This order and judgment is not binding precedent, except under the *

doctrines o f law of the c ase , res jud icata, and co llateral estop pel. The court

generally disfavors the citation of orders and judgments; nevertheless, an

order and judgment may be cited under the terms and conditions of 10T H

CIR. R . 36.3

After examining the briefs and appellate record, this panel has **

determined unanimously that oral argument would not materially assist the

determination of this appeal. See FE D. R . APP. P. 34(a )(2); 10th Cir. R.

34.1(G). The c a se is the re fore orde red su bmitted without ora l argument.

F I LED

United States Court of Appeals

Tenth Circuit

November 2, 2006

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT O F APPEALS

TEN TH C I RC U I T

UNITED STA TES OF AM ER IC A,

Plaintiff-Appellee,

v. 

WILLIE EA R L FLOWE RS ,

 De f endant-Appe llant.

No. 05-5149

(N.D. Oklahoma)

(NO. 04-C R-212-TC K)

O R DER AND JUDGM E NT

*

Before HENRY , BR ISC OE, and O ’BRIE N , Circuit Judg es. **

Willie Earl Flowers was convicted after a jury trial of possession of a

fire a rm a fte r a forme r f e lony convic tion, a viola tion of 18 U.S.C. §

922(g)(1). The district court found that M r. Flowers had been convicted of

three prior felonies, applied the Armed Career Criminal Act (ACCA), 18
2

U.S.C. § 924(e), and sentenced him to 264 months’ incarceration, followed

by five ye a rs’ supe rv is ed re le a s e . 

On appe a l, Mr. Flowe rs a rgue s tha t (1) the distric t co urt e rred in

denying his motion to suppress evidence found in his car during his October

15, 2004 detention; (2) the court erred in concluding that his 1991

Oklahoma conviction for escape from a penal institution constituted a

violen t f e lony unde r the ACCA; an d (3) the court violated his Sixth

Amen dmen t rights by fa iling to require the governmen t to prov e to a jury

beyond a reasonable doubt that he had previously been convicted of violent

felonies.

We a re not persu ad ed by M r. Flowers’s argumen ts and there fo re

affirm his conviction and sentence.

I. BAC KG ROUND

On October 15, 2004, Tulsa, Oklahoma police officers received a

report of a domestic d isturbance at the h ome o f Liza Harring, M r. Flowers’s

girlfrien d. When police office rs a rrived a t Ms. Ha rring’s d oor, she told

them that M r. Flowers had come to her house with a handgun and had

pointed it a t he r. 

Shortly after the officers arrived, M r. Flowers came to the door. The 

office rs in struc ted him to sh ow his hands, turn a round ba ckwa rds, and wa lk
3

towa rd them slowly. Mr. Flowe rs complied, an d the office rs p lac ed him in

han dcu ffs and patted h im down. After that inspection revealed n o weapo ns,

the office rs p ut Mr. Flowe rs in a pa trol ca r. They plac ed the conten ts of his

pocke ts, inc luding his c a r keys, on the hood of a pa trol ca r. Office r Kevin

Dorsey asked for M r. Flowers’s identification while other officers continued

to ta lk to M s. Ha rring. 

M s. Harring told the officers that the gun Mr. Flowers had pointed at

he r might be in he r ba ckya rd, but, after the office rs w e re unable to find it

there , she sa id tha t it might be in M r. Flowers’s ca r. Sergeant Robert

Rohloff proceeded to read Mr. Flowers his M iranda rights and asked what

had hap pen ed. M r. Flowers den ied that he h ad b rough t a gu n to Ms.

Harring’s house or that any guns were in his car. Sergeant Rohloff asked

him if he would hav e any objection to the officers se arching the c ar, and M r.

Flowe rs stated tha t he would not.

The officers then discovered that M r. Flowers’ car was locked and

asked him for the keys. M r. Flowers told them he did not know where the

keys were, but Officer Dorsey then remembered that keys had been taken

from M r. Flowers’s pocket and placed on the patrol car. Officer Rohloff

recovered the keys, opened the trunk, and discovered a briefcase containing

two h and guns.

 After a g rand jury indicted him for po ssession of a firearm after a
4

forme r f e lony convic tion, in viola tion of 18 U.S.C. § 922(g )(1), M r. 

Flowers filed a motion to suppress, arguing that the search of the trunk was

the fru it of an unlawful de tention and a rr e st. 

The distric t court conduc ted a he a ring and then denied the motion. 

The court rea soned that the o fficers had rea sonab le suspicion to detain M r.

Flowers when they first arrived at M s. Harring’s house and that they had

probable caus e to arrest him once they learned that he had pointed a gun at

her. M oreover, the court s aid, M r. Flowers had consented to the search of

his c a r. 

The jury convic ted M r. Flowe rs of the § 922(g )(1) fire a rm cha rg e . 

The presentence report concluded that M r. Flowers was an armed career

c rimina l be c ause he had thre e prior convictions for c rime s o f violen c e : firstdegre e robbe ry in 1967, s e cond-degre e burgla ry in 1989, and e sc ape from a

penal institution in 1991. M r. Flowers objected on the grounds that he had a

Sixth Amendment right to a jury trial on the issue of whether he had been

convicted of these offenses. However, he did not object to the presentence

report’s characterization of the offenses as crimes of violence.

The d istrict court overruled the o bjection an d sen tenc ed M r. Flowers

to 264 months’ inc a rc e ra tion, followed by five ye a rs’ supe rv is ed re le a se . 

II. DISC USSIO N
5

M r. Flowers does not dispute the district court’s factual findings

regarding his motion to suppress, and we therefore examine de novo the

que stion of whe the r the office rs v iolated his rights unde r the Fourth

Amen dmen t. United States v . Williams, 271 F.3d 1262, 1266 (10 th Cir.

2001). With regard to the characterization of his prior escape conviction,

we n ote that M r. Flowers did not raise tha t issue in the d istrict court

proceedings, and so our review is for plain error. United States v. Visinaiz,

428 F.3d 1300, 1308 (10th Cir. 2005). We examine de novo the question of

whethe r the Sixth Amen dmen t req uires the g overnmen t to submit to a jury

the fa ct of M r. Flowers’s prior conv iction s.

A . M otio n to Su ppress 

M r. Flowe rs conc ede s tha t “[t]he office rs w e re initia lly justified in

ordering [him] at gunpoint to walk backwards to them, and in handcuffing

[him]” because “[the officers] were investigating a report that a man had a

gun, and the caller had verified to police that [Mr. Flowers] previously had a

gun.” Aplt’s Br. at 10. However, M r. Flowers argues that the detention

be c ame unre a sonable a fte r the offic e rs frisked him and found no we apons. 

At that point, he asserts, he no longer presented a danger, and the continued

us e of handcuffs was unreasonable under the Fourth Amendment. The

search of his car, he concludes, was the fruit of that unlawful detention.
6

“The allowable scope of an investigative detention cannot be

determined by reference to a bright-line rule.” United States v. Neff, 300

F.3d 1217, 1220 (10th Cir. 2002). “[C]ommon sense and ordinary human

experience must govern over rigid criteria.” Id. (internal quotation marks

omitted). Ac cordingly, ev en though the use of handcuffs is not justified in

eve ry inve stiga tive de ten tion, “a Te rry stop doe s n ot be come unre a so nable

just because police officers us e handcuffs on a suspect.” Id. The use of

han dcu ffs during an investigative d etention is reasonable if it is 

“ re a so nably ne c e ss a ry to protec t [the office rs’] pe rso na l sa f e ty and to

maintain the status quo during the course of [the detention].” Id. at 1220-

21(interna l quotation marks omitted).

Applying this stand ard, we con clud e that the o fficers’ continu ed u se

of handcuffs a fter they pa tted down M r. Flowe rs d id not violate the Fourth

Amen dmen t. Even though the o fficers found no weapons in M r. Flowers’s

pockets, M s. Harring’s report that M r. Flowers had been armed indicated

that he might still pose a threat to their safety. See id. (concluding that

office rs d id not ac t unre a so nably by continuing to hold su sp e c ts in

han dcu ffs while they sea rched a c ar for weapons). Accordingly, the o fficers

we re authoriz ed to ke ep M r. Flowe rs in handcuffs while they continued to

se a rch for w e apons. 

M oreover, as the district court noted, once the officers received
7

further information from M s. Harring as to M r. Flowers’s threatening

conduct, they had probable caus e to arrest him. At that point, the continued

application of handcuffs was justified on that ground as well. See United

States v. Patane, 304 F.3d 1013, 1017 (10th Cir. 2002) (“Police are entitled

to base an arrest on a citizen complaint . . . of a victim . . . without

investigating the truthfulness of the complaint, unless . . . they have reason

to be lieve it’s fishy.”) ( c iting Guz e ll v. Hille r, 223 F.3d 518, 519-20 (7th

Cir. 2000) (internal quotation marks omitted), rev’d on other grounds, 542

U.S. 630 (2 004); s e e gene ra lly 2 Wayne R. LaFave , Search and Seizur e §

3.4(a ), a t 224-225 (4th ed. 2004) (noting tha t “ [b]y f a r the preva iling view ”

is that corroboration is not essential in victim-witness cases, and arguing

“that when an average citizen tenders information to the police, the police

sh ould be pe rmitted to a ssume tha t they a re de a ling with a c redible p e rso n in

the absence of special circumstances suggesting that such might not be the

c a se ” ). 

Thus, the search of Mr. Flowers’s car was not the fruit of an unlawful

detention or arrest. Additionally, as the d istrict court noted, M r. Flowers

presented no evidence indicating that his consent to the search was the

produc e of police coe rc ion. Ac cordingly, the distric t co urt corre c tly

conc luded tha t the se a rch comported with the Fourth Amendment.
8

B. Es cape Convi c tio n

We review for plain error M r. Flowers’s contention that his 1991

e sc ape convic tion did not constitu te a violent f e lony unde r the ACCA. 

In orde r to preva il, M r. Flowe rs must demonstra te: “ (1) e rror, (2) tha t is

plain, and (3) that the error affects substantial rights.” Visinaiz, 428 F.3d at

1308. Even if Mr. Flowers makes this showing, we may exercise discretion

to correct the error only if it “seriously affect[s] the fairness, integrity, or

p ub lic rep uta tio n of ju dic ia l pro c e ed in gs.” Un ited Sta te s v. Olan o, 507 U.S .

725, 732 (19 93) (interna l quotation marks omitted).

Here, M r. Flowers concedes that there is no error and that his counsel

has “preserved the claim in order to pursue reversal of this precedent by en

ban c o r Supreme Court review.” Aplt’s Br. at 13. As M r. Flowers

acknowledges, we have adopted a categorical approach to escape

convictions, holding that these convictions constitute crimes of violence

despite the underlying circumstances. See United States v. M oudy, 132 F.3d

618, 620 (10th Cir. 1998) (stating that “[e]very escape s cenario is a powder

keg, which may or may not explode into violence and result in physical

injury to someone at any given time, but which always has the serious

potential to do so” an d that this characterization app lies “to all escapes,

whether or not violence was actually involved”) (citing United States v.

Gosling, 39 F.3d 1140, 1144 (10 th Cir. 1994)).
9

C . Six th A m endm ent C la im

Fina lly, Mr. Flowe rs a rgue s tha t the distric t co urt violated his Sixth

Amendment rights by failing to submit the fact of his prior convictions to a

jury. This argument is also foreclos ed by circuit precedent. See United

States v. M oore, 401 F.3d 1220, 1223, 1226 (10th Cir. 2005) (holding that

“the fact of prior convictions under § 924(e) need not be charged in an

indictment and proven to a jury” and also that “the government need not

charge in an indictment and prove to a jury that a defendant’s prior

co nviction co nstitutes a ‘violent felon y’ un der § 924(e)”).

III. CON CLU SIO N

Accordingly, we AFFIRM M r. Flowers’s conviction and sentence.

Entered fo r the Court

Robert H. Hen ry

Circuit Judge