USA v. Christopher Clark

Filing

OPINION filed : Clark s conviction and sentence are AFFIRMED, and the case is REMANDED for the administrative task of correcting the judgment. Decision not for publication. Ralph B. Guy, Jr., Eric L. Clay, and Helene N. White (AUTHORING), Circuit Judges.

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FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,

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Plaintiff-Appellee,
v.
CHRISTOPHER JOHN CLARK,
Defendant-Appellant.

Nov 17, 2014
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE

BEFORE: GUY, CLAY, and WHITE, Circuit Judges.
HELENE N. WHITE, Circuit Judge. A federal jury found Christopher J. Clark guilty
of one count of transporting a stolen vehicle in interstate commerce, 18 U.S.C. § 2312; three
counts of carjacking, 18 U.S.C. § 2119; three counts of using a firearm during and in relation to a
violent crime, 18 U.S.C. § 924(c); one count of felon in possession of a firearm, 18 U.S.C.
§ 922(g)(1); one count of possessing a firearm as a fugitive, 18 U.S.C. § 922(g)(2); and three
counts of assaulting a federal officer, 18 U.S.C. § 111. The district court imposed an aggregate
sentence of 919 months. Clark appeals his convictions and sentence. We AFFIRM Clark’s
conviction and sentence and REMAND for the administrative task of correcting the judgment.
I.
In early September 2006, Clark was an inmate at a jail in Franklin County, Alabama.
The jail had a work-release program that allowed inmates to work offsite and return in the
evening. Through the program, a contractor hired Clark and another inmate, Ronald Vernon, to
clean, paint, and lay sheetrock at a lake house. Clark and Vernon completed the project during

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the Labor Day weekend, but they did not return to the jail Sunday evening, September 3. The
next day, jail officials discovered their absence and informed the contractor and law
enforcement. Escape warrants later issued for their arrest.
After learning of Clark and Vernon’s disappearance, the contractor went to the shop and
discovered Vernon’s truck stored inside. He noticed bloodstains on the truck and on clothing
inside the truck. Later, the contractor realized a BMW 5-series, which a friend had stored on the
property, was missing. When the contractor went to the lake house to see if Clark and Vernon
were there, he saw that bungee cords used to secure trashcans were missing. The contractor’s
friend reported the stolen BMW to police.
An investigation revealed that Clark strangled Vernon with the bungee cords, transported
Vernon’s body in Vernon’s truck, disposed of the body, abandoned the truck at the shop, and
stole the BMW. After killing Vernon, Clark drove the BMW to Memphis, Tennessee, and met
with his ex-girlfriend Michelle Phillips on Monday morning, September 4. As she watched him
change clothes, she noticed blood on the clothes and scratches on his back and arms. Two men,
Timothy Flemmons and Clarence Teal, also saw Clark driving the BMW in Memphis.
Sometime on Wednesday, September 6, Clark pawned the BMW to Flemmons for drugs.
That evening, as Laila Leggette waited at a red light, Clark jumped into her Cadillac Deville and
ordered her to take him to a specific hospital. He later confessed to her, “I’m going to be honest
with you, this is a robbery.” Clark opened Leggette’s wallet, removed her identification card,
and said, “[I]f you’re going to call the police, I know where you live.” He then directed her to
turn down a dark alley, but she refused, fearing for her safety. After he again instructed her to
turn, she pulled over, jumped out of the Cadillac, and ran away into oncoming traffic. Clark
moved into the driver’s seat and drove off.

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In the early morning of Thursday, September 7, Memphis police stopped Flemmons and
Teal in the BMW for speeding, and discovered that the vehicle was reported stolen in Alabama.
Memphis police also learned Clark was a fugitive from Alabama and suspected him of
carjacking Leggette. While conducting an investigation at an address associated with Clark, an
officer spotted a man matching Clark’s description driving a Cadillac. Police followed the
Cadillac to a gas station, where they found it parked at a gas pump. As officers approached the
vehicle, Clark came running out of the store, jumped into the driver’s seat, and sped off.
Clark soon crashed the Cadillac into a telephone pole. He ran to a nearby Hyundai
Tiburon and ordered the driver, Devonia Banks, out of the car at gunpoint. Banks obliged, and
Clark took off in the Hyundai. A bystander approached the abandoned Cadillac and asked the
woman sitting in the passenger seat (later identified as Clark’s mother) if she needed assistance.
She responded, “I’m fine. That’s my son. He just told me he killed somebody.”
Clark drove the Hyundai to the house where his ex-girlfriend Phillips was staying. After
speaking with her, Clark went into the nearby house of his friends Earl and Ruth Ann Millican.
Inside the Millican’s home, Clark aimed a gun at Ruth Ann Millican and pulled the trigger, but it
did not “go off.” He then entered the room in which Earl Millican was sleeping, pointed the gun
at his head and demanded money. Clark took over $3000 from the Millicans. Ruth Ann
Millican reported to police that Clark told her, “I don’t have nothing to lose anyway because I
done killed two people.” He then returned to Phillips’ residence and told her he would not turn
himself into authorities and “wasn’t going back to jail.”
After Clark left Phillips, police picked up the pursuit. Several times Clark directed the
Hyundai at law enforcement vehicles, including at a U.S. Marshals Service special deputy,
causing police to take evasive actions to avoid collision. During the chase, Clark called Phillips.

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With sirens blaring in the background, Clark told her that “he would not pull over” and “was
going out in a blaze of glory.”
Police pursued Clark to a gas station, where Clark abandoned the Hyundai after a tire
popped. At the gas station, he ran towards Mattie McKinney, who had just exited her Ford
Taurus, and pointed a gun at her. She backed away from him, and Clark hopped into her car. As
he tried to escape in the Ford—and with McKinney’s mother in the passenger seat—Clark ran
the car into a vehicle operated by another U.S. Marshals Service special deputy and pointed a
gun at the special deputy. After police stopped the Ford, Clark attempted to flee on foot, but
officers apprehended him.

Police investigators recovered the firearm, a .45 caliber, semi-

automatic pistol with a live bullet jammed inside, on the street near the gas station. A local news
helicopter recorded Clark leading the chase in the Hyundai and continued recording through his
eventual arrest.
On September 12, 2006, a federal grand jury returned a twelve-count indictment against
Clark. Clark filed a motion in limine, seeking to bar the Government from introducing any
evidence regarding Vernon’s murder. The court found that the evidence was “intertwined and
relevant,” but concluded that it had “obvious potential prejudice.”

The court allowed the

evidence “for the limited purpose of demonstrating that Defendant was a fugitive from justice
under suspicion of murder,” but forbade the Government from offering “any pictures or videos
of the deceased or any testimony directly relating to the murder.”
Sometime before trial, Clark’s mother died. The Government filed a motion in limine
seeking permission to introduce Clark’s mother’s statement, “He just told me he killed
somebody,” through the bystander to whom she made the statement. On the first morning of
trial, the court stated that it would admit some evidence of Vernon’s murder, but advised the

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Government it wanted to hear background from each witness before the Government elicited any
statements about the murder, and ordered the Government not to mention the mother’s statement
in opening statement or the fact that Vernon was murdered. The court later allowed testimony
about the bloodstains on the truck, and, over objection, permitted the jury to hear Clark’s
mother’s statement as evidence of Clark’s state of mind.
During jury selection, Clark expressed his dissatisfaction with his counsel and requested
to proceed pro se. The court questioned Clark on his request, including asking whether he was
making the decision to waive his right to counsel voluntarily, and advised Clark several times
that it would be wise to keep his appointed counsel. After the colloquy, the court granted Clark’s
request to waive counsel and proceed pro se, designating his lawyer as standby counsel.
At the start of the second day of trial, Clark witnessed a sidebar conversation between
Government counsel and the court. Expressing his disagreement, Clark stated he was “removing
[him]self from this case.” He declined representation and refused to represent himself. He then
suggested that he would “crawl under the table and lay under the table for a little while.” The
court cautioned Clark “to act right,” then took a recess.
After the recess, the court asked Clark whether he was going to participate in the trial
proceedings, but Clark refused to answer. The court then asked Clark if he was still going to
crawl under counsel’s table. When Clark refused to answer, the court responded: “Okay. Well,
as long as you are quiet and not disruptive, you may remain in the courtroom . . . .” Clark then
stood, prompting the court to ask, “By standing, are you telling me that you will not be quiet and
you will be disruptive? You may be seated. Are you going to be compliant with the Court’s
orders?” Clark again voiced his refusal to participate in the proceedings. The court revoked his
pro se status and asked standby counsel to resume representation. Frustrated, Clark asked to

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leave. The court warned him: “[I]f you’ll just behave, we will leave you here. Otherwise, I’m
going to be forced to remove you . . . .” The court instructed Clark to sit, but Clark again
refused. The court found that it could not “proceed with the trial in the manner in which he’s
behaving,” and ordered the Marshals to remove Clark from the courtroom.
Sometime after Clark’s removal, Marshals informed the court that Clark was not
watching the proceedings in his holding cell as directed. Instead, he had flooded the cell and
banged his head against the wall until he drew blood. The court ordered Clark returned to the
courtroom. When he returned, Clark made several requests to go back to jail. The court found
that Clark had “voluntarily waived [his] right to be present for this trial on more than one
occasion,” allowed him to return to jail, and proceeded with trial.
Clark returned to the courtroom for the remaining two days of trial. The jury found him
guilty on all twelve counts. The court sentenced Clark to 919 months of imprisonment.
II.
Clark first contends that his waiver of the right to counsel and the right to be present at
trial were invalid.
A.
Clark argues his waiver of the right to counsel was invalid because the district court was
unaware of its authority to question his competency to waive the right. More specifically, Clark
infers from the district court’s statement “I can’t force you to have the attorney[,]” that the court
was unaware that, although Clark was competent to stand trial, the court nevertheless had
discretion to inquire whether Clark had the separate mental competency to represent himself.
Clark reads the court’s statement out of context.

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Before a district court accepts a waiver of counsel, it “‘must ask the defendant a series of
questions drawn from, or substantially similar to, the model inquiry set forth in the Bench Book
for United States District Judges.’”1 United States v. Ross, 703 F.3d 856, 867 (6th Cir. 2012)
(quoting United States v. Williams, 641 F.3d 758, 766 (6th Cir. 2011)). Here, the district court
conducted the required colloquy, suggesting it was aware it could deny Clark’s request.
During the colloquy, the district court pressed Clark on his request, inquiring whether he
had any legal training, had ever tried a case, or had any familiarity with the Rules of Evidence.
Clark displayed an understanding of the charges against him and the possible sentences, and
acknowledged he knew the facts of his case.
The court also cautioned Clark on the consequences of self-representation and urged him
to keep his appointed counsel. The court reminded him that he did not “know anything about the
law” and that a “trained lawyer could defend you far better than you think you can defend
yourself.” The court advised Clark that it would hold him to the same legal standards as the
Government’s lawyers.
Despite the court’s urgings, Clark persisted in his request, which he said he had
voluntarily made. And after again advising Clark that he should keep his attorney, the court
granted Clark’s request, concluding, “You don’t seem to want [an attorney]. I can’t force you to
have the attorney.” Fairly read, the record shows that the court found that it could not “force”
Clark to keep his attorney because it had determined that he validly waived his right to counsel.
Clark also suggests that, based on his responses to the court and his mental-health history,
the court had reason to doubt his competence to represent himself and, therefore, should have
1

See Fed. Jud. Ctr., Benchbook for U.S. District Court Judges § 1.02(C) (6th ed., Mar.
2013), available at http://www.fjc.gov/public/pdf.nsf/lookup/Benchbook-US-District-Judges6TH-FJC-MAR-2013-Public.pdf/$file/Benchbook-US-District-Judges-6TH-FJC-MAR-2013Public.pdf.
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made further inquiry into his competence to do so. We review for abuse of discretion whether
there was reasonable cause to question a defendant’s competence to waive counsel. United
States v. Abdulmutallab, 739 F.3d 891, 903 (6th Cir. 2014) (citing United States v. Ross, 703 F3d
856, 867 (6th Cir. 2012)).
Clark clearly and lucidly engaged in the colloquy with the court. He understood the risks
of self-representation, the charges against him, and the possible sentences he faced. Even after
the court accepted the waiver, Clark’s conduct continued to raise no doubts. At various times,
the court explained how the trial would proceed, and Clark responded with appropriate
questions. He participated in jury selection, provided an opening statement, stated objections,
and conducted cross-examinations. The court even praised him on his performance at the
conclusion of the first day. We conclude the court had no reason to doubt Clark’s mental
competency to represent himself.
Finally, Clark argues for reversal because the district court did not know it could have
rejected Clark’s request for self-representation because the request was untimely. The record
does not suggest the court was unaware of its options.
B.
Clark next asserts that the district court violated his right to be present at trial when it first
removed him from the courtroom, arguing that his conduct was not so disruptive as to justify
removal.
This court has recognized that district courts have discretion to employ the best method
for dealing with disruptive defendants, Gray v. Moore, 520 F.3d 616, 623 (6th Cir. 2008) (citing
Illinois v. Allen, 397 U.S. 337, 343 (1970)), and that “district courts are vested with power to
control their courtrooms,” United States v. Meacham, 65 F. App’x 529, 533 (6th Cir. 2003)

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(reviewing summary criminal contempt finding and sentence). We review the district court’s
exercise of its authority to control its courtroom for abuse of discretion. Id. at 533–34; United
States v. Powers, 500 F.3d 500, 506 (6th Cir. 2007) (citing McMillan v. Castro, 405 F.3d 405,
409 (6th Cir. 2005)). “It is an abuse of discretion for a district court to commit legal error or find
clearly erroneous facts.” United States v. Ford, 761 F.3d 641, 651 (6th Cir. 2014) (internal
quotation marks omitted). If the court erred, we ask whether the error was harmless. See United
States v. Gallagher, 57 F. App’x 622, 627 (6th Cir. 2003).
“A defendant’s right to be physically present at every stage of his trial has a longstanding
tradition in this country’s criminal jurisprudence, with roots in both the Due Process Clause and
the Confrontation Clause of the Sixth Amendment.” Gray, 520 F.3d at 622 (citing Allen,
397 U.S. at 338; Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). That right, however, is not
absolute. Id. A defendant waives his continued presence at trial “if, after he has been warned by
the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists
on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that
his trial cannot be carried on with him in the courtroom.” Allen, 397 U.S. at 343; see also Fed.
R. Crim. P. 43(c)(1)(C).
The record does not support Clark’s contention that his behavior was not disruptive.
During the second day of trial, Clark stood, prompting the court to ask: “By standing up, are you
telling me that you will not be quiet and you will be disruptive? You may be seated. Are you
going to be compliant with the Court’s orders?” Clark did not comply. The court then cautioned
him:
[I]f you’ll just behave, we will leave you here. Otherwise, I’m going to be forced
to remove you to the facility where you can see what’s going on here and hear
what’s going on here. And if you change your mind and decide that you will
behave and not be disruptive, then we can bring you back.
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The court again asked Clark to sit. And after the third request—and third refusal to comply—the
court had Clark removed from the courtroom. The court made clear that if Clark would “follow
the direction[s] of the Court and not be disruptive,” he could return. The court expressly found
that Clark’s noncompliance interfered with its ability to carry on with the trial, and that finding is
not clearly erroneous.
Further, Clark was not involuntarily removed from the courtroom; rather he affirmatively
waived his right to be present. As with other constitutional rights, a defendant can waive the
right to be present if the waiver is “knowing and voluntary.” United States v. Riddle, 249 F.3d
529, 534 (6th Cir. 2001) (citing Johnson v. Zerbst, 304 U.S. 458, 464 (1938)); see also Fed. R.
Crim. P. 43(c)(1)(A). Several times, Clark expressed to the court his desire to return to jail.
When the court finally ordered him removed, Clark neither indicated a desire to remain nor did
he accept the court’s invitation to return if he decided he would “act appropriately in the
courtroom.” After the disturbance in the holding cell, Clark asked to go back to jail at least
seventeen times. The district court allowed Clark to leave after finding that Clark waived his
right to be present “on more than one occasion.” Thus, we find no error, and any alleged error is
waived.
III.
Clark next argues the district court erred when it allowed the jury to hear evidence
regarding bloodstains found on Vernon’s truck and on clothes found in the truck and Clark’s
mother’s statement that Clark told her he killed a person. Clark asserts the evidence was
irrelevant, and that even if relevant, the danger of unfair prejudice from the evidence
substantially outweighed its probative value, because the evidence, taken together, left the jury
with the impression that he had killed someone. Clark Br. 24, 28. This court generally reviews a

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ruling on the admissibility of evidence for abuse of discretion. United States v. Tragas, 727 F.3d
610, 614 (6th Cir. 2013) (citing United States v. Yu Qin, 688 F.3d 257, 261 (6th Cir. 2012)); cf.
United States v. Bell, 516 F.3d 432, 440 (6th Cir. 2008) (reviewing Rule 404(b) determination
under a three-part test).
Federal Rule of Evidence 404(b) bars “[e]vidence of a crime, wrong, or other act . . . to
prove a person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1). The Rule “does not apply to evidence
that is ‘intrinsic to’ or ‘inextricably intertwined with evidence of’ the central alleged wrong,”
Flagg v. City of Detroit, 715 F.3d 165, 175 (6th Cir. 2013) (citing United States v. Henderson,
626 F.3d 326, 338 (6th Cir.2010)). Intrinsic evidence includes acts that are “part of a single
episode” and
“background evidence” that “has a causal, temporal or spatial connection with the
charged offense, is a prelude to the central allegation, is directly probative of the
central allegation, arises from the same events as the central allegation, forms an
integral part of a witness’s testimony, or completes the story of the central
allegation.”
Id. at 175–76 (quoting United States v. Gonzalez, 501 F.3d 630, 639 (6th Cir. 2007); United
States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000)).
Federal Rule of Evidence 403 allows a court to “exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . unfair prejudice.” Fed. R. Evid.
403. “Unfair prejudice ‘does not mean the damage to a defendant’s case that results from the
legitimate probative force of the evidence; rather it refers to evidence which tends to suggest
decision on an improper basis.’”

Ford, 761 F.3d at 648 (quoting United States v. Gibbs,

182 F.3d 408, 430 (6th Cir. 1999)).

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We need not decide whether the district court properly admitted all or part of the
evidence because we conclude any error is harmless. “Error is ‘harmless unless it is more
probable than not that the error materially affected the verdict.’” United States v. Pritchett,
749 F.3d 417, 433 (6th Cir. 2014) (quoting United States v. Clay, 667 F.3d 689, 700 (6th Cir.
2012)). “[A]dmission of evidence of prior bad acts is ‘harmless error’ if the record evidence of
guilt is overwhelming, eliminating any fair assurance that the conviction was substantially
swayed by the error.” Clay, 667 F.3d at 700 (quoting United States v. Hardy, 643 F.3d 143, 153
(6th Cir. 2011)).
The jury heard ample evidence to support that Clark intended to kill or seriously injure
his carjacking victims. For example, the jury heard his other, unchallenged admission to Ruth
Ann Millican that he “done killed two people.” It also heard Millican testify that Clark aimed a
gun at her and pulled the trigger, and that Clark robbed Earl Millican at gunpoint. The jury
additionally heard Clark’s statements that he “was going out in a blaze of glory,” had “nothing to
lose,” and was not “going back to jail.” We conclude any error in admitting the challenged
testimony was harmless.
Finally, Clark asserts that the district court violated the Confrontation Clause when it
admitted, through the bystander, his mother’s statement that “he killed somebody.” The parties
agree that this court reviews Confrontation Clause challenges de novo. United States v. Boyd,
640 F.3d 657, 665 (6th Cir. 2011).2
The Confrontation Clause generally bars the admission of testimonial out-of-court
statements. Id. (citing Crawford v. Washington, 541 U.S. 36, 53–54 (2004)). “A statement is
2

A reported decision of this court recently stated that “[w]e review for abuse of
discretion a challenge to the district court’s evidentiary rulings, even on Confrontation Clause
grounds.” Ford, 761 F.3d at 651. Under either the abuse-of-discretion or de novo standard of
review, we conclude there was no Confrontation Clause violation.
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testimonial if a reasonable person in the declarant’s position would have anticipated the use of
the statement in a criminal proceeding.” Id. (citing United States v. Cromer, 389 F.3d 662, 675
(6th Cir. 2004)).
A reasonable person in Clark’s mother’s position would not have anticipated that the
Government would use her statement in a criminal proceeding. She made the statement to a
bystander who had just witnessed Clark crash the Cadillac into a telephone pole. After the crash,
the bystander approached Clark’s mother, who was sitting in the passenger seat of the Cadillac,
and who the bystander described as “an older woman with oxygen,” out of concern—“to see how
she was.” She was “hysterical and crying and having a hard time breathing.” He assumed she
was another carjacking victim, and asked “[D]id he hurt you?” She responded, “[N]o, I’m fine.
That’s my son. He just told me he killed somebody.” The statement is a classic excited
utterance and was “not procured with a primary purpose of creating an out-of-court substitute for
trial testimony.” Michigan v. Bryant, 131 S. Ct. 1143, 1155 (2011). It is non-testimonial
hearsay, and the court did not err when it admitted the statement.
IV.
Clark also challenges his sentence. Among other offenses, the jury convicted Clark of
felon-in-possession of a firearm, 18 U.S.C. § 922(g)(1), and fugitive-in-possession of a firearm,
18 U.S.C. § 922(g)(2). A violation of 18 U.S.C. § 922(g) usually carries a ten-year maximum
term of imprisonment. 18 U.S.C. § 924(a)(2). However, under the Armed Career Criminal Act
(ACCA), if a defendant has “three previous convictions . . . for a violent felony . . . committed on
occasions different from one another,” the ACCA imposes a mandatory fifteen-year minimum
sentence. § 924(e)(1). Multiple prior convictions must involve separate criminal episodes to
trigger the ACCA’s sentence enhancement. United States v. Martin, 526 F.3d 926, 938 (6th Cir.

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2008). Clark asserts that the district court erroneously found that two of his prior felonies arose
from separate criminal episodes. This court reviews “de novo a district court’s determination
that a defendant should be sentenced as an armed career criminal.” United States v. Vanhook,
640 F.3d 706, 709 (6th Cir. 2011) (internal quotation marks omitted).3
A defendant commits felony offenses on different occasions if:
(1) it is possible to discern the point at which the first offense is completed, and
the subsequent point at which the second offense begins; (2) it would have been
possible for the offender to cease his criminal conduct after the first offense; or
(3) the offenses are committed in different residences or business locations.
United States v. Jones, 673 F.3d 497, 503 (6th Cir. 2012). The court must consider the totality of
the circumstances when applying the Jones test. United States v. Mann, 552 F. App’x 464, 470
(6th Cir. 2014). “[G]enerally when a defendant is evading or resisting arrest for an offense
immediately following that offense, we will view subsequent offenses arising out of the evasion
or resistance as part of the same criminal episode.” Id. at 470.
In October 1994, Clark was involved in a police chase that crossed county lines. Police
pursued Clark after he drove away from a gas station without paying. During the chase, Clark
intentionally drove towards a Texas State Trooper. He then continued to drive, crossed county
lines, and again intentionally drove towards another law enforcement officer. Clark was indicted
in both counties for aggravated assault on a Texas State Trooper. He pleaded guilty in both
jurisdictions and received five-year prison terms for each offense.

3

This court has elsewhere said that “where the inquiry turns upon the determination
whether the defendant’s prior convictions are distinct criminal episodes that should be counted
separately under statutory provisions, the standard of review is clear error.” United States v.
Martin, 526 F.3d 926, 938 (6th Cir. 2008) (citations omitted). We discern clear error here.
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Based on these convictions—and a third in Tennessee for facilitating a robbery—the
presentence report (PSR) treated him as a career offender and calculated the guidelines range as
292 to 365 months, in addition to consecutive statutory mandatory sentences totaling 57 years.
At sentencing, Clark argued his prior convictions did not qualify under the ACCA. The
district court concluded that the PSR’s armed-career-criminal calculation was “technically
correct,” even though it found that the convictions arose from “one event in which two crimes
occurred in different counties.” It noted that the ACCA would not have applied to Clark had the
assaults occurred in the same county. Reasoning that Clark’s situation was “atypical,” the court
exercised its discretion and sentenced Clark based on a category IV criminal history (rather than
category VI), resulting in a guidelines range of 235 to 293 months.

The court imposed

concurrent 235-month terms for each of the two counts eligible for enhancement under the
ACCA.
As the district court found, Clark’s two assaults occurred during one “continuous chase.”
Generally, when a person is evading or resisting arrest immediately following the actions giving
rise to the arrest, subsequent offenses arising out of the evasion or resistance are part of the same
criminal episode. Mann, 552 F. App’x at 470. Because Clark assaulted the two troopers while
attempting to evade arrest, we conclude that the resulting aggravated assault convictions were
part of the same criminal episode, and the ACCA does not apply.
Notwithstanding, there is no need for resentencing because the error did not affect
Clark’s aggregate sentence of 919 months’ imprisonment.

After the court applied the

enhancement, it varied downward from the Guidelines and sentenced Clark under a criminal
history category IV, the Guidelines range without the ACCA enhancement. Although the 235month sentences on the two § 922(g) counts at issue here—counts five and six—are in excess of

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Case: 13-5753

Document: 90-2

Filed: 11/17/2014

Page: 16

No. 13-5753
United States v. Clark
the statutory maximum in the absence of the ACCA enhancement, the court also imposed 235month sentences on counts nine and ten, all running concurrent with each other. Therefore, the
district court’s ACCA ruling did not control the duration of Clark’s confinement. But, because
the judgment provides that the court sentenced Clark to 235 months’ imprisonment on counts
five and six, in excess of the statutory maximum of 120 months, we remand to the district court
to correct the judgment.
V.
For the reasons stated, we AFFIRM Clark’s conviction and sentence and REMAND for
the administrative task of correcting the judgment.

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