favorable to the government, it was sufficient to establish possession.

                               C. Sentencing and Appellate Issues


                                                 15
                                   1. Armed Career Criminal

       Defendant argues that the district court erred in sentencing him as an armed career

criminal because his three Kentucky state convictions for escape were not of a violent nature,

were too remote in time from the instant offense, and were not separate in time from each other.

We review this issue de novo. United States v. Maness, 23 F.3d 1006, 1008 (6th Cir. 1994).

       The Armed Career Criminal Act (ACCA) provides, in pertinent part:

       In the case of a person who violates section 922(g) of this title and has three previous
       convictions by any court referred to in section 922(g)(1) of this title for a violent felony or
       a serious drug offense, or both, committed on occasions different from one another, such
       person shall be fined under this title and imprisoned not less than fifteen years, and,
       notwithstanding any other provision of law, the court shall not suspend the sentence of, or
       grant a probationary sentence to, such person with respect to the conviction under section
       922(g).

18 U.S.C. § 924(e)(1). The term “violent felony” is statutorily defined as any crime that “has as

an element the use, attempted use, or threatened use of physical force against the person of

another” or “is burglary, arson, or extortion, involves the 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). To determine whether an offense is a violent felony, a district court should use a

“categorical approach” and look to the statutory definition. United States v. Hargrove, 416 F.3d

486, 494 (6th Cir. 2005).

       As an initial matter, defendant argues that the government did not provide proper notice

of its intent to seek the ACCA enhancement. We disagree. First, the ACCA does not require

notice. United States v. Mauldin, 109 F.3d 1159, 1163 (6th Cir. 1997). Second, defendant

received notice. The indictment’s penalty page provided that defendant was facing the enhanced




                                                 16
penalty and the government filed a notice before trial listing defendant’s convictions and

explaining that he was subject to the enhancement.

       Here, the district court found that defendant had five qualifying convictions: two

convictions for first-degree escape in 1981, a robbery conviction in 1981, a second-degree escape

conviction in 1987, and an attempted murder conviction in 1987. Defendant argues only that the

prior escape convictions are not violent felonies. In Kentucky, “[a] person is guilty of escape in

the first degree when he escapes from custody or a detention facility by the use or force or threat

of force against another person.” Ky. Rev. Stat. Ann. § 520.020. Second-degree escape occurs

when a person “escapes from a detention facility or, being charged with or convicted of a felony,

he escapes from custody.” Ky. Rev. Stat. Ann. § 520.030. Under the categorical approach,

defendant’s first-degree escape convictions constitute violent felonies because the offense

contains the element of use or threatened use of force. Additionally, all of defendant’s escape

convictions constitute violent felonies because escape carries a serious risk of potential physical

injury if law enforcement or others attempted to interfere with an escape or retake an escapee.

See United States v. Houston, 187 F.3d 593, 594-95 (6th Cir. 1999); United States v. Harris, 165

F.3d 1062, 1068 (6th Cir. 1999).

       The argument that the escape convictions were “stale” and “unrelated” and therefore

cannot be used to apply the enhancement lacks merit. The ACCA does not exclude convictions

based on remoteness in time. See United States v. Wright, 48 F.3d 254, 255-56 (7th Cir. 1995);

see also U.S.S.G. § 4B1.4, comment n.1 (stating that guideline time periods for counting prior

sentences are not applicable to the ACCA).




                                                 17
        As to relatedness, the ACCA requires only three previous convictions that were

“committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). Convictions that

are part of a series of criminal episodes are counted separately under the ACCA if each episode is

“a punctuated occurrence with a limited duration.” United States v. Thomas, 211 F.3d 316, 319

(6th Cir. 2000) (quoting United States v. Hughes, 924 F.2d 1354, 1361 (6th Cir. 1991)). Here,

the first escape was on June 21, 1981 and ended upon a capture on June 26, 1981. The next

escape was on July 12, 1981, and ended upon an arrest on August 3, 1981. The last escape was

on November 1987, and ended upon a capture on December 9, 1987. The escapes were distinct

in time and each was a separate occurrence. The fact that defendant was convicted of the two

1981 escapes in the same proceedings is irrelevant.

        Overall, the district court did not err in sentencing defendant as an armed career criminal.

                                               2. Booker

        Defendant argues that his sentence as an armed career offender was improper in light of

United States v. Booker, 125 S. Ct. 738, 755-56 (2005). He argues that the district court erred in

sentencing him under a mandatory guideline scheme. Because this claim was not raised below,

we review for plain error. United States v. Oliver, 397 F.3d 369, 377-78 (6th Cir. 2005). Under

the plain-error test, we may vacate the sentence if there was an “(1) error, (2) that is plain, and (3)

that affects substantial rights. If all three conditions are met, an appellate court may then exercise

its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461,

466-67 (1997).




                                                   18
       In Booker, the United States Supreme Court held that the Sixth Amendment requires that

the U.S. Sentencing Guidelines be treated as advisory, not mandatory. Under Booker, we subject

sentences to reasonableness review, United States v. Williams, 432 F.3d 621, 622 (6th Cir. 2005),

which has substantive and procedural components, United States v. Jones, 445 F.3d 865, 869

(6th Cir. 2006) (citation omitted). The district court must (1) acknowledge the applicable

Guideline range; (2) discuss the reasonableness of a variation from that range; (3) consider the

advisory provisions of the Guidelines; and (4) consider the other factors set forth in 18 U.S.C. §

3553(a). Williams, 432 F.3d at 622-23; see United States v. Coffee, 434 F.3d 887, 898 (6th Cir.)

(“ ‘District courts AAA must AAA calculate the Guideline range as they would have done prior to

Booker, but then sentence defendants by taking into account all of the relevant factors of 18

U.S.C. § 3553, as well as the Guidelines range.’”) (quoting United States v. Stone, 432 F.3d 651,

654-55 (6th Cir.2005)), cert. denied,-U.S.-, 126 S.Ct. 2313 (2006).

       Here, although defendant contends otherwise, no Sixth Amendment violation occurred.

Defendant’s guidelines range of 253-293 months was based solely on the fact of his prior

convictions. Whether defendant has prior convictions and whether the convictions qualified as

predicate offenses under the ACCA were not questions that needed to be submitted to the jury

under Booker. See United States v. Barnett, 398 F.3d 516, 524-25 (6th Cir. 2005).

       However, this does not mean that no plain error occurred. We have held that a

defendant’s sentence violates Booker if the district court treated the guidelines as mandatory even

though, as here, there is no Sixth Amendment violation. In Barnett, supra, we held that in such a

circumstance prejudice is presumed but the government may rebut the presumption when “the

trial record contain clear and specific evidence that the district court would not have, in any


                                                 19
event, sentenced the defendant to a lower sentence under an advisory Guidelines regime.”

Barnett, 398 F.3d at 529.

       Although the government contends that the record does contain such evidence, we

disagree. The district court gave some indication why it was sentencing defendant to the top of

the guidelines range, including that he did not “have sympathy for defendant,” that defendant was

“a life-long criminal,” and “a violent criminal,” but the district court gave no indication what it

would do if not constrained by the guidelines. In other words, we do not find “clear and specific

evidence” as to the district court’s sentence under an advisory Guidelines regime. The fact that

the district court sentenced defendant at the top of the guidelines does not rebut the presumption

that the plain error arguably caused defendant to receive a more severe sentence than he might

have received otherwise. See United States v. Simons, 150 Fed. Appx, 428, 439 (6th Cir. 2005)

(vacated under Booker despite sentence at top of the range); United States v. Meeker, 411 F.3d

736, 746 (6th Cir. 2005) (vacated under Booker despite upward departure from the guidelines).

As such, the case muse be remanded for resentencing.

                                          3. Transcripts

       Defendant argues that his due process rights were violated because he had to wait thirteen

months before receiving his trial and sentencing transcripts. We review questions of law de novo

and questions of fact under the clearly erroneous standard. See United States v. Smith, 94 F.3d

204, 208 (6th Cir. 1996). In determining whether an appellate delay violates a defendant's due

process right to a speedy trial, we apply the test set forth in Barker v. Wingo, 407 U.S. 514 (1972)

which requires consideration of (1) the length of the delay, (2) the reason for the delay, (3) the




                                                 20
party’s assertion of his rights, and (4) prejudice to the party suffering the delay. Smith, 94 F.3d at

208-13.

       When balanced, the factors to not weigh in defendant’s favor. First, the length of the

delay is significantly less than two years, a time period some courts have assumed or held to

violate due process in the case of an appellate delay. Id. The thirteen month delay is similar in

length to delays that have not been found to violate due process. See United States v. Pratt, 645

F.2d 89, 91 (1st Cir. 1981) (holding that nine month delay in receiving transcripts did not rise to

the level of a due process violation).

       The second and third factors do, however, weigh in defendant’s favor. The reason for the

delay in this case was a delay in the preparation of the trial transcripts by the court reporter, with

whom it was apparently difficult to communicate. The government concedes that while it could

not have done anything to expedite production of the transcripts, responsibility rests with it rather

than defendant. Defendant also asserted his right to a speedy appeal by requesting the transcripts

soon after filing an appeal, by attempting to follow up on the request, and by moving this Court

to compel production.

       Significantly, the final factor, prejudice, does not weigh in defendant’s favor. While

defendant may have suffered “anxiety” over the delay, he has not alleged that the delay impaired

his ability to present any issues on appeal. Defendant has presented numerous issues on appeal,

all of which have been fully reviewed.

                                         III. CONCLUSION

       For the reasons stated above, defendant’s conviction is AFFIRMED and the case is

REMANDED for resentencing.


                                                  21
22
