United States v. Oaks

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 08-2451
___________

United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the District
* of Minnesota.
Tyrone Shadale Oaks, *
*
Defendant - Appellant. *
___________

Submitted: February 12, 2010
Filed: May 26, 2010
___________

Before WOLLMAN, BYE, and MELLOY, Circuit Judges.
___________

BYE, Circuit Judge.

Tyrone Oaks was convicted by a jury of one count of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Pursuant to the Armed
Career Criminal Act (ACCA), 18 U.S.C. § 924(e), the district court1 sentenced Oaks
to 293 months' imprisonment. Oaks raises numerous issues on appeal involving the
conduct of his trial and his sentencing. We affirm.

1
The Honorable Michael J. Davis, Chief Judge, United States District Court for
the District of Minnesota.
 I

On July 18, 2007, at approximately 1:00 a.m., Officer David Palmer of the
Minneapolis Park Police was conducting a routine patrol of Lake Calhoun in
Minneapolis. Palmer spotted Oaks and three other persons–Oaks's girlfriend Lisa
Broadway, Anthony Young, and S.J. (Broadway's teenage daughter)–in the park after
hours. Upon approaching the group approximately twenty-five feet away, Palmer
observed Oaks and Broadway pass items between themselves and Broadway placing
an item in her front pocket. Palmer believed a drug transaction was occurring and
noted the group was beginning to disburse. As Oaks began to walk away, Palmer
observed him reach into the waistband of his pants to retrieve an object and make a
throwing motion toward the lake. Immediately thereafter Palmer heard a loud splash.

Palmer got out of his patrol vehicle, ordered the four to stop, and detained them.
A search of Broadway uncovered marijuana and one tablet of what Palmer believed
to be Ecstacy. When questioned about what he had thrown into the lake, Oaks
claimed he was disposing of marijuana. Shortly thereafter, Oaks, and then Young,
fled the scene on foot but were recaptured with the assistance of a canine unit.

Palmer and a second officer searched the area where Palmer observed Oaks
dispose of the unknown item. Within minutes they recovered a loaded 9 mm handgun
from the water. After Oaks was recaptured, he was returned to the scene where
Palmer positively identified him as the person who threw the item into the water.

Oaks was indicted with one count of being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). In advance of trial, defense
counsel became aware of threats Oaks made to the trial judge. Counsel moved for the
judge to disqualify himself, arguing the threats would prevent the court from
administering the case fairly and objectively. The court denied the request and the
case proceeded to trial.

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 At trial, Palmer testified to the above events. During cross-examination, Palmer
stated he was unable to see what Oaks threw in the lake because shadows from nearby
shrubbery prevented him from seeing clearly. Defense counsel attempted to impeach
Palmer by pointing out he had not mentioned shrubbery in his earlier description of
the events. On redirect, Palmer reviewed a written statement made near the time of
the incident that indicated Oaks threw the item in the direction of "weeds" and
"vegetation," and the government argued his earlier statement and trial testimony were
consistent. Palmer also testified on redirect the nearest street light was approximately
150 feet from where the four persons were gathered. Defense counsel sought to cross-
examine Palmer further on these two points but the district court denied the request.

The government also offered the testimony of S.J., who stated she overheard
Oaks ask Broadway, "Should I throw it?" and observed Oaks throw a large black
pistol into the lake. Conversely, Oaks, Young, and Broadway testified and denied
Oaks had a gun or that he disposed of it in the lake.

As an element of the charged offense, the government had to prove Oaks was
a convicted felon. The government offered four prior convictions it argued qualified
as felony convictions. In advance of trial, Oaks stipulated he was a convicted felon
and the government was precluded from offering the convictions to prove his status
as a felon. However, the district court allowed the government to introduce evidence
of Oaks's prior conviction for aggravated robbery. The robbery conviction involved
the possession of a firearm and the government successfully argued it was admissible
under Rule 404(b) of the Federal Rules of Evidence to prove Oaks was not mistaken
about his status as a convicted felon and his intent to possess the gun.

At the close of the evidence, the district court instructed the jury the
government had to prove beyond a reasonable doubt Oaks knowingly possessed the
handgun. The instruction stated knowingly "means that he was conscious and aware
of his action, realized what he was doing or what was happening around him, and did

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not act because of ignorance, mistake, or accident." Defense counsel did not object
to the instruction.

The jury convicted Oaks and a presentence investigation was ordered. After
reviewing the presentence investigation report (PSR), Oaks submitted various
objections but did not object to any information in the PSR detailing his four prior
felony convictions. Additionally, Oaks did not object at sentencing when the district
court, relying on the unobjected-to information in the PSR, determined Oaks's prior
felony convictions qualified him for enhanced penalties under ACCA.

After Oaks was convicted, but before sentencing was held, his relationship with
defense counsel deteriorated and counsel moved to withdraw. Counsel noted he had
met with Oaks to review the PSR and was told Oaks no longer wanted him to continue
his representation. A hearing was held and Oaks asked to dismiss his attorney and
have substitute counsel appointed. Oaks told the district court he would proceed pro
se if substitute counsel was not appointed. The district court granted the motion to
withdraw but refused to appoint substitute counsel and advised Oaks he would have
to represent himself. Days later, the district court reconsidered and appointed
substitute counsel. At sentencing, the district court, in addition to other sentencing
enhancements, applied ACCA and sentenced Oaks to 293 months' imprisonment.

II

Oaks raises numerous issues on appeal. We will address each argument in turn.

A. The Trial Judge's Refusal to Recuse Himself

Oaks first argues the trial judge erred by refusing to recuse himself after he was
made aware Oaks had threatened him. Oaks either sent threatening correspondence
to the district court or made statements while in jail threatening the judge which were

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communicated to marshals and ultimately the judge. As a result, the marshals and
court security personnel were more visible when Oaks was in the courtroom. When
defense counsel noticed the heightened security measures at a pretrial hearing, he
objected, fearing the presence of additional officers during trial would prejudice the
jury. The judge held a sidebar and stated he "deem[ed] [Oaks] a threat." He further
admonished defense counsel not to tell Oaks about the conversation. Defense counsel
moved for the judge's recusal, arguing the threats would cause the court to favor the
government and be antagonistic to Oaks. The court refused the request. Oaks now
argues the court's legal rulings during the course of the trial and the lengthy sentence
it imposed reflect the court's bias.

We review a judge's refusal to recuse for an abuse of discretion. Moran v.
Clarke, 296 F.3d 638, 648 (8th Cir. 2002). Under section 455(a), a judge is required
to "disqualify himself in any proceeding in which his impartiality might reasonably
be questioned." 28 U.S.C. § 455(a). Congress amended section 455 in 1974 "to
clarify and broaden the grounds for judicial disqualification and to conform with the
recently adopted ABA Code of Judicial Conduct, Canon 3C (1974)." Liljeberg v.
Health Servs. Acquisition Corp., 486 U.S. 847, 858 n.7 (1988). This court applies an
objective standard of reasonableness in determining whether recusal is required. "The
question is 'whether the judge's impartiality might reasonably be questioned by the
average person on the street who knows all the relevant facts of a case.'" United States
v. Dehghani, 550 F.3d 716, 721 (8th Cir. 2008) (quoting Moran, 296 F.3d at 648).

"A party introducing a motion to recuse carries a heavy burden of proof; a judge
is presumed to be impartial and the party seeking disqualification bears the substantial
burden of proving otherwise." Pope v. Fed. Express Corp., 974 F.2d 982, 985 (8th
Cir. 1992).

We note that where a judge's opinions are based on facts introduced or
events occurring in the course of the current proceedings, those opinions

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 do not warrant recusal unless they display a deep-seated favoritism or
antagonism that would make fair judgment impossible. While a
defendant's threat against a judge may in some cases raise a sufficient
question concerning bias on the part of that judge, recusal is not
automatic on the mere basis of the judge's knowledge of the threat.

United States v. Gamboa, 439 F.3d 796, 817 (8th Cir. 2006) (internal citations and
quotation marks omitted).

Oaks argues the trial judge's bias is reflected in the comments made from the
bench indicating he deemed Oaks a threat, various adverse legal rulings during the
proceedings, and the 293-month prison term which was imposed. The brief comments
made by the district court do not, of themselves, indicate any "deep-seated favoritism
or antagonism that would make fair judgment impossible." Id. The court's lack of
bias is also reflected in the contested rulings, which, as shown below, were legally
sound. There is no evidence suggesting any adverse rulings were motivated by bias
on the part of the court. See United States v. Schwartz, 535 F.2d 160, 165 (2d Cir.
1976) ("Adverse rulings, standing alone, do not establish judicial bias or prejudice,
nor create a reasonable question of judicial impartiality.") (citation omitted). Further,
the sentence was imposed after the court correctly applied ACCA and calculated the
proper Guidelines sentencing range. As a result, we conclude the court did not abuse
its discretion by denying the recusal motion.

B. The "Knowingly" Jury Instruction

Oaks next argues the district court gave an erroneous jury instruction defining
the term "knowingly." The district court instructed the jury "knowingly" meant Oaks
was "conscious and aware of his action, realized what he was doing or what was
happening around him, and did not act because of ignorance, mistake or accident."
Oaks, citing United States v. Dixon, 548 U.S. 1, 5 (2006), argues the court should
have instructed the jury that he "had knowledge of the fact he possessed the firearm."

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According to Oaks, the district court should have adopted the Supreme Court's
definition of "knowingly" and the district court's definition was misleading.

Defense counsel failed to object to the instruction. Where trial counsel fails
to raise an error at trial, this court can correct the error where there is "(1) error, (2)
that is plain, and (3) that affects substantial rights." United States v. Pirani, 406 F.3d
543, 550 (8th Cir. 2005) (citation omitted). Oaks "bears the burden of persuasion"
with respect to proving his rights were prejudiced, and he normally can meet the
requirement only by showing the alleged error affected the outcome of the case.
United States v. Olano, 507 U.S. 725, 734 (1993). If Oaks meets his burden on the
first three prongs, the court "may then exercise its discretion to notice a forfeited error,
but only if (4) the error seriously affects the fairness, integrity, or public reputation of
the judicial proceedings." Pirani, 406 F.3d at 550 (citation omitted). Here, the
instruction does not constitute error and Oaks's arguments fail.

Jury instructions are adequate if, "taken as a whole, [they] adequately advise the
jury of the essential elements of the offenses charged and the burden of proof required
of the government." United States v. Sherer, 653 F.2d 334, 337 (8th Cir. 1981). It is
settled law in this circuit that a district court's failure to define "knowledge" or
"knowingly" does not constitute "error, much less plain error." United States v.
Smith, 635 F.2d 716, 720 (8th Cir. 1980) (holding there is no need to define
"knowledge" because the word has the meaning assigned it in common usage and a
juror would already understand the word); see also United States v. Williams, 923
F.2d 76, 78 (8th Cir. 1991) (per curiam) ("In the Manual of Model Criminal
Instructions for the District Courts of the Eighth Circuit . . . , it is stated that 'the
Committee believes that in most cases the word "knowingly" does not need to be
defined.' Clearly, it was not plain error to omit such a definition.").

In this case, the district court did not omit a definition of "knowingly." This
court's precedent suggests a definition which comports with the common meaning of

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its usage will pass appellate review. The district court instructed the jury the
government needed to prove Oaks was conscious of what he was doing, aware of what
was going on around him, and did not act because of ignorance, mistake or accident.
Nothing about this definition suggests anything other than the term's common
meaning. Moreover, the district court's definition, while different in form from the
Supreme Court's definition in Dixon, did not alter the common substantive meaning
of the term. Accordingly, the district court did not commit any instructional error,
much less any error that affected Oaks's substantial rights.

C. Rule 404(b) Evidence of Prior Aggravated Robbery Conviction

Oaks next assigns error to the district court's order allowing the government to
offer evidence of his prior conviction for aggravated robbery under Rule 404(b) of the
Federal Rules of Evidence.

Rule 404(b) states: "Evidence of other crimes, wrongs, or acts is not admissible
to prove the character of a person in order to show action in conformity therewith."
Fed. R. Evid. 404(b). The rule prohibits evidence of prior bad acts used to
circumstantially prove a person has a propensity to commit acts of that sort. United
States v. Trogdon, 575 F.3d 762, 766 (8th Cir. 2009).

Character evidence is of slight probative value and may be very
prejudicial. It tends to distract the trier of fact from the main question of
what actually happened on the particular occasion. It subtly permits the
trier of fact to reward the good man and to punish the bad man because
of their respective characters despite what the evidence in the case shows
actually happened.

Fed. R. Evid. 404 advisory committee notes (1972).

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 Rule 404(b) provides, however, evidence of prior bad acts "may . . . be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident." Rule
404(b) is thus "a rule of inclusion rather than exclusion and admits evidence of other
crimes or acts relevant to any issue in the trial, unless it tends to prove only criminal
disposition." United States v. Simon, 767 F.2d 524, 526 (8th Cir. 1985) (citation and
internal quotation marks omitted). Thus, evidence of prior bad acts "probative of the
crime charged" is not excluded under Rule 404(b), United States v. DeLuna, 763 F.2d
897, 913 (8th Cir. 1985), and the court will only find error in a 404(b) question if the
district court abused its discretion, Simon, 767 F.2d at 526.

To be admissible under Rule 404(b), the evidence must be 1) relevant to a
material issue raised at trial, 2) similar in kind and close in time to the crime charged,
3) supported by sufficient evidence to support a jury finding the defendant committed
the other act, and 4) its probative value is not substantially outweighed by its
prejudicial value. United States v. Turner, 583 F.3d 1062, 1066 (8th Cir. 2009).

Here, the government offered the aggravated robbery conviction because Oaks
committed the crime while carrying a handgun. According to the government, it was
relevant in this instance to prove Oaks's knowledge and intent. Oaks contends he did
not place his knowledge and intent at issue because his defense was that he did not
possess or throw the handgun into the lake.

Oaks's argument, however, is foreclosed by this court's earlier precedent.
Knowing possession of a firearm is an element of 18 U.S.C. § 922(g)(1), and Oaks
placed his knowledge of the firearm's presence at the scene on his person at issue by
pleading not guilty to the crime and requiring the government to prove his guilt
beyond a reasonable doubt. United States v. Walker, 470 F.3d 1271, 1274 (8th Cir.
2006); United States v. Chesney, 86 F.3d 564, 572 (6th Cir. 1996). "Evidence that a
defendant possessed a firearm on a previous occasion is relevant to show knowledge

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and intent." Walker, 470 F.3d at 1274. Oaks's prior conviction for armed robbery
addresses the material issue of his knowledge of the presence of the firearm and his
intent to possess it. See Walker, 470 F.3d at 1274 (holding the defendant's prior
conviction for armed robbery addressed his knowledge and intent to possess the
firearm). We therefore reject Oaks's argument and conclude the district court did not
abuse its discretion in admitting evidence of Oaks's prior aggravated robbery
conviction.2

D. Additional Cross-Examination of Officer Palmer

Oaks next argues the district court erred when it refused defense counsel's
request for additional cross-examination of Officer Palmer following his re-direct.

The Sixth Amendment guarantees a defendant an opportunity for effective
cross-examination of witnesses. United States v. Warfield, 97 F.3d 1014, 1024 (8th
Cir. 1996). However, courts "retain wide latitude insofar as the Confrontation Clause
is concerned to impose reasonable limits on such cross-examination based on concerns

2
Oaks's alternative arguments on this point are similarly without merit. Namely,
the district court acted within its broad discretion in concluding the probative value
of Oaks's prior conviction was not substantially outweighed by the danger of unfair
prejudice under Rule 403. See United States v. Banks, 553 F.3d 1101, 1107 (8th Cir.
2009) (acknowledging the great deference given to the district court's Rule 403
balancing test). Oaks's prior conviction was not introduced to prove his status as a
felon, thus diminishing the limited rule he analogizes to in Old Chief v. United States,
519 U.S. 172 (1997). United States v. Dorsey, 523 F.3d 878, 880-81 (8th Cir. 2008)
(noting Old Chief distinguishes cases involving prior convictions under Rule 404(b)).
In addition, the district court provided a limiting instruction directing the jury to only
consider the evidence with respect to Oaks's knowledge and intent. See United States
v. Kent, 531 F.3d 642, 651 (8th Cir. 2008) ("Moreover, this Court has been reluctant
to find that the evidence was unfairly prejudicial when the district court gave an
appropriate limiting instruction, instructing the jury not to use the evidence as proof
of the acts charged in the indictment.") (citations and quotation marks omitted).

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about, among other things, harassment, prejudice, confusion of the issues, the
witness'[s] safety, or interrogation that is repetitive or only marginally relevant."
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see also United States v.
Beckman, 222 F.3d 512, 524 (8th Cir. 2000) (same). A Confrontation Clause
violation is shown when a defendant demonstrates a reasonable jury might have
received a significantly different impression of a witness's credibility had counsel
been allowed to pursue the proposed line of cross-examination. Harrington v. Iowa,
109 F.3d 1275, 1277 (8th Cir. 1997). A trial court's decision to limit
cross-examination will not be reversed unless there has been a clear abuse of
discretion and a showing of prejudice to the defendant. United States v. Brown, 110
F.3d 605, 611 (8th Cir. 1997).

During direct examination, Officer Palmer stated he was unable to see what
Oaks threw in the lake because shadows from tall shrubs or trees nearby prevented
him from seeing clearly. On cross-examination, defense counsel sought to impeach
Palmer by pointing out he had not mentioned shrubbery in his earlier description of
the events. On redirect, Palmer reviewed a written statement made near the time of
the incident that indicated Oaks threw the item in the direction of "weeds" and
"vegetation," and the government argued his earlier statement and trial testimony were
consistent. Palmer also testified on redirect the nearest street light was approximately
150 feet from where the four persons were gathered. When defense counsel asked to
re-cross examine Palmer more extensively on these points, the district court refused
the request.

On appeal, Oaks fails to explain what additional questions counsel wished to
ask and how the additional cross-examination would have significantly impacted
Palmer's credibility. Oaks suggests his counsel wished to revisit the purported
discrepancy between "shrubbery" versus "weeds" and "vegetation," but the issue had
been addressed and further cross-examination would have been cumulative. See
United States v. Beck, 557 F.3d 619, 621 (8th Cir. 2009) (holding the proposed

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testimony was duplicative and had little impact on the case). Similarly, the alleged
scarcity of lighting in the area, which would negatively impact Palmer's ability to
accurately see what occurred, was also before the jury in Palmer's prior testimony, and
counsel was free to argue the point at closing. See United States v. Wipf, 397 F.3d
677, 683 (8th Cir. 2005) (holding the restriction on defendant's cross-examination was
permissible, in part, where the defendant was already granted considerable leeway to
cross-examine the witness and impeach his credibility). Counsel's additional
questions would not have added to the testimony or detracted from Palmer's
credibility. Accordingly, the district court did not abuse its discretion in disallowing
Oaks's counsel additional cross-examination of Palmer.

E. Oaks's Right to Self-Representation

Oaks next claims the district court violated his Sixth Amendment right to self-
representation when it appointed substitute counsel. The appointment of substitute
counsel is within the sound discretion of the trial court. United States v. Mentzos, 462
F.3d 830, 839 (8th Cir. 2006).

While the Sixth Amendment does not explicitly guarantee the right of
self-representation, such a right is "necessarily implied by the structure of the
Amendment." Faretta v. California, 422 U.S. 806, 819 (1975). In order to represent
himself, a defendant must "knowingly and intelligently" forgo the "traditional benefits
associated with the right to counsel." Id. at 835. While the defendant is not required
to have the skill and expertise of a lawyer to represent himself, he should know the
dangers of self-representation, so the record must establish he made an informed
choice. Id.

The right to self-representation is not absolute. Martinez v. Court of Appeal of
Cal., 528 U.S. 152, 161 (2000). "A defendant who wishes to waive his right to
counsel, and thereby proceed pro se, must do so clearly and unequivocally." United

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States v. Washington, 596 F.3d 926, 939 (8th Cir. 2010). The defendant must first
make his request to proceed pro se in a timely manner, after which the district court
retains the ability to "terminate self-representation by a defendant who deliberately
engages in serious and obstructionist misconduct." United States v. Edelmann, 458
F.3d 791, 808 (8th Cir. 2006) (citing Faretta, 422 U.S. at 834). The district court also
has the authority to refuse to allow a defendant to represent himself when "the
defendant is unable to 'knowingly and intelligently' forgo the 'traditional benefits
associated with right to counsel.'" Id. (quoting Faretta, 422 U.S. at 835).

Oaks's claimed Sixth Amendment violation is without basis in fact. The record
demonstrates Oaks expressed displeasure with his appointed attorney, forcing the
attorney to move to withdraw. At the motion hearing, Oaks unequivocally stated, "I
ask that I have better counsel, that I have a lawyer who will represent me." Motions
Tr. at 3. Oaks indicated he would not proceed with his current appointed counsel.
The court advised him it would not appoint substitute counsel and Oaks would be
forced to represent himself if the motion was granted. Oaks then agreed to represent
himself, but expressed concern over his ability to properly prepare. See id. at 9 ("Can
I – I mean, if I'm not allowed to go to the law library, I find it impossible to try to even
start to fight for myself.").

Within days after refusing the request for substitute counsel, the district court
reversed itself and appointed a new attorney. The court recognized the obstacles Oaks
faced in accessing legal materials due to his heightened custody status, as voiced by
Oaks during the motions hearing. The district court believed these obstacles
ultimately impacted Oaks's ability to competently represent himself, and accordingly
it appointed substitute counsel in line with his original request. Under these
circumstances, the factual predicate for Oaks's current claim is based on a
misrepresentation of the record and his allegation of error is rejected. The district
court acted within its discretion in appointing Oaks substitute counsel.

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 F. Due Process Violation at Sentencing

Oaks next argues the district court violated his right to due process under the
Fifth Amendment by relying on misinformation contained in the PSR to find him
eligible for an enhanced sentence under ACCA. Specifically, Oaks argues the
information in the PSR about his prior felonies, which made him ACCA-eligible, was
not accurate and the district court should not have used it to enhance his sentence.
Once again, the factual predicate for his claim is based on Oaks's mischaracterization
of the record.

This court has repeatedly held "that unless a defendant objects to a specific
factual allegation contained in the PSR, the court may accept that fact as true for
sentencing purposes." United States v. Moser, 168 F.3d 1130, 1132 (8th Cir. 1999)
(collecting cases). Thus, a defendant's "failure to object to the PSR's factual
characterization of his conduct . . . is dispositive." United States v. Menteer, 350 F.3d
767, 771 (8th Cir.2003); see also United States v. Arrieta-Buendia, 372 F.3d 953, 955
(8th Cir. 2004). Oaks failed to object to the information contained in the PSR
detailing his prior felony convictions. Thus, the district court could accept the
information as true. Oaks's attempt to save his claim of error by characterizing it as
a due process violation is unavailing because his failure to object obviates any
argument he could make that the information was inaccurate.

We also reject Oaks's attempt to analogize this case to Townsend v. Burke, 334
U.S. 736 (1948). In Burke, the defendant was uncounseled and sentenced based upon
inaccurate information in his criminal record. 334 U.S. at 740-41. Neither of these
circumstances exist in this case because Oaks was represented by counsel and failed
to object to information contained in the PSR, which, as noted above, permitted the
district court to accept the information as true. Accordingly, we reject Oaks's claim
of error based on his failure to object to the accuracy of the information in the PSR.

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 G. Sufficiency of the Evidence

Oaks next argues the evidence was insufficient to prove his status as a
convicted felon as required under 18 U.S.C. § 922(g)(1).

As an initial matter, Oaks incorrectly asserts the jury convicted him under
§ 924(e) instead of § 922(g)(1). Section 922(g)(1) is the statute defining the
substantive offense of being a felon in possession of a firearm. See 18 U.S.C.
§ 922(g)(1). One of the elements of the offense requires the government to prove, and
the jury to find, that the defendant was a convicted felon. United States v. Butler, 594
F.3d 955, 964 (8th Cir. 2010). Ordinarily, a defendant convicted under section
922(g)(1) faces a maximum term of imprisonment of ten years. 18 U.S.C. § 924(a)(2).
Section 924(e), or the Armed Career Criminal Act, is a sentencing provision, and the
determination of whether a defendant qualifies for the enhanced penalties contained
therein is a determination made by the sentencing court – not the jury. See United
States v. Van, 543 F.3d 963, 966 (8th Cir. 2008) (discussing the district court's
imposition of ACCA in calculating the defendant's sentence). If ACCA applies and
the defendant has three previous convictions for a violent felony, he is subject to a
more stringent minimum term of imprisonment of fifteen years. United States v.
King, 598 F.3d 1043, 1044 (8th Cir. 2010).

As a result of the distinction above, we assume for purposes of this appeal that
Oaks is arguing the evidence was insufficient to prove to the jury beyond a reasonable
doubt he was a convicted felon for purposes of § 924(g)(1). This argument is without
merit. The record shows Oaks stipulated in advance of trial to his status as a
convicted felon in order to prevent the government from presenting evidence of all his
felonies to the jury. Because he stipulated to being a convicted felon, he cannot now
argue the evidence was insufficient to prove that element. See United States v.
Poulack, 236 F.3d 932, 938 (8th Cir. 2001) ("Because [the defendant] stipulated to the

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reduced drug quantity figure when he had knowledge that quantity was a key factor,
he waived his right to a jury determination on that issue.").

Oaks's challenge to the district court's application of ACCA at sentencing is
similarly without merit. First, Oaks correctly notes the government must prove each
of the facts necessary to support a sentencing enhancement by a preponderance of the
evidence. United States v. Razo-Guerra, 534 F.3d 970, 975 (8th Cir. 2008).
However, as noted above, the district court may accept any undisputed portions of the
PSR in determining whether the government has met its burden. Id. Contrary to
Oaks's argument, his not guilty plea to the charge in the indictment does not suffice
to establish an objection to the PSR at sentencing regarding his prior convictions. Id.
(noting the defendant has to object to specific factual allegations in the PSR, or the
court may accept those facts as true in calculating its sentence). The PSR concluded
Oaks was convicted of three prior felony crimes of violence, and he did not object to
this determination. Therefore, the district court properly adopted the findings in the
PSR as facts for its consideration in determining Oaks's sentence. We therefore reject
Oaks's argument regarding the sufficiency of the evidence and his ACCA status.

H. Oaks's Conviction for Attempted Breaking and Entering

Oaks next contends the district court erred when it considered his juvenile
conviction for attempted breaking and entering for purposes of ACCA. We review
de novo whether an offense is a violent felony under ACCA. United States v. Walker,
555 F.3d 716, 721 (8th Cir. 2009).

Once again, Oaks's argument is based on a mischaracterization of the record.
The PSR – to which Oaks did not object – lists the conviction as an adult conviction,
not a juvenile conviction as Oaks claims. Because he failed to object, he cannot now
argue the information was inaccurate. As a result, the district court properly
concluded Oaks's attempted breaking and entering conviction qualified as a violent

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felony under ACCA. See James v. United States, 550 U.S. 192, 203-05 (2007)
(concluding attempted burglary qualifies under ACCA because it poses the same kind
of risk as a completed burglary); United States v. Fish, 928 F.2d 185, 187-88 (6th Cir.
1991) (concluding the defendant's Michigan conviction for attempted breaking and
entering qualified as a violent felony for section 924(e) purposes).

I. Oaks's Conviction for Unlawfully Driving Away an Automobile

Finally, Oaks argues the district court erred when it used his Michigan
conviction for unlawfully driving away an automobile as one of the predicate felonies
necessary to enhance his sentence under ACCA.

The government concedes under United States v. Williams, 537 F.3d 969 (8th
Cir. 2008), the conviction for unlawfully driving away an automobile is not a violent
felony for purposes of ACCA. See Begay v. United States, 128 S. Ct. 1581 (2008).
(holding that driving under the influence of alcohol is not a violent felony under
ACCA). However, ACCA only requires three prior felony convictions for its
provisions to apply. Walker, 555 F.3d at 721. Aside from his unlawfully driving
away an automobile conviction, Oaks had felony convictions for attempted breaking
and entering, assault in the third degree, and aggravated robbery in the first degree.
Oaks only challenges the first of these convictions, which, as discussed above,
qualified under ACCA. Accordingly, any error committed by the district court in
considering Oaks's unlawfully driving away an automobile conviction was harmless
because he maintained at least three other qualifying ACCA predicate offenses. See
United States v. Comstock, 531 F.3d 667, 679 (8th Cir. 2008) (holding any error by
the district court in considering a conviction that did not qualify as a violent felony
was harmless where the defendant had at least three other qualifying convictions).
Because any error by the district court did not affect Oaks's substantial rights, we
reject his argument.

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 Oaks's remaining arguments are without merit. First, the district court was not
required to apply a beyond a reasonable doubt standard, rather than a preponderance
of the evidence standard, in determining his sentencing enhancements. See Pirani,
406 F.3d at 551 n.4 ("Nothing in Booker suggests that sentencing judges are required
to find sentence-enhancing facts beyond a reasonable doubt under the advisory
Guidelines regime."). See also U.S.S.G. § 6A1.3, cmt. background ("The Commission
believes that use of a preponderance of the evidence standard is appropriate to meet
due process requirements and policy concerns in resolving disputes regarding
application of the guidelines to the facts of a case.").

Second, Oaks's rights were not violated by any lack of reasonable notice
regarding the allegation of three prior convictions and the increased sentence under
section 924(e). Notice by the government of its intention to seek an enhanced
sentence is not required under ACCA. United States v. Zuniga, 553 F.3d 1330, 1336
(10th Cir. 2009); United States v. Mauldin, 109 F.3d 1159, 1162 (6th Cir. 1997).
Moreover, Oaks did have notice of the enhanced sentence by way of the indictment
and the PSR, which specifically cited section 924(e) and listed his prior convictions
which the government considered violent felonies.

Finally, Oaks asserts the district court violated his due process rights by failing
to provide him a hearing to determine the existence of the three prior convictions. We
reject this argument because the district court discussed the application of ACCA
during the sentencing hearing, during which Oaks was provided an opportunity to
object to the factual findings contained in the PSR. The district court properly
adopted those findings in the PSR as facts for its consideration after Oaks failed to
object. Accordingly, Oaks was not denied his due process rights and was not entitled
to a separate hearing.

For the foregoing reasons, we affirm the judgment of the district court.
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