* After examining the briefs and appellate record, th is panel has

determined unanimously to honor the parties’ reques t for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. PUBLISH
UNITED STATES COURT OF APPEALS Filed 8/19/96 TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MARLIN A. SIMPSON, Defendant-Appellant. No. 95-3048

Appeal from the United States District Court

for the D. Kan. (D.C. No. 94-10008-01)

Submitted on the Briefs: * Randall K. Rathbun, United States Attorney, David M . Lind, Assistant United States Attorney, Office of the United States Attorn ey, Wichita, Kansas, for Plaintiff-Appellee. Michael Gordon Katz, Federal Public Defender, James P. Moran, Assistant Federal Public Defender, Office of the Federal Publ ic Defender, Denver, Colorado, for Defendant-Appellant.

Before BALDOCK, BRORBY and EBEL , Circuit Judges.- 2 -

EBEL , Circuit Judge.

After the jury was unable to reach a verdict in his first trial, Marlin Simpson was convicted on retrial of possession withintent to distribute crack cocaine and of using or carrying a firearm during a nd in relation to a drug trafficking offense. Simpson appeals, claiming: (1 ) because there was no manifest necessity for the first mistrial, his retr ial was barred by the Double Jeopardy Clause; and (2) the evidence was insuffici ent to support his conviction on either count. Simpson also challenges the use o f a prior battery conviction in his sentencing calculation on the ground that the g overnment failed to provide sufficient evidence of the validity of that convict ion.
I. Officers of the Wichita Police Department, acting o n information from a confidential informant, obtained a search warrant f or a residence located at 2350 North Erie in Wichita. The residence was listed in the city directory as belonging to Marlin Simpson and his grandmother, Hazel Simpso n. Prior to executing the warrant, officers surveyed t he residence and observed various people arrive, stay inside for one to five minutes, and then leave. Officers then observed Simpson exit the residence and climb into the passenger side of a Chevy Nova. The stream of visitors at th e residence ceased when- 3 -

Simpson left. As Simpson left the residence, he wa s carrying a handgun, which he appeared to place under the passenger side frontseat. When officers stopped Simpson a short distance away, he was riding in a s econd Chevy Nova being towed by the first Chevy Nova that he had been obse rved entering. A loaded Glock 9mm handgun was under the front seat of the v ehicle in which Simpson was riding, and he had a pager on his person. No d rugs were found in the car or on Simpson’s person. When the warrant was executed at 2350 North Erie, adetective searched the room that Simpson’s grandmother identified as S impson’s bedroom. The detective found: crack cocaine, including eight on e-ounce bags of crack in a Redskins jacket in the closet; scales, baking soda, which is often used to cook cocaine into crack, and other drug paraphernalia; $ 480 in cash; and ammunition. The detective also discovered photographs of Simpso n and Simpson’s girlfriend, and mail addressed to Simpson at that address. Af ter searching the house, police searched five people they found inside. Simpson’s uncle, Ronald Simpson, was found with approximately 26 grams of crack cocaine on his person. Simpson was charged in a superseding indictment with conspiring with Ronald Simpson to distribute crack cocaine in violation of 21 U.S.C. § 846, possessing with intent to distribute crack cocaine in violation of 21 U.S.C. § 841(a)(1), and using or carrying a firearm during and in relation to a drug- 4 -

trafficking offense in violation of 18 U.S.C. § 924 (c)(1). The conspiracy charge subsequently was dismissed. Simpson’s first trial ended in a mistrial after the judge determined that the jury could not reach a ve rdict. At Simpson’s second trial, the defense offered evidence that for six mo nths preceding the execution of the search warrant Simpson had not been living at t he North Erie address but had been living elsewhere with a cousin. Simpson claim ed he had used the North Erie address only as a mailing address. The jury convic ted Simpson of both counts, and Simpson appeals.

II. Simpson first claims that his retrial subjected himto double jeopardy. When a mistrial is declared without the defendant’s consent, the Double Jeopardy Clause of the Fifth Amendment bars the retrial of t he defendant unless there was “manifest necessity” for the mistrial. Arizona v. Washington , 434 U.S. 497, 505 (1978). A finding of manifest necessity is within the sound discretion of the trial court. United States v. Crotwell , 896 F.2d 437, 440 (10th Cir. 1990). The events leading up to Simpson’s mistrial were as follows: Simpson’s trial began on the morning of September 13, 1994, a nd the case was submitted to the jury at 11:30 a.m. on September 14. Between 4: 45 and 5:00 p.m on- 5 -

September 14, the jury sent two questions to the tr ial judge, who responded in open court. The following portions of his respons e are relevant:

I will take your second question first: “Can we have a verdict on one count and not on the second?” Yes, you can have a verdict, as the instructions told you. . . . The second question where you said, “We are hung up . What do we do from this point?”. . . I think I’ll excuse you for the evening and ask you to come back and continue your deliberations[,] . . . and then if yo u cannot arrive at a verdict on all of the counts or on one of the counts--I tak e it your question was on one count and not on two counts. I don’t know what , but you can come in with a verdict on the one count of the indictment. I commend you to look at Instruction 26 [the elements of the 924(c) charg e] in connection with your coming in with a verdict. Remember that in or der to sustain his [sic] burden of proof for a charge of using or carrying afirearm during and in relation to a drug trafficking crime as charged in Count 2 in the indictment, the government must prove the following two essenti al elements beyond a reasonable doubt: First, that . . . the defendant committed or aided and abetted in the commission of a drug trafficking cri me charged in Count 1 of the indictment. So, in order to-- in coming in wit h a verdict, you could not come in with a verdict on Count 2 alone. Your verd ict would have to be on Count 1, and then if you think that the use of the weapon was in connection with that, then you can find a verdict on Count 2. (emphasis added). Before excusing the jury, the ju dge asked counsel if they had any objections to his remarks, and both counsel rep lied that they did not. The jury resumed deliberations at 9:00 a.m. the next morning. At 10:35, in response to further communication from the foreman indicating that the jury still was having difficulty reaching a verdict, the judge summoned the jury into the courtroom. After some discussion, the judge asked the foreman: “[Do] you think there is any reasonable belief that by further cons ideration of the evidence by the- 6 -

jury you can reach a verdict, or are you hopelessly deadlocked?” The foreman responded, “Hopelessly deadlocked, Your Honor.” Th e court declared a mistrial. There was no objection by the defendant at any time during the exchange, including after the jury was discharged and the jud ge set the case for retrial. “It has been established for 160 years . . . that a failure of the jury to agree on a verdict was an instance of ‘manifest necessity ’ which permitted a trial judge to terminate the first trial and retry the defendan t.” Richardson v. United States , 468 U.S. 317, 323-24 (1984). Indeed, such a situation has been “long considered the classic basis for a proper mistrial,” removing any double jeopardy bar to retrial. Arizona v. Washington , 434 U.S. at 509. Simpson argues, however, that the trial judge did not take adequate steps to asce rtain that the jury was in fact deadlocked. He notes that the jury had been delibe rating for only six to seven hours, that the court failed explicitly to consideralternatives to a mistrial, and that the court did not provide the parties with a h earing on the necessity of a mistrial. We accord the “highest degree of respect” to a tria l judge’s finding of manifest necessity based on a hung jury. Crotwell , 896 F.2d at 440 (quoting Arizona v. Washington , 434 U.S. at 510-11). A trial judge is not requir ed to make an explicit finding of manifest necessity so l ong as adequate justification is apparent from the record. See Arizona v. Washington , 434 U.S. at 516-17. We1 Although Simpson is correct that a § 924(c) conviction may be sustai ned

even in the absence of a conviction on the underlyi ng drug count, it is clear that “proof of the underlying crime is an essential element of a substantive § 924(c) violation.” Hill , 971 F.2d at 1467 (emphasis added). The only “err or” that could have been committed by the trial judge , therefore, was in representing to the jury that it could not bring an irrational and inconsist ent verdict, when in fact such (continued...) - 7 - find such justification apparent here. Simpson’s trial lasted only a day and a half. When the mistrial was declared, the jury had been d eliberating nearly that long, and had repeatedly indicated to the court that it w as unable to reach a verdict. The trial judge asked the foreman whether further d eliberations would be helpful, and the foreman replied that the jury was “hopeless ly deadlocked.” Under these circumstances, the trial judge did not abuse his di scretion in declaring a mistrial. Simpson further argues that even if the jury was de adlocked, the impasse was caused by the trial judge’s error, and mistrial therefore was improper. Simpson alleges that the judge’s statement to the j ury that it could not convict on the firearm count unless it convicted on the drug c ount was inconsistent with our language in United States v. Hill , 971 F.2d 1461, 1464 (10th Cir. 1992), where we said that “[w]hile proof of the underlying crime is necessary to convict under § 924(c), a defendant need not be convicted of the un derlying crime in order to be convicted of § 924(c).” We question Simpson’s premise that the jury deadloc k was caused by trial judge error. 1 Even if we were to accept that premise, however, we would find no1 (...continued)

verdicts have been upheld. See id. at 1468-69; United States v. Powell , 469 U.S. 57, 62-69 (1984) (upholding jury verdict acquitting defendant of drug conspiracy and possession with intent to distribute but convic ting defendant of using the telephone to facilitate these same offenses). We d ecline to consider whether this instruction was error, although we note that Simpso n’s failure to object to the judge’s remarks would, in any event, limit our revi ew to plain error only. See United States v. Meuli , 8 F.3d 1481, 1487 (10th Cir. 1993), cert. denied , 114 S. Ct. 1403 (1994). - 8 - merit to Simpson’s argument. “[T]he double jeopardy clause does not require ‘manifest necessity’ for the events that triggered the mistrial; manifest necessity for the mistrial itself will ordinarily permit a se cond trial.” United States v. Buljubasic , 808 F.2d 1260, 1265 (7th Cir.) (rejecting defenda nt’s claim that because manifest necessity for mistrial flowed fromerroneous denial of severance motions, retrial was barred), cert. denied , 484 U.S. 815 (1987). “A rule barring retrial any time a court commits . . . error would be unacceptable in light of society’s interest in giving the prosecutor one ful l and fair opportunity to present his evidence to an impartial jury.” United States v. Goland , 897 F.2d 405, 410 (9th Cir. 1990) (quotation omitted). Simpson has a lleged no bad faith conduct by the trial judge, but rather only that an innocent e rror, to which no objection was lodged, contributed to the evident manifest necessi ty for mistrial. That is an insufficient basis to challenge the exercise of the trial judge’s discretion in finding the jury deadlocked. Therefore, Simpson’s double jeopardy claim must fail. See Richardson , 468 U.S. at 324-26 (“[W]e have constantly adhered to the2 Simpson was indicted for “using and carrying” a f irearm. However, 18 U.S.C. § 924(c)(1) defines the crime in the disjunc tive, as did the instruction to the jury. “[A] crime denounced in the statute disj unctively may be alleged in an indictment in the conjunctive, and thereafter prove n in the disjunctive.” United States v. Parrish , 925 F.2d 1293, 1297 (10th Cir. 1991) (internal qu otation marks omitted). - 9 - rule that a retrial following a ‘hung jury’ does no t violate the Double Jeopardy Clause”; a jury’s failure to reach a verdict does n ot terminate jeopardy).
II. Simpson next challenges the sufficiency of the evid ence underlying both his convictions. “In reviewing the sufficiency of evid ence to sustain a jury’s guilty verdict, we examine the evidence in the light most favorable to the government in order to determine whether the evidence . . . toget her with all reasonable inferences to be drawn therefrom, is substantial en ough to establish guilt beyond a reasonable doubt.” United States v. Johnson , 42 F.3d 1312, 1319 (10th Cir. 1994) (quotation omitted), cert. denied , 115 S. Ct. 1439 (1995). “We reverse only if no rational trier of fact could have found the essenti al elements of the crime beyond a reasonable doubt.” United States v. Wacker , 72 F.3d 1453, 1462-63 (10th Cir. 1995), petition for cert. filed , No. 95-9284 (U.S. June 10, 1996).
A. We turn first to the firearm count. Simpson was ch arged with “using and carrying” a firearm in violation of 18 U.S.C. § 924 (c). 2 At trial, evidence was- 10 -

presented that Simpson carried a handgun from the r esidence where the crack cocaine was found, and placed something under the p assenger side of a vehicle. When Simpson was arrested in the second vehicle, a 9 mm handgun was under the front seat of that car, and the jury could have fou nd that this gun was in Simpson’s presence during the earlier drug transact ions in his home. In addition, some of the ammunition found in the bedroom contain ing the crack cocaine was 9 mm ammunition. The jury was instructed as follows:

The phrase “uses or carries a firearm,” for purpose s of this case, means having a firearm available to assist oraid in the commission of the crime alleged in Count 1 of the i ndictment. In determining whether the defendant used or carrie d a firearm, you may consider all of the factors receiv ed in evidence. . . including the nature of the underlying crime of dru g trafficking alleged, the proximity of the defendant to the fire arm in question, the usefulness of the firearm to the crime alleged, and the circumstances surrounding the presence of the firearm. A defendant “uses” a firearm when it (1) is readilyaccessible, (2) is an integral part of the criminal undertaking , and (3) increases the likelihood of success for that undertaking. Th e government is not required to show that a defendant actually displaye d or fired the weapon to prove “use.” However, you must be convin ced beyond a reasonable doubt that the firearm played a role in or facilitated the commission of the drug offense charged. (R.O.A., Vol. I, doc. 61, instruct. # 27)
The parties do not dispute that this instruction wa s correct at the time of Simpson’s trial. While this appeal was pending, ho wever, the Supreme Court narrowed the broad definition of “use” that this ci rcuit had previously applied and held that “[t]o sustain a conviction under the ‘use ’ prong of § 924(c)(1), the3 Simpson filed a supplemental authority invoking B ailey , which was

decided after his reply brief was filed, as supportfor his sufficiency claim. - 11 - Government must show that the defendant actively employed the firearm during and in relation to the predicate crime.” Bailey v. United States , 116 S. Ct. 501, 509 (1995). Although Simpson has styled his chall enge to the § 924(c) conviction as an objection to the sufficiency of th e evidence, we believe the Supreme Court’s decision in Baileyrequires us to consider whether his conviction can be sustained despite the erroneous instruction of the district court. See United States v. Ramirez-Ferrer , 82 F.3d 1149, 1151 (1st Cir. 1996). 3 If we cannot be certain that the jury necessarily based i ts verdict on conduct that, after Bailey , is still considered criminal, we cannot affirm. See United States v.
Moore , 76 F.3d 111, 113 (6th Cir. 1996); see also United States v. Smith , 82 F.3d 1564, 1567 (10th Cir. 1996) (§ 924(c) conviction cannot stand where “we have no assurance that the jury did not convict on the lega lly insufficient evidence and erroneous instruction regarding use of the firearm. ”). We are guided in part by Baileyitself. There, the defendants, who were charged with both “using” and “carrying” a firearm, challenged the sufficiency of the evidence supporting their convictions. Id. at 504. After articulating a new standard for “use,” the Supreme Court evaluated the evidence against the defendants under the appropriate definition. Holdi ng that the evidence was- 12 -

insufficient to support a conviction for “use,” the Court remanded for the court of appeals to consider whether the convictions could b e supported under the “carrying” prong. Applying Bailey , we have held that outright reversal is required only where there is no evidence that could support a defendant’s conviction under the proper legal standard. If the re is some evidence based on which a jury could have convicted, remand for a new trial is the appropriate remedy. Wacker , 72 F.3d at 1464-65. Our inquiry is thus twofold: whether the jury was instructed under the proper legal standard and, if not, whether there is some evidence that would have supported a conviction under a proper instruction. We turn first to the proper standard. As Simpson was charged with both using and carrying a firearm, we must consider the jury instruction under both prong s. If the instruction as to one prong was legally erroneous, but the jury was corre ctly instructed on the other prong, we may affirm Simpson’s conviction if we can“determine with absolute certainty that the jury based its verdict on the gr ound on which it was correctly instructed.” United States v. Miller , 84 F.3d 1244, 1257 (10th Cir. 1996). Here, however, the jury was not correctly instructed as t o either “use” or “carry.” To support a finding that a defendant used a firea rm for purposes of § 924(c), the government must prove that the defendan t “actively employed” the gun. Bailey , 116 U.S. at 509. To support a finding that a def endant carried a- 13 -

firearm, both before and after Bailey , the government must prove “that the defendant transported a firearm in a vehicle and th at he had actual or constructive possession of the firearm while doing so,” Miller , 84 F.3d at 1259, and must also prove that the defendant possessed and transported the firearm during and in relation to a drug trafficking offense. United States v. Richardson , 86 F.3d 1537, 1548 (10th Cir. 1996). The court here erroneously instructed the jury as to the legal standard for “use.” It also defined the phra se “uses or carries” as “having a firearm available to assist or aid in the commissio n of the crime,” which is incorrect after Bailey . It did not separately define “carry,” and under the instruction as given the jury could have erroneousl y decided that the terms “use” and “carry” were redundant. Because the jury was n ot instructed that it must find possession and transportation of a firearm during and in relation to a drug trafficking crime, we cannot affirm Simpson’s § 924 (c) conviction. We turn next to whether there was evidence that cou ld have supported Simpson’s conviction under a proper jury instructio n. We conclude there is no evidence that Simpson actively employed the firearm . Although the jury could have concluded that Simpson had the gun in his poss ession while conducting drug transactions, the government offered no evidence th at Simpson brandished, displayed, bartered, struck with, fired, disclosed, mentioned, or in any other way actively employed the firearm. See Bailey , 116 S. Ct. at 508. Therefore, the- 14 -

evidence was legally insufficient to support a find ing that Simpson used a firearm. However, we believe there was evidence fr om which a jury could have concluded that Simpson carried the firearm that was found under the front seat of the car in which he was riding, and that such carry ing was during and in relation to a drug trafficking offense. He clearly transported the firearm, and it was accessible to him in such a way that he had dominio n and control over it. There is also evidence based upon which a jury could conc lude that Simpson carried the weapon during and in relation to drug trafficking. Officers observed apparent drug trafficking involving Simpson immediately prio r to the moment Simpson was seen exiting the house with what the jury could hav e concluded was the firearm charged. Because there was some evidence of carryi ng, as that term is properly defined, we remand for a new trial on the issue of whether Simpson carried the firearm for purposes of § 924(c). See United States v. Spring , 80 F.3d 1450, 1466 (10th Cir. 1996), petition for cert. filed , No. 95-9420 (U.S. June 25, 1996); United States v. Smith , 82 F.3d 1564, 1567 (10th Cir. 1996).
B. To support a conviction for possession with intent to distribute crack cocaine, the government must prove that Simpson kno wingly possessed the substance with intent to distribute. Possession ne ed not be actual, but may be constructive. U.S. v. Culpepper , 834 F.2d 879, 881-82 (10th Cir. 1987). “In- 15 -

order for an individual constructively to possess p roperty, he must knowingly hold the power and ability to exercise dominion and cont rol over it . . . . With regard to narcotics, we have defined constructive possessi on as an appreciable ability to guide the destiny of a drug.” United States v. Vern ers , 53 F.3d 291, 294 (10th Cir. 1995) (quotation omitted). Simpson claims the evidence was insufficient to sup port the conclusion that he had constructive possession of the drugs found i n the bedroom at 2350 N. Erie. We disagree. Among the evidence linking Simpson to the bedroom were photographs of Simpson, and documents addressed to Simpson at 2350 North Erie, found in the room. The detective who searche d the room testified that a baseball cap in the room matched a cap worn by Simp son in one of the pictures. Additionally, Simpson’s grandmother told the police that the room in which the crack cocaine was found was Simpson’s bedroom. Simpson himself, upon his arrest, gave his address to police as 2350 North Er ie, and signed his bond papers with that address. A rational jury reasonably cou ld infer that Simpson currently occupied that bedroom. Even if the jury concluded that Simpson was not currently living at the residence, it reasonably co uld conclude that Simpson continued to exercise dominion and control over the bedroom, and therefore was in constructive possession of the cocaine found the rein. See, e.g. , Verners , 53 F.3d at 293-94 (evidence of constructive possessionsufficient where drugs found- 16 -

in defendant’s mother’s house, in defendant’s old b edroom and in kitchen; defendant had used the house as his residence at on e time, still visited the house regularly, still gave the residence as his address, still stored possessions there, but apparently did not sleep in the bedroom).
IV. Finally, Simpson challenges the district court’s u se of a prior conviction to enhance his sentence. The district court’s factual findings at sentencing are reviewed for clear error, while its interpretation of the Sentencing Guidelines is a question of law reviewed de novo. United States v. Bridges , 50 F.3d 789, 790-91 (10th Cir. 1994). The probation officer who prepared Simpson’s presentence report listed a conviction for battery dated April 25, 1994 in the Municipal Court of Wichita, Kansas. The probation officer assessed one point t o Simpson’s criminal history for this conviction, see U.S.S.G. § 4A1.1(c), thus raising Simpson’s crimin al history category from I to II, and the applicable g uideline range from 151-188 months to 168-210 months. Simpson objected that th e battery conviction was the result of a guilty plea that his attorney had enter ed on his behalf without his permission. He asserted that he had never been sent enced and the case was not final because he intended to appeal the Municipal C ourt conviction. This appeal,- 17 -

he asserted, would result in a “trial de novo,” and therefore there was as yet no conviction. The probation officer responded by obtaining a cert ified docket sheet from the Municipal Court in Wichita. The docket sheet i ndicates that the defendant pled nolo contendere to battery and was found guilty by the court on April 25, 1994. The district court concluded that neither Si mpson’s stated intention to appeal the conviction nor the fact that Simpson had not yet been sentenced precluded the conviction from being counted. See U.S.S.G. §§ 4A1.2(a)(4) (“Where a defendant has been convicted of an offens e, but not yet sentenced, such conviction shall be counted . . .”); 4A1.2(l) (“Pri or sentences under appeal are counted except as expressly provided below.”). The court further concluded it could not entertain a collateral attack on the vali dity of the conviction, and overruled Simpson’s objections without conducting an evidentiary hearing. On appeal, Simpson asserts that he is not challe nging the constitutionality of the conviction or whether the conviction was cou ntable under the Guidelines, but rather whether the district court “had sufficie nt evidence to conclude that the conviction was genuine.” Br. of Appellant at 28. The government must establish the fact of a prior conviction by a preponderance o f the evidence. United States v. Ortiz , 63 F.3d 952, 955 (10th Cir. 1995). Simpson argu es that a docket sheet alone is insufficient to meet this burden- 18 -

We believe that a certified docket sheet is adequat e, absent some contradictory evidence by the defendant, to establi sh the existence of a prior conviction for this sentencing purpose. See, e.g. , United States v. Dickens , 879 F.2d 410 (8th Cir. 1989) (affirming, over defendant ’s challenge to validity, consideration of prior conviction of which only rec ord was state court docket sheet). In any event, Simpson conceded the fact of his conviction below. In his written objections to the presentence report, Simps on stated that his attorney’s staff had informed him that he did not need to appe ar at the trial on the domestic violence charge, and when he did not do so, the att orney “without the defendant’s permission, entered his plea.” At the sentencing h earing, Simpson repeated that the attorney, “without the defendant’s permission, either went to trial or entered some kind of plea against the defendant.” Having d escribed to the district court how the conviction was obtained, Simpson may not no w challenge its existence. Cf. United States v. Lopez-Gutierrez , 83 F.3d 1235, 1246-47 (10th Cir. 1996) (defense counsel’s concession as to validity of pri or offense rendered harmless district court’s failure to inform defendant of his opportunity to challenge that conviction in the context of 21 U.S.C. § 851(b)). Simpson also argues that the conviction is not “gen uine” because his counsel entered a plea without his consent. We have held that “with the exception of a collateral attack based on the complete denial of counsel, a district court- 19 -

sentencing a defendant under the career offender pr ovisions of the Guidelines cannot consider a collateral attack on a prior conv iction.” United States v. Garcia , 42 F.3d 573, 581 (10th Cir. 1994); see also U.S.S.G. § 4A1.2, comment., application note 6 (“With respect to the current se ntencing proceeding, this guideline and commentary do not confer upon the def endant any right to attack collaterally a prior conviction or sentence beyond any such rights otherwise recognized in law. . . .”). We see no distinction, for these purposes, between the career offender provisions contained in Guideline 4 B1.1 which were applied in Garcia , and the criminal history calculations provided by Guideline 4A1.1 used to calculate Simpson’s sentence. The district court c orrectly concluded that it was precluded from considering Simpson’s collateral att ack on the prior conviction, and we affirm the determination of sentence.
V. Simpson’s conviction for violating 18 U.S.C. § 924( c)(1) is REVERSED and REMANDED for further proceedings. All other as pects of the district court’s judgment are AFFIRMED.