*

The Honorable Jon Phipps McCalla, Chief United States District Judge for the Western District

of Tennessee, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0164p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

AKEEM STAFFORD,

Defendant-Appellant.

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-

-

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,

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No. 12-3238

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:11-cr-44-1—Dan A. Polster, District Judge.

Argued: January 17, 2013

Decided and Filed: June 11, 2013 

Before: BOGGS and WHITE, Circuit Judges; and McCALLA, District Judge.*

_________________

COUNSEL

ARGUED: Amy B. Cleary, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland,

Ohio, for Appellant. Daniel R. Hurley, UNITED STATES ATTORNEY’S OFFICE,

Ann Arbor, Michigan, for Appellee. ON BRIEF: Amy B. Cleary, FEDERAL PUBLIC

DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant. Daniel R. Hurley, UNITED

STATES ATTORNEY’S OFFICE, Ann Arbor, Michigan, for Appellee.

_________________

OPINION

_________________

JON P. McCALLA, District Judge. Akeem Stafford appeals his conviction and

sentence for one count of violating 18 U.S.C. § 922(g)(1), felon in possession of a

firearm and ammunition. The district court sentenced Stafford to 262 months of

imprisonment (21 years and 10 months) and five years of supervised release, after

1
No. 12-3238 United States v. Stafford Page 2

enhancing his guideline calculation based on (1) Stafford’s armed- career-criminal

status; (2) the fact that the firearm was stolen; (3) Stafford’s possessing a firearm in

relation to a felony offense; and (4) Stafford’s reckless endangerment during flight from

law enforcement.

Stafford argues the conviction was in error because the evidence does not support

the verdict and because the district court improperly admitted gunshot-residue evidence

and related expert testimony. Stafford also argues the sentence was in error because the

district court improperly applied the Armed Career Criminal Act enhancement, relied

on impermissible documents—a state-court Bill of Particulars—to determine that his

previous conviction was a “violent felony” under the Armed Career Criminal Act, and

imposed a procedurally unreasonable sentence. Additionally, Stafford claims the

“residual clause” of the Armed Career Criminal Act is unconstitutionally vague. 

The Government concedes that the district court erred in considering the statecourt Bill of Particulars as part of its determination that Stafford’s previous conviction

for “aggravated riot” was a “violent felony” under the Armed Career Criminal Act.

For the reasons set forth below, Stafford’s conviction is AFFIRMED. The

evidence supports the jury’s verdict and the district court did not err in allowing

gunshot-residue evidence or the related expert testimony. Stafford’s sentence is also

AFFIRMED. The district court properly applied the enhancement under the Armed

Career Criminal Act and the enhancements under the Sentencing Guidelines; the

sentence was procedurally reasonable; and the “residual clause” of the Armed Career

Criminal Act is not void for vagueness.

I. BACKGROUND

At approximately 2:00 a.m. on November 21, 2010, Defendant-Appellant Akeem

Stafford (“Stafford”) was standing outside Uncle Vic’s nightclub on Kerstetter Way in

Elyria, Ohio. As City of Elyria Police Officer Joe Figula (“Figula”) was patrolling the

area around Uncle Vic’s on Broad Street in his car, he heard a gunshot. After stopping

near the intersection of Kerstetter Way and Broad Street, Figula observed a man,
No. 12-3238 United States v. Stafford Page 3

1

In his testimony, Figula erroneously described the building’s exterior power unit as a “large airconditioning power unit.” The Presentence Investigation Report, however, determined that this unit was

a “large green exterior power box.”

wearing jeans and a dark zip-up sweatshirt with white lettering on the back, fire two

more gunshots. One of these rounds was later found to have struck the passenger

window of a bystander’s automobile. The shooter was later identified as Akeem

Stafford. Figula reported the shooting over his police radio, mobilizing the Elyria Police

Department to the area. Stafford looked up the hill at Kerstetter Way and saw Figula’s

police car, and Figula observed Stafford run down an adjacent alley, Tremont Street.

Figula then turned his car around and proceeded to a nearby McDonald’s parking lot

where the alley ended and where he expected Stafford to emerge.

Stafford emerged from the alley and cut across the McDonald’s parking lot,

running past Figula’s car and into traffic. Figula observed that the suspect running from

the alley was wearing the same clothing as the shooter. As Figula attempted to follow

Stafford in his car, Stafford looked back and made visual contact with Figula by looking

“right at” him. Figula lost sight of Stafford when Stafford ran across the street and under

an overhang near the First Merit Bank building.

Figula then drove to the east side of the First Merit Bank building, looking for

Stafford to emerge, but instead found a black SUV with passengers who advised Figula

they thought someone was shooting at them. Figula then told other officers in pursuit

of the suspect where he had last seen Stafford and returned to that location. Now on

foot, Figula searched the area around the bank building and found Stafford lying face

down, wedged between the back of the building and a large green exterior power unit.1

Figula alerted the other officers that had arrived on the scene and proceeded toward

Stafford. With his gun drawn, Figula ordered Stafford to show his hands and to come

out from his hiding place. When Stafford failed to comply, Figula jumped on Stafford’s

back, holding him down to prevent him from escaping or reaching for a firearm. Once

secured, the other officers helped Figula remove Stafford, now struggling with the

officers, from the area.
No. 12-3238 United States v. Stafford Page 4

After removing Stafford from between the wall and the power unit, the officers

noted that Stafford was not carrying a firearm. Figula organized a search for the

weapon, retracing Stafford’s movements backwards from behind First Merit Bank to the

Tremont Street alley near Uncle Vic’s nightclub. After the initial walkthrough yielded

no results, Figula continued down the alley back towards Kerstetter Way and Uncle

Vic’s nightclub. Figula found two spent .45-caliber shell casings on the ground near the

entrance of the alley from Kerstetter Way. On the arrival of the evidence technicians,

a third shell casing was recovered and the search for the missing firearm resumed. The

firearm, a .45-caliber semiautomatic handgun, was eventually recovered from under a

staircase in the Tremont Street alley behind Moss’ Steakhouse. Figula noted that the

gun’s magazine was partially ejected and a live round was visible in its barrel. A total

of six live rounds of ammunition were recovered from the gun. Figula also noted that

the gun was scuffed, indicating the gun may have been thrown and struck the cinderblock wall adjacent to where the gun was found.

Subsequent ballistics tests established that the two shell casings Figula found

were fired from the recovered firearm. The bullet that pierced the bystander’s

automobile’s passenger window was also found to have been fired from the same

firearm.

Stafford was arrested at the scene, handcuffed, placed in the back of a police

cruiser, and taken to the Elyria Police Department. At the precinct, Stafford’s hands

were swabbed for the presence of gunshot residue. Subsequent laboratory testing

determined the presence of the elements of gunshot residue on Stafford’s left hand.

By indictment filed on Febraury 2, 2011, Stafford was charged with violating

18 U.S.C. § 922(g)(1), felon in possession of a firearm and six rounds of ammunition.

At arraignment, Stafford entered a plea of “not guilty.”

Before trial, Stafford filed a motion in limine to exclude the results of the

gunshot-residue analysis and testimony relating to the analysis, pursuant to Federal

Rules of Evidence 702 and 403. Stafford also requested a Daubert hearing on the

matter. This motion was denied at the final pre-trial conference of August 11, 2011. On
No. 12-3238 United States v. Stafford Page 5

August 10, 2011, the Government filed a motion in limine to exclude the testimony of

defense expert Robert Cilwa. This motion was held in abeyance at the final pre-trial

conference.

Before trial began, the district court heard testimony and argument on the

Government’s motion in limine. The district court initially stated that both parties would

be prohibited from admitting any gunshot-residue evidence, conditioned on the defense

refraining from attempting to impeach Officer Figula’s testimony at trial. Because

defense counsel stated that he would attempt to impeach Figula’s eyewitness testimony,

and because the Government stated it would have its expert testify, the district court

concluded that both the Government’s and Stafford’s gunshot-residue experts would be

allowed to testify.

Stafford’s jury trial began on August 22, 2011, and concluded on August 24,

2011. At trial, Figula testified for the Government regarding the events of November

21, 2010, and positively identified Stafford as the shooter. Officer Richard Buckway

recounted Stafford’s struggle with the officers and the collection of the firearm and spent

shells. Sergeant Richard Ellis testified regarding his role in the investigation, namely

performing the gunshot-residue test and collecting the gunshot-residue samples from

Stafford’s hands. The Government also introduced testimony from Martin Lewis, an

expert on gunshot residue. Lewis explained the process of a gunshot-residue test, how

the analysis of Stafford’s test was conducted, and the conclusions he drew from the test.

Joshua Barr, a forensic scientist in the firearms section of the Ohio Bureau of

Investigation, testified regarding the ballistics findings and matching the spent shells to

the recovered firearm. Thomas Hopkins, Special Agent for the Bureau of Alcohol,

Tobacco, and Firearms, testified regarding the recovered firearm’s nexus with interstate

commerce. At the close of the Government’s case, Stafford moved for acquittal pursuant

to Federal Rule of Criminal Procedure 29, which the district court denied.

The defense introduced testimony from Stephen Gambetta, an investigator with

the Federal Defenders’ Office, relating to the distances from which Officer Figula

testified he had seen Stafford during the shooting and the subsequent pursuit. Bruce
No. 12-3238 United States v. Stafford Page 6

Freeman, the bystander whose passenger window was shattered during the shooting, also

testified for the defense regarding the timing of the gunshots and when he first saw a

police car on the scene. The defense did not call its gunshot-residue expert, Robert

Cilwa. At the close of the defense’s case, Stafford again moved for acquittal, which the

district court again denied.

The jury convicted Stafford of violating 18 U.S.C. § 922(g)(1), felon in

possession of a firearm and ammunition.

On September 20, 2011, Stafford filed a Motion for New Trial pursuant to

Federal Rule of Criminal Procedure 33, arguing that the district court erred in admitting

the gunshot-residue evidence and the related expert testimony. The district court denied

the motion on October 19, 2011.

The Presentence Investigation Report (“PSR”), filed on January 4, 2012,

recommended a base offense level of 24 for Stafford’s violation of

18 U.S.C. § 924(g)(1), as he had at least two prior felony convictions for crimes of

violence; a two-level enhancement under United States Sentencing Guideline

(“Guideline”) § 2K2.1(b)(4)(A) for a stolen firearm; a four-level enhancement under

Guideline § 2K2.1(b)(6) for possession of a firearm in relation to a felony offense; and

a two-level enhancement under Guideline § 3C1.2 for reckless endangerment during

flight from law enforcement. With a calculated offense level of 32, the PSR

recommended a two-level enhancement for Stafford’s four prior convictions for crimes

of violence, which qualified Stafford as an “armed career criminal” under the Armed

Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e) and Guideline § 4B1.4. According

to the PSR, Stafford’s recommended offense level was 34, with a recommended sentence

of 262 to 327 months.

Stafford was sentenced on February 13, 2012. At the sentencing hearing,

Stafford objected to the Government’s calculated advisory Guidelines range, specifically

objecting to the four-level enhancement under Guideline § 2K2.1(b)(6)(B) for possession

of a firearm in relation to a felony offense, and the two-level enhancement under
No. 12-3238 United States v. Stafford Page 7

2

Stafford’s counsel referred to the two-level enhancement under Guideline § 3C1.2 as

“obstruction of justice.” The title of the guideline is “Reckless Endangerment During Fight.” U.S.S.G.

§ 3C1.2.

Guideline § 3C1.2 for reckless endangerment during flight from law enforcement.2 The

district court overruled both objections and applied the enhancements.

Stafford also objected to the enhancement under the ACCA, arguing that two of

his prior Ohio felony convictions for “aggravated riot” did not qualify as “violent

offenses.” Stafford argued that it was improper for the district court to rely on

documents other than the criminal indictment or judgment, specifically the state-court

Bill of Particulars that accompanied the “aggravated-riot” convictions, to determine

whether the felony was a “violent offense.” The district court disagreed and found that

Stafford was an armed career criminal and applied the enhancements, adopting the

guideline-range sentence of 262 to 327 months. Stafford received a sentence of

262 months of imprisonment and five years of supervised release.

 Stafford timely appealed.

II. ANALYSIS

Stafford raises two challenges to his conviction: (1) the evidence did not support

the jury’s verdict; and (2) the district court erred in admitting gunshot-residue evidence

and related expert testimony.

Stafford raises three challenges to the sentencing proceedings in the district

court: (1) the district court improperly applied the enhancements of the ACCA; (2) the

district court announced a procedurally unreasonable sentence; and (3) the “residual

clause” of the ACCA is unconstitutionally vague.

A. Stafford’s Challenges to the Conviction

1. Sufficiency of the Evidence

The court reviews de novo a district court’s denial of a motion for acquittal

pursuant to Federal Rule of Criminal Procedure 29, but that decision will be affirmed “if
No. 12-3238 United States v. Stafford Page 8

the evidence, viewed in the light most favorable to the government, would allow a

rational trier of fact to find the defendant guilty beyond a reasonable doubt.” United

States v. Ramirez, 635 F.3d 249, 255 (6th Cir. 2011) (quoting United States v. Solorio,

337 F.3d 580, 588 (6th Cir. 2003)) (internal quotation marks omitted); see Jackson v.

Virginia, 443 U.S. 307, 319 (1979). A court will reverse a judgment due to insufficient

evidence “only if [the] judgment is not supported by substantial and competent evidence

upon the record as a whole.” United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005)

(alteration in original) (quoting United States v. Stone, 748 F.2d 361, 363 (6th Cir.

1984)) (internal quotation marks omitted).

To convict a defendant of violating 18 U.S.C. § 922(g)(1), a jury must find that

the defendant “had a previous felony conviction, that the defendant knowingly possessed

the firearm specified in the indictment, and that the firearm traveled in or affected

interstate commerce.” United States v. Morrison, 594 F.3d 543, 544 (6th Cir. 2010)

(quoting United States v. Grubbs, 506 F.3d 434, 439 (6th Cir. 2007)) (internal quotation

marks omitted). Stafford challenges only the sufficiency of the evidence supporting the

conclusion that he possessed the firearm.

Stafford argues that the evidence is insufficient because the Government’s case

hinges on one eyewitness, Officer Figula, whose testimony was “inconsistent.” Stafford

cites six specific instances of Figula’s inconsistencies: (1) Figula initially testified that

he saw the shooter “at the bottom of the hill” on Kerstetter Way, which measured

between 193 and 223 feet away, but then subsequently testified that the shooter was

“further up from the bottom of the hill” and only “170 feet” away; (2) Figula testified

that he saw the shooter as the last two shots were fired, yet Figula failed to give any

description of the shooter when he made the first “shots fired” call and did not give a

description of Stafford until Stafford had emerged from the Tremont Street alley into the

McDonald’s parking lot and was running past Figula’s car; (3) Figula initially stated in

his report that he saw Stafford shooting “directly east” towards Uncle Vic’s nightclub,

but at trial he testified that Stafford was aiming “in a southeasterly direction towards the

corner of Kerstetter [Way] and Broad Street”; (4) Figula testified that, when he heard the
No. 12-3238 United States v. Stafford Page 9

shots, his police cruiser was “at the top of the hill” on Broad Street approaching the

intersection of Kerstetter Way and that he had “a clear view down the sidewalk on what

would be the west side of Kerstetter Way,” but defense witness Bruce Freeman testified

that after he left the area of Uncle Vic’s and traveled toward the intersection of Broad

Street and Kerstetter Way, he did not see a police car in the area when he heard the

gunshots and his window was struck by a bullet; (5) Figula admitted that he stated in his

report that Kerstetter Way was “choked with pedestrians and vehicle traffic” such that

he was “prevent[ed] . . . from driving the marked patrol vehicle towards Stafford,” yet

he testified that he had a clear view of the shooter and there was “no one” obstructing

his view; and (6) Figula testified that he lost sight of the suspected shooter for

approximately thirty seconds between the time the suspect ran from the scene of the

shooting and when he emerged from the alley into the McDonald’s parking lot.

Reviewing the evidence in the light most favorable to the Government, a

reasonable jury could find Stafford guilty beyond a reasonable doubt. The court “neither

independently weighs the evidence, nor judges the credibility of witnesses who testified

at trial.” Ramirez, 635 F.3d at 255 (quoting United States v. Talley, 164 F.3d 989, 996

(6th Cir.1999)) (internal quotation marks omitted). The appellate court “cannot

substitute its judgment for that of the jury.” Id. at 255–56.

Stafford’s arguments regarding the inconsistencies in Figula’s testimony go

primarily to the credibility of the Government’s witness. While the jury heard the

inconsistencies in Figula’s testimony, it also heard substantial direct evidence on which

it could rely to convict Stafford. Figula testified that he “had a clear view of the

shooter.” Figula described the shooter’s clothing:

The shooter was wearing a black like zipup sweat shirt that had black and

white stiped [sic] collar that would zip up [and] kind of cover the neck

area. As the shooter turned, I was able to see cursive writing, a white

print covering the entire back of the sweat shirt and I believe jean-style

pants.

Figula described seeing the muzzle flashes that accompanied the final two gunshots.

Figula stated he had “observed the shooter turn and run north from where he had been
No. 12-3238 United States v. Stafford Page 10

standing,” and that he “observed the shooter run down, turn and run—[into] an alleyway

here known as Tremont Street—turn down that alleyway and continue[] running away

from me.” Figula described seeing Stafford emerge from the alleyway:

I observed the same person that was shooting the weapon off here

emerge out of the alleyway this way, running westbound, running from

the exit or entrance of the alleyway. . . . I observed the same person as far

as the same clothing and same appearance as I saw the person shooting

the weapon. . . . He looked right at me . . . .

Figula also testified about finding the firearm and the spent shells. Having heard both

the eyewitness testimony and its inconsistencies, the jury could have found Figula

credible.

As for Stafford’s argument that Figula’s identification is questionable because

he did not describe Stafford as the shooter over the radio until after he saw Stafford

emerge from the alley, Figula explained that the reason he did not describe Stafford in

the first instance was that his “main concern . . . was getting officers heading in [his]

direction.” He continued, “The reason I didn’t give the description until a few seconds

later is because I just didn’t have the opportunity in between turning around, entering the

parking lot, and then all of a sudden [Stafford showing up] in front of me.” The jury

presumably considered both the defense’s argument and Figula’s explanation in its

deliberations. It is not unreasonable for a rational juror to credit Figula’s explanation.

The jury was also presented photographic evidence of Stafford wearing the jacket

Figula identified. Figula testified that the Government’s photograph depicted Stafford

as he was taken into custody near First Merit Bank, and that Stafford was wearing “the

same jacket that [Figula] had seen the shooter wearing.” Figula described the jacket in

the photograph for the jury: “It is a black and colored sweatshirt style zipup and has the

white writing across the back with the cursive that was able to stick out in my mind as

[Stafford] turned to flee away from me on foot.”

Stafford also questions Figula’s seemingly inconsistent testimony that Kerstetter

Way was both “choked with pedestrians and vehicle traffic” and yet he had a clear view
No. 12-3238 United States v. Stafford Page 11

of the shooter firing his weapon. Review of the testimony indicates, however, that

Figula stated that while pedestrians were fleeing the scene and running up the hill, there

were no pedestrians on the same side of the street as Stafford at the time of the shooting.

Figula stated that “there was nobody other than the one person that I observed shooting

the gun . . . on this side of the road. . . . I had a clear view of the shooter.” A rational

juror could find Figula’s testimony on this issue credible.

As for Freeman’s testimony that he did not see any police cars at the intersection

of Kerstetter Way and Broad Street at the time of the shooting, Freeman also stated on

direct examination that he “was not paying enough attention with everything going on

outside the car to really notice a police cruiser.” The jury heard sufficient testimony to

assess Freeman’s credibility in relation to Figula’s version of the events. Moreover, the

jury could reconcile the testimony of Freeman and Figula.

Regarding the circumstantial evidence of Stafford’s guilt, “[c]ircumstantial

evidence alone can sustain a guilty verdict and . . . [such] evidence need not remove

every reasonable hypothesis except that of guilt.” Ramirez, 635 F.3d at 256 (alterations

in original) (quoting United States v. Stone, 748 F.2d 361, 362 (6th Cir. 1984)) (internal

quotation marks omitted). “Actual or constructive possession is sufficient to give rise

to criminal liability under § 922(g). Both actual and constructive possession may be

proved by circumstantial evidence.” United States v. Castano, 543 F.3d 826, 837 (6th

Cir. 2008) (quoting United States v. DeJohn, 368 F.3d 533, 545 (6th Cir. 2004)) (internal

quotation marks omitted).

The jury heard testimony linking the shell casings and bullet recovered at the

scene to the firearm found in the Tremont Street alley. Joshua Barr testified as a

ballistics expert for the Government. Barr compared the shell casings found at the scene

with shell casings he test-fired from the recovered firearm. Barr concluded that

“[m]icroscopic comparisons” of the recovered shell casings with the test-fired shell

casings revealed that the recovered shell casings had been fired from the recovered

firearm. Barr also compared a bullet recovered at the scene with a test-fired bullet and

testified that the recovered bullet had “matching individual detail with the test-fired
No. 12-3238 United States v. Stafford Page 12

bullets.” Barr concluded that the bullet recovered at the scene was fired from the

recovered firearm.

The jury heard testimony that the shooter was wearing a black zip-up sweatshirt

with white writing, that the shooter ran down the Tremont Street alley after seeing

Figula’s police car, that Stafford was wearing the same clothing when he emerged from

the alleyway and ran past Figula’s car, that Stafford continued running and hid behind

the back of the First Merit Bank building, that Stafford wedged himself between the

building and an electrical power box, that Stafford refused to surrender or show his

hands to police when he was found, that Stafford continued to struggle with police as

they arrested him, and that a scuffed firearm with a partially ejected magazine was found

in the Tremont Street alley that matched the spent shells found near the scene of the

shooting. The jury could therefore rationally infer that Stafford threw the gun into the

alley as he was running from police. Additionally, Stafford’s actions raise an inference

of guilt: he continued to run from police and refused to cooperate when asked to show

his hands and to come out of hiding. Although circumstantial, the evidence is sufficient

for a juror to infer that Stafford was the shooter.

Viewing the evidence in the light most favorable to the Government, a rational

trier of fact could find Stafford guilty beyond a reasonable doubt. Therefore, Stafford’s

conviction is affirmed.

2. Gunshot-Residue Evidence and Expert Testimony

The court reviews a district court’s evidentiary rulings under an abuse-ofdiscretion standard. United States v. Ashraf, 628 F.3d 813, 826 (6th Cir. 2011).

“District courts have broad latitude in deciding whether to admit expert testimony under

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Such decisions

are similarly reviewed under the abuse-of-discretion standard.” Id. (citations omitted).

Stafford argues that the district court abused its discretion in admitting the

gunshot-residue evidence and the related expert testimony because they both fail to meet

the standards of Daubert and Federal Rule of Evidence 702. Stafford made similar
No. 12-3238 United States v. Stafford Page 13

arguments before trial as to the admissibility of the gunshot-residue evidence and the

experts’ testimony, but the district court concluded that both were admissible because

Stafford’s “arguments [went] to the weight, not the admissibility,” of the evidence and

testimony.

Stafford makes four arguments regarding the inadmissibility of the gunshotresidue evidence. First, Stafford states that “[gunshot-residue] testing will not determine

whether an individual fired a gun, was present when a gun was fired by someone else,

or was merely in an environment in which [gunshot residue] existed.” Stafford claims

that because these three possible outcomes summarize the testimony of the

Government’s expert Robert Lewis—and because Lewis could not testify whether

Stafford actually fired the weapon—Lewis “could not reasonably make any conclusions

as to the actual source of the six [gunshot-residue] particles found,” and therefore

Lewis’s testimony did not meet the standards of Daubert or Rule 702.

Under Rule 702, an expert may offer scientific or technical testimony if the court

finds the witness is qualified by “‘knowledge, skill, experience, training, or education’”;

that the testimony is relevant; and that the testimony is reliable. In re Scrap Metal

Antitrust Litig., 527 F.3d 517, 528–29 (6th Cir. 2008) (quoting Fed. R. Evid. 702).

Stafford, in claiming that the expert’s conclusion is inadmissible, is challenging the

expert’s reliability, not his qualifications or the testimony’s relevance. To determine the

testimony’s reliability, the court does not “determine whether [the opinion] is correct,

but rather [determines] whether it rests upon a reliable foundation.” Id. at 529–30. As

gatekeeper, the trial court only determines the admissibility of expert evidence; the jury

determines its weight. The court’s focus is “solely on principles and methodology, not

on the conclusions that they generate.” Daubert, 509 U.S. at 595.

The district court was clear when it admitted the expert testimony relating to the

gunshot residue test: “Whether the jury will put any weight on either [expert], I don’t

know, but [the Defendant’s] arguments go to the weight [of the evidence], not the

admissibility.” The district court stated that allowing the expert to testify would allow

vigorous cross-examination of the expert’s “vague conclusions” and the jury would then
No. 12-3238 United States v. Stafford Page 14

decide. See Daubert, 509 U.S. at 596 (“Vigorous cross-examination . . . [is a] traditional

and appropriate means of attacking shaky but admissible evidence.”). In revisiting the

issue on the second day of trial, the district court stated:

I am allowing the government to put [the expert’s testimony] in. But

given that your own expert is going to say it is possible that he has got

those two traces either because he was right near a shooter, [was] a

shooter of a gun[,] or that he came into contact with residue, I am

permitting the defense to point that out. The two go together.

Therefore, the district court did not abuse its discretion in admitting the expert testimony

of Robert Lewis relating to the results of the gunshot-residue test. 

Second, Stafford argues that gunshot-residue testing is imprecise in that “[t]here

is no consensus in the discipline as to how many particles . . . must be identified in order

to report an item of evidence as positive for [gunshot residue].” Despite this argument,

the trial record indicates that Stafford did not object to the district court’s statement that

“the Defendant is not disputing he had gunshot residue on his hands.” Additionally,

Stafford relies on a Summary of the FBI Laboratory’s Gunshot Residue Symposium

report in both his Brief and his motion in limine filed August 8, 2011. The Summary

states that “[m]ost experts felt that even one particle is enough for a ‘positive’ result.”

As the Supreme Court noted in Daubert, “[w]idespread acceptance can be an important

factor in ruling particular evidence admissible.” Daubert, 509 U.S. at 594. At trial, the

Government’s expert testified that Stafford’s gunshot-residue test revealed five

qualifying particles present on Stafford’s left hand. The results of the test indicate that

the conclusion that Stafford had gunshot residue on his hand was reliable. The district

court did not abuse its discretion in admitting the results of the gunshot-residue test.

 Third, Stafford claims that the possibility of inadvertent transfer of gunshotresidue particles to a suspect’s hands creates prejudice that outweighs the test’s

probative value. Stafford’s argument goes to the admissibility of circumstantial

evidence, not the admissibility of scientifically reliable evidence. The district court

found, correctly, the gunshot-residue evidence to be sufficiently reliable and allowed its
No. 12-3238 United States v. Stafford Page 15

admission. The admission of such circumstantial evidence need not “remove every

hypothesis but guilt.” United States v. Ingrao, 844 F.2d 314, 315 (6th Cir. 1988).

As to its probative value, which is discussed further infra, the evidence allowed

the jury to infer that Stafford was in possession of the firearm and to decide how much

weight to give that conclusion. The trial record also indicates that the defense crossexamined the Government’s expert extensively on this very point—that there can be

inadvertent transfer of gunshot residue resulting in “contamination.”

Finally, Stafford argues that the gunshot residue is inadmissible because it is

undisputed that the Elyria Police Department “fail[ed] to use proper evidence gathering

techniques in testing for [gunshot residue].” The trial record indicates that the officers,

in conducting Stafford’s arrest: did not bag his hands; could have transferred gunshot

residue to Stafford’s hands from handling their own weapons, from the backseat of the

police car, or from the booking area of the Elyria Police Department; and did not swab

Stafford’s hands until after he had been booked. These arguments, while potentially

valid as to the accuracy of the test and the conclusions to be drawn from it, do not relate

to the test’s reliability or the reliability of the expert testimony. Furthermore, Stafford’s

arguments go to the weight of the gunshot-residue evidence, not its admissibility, which

was properly considered by the jury. Again, the cross-examination of the expert at trial

allowed the jury to consider the weight of the gunshot-residue evidence and any

shortcomings in evidence collection by the Elyria Police Department. Therefore, the

district court did not abuse its discretion in admitting the evidence.

Stafford also argues that the gunshot-residue evidence was improperly admitted

under Federal Rule of Evidence 403, as its “probative value was substantially

outweighed by a danger of unfair prejudice.” See Fed. R. Evid. 403. “Because of the

highly discretionary nature of this balancing process, the district court’s decision is

afforded great deference.” United States v. Bell, 516 F.3d 432, 445 (6th Cir. 2008). “In

reviewing the district court’s balancing of prejudice and probative value, we look at the

evidence in the light most favorable to its proponent, maximizing its probative value and
No. 12-3238 United States v. Stafford Page 16

minimizing its prejudicial effect.” Id. (citation omitted) (internal quotation marks

omitted).

Stafford contends that because a positive finding of gunshot residue on a

defendant could only reveal (1) that the individual “discharged a firearm,” (2) that the

individual “was in close proximity to a firearm when it was discharged,” or (3) that the

individual “came into contact or handled something that had gunshot residue on it,” its

probative value was “questionable” because it offered “two non-incriminating

possibilities and one incriminating possibility.” Stafford did not attempt to impeach the

conclusion that gunshot residue was found on his hands, and defense counsel thoroughly

explored the weaknesses in the gunshot-residue testing on cross-examination.

Regarding the issue of whether the evidence was probative, the district court

stated that if the gunshot-residue evidence was being used to corroborate Figula’s

eyewitness account, “it becomes relevant because it bolsters the credibility of [the

Government’s] witness.” Viewing the admitted evidence in the light most favorable to

the Government, the gunshot-residue test corroborates Figula’s testimony that Stafford

was the shooter outside Uncle Vic’s nightclub and was not unfairly prejudicial under

Rule 403. The district court did not abuse its discretion in admitting the evidence.

The district court’s admission of the gunshot-residue evidence and accompanying

expert testimony is, therefore, affirmed.

B. Stafford’s Challenges to the Sentencing

1. Application of the Armed Career Criminal Act

A district court’s interpretation and application of the ACCA is a question of law,

reviewed de novo. United States v. Graves, 60 F.3d 1183, 1185 (6th Cir. 1995).

Whether a prior conviction qualifies as a “violent felony” under the ACCA is also a

question of law the court reviews de novo. United States v. Johnson, 675 F.3d 1013,

1016 (6th Cir. 2012).
No. 12-3238 United States v. Stafford Page 17

The ACCA provides a mandatory minimum fifteen-year term of imprisonment

for offenders convicted of violating 18 U.S.C. § 922(g)(1), felon in possession of a

firearm, after having sustained three qualifying prior convictions of either crimes of

violence or serious drug offenses. 18 U.S.C. § 924(e)(1). Section 924(e) defines “violent

felony” as

any crime punishable by imprisonment for a term exceeding one year . . .

that (i) has as an element the use, attempted use, or threatened use of

physical force against the person of another; or (ii) is burglary, arson, or

extortion, involves 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).

The district court found that Stafford qualified as an armed career criminal based

on four prior predicate offenses, including two convictions for “aggravated riot,” in

violation of Ohio Revised Code Section 2917.02(A)(2). The district court found

Stafford had an adjusted offense level of 32, criminal history category VI, resulting in

an advisory Guidelines range of 210 to 262 months of imprisonment. With the ACCA

enhancement, the district court found Stafford had a total offense level of 34, criminal

history category VI, resulting in an advisory Guidelines Range of 262 to 327 months of

imprisonment.

Stafford argues that his “aggravated-riot” convictions do not qualify as “violent

offenses.” As the parties do not contend that the “aggravated-riot” conviction falls under

the first two types of “violent felonies” in § 924(e), it falls under the statute’s “residual

clause”: a crime that “otherwise involves conduct that presents a serious potential risk

of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).

“[I]n determining the nature of a defendant’s prior conviction, we apply a

‘categorical’ approach, meaning that we look at the statutory definition of the crime of

conviction, not the facts underlying that conviction, to determine the nature of the

crime.” United States v. Ford, 560 F.3d 420, 421–22 (6th Cir. 2009); see also Taylor

v. United States, 495 U.S. 575, 602 (1990). If the court finds that the statutory language
No. 12-3238 United States v. Stafford Page 18

fails to clarify whether the underlying conviction is a crime of violence, or if “it is

possible to violate a criminal law in a way that amounts to a crime of violence and in a

way that does not,” Ford, 560 F.3d at 422, the court may consider “the statutory

definition, charging document, written plea agreement, transcript of plea colloquy, and

any explicit factual finding by the trial judge to which the defendant assented” to

determine if the underlying conviction was a crime of violence. Shepard v. United

States, 544 U.S. 13, 16 (2005); see also United States v. Jones, 673 F.3d 497, 504 n.2

(6th Cir. 2012) (calling this analysis the “modified categorical approach”).

At Stafford’s sentencing, the district court found that 

under the categorical approach or even modified categorical approach,

both of [the “aggravated-riot” convictions] qualify as predicate offenses

of violence, and I further find that with respect to [Stafford’s 2005

“aggravated-riot” conviction], that the Bill of Particulars, which was filed

about three months before [Stafford’s] guilty plea, makes clear that this

was a crime of violence . . . . [T]here’s no question in the Court’s mind

that this aggravated riot was a crime of violence.

Stafford argues that the district court erred in applying the modified categorical approach

and finding that his convictions under Ohio’s “aggravated riot” statute were violent

felonies because it relied on both the PSR and the Bill of Particulars that accompanied

his 2005 “aggravated-riot” conviction, both of which are impermissible documents under

Shepard. The Government agrees that the district court erred in considering these

documents. The Government argues, however, that we should find that Stafford’s

“aggravated-riot” convictions are violent felonies based on the permissible Shepard

documents in the record.

This court previously considered, in an unpublished opinion, the question of

whether Ohio’s “aggravated riot” offense qualifies as a “violent felony” under the

ACCA. United States v. Sanders, 301 F. App’x 503 (6th Cir. 2008) (per curiam). In

Sanders, a panel of this court determined that “aggravated riot” under the Ohio statute

included both violent and non-violent offenses. The statute provides, in relevant part:
No. 12-3238 United States v. Stafford Page 19

(A) No person shall participate with four or more others in a course of

disorderly conduct in violation of [Ohio’s Disorderly Conduct statute]:

(1) With purpose to commit or facilitate the commission of a felony;

(2) With purpose to commit or facilitate the commission of any offense

of violence; 

(3) When the offender or any participant to the knowledge of the

offender has on or about the offender’s or participant’s person or under

the offender’s or participant’s control, uses, or intends to use a deadly

weapon or dangerous ordnance, as defined in section 2923.11 of the

Revised Code.

Ohio Rev. Code Ann. § 2917.02(A). Sanders held that violation of subsection (A)(1)

was not an offense of violence, as it “lack[ed] as an element the use of force.” Sanders,

301 F. App’x at 506. Sanders then discussed the offenses in subsections (A)(2) and

(A)(3) of the statute:

Here, subsections (A)(2) and (3) of the aggravated riot statute prohibit

conduct that poses risk of physical injury through “offense[s] of

violence” or use of “a deadly weapon or dangerous ordnance.” As a

categorical matter, conduct under those subsections would obviously

qualify as a crime of violence. However, as previously discussed, it is

equally obvious that conduct under subsection (A)(1), does not

necessarily pose a risk of physical injury.

Id. (alteration in original) (footnote omitted). 

Although unpublished decisions are not binding precedent on subsequent panels,

“their reasoning may be ‘instructive’ or helpful,” Crump v. Lafler, 657 F.3d 393, 405

(6th Cir. 2011), “especially where there are no published decisions which will serve as

well,” Hood v. Keller, 229 F. App’x 393, 398 n.5 (6th Cir. 2007) (internal quotation

marks omitted). In the instant case, no other Sixth Circuit case is on point. Therefore,

Sanders is instructive and we will follow its reasoning.

Stafford argues that Sanders is inapplicable to the instant case because, in that

case, the panel found that Sanders violated subsection (A)(3) of the “aggravated-riot”

statute, not subsection (A)(2). In fact, however, Sanders did not determine which

subsection the defendant violated. The panel applied the modified categorical approach

and reviewed Sanders’s indictment, which stated that Sanders
No. 12-3238 United States v. Stafford Page 20

did participate with four (4) or more others in a course of disorderly

conduct in violation of Section 2917.11 of the Revise[d] Code with

purpose to commit or facilitate the commission of an offense of violence

[and] . . . had used or intended to use a deadly weapon or dangerous

ordnance, in violation of Section 2917.02 of the Ohio Revised Code.

Id. at 507 & n.2 (first alteration in original). The panel found that Sanders’s indictment

did not “cite to a specific subsection of section 2917.02. However, the language of the

indictment was identical to the statutory language, revealing that his prior conviction

was undoubtedly for violation of either subsection (A)(2) or (A)(3) of Ohio’s

aggravated-riot statute, both of which are crimes of violence . . . .” Sanders, 301 F.

App’x at 507 (emphasis added). Therefore, the reasoning of Sanders is instructive.

Following the modified categorical approach and looking beyond the statutory

language of the Ohio Revised Code to the underlying Shepard documents, Stafford’s

state-court indictments specifically charged him with violating section 2917.02(A)(2).

The language of Stafford’s indictments tracks the statutory language and the language

used in the Sanders indictment. Both of Stafford’s plea agreements provided he agreed

to plead guilty to violations of section 2917.02(A)(2). The judgment states that Stafford

violated section 2917.02(A)(2). In Sanders, the panel analyzed nearly identical language

in an indictment and concluded that whether the defendant was convicted of violating

either subsection (A)(2) or (A)(3), the violation would be a “crime of violence” for

sentencing purposes. Sanders, 301 F. App’x at 507.

Because the finding that subsection (A)(2) was categorically a violent felony

under the ACCA was not essential to the holding in Sanders, we will now separately

address that subsection.

Stafford argues that the district court erred in classifying “aggravated riot” as a

“violent felony” under 18 U.S.C. § 924(e) because the offense “does not necessarily

involve conduct presenting a serious potential risk of physical injury to another.”

Stafford cites his state-court indictments and argues that they fail to identify what

“offense of violence” he was convicted of committing, and are therefore not sufficient

to qualify “aggravated riot” as a “violent felony” under the ACCA. Stafford argues that
No. 12-3238 United States v. Stafford Page 21

the term “offense of violence,” as used in section 2917.02(A)(2), must encompass all the

“offenses of violence” enumerated in Ohio Revised Code Section 2901.01(A)(9), some

of which do not require the “offender’s use, attempted use, or threatened use of physical

force against the person of another” or “otherwise involve conduct presenting a serious

potential risk of physical injury to another.” As a result, Stafford claims the “breadth of

the offenses of violence the statute includes[] cannot reasonably be found to be roughly

similar, in kind and degree of risk posed, to the listed enumerated crimes in the

ACCA—crimes which typically involve purposeful, violent, and aggressive conduct.”

The ACCA’s residual clause is not a catch-all provision. See United States v.

Benton, 639 F.3d 723, 731 (6th Cir. 2011). Instead, “the provision’s listed

examples—burglary, arson, extortion, or crimes involving the use of

explosives—illustrate the kinds of crimes that fall within the statute’s scope. Their

presence indicates that the statute covers only similar crimes, rather than every crime

that ‘presents a serious potential risk of physical injury to another.’” Begay v. United

States, 553 U.S. 137, 142 (2008) (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). The offenses

encompassed by § 924(e)(2)(B)(ii) are limited “to crimes that are roughly similar, in

kind as well as in degree of risk posed, to the examples themselves.” Id. at 143; see also

Johnson, 675 F.3d at 1019–20 (finding Missouri’s “third-degree felony assault” statute

to be a violent felony); United States v. Clark, 458 F. App’x 512, 515–16 (6th Cir. 2012)

(finding Kentucky’s “wanton endangerment” statute to be a violent felony); Benton,

639 F.3d at 732 (finding Tennessee’s “solicitation to commit aggravated assault” statute

to be a violent felony) .

In Benton, the Court stated, 

[W]hether an offense involves “violent, aggressive, and purposeful”

conduct is not the only point of comparison that we may consider when

determining whether an offense is similar in kind and degree to the listed

examples. . . . Instead, Begay additionally directs us to look to whether

the offense “conduct is such that it makes more likely that an offender,

later possessing a gun, will use that gun deliberately to harm a victim.”
No. 12-3238 United States v. Stafford Page 22

Benton, 639 F.3d at 731–32 (citation omitted) (quoting Begay, 553 U.S. at 144–46). The

Sixth Circuit has interpreted the Supreme Court’s decision in Begay as creating a

two-part test: for an offense to be “considered a ‘violent felony’ under the second prong

of the ACCA,” it must “‘(1) pose[] a serious potential risk of physical injury to others;

and (2) involve[] the same kind of purposeful, violent, and aggressive conduct as the

enumerated offenses of burglary, arson, extortion, or offenses involving the use of

explosives.’” Benton, 639 F.3d at 732 (quoting United States v. Young, 580 F.3d 373,

377 (6th Cir. 2009)).

Analyzing the “aggravated-riot” offense under the Benton test, a court first asks

if the acts “posed a serious potential risk of physical injury to others.” Ohio’s

“aggravated-riot” statute is only violated when a group of four or more people act in a

disorderly manner. Although Sanders found that there was a non-violent way of

violating subsection (A)(1) of the “aggravated-riot” statute, it recognized that “not every

hypothetical offense covered by a criminal statute need be violent in order to qualify as

a crime of violence.” Sanders, 301 F. App’x at 507 (citing James v. United States,

550 U.S. 192, 208 (2007)); see also Johnson, 675 F.3d at 1019 (finding third-degree

assault to be a violent felony despite the fact that the offense could potentially be

committed through “guile, deception, or deliberate omission”). Also, to violate

subsection (A)(2), the group must act “with purpose” to commit an offense of violence.

The proper inquiry, then, is whether “engaging in a course of disorderly conduct with

at least four other individuals, with the specific intent to commit the offense of violence

in question,” presents a risk of physical injury to others.

The statute itself contemplates a risk of physical injury to others; in order to

violate the statute one must have the purpose of committing an offense of violence. By

its own terms, the violation presents a risk of injury. Multiplying that by four people,

there is a “serious potential risk of physical injury to others.” See Callanan v. United

States, 364 U.S. 587, 593 (1961) (“[C]ollective criminal agreement . . . presents a greater

potential threat to the public than individual delicts.”). The “aggravated-riot” statute

requires specific intent to commit violence. Therefore, the “offenses of violence”
No. 12-3238 United States v. Stafford Page 23

enumerated under section 2901.01(A)(9) that lack the adequate mens rea are excluded.

As a result, the “aggravated-riot” statute is not over-broad as Stafford suggests.

The second inquiry under Benton, whether the offense “involves the same kind

of purposeful, violent, and aggressive conduct as the enumerated offenses of burglary,

arson, extortion, or offenses involving the use of explosives,” is also answered in the

affirmative. As stated above, violation of Ohio’s “aggravated-riot” statute involves

specific intent, just as do the offenses of burglary, arson, and extortion. There is no

question, then, that “aggravated riot” involves “purposeful conduct” commensurate with

the other offenses. When combined with Begay’s inquiry whether the “conduct is such

that it makes more likely that an offender, later possessing a gun, will use that gun

deliberately to harm a victim,” it is logical to conclude that the acts of four or more

people, engaged in a course of disorderly conduct with the purpose to commit an offense

of violence present a high risk of serious injury. Add to that the possession of a gun, and

that risk is even greater.

Therefore, the district court’s conclusion that a violation of Ohio Revised Code

Section 2917.02(A)(2) is a “violent felony” under the ACCA and that Stafford qualified

as an armed career criminal as a result is affirmed.

2. Reasonableness of the Sentence

This court reviews sentences for procedural reasonableness under an abuse-ofdiscretion standard. Gall v. United States, 552 U.S. 38, 51 (2007). A sentence will be

deemed “procedurally unreasonable” when the district court sentencing the defendant

“‘fail[s] to calculate (or improperly calculat[es] ) the Guidelines range, treat[s] the

Guidelines as mandatory, fail[s] to consider the [18 U.S.C.] § 3553(a) factors, select[s]

a sentence based on clearly erroneous facts, or fail[s] to adequately explain the chosen

sentence—including an explanation for any deviation from the Guidelines range.’”

United States v. Taylor, 648 F.3d 417, 422 (6th Cir. 2011) (alterations in original)

(quoting Gall, 552 U.S. at 51).
No. 12-3238 United States v. Stafford Page 24

Stafford’s argument that his sentence was procedurally unreasonable concerns

two Guideline enhancements: possessing a firearm in connection with another felony

offense and creating a substantial risk of serious injury or death while fleeing from law

enforcement. For the reasons discussed infra, Part II.B.3, the district court did not abuse

its discretion, and Stafford’s sentence was procedurally reasonable.

3. Application of the Sentencing Guidelines Enhancements

“We review de novo a district court’s application of the Sentencing Guidelines

when that application involves mixed questions of law and fact. . . . [and w]e review for

clear error a district court’s findings of fact in connection with sentencing.” United

States v. Hayes, 135 F.3d 435, 437 (6th Cir. 1998) (citation omitted). “A factual finding

is clearly erroneous when the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed.” United States v. Moon,

513 F.3d 527, 540 (6th Cir. 2008) (internal quotation marks omitted). “A district court’s

sentencing determination is reviewed ‘under a deferential abuse-of-discretion standard’

for reasonableness, which has both a procedural and a substantive component.” United

States v. Erpenbeck, 532 F.3d 423, 430 (6th Cir. 2008) (quoting Gall, 552 U.S. at 41).

a. Enhancement Under Guideline § 2K2.1(b)(6)

Guideline § 2K2.1(b)(6) applies when a defendant possesses a gun “with

knowledge, intent, or reason to believe that it would be used or possessed in connection

with another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B). The Guideline’s comments

state that the subsection “appl[ies] if the firearm or ammunition facilitated, or had the

potential of facilitating, another felony offense or another offense, respectively.”

U.S.S.G. § 2K2.1 cmt. n.14(A). The court “accord[s] due deference to the district

court’s determination that [§ 2K2.1(b)(6)’s] enhancement applies.” Taylor, 648 F.3d at

431 (quoting United States v. Burke, 345 F.3d 416, 426–27 (6th Cir. 2003)) (internal

quotation marks omitted). Assessing the nexus between a firearm and a felony requires

a fact-specific inquiry, under which the court affords due deference to the district court’s
No. 12-3238 United States v. Stafford Page 25

findings. Id. at 432. The district court’s factual findings are reviewed for clear error.

Id.

Stafford argues that the district court erred in “applying the enhancement because

there was no evidence presented from which to infer any intent by Stafford to commit

another felony offense with the gun.” Stafford relies on United States v. Payne, 462 F.

App’x 579, 582 (6th Cir. 2012) (per curiam), claiming that the Government was required

to show that Stafford possessed the “firearm with the intent to possess or use it, at some

time in the future, in connection with another felony offense.”

The comments to the Guideline, however, make it clear that the enhancement

applies to situations where the “firearm or ammunition facilitated . . . another felony

offense.” U.S.S.G. § 2K2.1 cmt. n. 14(A). By the plain language of the comments, it

is not necessary to show that, at the time Stafford possessed the gun, he also had the

intent to use it in a future felony. The district court found that Stafford possessed the

gun and that he committed another felony offense, namely, shooting into a crowd: 

[T]here was evidence that the Defendant discharged the firearm either

toward a car or into a crowd. Although he wasn’t charged, I heard the

evidence at the trial, and I find by a preponderance of the evidence that

the Defendant possessed the firearm, and that he committed . . . another

crime at the time.

Under the Guidelines, the district court’s findings are not clearly erroneous and are

affirmed.

b. Enhancement Under Guideline § 3C1.2

Guideline § 3C1.2 applies if the defendant “recklessly created a substantial risk

of death or serious bodily injury to another person in the course of fleeing from a law

enforcement officer.” U.S.S.G. § 3C1.2. “Because the ‘question of what constitutes

endangerment is a mixed question of law and fact . . . [that] is highly fact-based,’ we

give ‘significant deference to the district court.’” United States v. Dial, 524 F.3d 783,

785 (6th Cir. 2008) (alteration in original) (quoting United States v. Hazelwood, 398

F.3d 792, 796 (6th Cir. 2005)). In order to apply the § 3C1.2 enhancement, a court must
No. 12-3238 United States v. Stafford Page 26

find that the defendant knew, or had reason to know, that he was fleeing from a lawenforcement officer. Hayes, 135 F.3d at 438.

Stafford argues that the Government failed to meet its burden. Stafford claims

that the district court failed to make a finding that Stafford knew or had reason to know

that he was fleeing from law enforcement and that the trial record does not support the

district court’s conclusion. Stafford also claims that the district court erred in concluding

that “the act of carrying a loaded gun while allegedly fleeing law enforcement recklessly

created a substantial risk of death or serious bodily injury to another person.” (emphasis

added).

Stafford’s first claim, that the district court did not make a finding of fact that

Stafford knowingly fled from law enforcement, is not supported by the record. At the

sentencing hearing, Judge Polster stated, “I heard the trial testimony about the

Defendant’s fleeing law enforcement while in possession of a loaded firearm, and so I

find [Stafford’s objection to the enhancement is] overruled.” Furthermore, the record

supports that finding. At trial, the court heard testimony that: Officer Figula witnessed

Stafford fire the gun; Stafford looked toward the top of the hill where Figula’s car was

located before he fled into the alley; Stafford emerged from the alley without a gun;

Stafford saw the police car upon exiting the alley into the McDonald’s parking lot and

continued to run; Stafford hid himself behind the First Merit Bank building; and the

police found the loaded weapon discarded in the alley that Stafford had run through.

Under a preponderance-of-the-evidence standard, there is sufficient evidence to find that

Stafford knew he was fleeing from law enforcement. See United States v. Gates,

461 F.3d 703, 708 (6th Cir. 2006) (“[J]udicial fact-finding for sentencing purposes must

continue as it was conducted prior to Booker, under a preponderance of the evidence

standard.”); see also United States v. White, 551 F.3d 381, 384–85 (6th Cir. 2008) (en

banc). Therefore, the district court’s findings of fact are not clearly erroneous.

As for Stafford’s second argument regarding whether his actions rose to the

required level of “recklessly” creating a substantial risk of death or serious bodily injury,

there was testimony that Stafford threw a loaded gun against a building, close to a
No. 12-3238 United States v. Stafford Page 27

crowded street and nightclub. The Guidelines themselves explain that “reckless” means

“a situation in which the defendant was aware of the risk created by his conduct and the

risk was of such a nature and degree that to disregard that risk constituted a gross

deviation from the standard of care that a reasonable person would exercise in such a

situation.” U.S.S.G. § 2A1.4 cmt. n.1.

While not binding authority, United States v. Howard, 301 F. App’x 446 (6th Cir.

2008), is instructive. In Howard, the defendant disputed his enhanced sentence under

§ 3C1.2 claiming that simply “having” a gun did not create the substantial risk necessary

under the Guideline. 301 F. App’x at 449. The court in Howard found that the

defendant did not “merely have a gun,” but instead “threw a loaded and cocked gun . .

. while fleeing” and that such action created the substantial risk. Id. In the instant case,

Stafford, too, was not simply “carrying” a gun; he was carrying a loaded gun that he then

threw behind the staircase of a business.

Stafford attempts to distinguish his case from previous Sixth Circuit cases

upholding a § 3C2.1 enhancement by arguing that, in his case, “there was no evidence

of pedestrian traffic, or nearby schools, churches, playgrounds, or residential housing”

near the discarded firearm. See, e.g., United States v. May, 430 F. App’x 520, 525–27

(6th Cir. 2011) (upholding a § 3C2.1 enhancement where defendant discarded a loaded

gun in a housing project, where children and pedestrian traffic were common); United

States v. Allen, 51 F.3d 273 (6th Cir. 1995) (per curiam) (holding that discarding a gun

in a residential neighborhood, whether loaded or unloaded, where it could easily be

recovered was reckless endangerment). Stafford erroneously concludes that these

examples encompass the entire spectrum of locations where one would be reckless to

discard a gun. To the contrary, Stafford’s acts are a “gross deviation from the standard

of care that a reasonable person would exercise in such a situation.” Stafford threw a

loaded gun into an area in the rear of a restaurant, near where employees regularly took

the restaurant’s trash. Officer Figula testified that other pedestrians were running

through that alley shortly after the shooting. As a result, there was a significant

possibility that a bystander could have come across the loaded weapon and been hurt,
No. 12-3238 United States v. Stafford Page 28

or used it to hurt someone else. These actions created a substantial risk of serious injury.

Under the Guidelines, the district court’s findings are not clearly erroneous and are

affirmed.

4. Constitutionality of the ACCA’s “Residual Clause”

“We review de novo a challenge to the constitutionality of a statute.” United

States v. Bowers, 594 F.3d 522, 527 (6th Cir. 2010).

As discussed, supra Part II.B.1, the language “or otherwise involves conduct that

presents a serious potential risk of physical injury to another” is commonly referred to

as the ACCA’s “residual clause.” 18 U.S.C. § 924(e)(2)(B)(ii). Stafford argues that the

“residual clause” is unconstitutionally vague because its prohibitions are “so indefinite

an ordinary person would not know what conduct it prohibits.” Stafford contends that

the clause is “void for vagueness, as there is no predictable, consistent, or fair definition

that can be applied to the residual clause,” and that it fails to provide defendants with

“any reasonable opportunity to know whether a prior conviction will qualify as a

predicate offense under the ACCA.”

Recently, in United States v. Perry, 703 F.3d 906 (6th Cir. 2013), and United

States v. Campbell, 482 F. App’x 997 (6th Cir. 2012) (per curiam), this court determined

that the “residual clause” was not unconstitutionally vague. In Campbell, the panel

recognized that the Supreme Court has held the clause to be constitutional and that it

“provides guidance that allows a person to conform his conduct to the law.” Campbell,

482 F. App’x at 997; see also Sykes v. United States, 131 S. Ct. 2267, 2277 (2011)

(stating the residual clause provides “an intelligible principle and provides guidance that

allows a person to conform his or her conduct to the law” (internal quotation marks

omitted)); James v. United States, 550 U.S. 192, 210 n.6 (2007) (observing that the

clause “is not so indefinite as to prevent an ordinary person from understanding what

conduct it prohibits”). Stafford, like the defendants in Perry and Campbell, hopes to

persuade us that the dissents in the Supreme Court’s ACCA caselaw favor a change to

the interpretation of the clause. We are bound to follow Supreme Court precedent.

Therefore, we hold that the ACCA’s residual clause is not unconstitutionally vague.
No. 12-3238 United States v. Stafford Page 29

III. CONCLUSION

For the foregoing reasons, Stafford’s conviction is AFFIRMED and the

district court’s sentence is AFFIRMED.