United States v. Fortune

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 30 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 99-6337
WAYNE EUGENE FORTUNE, (D.C. No.99-CR-13-T)
(W.D. Okla.)
Defendant-Appellant.

ORDER AND JUDGMENT *

Before EBEL, McKAY, and BRISCOE , Circuit Judges.

Wayne Eugene Fortune appeals his criminal conviction and sentence. A

jury determined that Fortune robbed a fuel station at gunpoint and convicted him

of interfering with interstate commerce by robbery, in violation of 18 U.S.C.

§ 1951; using or carrying a firearm in relation to a crime of violence, in violation

of 18 U.S.C. § 924(c); and possessing a firearm despite a previous felony

conviction, in violation of 18 U.S.C. § 922(g). The district court, applying what

is commonly known as the “Three Strikes” law, see 18 U.S.C. § 3559(c),

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
sentenced Fortune to life imprisonment. We exercise jurisdiction pursuant to 28

U.S.C. § 1291 and affirm.

I. BACKGROUND

On September 15, 1998, Brian Blake and Kenny Benard were working the

graveyard shift at the Oasis Travel Center (“Oasis”), a truck stop and convenience

store located near Interstate 35 in Oklahoma City. At approximately 1:30 a.m.,

Blake observed two men entering the store. One of the men went to the back of

the store, while the other purchased a Coke. The two men then left the store

together. The men returned to the store about an hour later, while Blake and

Benard were taking a break at a table near the store’s entrance. One of the men

pointed a gun at Blake’s face and ordered the employees to walk behind the fuel

desk and open the cash drawers. Blake and Benard complied, removing the

money and placing it on a table. The robbers then ordered Blake and Benard to

“get down on the floor,” and one of the robbers struck Blake in the back of the

head with the gun. Transcript (“Tr.”) at 68. After the robbers left the store,

Benard called the police.

While the robbery was taking place, Oklahoma City police officer Bryan

Edwards was three miles south of the Oasis, near an access road to Interstate 35.

Edwards parked his car at the intersection to divert traffic from debris in the road.

Edwards heard “tires squealing” and saw a white four-door GM automobile

2
traveling south on the access road at a high rate of speed. Tr. at 7, 21, 91. No

other vehicle approached the intersection while Edwards was stationed there. The

automobile stopped at the intersection and turned west. From a distance of about

25 feet, Edwards observed two black males through the tinted windows of the

automobile, both wearing white T-shirts. Overhead lights from Interstate 35

illuminated the intersection. Moments after the automobile turned the corner and

headed west, Edwards received a radio report of the Oasis robbery. The report

identified the suspects as two black males wearing light-colored T-shirts, driving

a white Cadillac.

Edwards decided to pursue the automobile. Edwards noted that the

automobile resembled the one described in the radio report, that its occupants

were two black males, and that it approached from the direction of the robbery.

Edwards caught up to the automobile and followed it for roughly three-quarters of

a mile until other officers arrived. When the other units arrived, Edwards

activated his overhead lights and attempted to stop the automobile. The

automobile slowed down, sped up, and changed direction several times before

pulling over.

Officers then approached the occupants of the automobile. Ervin

Wineberry was later identified as the driver, and Fortune was identified as the

passenger. Fortune initially refused to raise both hands in response to the

3
officers’ orders, keeping one hand in the center area of the front seat. After

removing Wineberry and Fortune from the automobile and arresting them, officers

searched the vehicle and discovered a loaded pistol behind the center armrest.

Officers also discovered an unopened bottle of Diet Coke, still cold with

condensation on it. Officers searched Fortune and discovered a large roll of

money in the groin area of Fortune’s pants. Officers seized bills worth $1,269.00,

which were separated with paper clips by denomination. At the time of his arrest,

Fortune was wearing a baseball cap. The cap matched the one worn by the Oasis

robber with the gun.

One of the officers who arrived at the scene was Ron Pisano. After Fortune

and Wineberry were arrested, Pisano and another officer went back to the Oasis to

secure the store and to speak with Blake and Benard. Blake and Benard described

the robbers as black males wearing white T-shirts. Blake and Benard also stated

that the robber who wielded the gun wore a ball cap. Pisano then drove Blake

and Benard to the arrest location. Pisano informed Blake and Benard that officers

had “a vehicle stopped with some individuals in it,” and that he wanted the

victims to “look at the car and the individuals and tell us if they had anything to

do with the robbery.” Tr. at 33-34. While driving to the scene, Benard asked

several questions about the vehicle and the suspects, which Pisano declined to

answer. At the location of the arrest, officers handcuffed Fortune and Wineberry

4
and placed them in separate police cars. Blake and Benard individually viewed

Fortune, Wineberry, and the suspect automobile. Blake and Benard stated that

they were “100 percent sure without a doubt” that Fortune and Wineberry were

the perpetrators of the robbery. Tr. at 35.

A grand jury returned a three-count indictment against Fortune and

Wineberry. The indictment charged the two men with violations of 18 U.S.C.

§§ 1951 (Count 1), 924(c)(1) (Count 2), and 922(g)(1) (Count 3). Prior to trial,

the government notified Fortune that it would seek a sentence of life

imprisonment on Count 1 pursuant to 28 U.S.C. § 3559(c). The government

indicated that it planned to use Fortune’s previous convictions in Oklahoma

county court to justify the enhanced sentence. Fortune sought to suppress much

of the government’s evidence in several pre-trial motions. In these motions

Fortune (1) took exception to the “suggestive show-up identification technique”

used by police officers at the location of the arrest, Doc. 28 at 2; and (2) asserted

that the officers did not have probable cause to arrest him. The district court

denied Fortune’s motions.

After Wineberry pleaded guilty to the underlying offenses, Fortune’s case

proceeded to trial. At the close of the government’s case, Fortune moved for a

judgment of acquittal. Fortune argued that an acquittal was warranted because

the evidence failed to show that his alleged conduct had any effect on interstate

5
commerce. The district court denied this motion as well. The jury subsequently

found Fortune guilty on all counts. The court sentenced Fortune to concurrent

terms of life imprisonment on Count 1 and 180 months imprisonment on Count 3.

Fortune received a term of 60 months imprisonment on Count 2.

II. THE MOTION TO SUPPRESS EVIDENCE OBTAINED
AS A RESULT OF THE ARREST

Fortune contends the district court erred by denying his motion to suppress

evidence obtained as a result of his arrest. When reviewing such a denial, “we

view the evidence in the light most favorable to the government and accept the

district court’s factual findings unless clearly erroneous.” United States v.

Dickerson , 195 F.3d 1183, 1186 (10th Cir. 1999); accord United States v.

McKissick , 204 F.3d 1282, 1296 (10th Cir. 2000); United States v. Hill , 199 F.3d

1143, 1147 (10th Cir. 1999). “Keeping in mind that the burden is on the

defendant” in most cases to prove that “the challenged seizure was illegal under

the Fourth Amendment,” the ultimate determination of reasonableness is a

question of law subject to de novo review. McKissick , 204 F.3d at 1296 (quoting

United States v. Long , 176 F.3d 1304, 1307 (10th Cir.), cert. denied , 120 S. Ct.

283 (1999)); accord Hill , 199 F.3d at 1147. We consider “the totality of the

circumstances” when assessing the reasonableness of a particular seizure.

Dickerson , 195 F.3d at 1186; accord McKissick , 204 F.3d at 1296.

6
 Fortune’s main argument on appeal is that officers unjustifiably arrested

him without a warrant. It is settled that “[l]aw enforcement personnel may arrest

a person without a warrant if there is probable cause to believe that person

committed a crime.” United States v. Gordon , 173 F.3d 761, 766 (10th Cir.), cert.

denied , 120 S. Ct. 205 (1999); see also United States v. Dozal , 173 F.3d 787, 792

(10th Cir. 1999) (echoing that “a warrantless search must be supported by

probable cause”) . The probable cause inquiry requires us to determine whether

“an officer has learned of facts and circumstances through reasonably trustworthy

information that would lead a reasonable person to believe that an offense has

been or is being committed by the person arrested.” United States v. Anchondo ,

156 F.3d 1043, 1045 (10th Cir. 1998); accord McKissick , 204 F.3d at 1296 n.5;

Dozal , 173 F.3d at 792. Probable cause requires “more than mere suspicion,” but

it “need not be based on facts sufficient for a finding of guilt.” Dozal , 173 F.3d

at 792 (quoting United States v. Vazquez-Pulido , 155 F.3d 1213, 1216 (10th Cir.),

cert. denied , 119 S. Ct. 437 (1998)).

The evidence clearly supports the denial of Fortune’s motion to suppress.

In the early morning hours of September 15, 1998, officer Edwards personally

observed a white automobile traveling on an access road from the direction of the

Oasis. The automobile was the only vehicle seen by Edwards while he was

diverting traffic. The automobile approached at a high rate of speed, with “tires

7
squealing” as it neared the intersection. Aided by the overhead lights from the

interstate highway, Edwards saw two black males wearing white T-shirts in the

automobile. Edwards observed the two men from a distance of approximately 25

feet. Moments after the automobile passed through the intersection, Edwards

received a radio report detailing a robbery that had occurred only three miles from

his location. Using the victims’ descriptions of the robbers, the report identified

the suspects as two black males wearing white T-shirts in a white vehicle. These

facts and circumstances plainly establish that Edwards and other officers had

probable cause to pursue and arrest Fortune. Searches incident to that lawful

arrest were proper. See United States v. Green , 178 F.3d 1099, 1107 (10th Cir.

1999) (upholding a search of a defendant’s vehicle incident to lawful arrest);

Anchondo , 156 F.3d at 1045 (“[O]fficers may conduct a warrantless search of a

person when it is incident to a lawful arrest of that person.”).

Fortune’s arguments to the contrary are unpersuasive. For example,

Fortune asserts that several other facts cut against the district court’s finding of

probable cause. Fortune points out that (1) the access road was not the only route

the robbers could have taken from the Oasis; (2) by itself, the white automobile’s

“high rate of speed” did not prompt Edwards to take action; (3) the automobile

was a Buick, not a Cadillac as described in the radio report; and (4) the

automobile had tinted windows. None of these facts demonstrates that Edwards’

8
decision to pursue and arrest Fortune was based on “mere suspicion” and thus

violated the Fourth Amendment. Viewing the record in the light most favorable

to the government, the information available to Edwards easily could have led a

reasonable person to believe that the occupants of the automobile were

responsible for the Oasis robbery. Fortune also maintains that United States v. De

la Cruz-Tapia , 162 F.3d 1275 (10th Cir. 1998) requires us to reverse the district

court. We disagree. In that case, we held that a border patrol officer in an

unmarked police car lacked probable cause to stop a vehicle simply because (1)

the vehicle was an “older model;” (2) the driver of the vehicle did not make eye

contact with the officer; (3) the vehicle made an abrupt exit from the highway; (4)

the driver stopped at a gas station and opened the hood and trunk; and (5) the

vehicle had crossed the border several times in the last few days. 162 F.3d at

1278-80. To state the obvious, no officer in De la Cruz-Tapia observed

individuals who matched a description of fleeing felons in a police dispatch, let

alone individuals traveling at a high rate of speed from the direction of a robbery

on an otherwise deserted roadway.

III. THE MOTION TO SUPPRESS IDENTIFICATION EVIDENCE

Fortune also contends the court erred by denying his motion to suppress the

identification evidence that resulted from his out-of-court identification at the

9
scene of the arrest. Whether an identification procedure violates the Due Process

Clause is “a question of law, which we review de novo.” United States v. Smith ,

156 F.3d 1046, 1050 (10th Cir. 1998), cert. denied , 525 U.S. 1090 (1999); accord

United States v. Brown , 200 F.3d 700, 707 (10th Cir. 1999), cert. denied , 120 S.

Ct. 1213 (2000). We review the district court’s findings of fact on this issue

“under the clearly erroneous standard.” United States v. Sanchez , 24 F.3d 1259,

1262 (10th Cir. 1994); accord United States v. Wiseman , 172 F.3d 1196, 1208

(10th Cir.), cert. denied , 120 S. Ct. 211 (1999). When examining the

constitutionality of a pre-trial identification procedure, “we must engage in a two-

tier analysis. First, we must determine whether the procedure was unnecessarily

suggestive. If the procedure is found to have been unnecessarily suggestive, we

must then weigh the corrupting influence of the suggestive procedure against the

reliability of the identification itself.” Grubbs v. Hannigan , 982 F.2d 1483, 1489-

90 (10th Cir. 1993) (citing, among other cases, Manson v. Brathwaite , 432 U.S.

98, 114 (1977)) . “Only when a pre-trial identification procedure is so

unnecessarily suggestive that it is ‘conducive to irreparable mistaken

identification’ does the procedure violate due process.” Id. at 1490 (quoting

Kirby v. Illinois , 406 U.S. 682, 691 (1972)); accord United States v. Thurston ,

771 F.2d 449, 452 (10th Cir. 1985).

Turning to the case at hand, we assume without deciding that the

10
identification technique used by law enforcement officials was unnecessarily

suggestive. This leads us to the second prong of the analysis, in which we must

balance the “corrupting influence” of the suggestive procedure against the

reliability of the identification. At least five factors are relevant to any

assessment of reliability. As the Supreme Court explained in Neil v. Biggers , 409

U.S. 188 (1972),

the factors to be considered in evaluating the likelihood of
misidentification include the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of attention, the
accuracy of the witness’ prior description of the criminal, the level of
certainty demonstrated by the witness at the confrontation, and the
length of time between the crime and the confrontation.

Id. at 199-200; accord Brown , 200 F.3d at 707; Smith , 156 F.3d at 1051 .

The evidence in this case demonstrates that the likelihood of

misidentification was minuscule, notwithstanding the suggestive identification

procedure used at the location of the arrest. First and foremost, Blake had a

reasonable opportunity to view Fortune at the time of the crime. Fortune did not

wear a disguise when he entered the Oasis, and the interior of the store was “lit

very well.” Tr. at 33; cf. Wiseman , 172 F.3d at 1210 (approving an identification

in part because a store was “well lighted” and the perpetrator’s face “was not

covered”); Grubbs , 982 F.2d at 1491 (finding that a witness had an opportunity to

view a defendant in part because the crime “occurred in a lighted lobby”);

Thurston , 771 F.2d at 453 (reaching the same conclusion in part because “the

11
lighting conditions were adequate”). Blake not only viewed Fortune for several

seconds at the time of the robbery, cf. Archuleta v. Kerby , 864 F.2d 709, 712

(10th Cir. 1989) (citing cases upholding identifications based on several seconds

of observation), but also saw Fortune prior to the robbery when Fortune and

Wineberry entered the store to purchase a Coke. Blake testified that he

remembered Fortune and Wineberry when they returned to the store, believing

that “they just forgot something.” Tr. at 66; cf. Wiseman , 172 F.3d at 1210

(approving an identification in part because a witness “noticed defendant before

he had shown his weapon and demanded money”).

The remainder of the Biggers factors similarly demonstrate that there was

little likelihood of misidentification. Blake remembered Fortune when he re-

entered the store, and Fortune and Wineberry were the only patrons inside the

Oasis at the time of the robbery. The description of the robbers’ attire given by

Blake and Benard matched the attire worn by Fortune and Wineberry at the time

of their arrest. Cf. Wiseman , 172 F.3d at 1210 (finding an identification reliable

in part because “the witnesses’ descriptions were fairly accurate, if not especially

detailed”); Thurston , 771 F.2d at 453 (reaching a similar conclusion based in part

on a prior description that was “reasonably accurate”). Both before and during

trial, Blake identified Fortune as one of the perpetrators with “100 percent”

certainty. Cf. Smith , 156 F.3d at 1052 (approving an identification in part

12
because a witness testified that he was “real sure” of the identity of a suspect);

Archuleta , 864 F.2d at 712 (making a finding of reliability based in part on a

victim’s identification that was “unequivocal at all times”). Finally, Blake’s

identification of Fortune took place only 30 minutes after the robbery, a “short

interval of time” that “adds to the reliability of the identification.” Archuleta ,

864 F.2d at 712; cf. Grubbs , 982 F.2d at 1490 (upholding an identification in part

because it “occurred within a week of the crime”); Thurston , 771 F.2d at 453

(reaching a similar conclusion in part because the identification took place within

four hours of the incident). In view of this evidence, we conclude that the

identification technique used by police officers did not deprive Fortune of his

right to due process.

IV. THE MOTION FOR JUDGMENT OF ACQUITTAL

Fortune next contends that the evidence was insufficient to support his

convictions on Counts 1, 2, and 3. “Sufficiency of the evidence to support a

jury’s verdict is a legal issue which is reviewed do novo.” McKissick , 204 F.3d

at 1289; accord Wiseman , 172 F.3d at 1212. The relevant question on appeal is

“whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.” Wiseman , 172 F.3d at 1212 (quoting

13
Jackson v. Virginia , 443 U.S. 307, 318-19 (1979)); accord United States v.

McIntosh , 124 F.3d 1330, 1334 (10th Cir. 1997). We “presume the jury resolved

evidentiary conflicts in favor of the prosecution, and we defer to the jury’s

resolution.” United States v. Roberts , 185 F.3d 1125, 1140 (10th Cir. 1999), cert.

denied , 28 U.S.L.W. 3840 (U.S. May 15, 2000); see also McKissick , 204 F.3d at

1289-90 (emphasizing that “[i]t is for the jury” to “resolve conflicting testimony,

weigh the evidence, and draw inferences from the facts presented”).

Fortune argues that his convictions on Counts 1 and 2 should be reversed

because the government failed to show that the Oasis robbery affected interstate

commerce as required by 18 U.S.C. § 1951(a). That section of the Hobbs Act

penalizes an individual who “in any way or degree obstructs, delays, or affects

commerce or the movement of any article or commodity in commerce” by

robbery. The language of the statute “shows the intent to ‘use all the

constitutional power Congress has’ to protect interstate commerce.” Wiseman ,

172 F.3d at 1214 (quoting Stirone v. United States , 361 U.S. 212, 215 (1960)).

Accordingly, to support a conviction under the Act the government must show

only a “minimal effect” on commerce. United States v. Nguyen , 155 F.3d 1219,

1224 (10th Cir. 1998), cert. denied , 525 U.S. 1167 (1999); see also Wiseman , 172

F.3d at 1214 (stating that the effect on commerce can be “de minimis”); United

States v. Bolton , 68 F.3d 396, 399 (10th Cir. 1995) (same). This “minimal effect”

14
on commerce “may be established by evidence that the assets of a business

engaged in interstate commerce, or which customarily purchases items in

interstate commerce, are depleted. The depletion of assets curtails ‘the victim’s

potential as a purchaser of such goods.’” Nguyen , 155 F.3d at 1224 (quoting

United States v. Ziegler , 19 F.3d 486, 489-90 (10th Cir. 1994)); see also United

States v. Romero , 122 F.3d 1334, 1340 (10th Cir. 1997) (discussing the

“depletion of assets” theory).

The evidence presented by the government plainly establishes that

Fortune’s conduct had at least a “minimal effect” on interstate commerce. First,

the robbery interfered with fuel sales to interstate carriers. The vice president of

the company that owns the Oasis testified at trial that the store sells fuel to

carriers who transport cargo “from one part of the country to another,” and that

about 75% of the Oasis’ business “is generated from out-of-state customers.” Tr.

at 130. Because the store was closed for two hours while the robbery was under

investigation, a number of trucks were unable to pull up to the fueling island.

Second, and in the same vein, the robbery depleted the store’s revenues. The cash

taken by Fortune and Wineberry serves as an obvious example. Moreover, the

store was unable to sell both fuel and other products during the pendency of the

investigation. According to the vice president, the shut-down deprived the Oasis

of a portion of the $25,000 to $28,000 in revenues the store receives each day.

15
The vice president further stated that the store purchases fuel and other products

for resale from companies in Texas and Illinois. Fortune argues that this evidence

does not “directly” show that commerce was obstructed. However, the

government is not required to present evidence that commerce was in fact

obstructed. The government satisfies its burden of proof on the interstate

commerce element if it shows “only a potential effect on commerce.” Wiseman ,

172 F.3d at 1216; see also Zeigler , 19 F.3d at 493 (“A jury may infer that

interstate commerce was affected to some minimal degree from a showing that the

business assets were depleted.”).

Fortune’s attack on the sufficiency of the evidence for Count 3 is equally

groundless. Fortune asserts that his conviction on that count should be reversed

because the government failed to show that he possessed a firearm, an essential

element under 18 U.S.C. § 922(g). See United States v. Adkins , 196 F.3d 1112,

1117 (10th Cir. 1999) (confirming that a conviction under § 922(g) requires proof

that the defendant “knowingly possessed a firearm”), cert. denied , 120 S. Ct. 1446

(2000); United States v. Wilson , 107 F.3d 774, 779 (10th Cir. 1997) (same). “It is

well settled the required ‘possession’ for purposes of § 922(g) includes both

actual and constructive possession.” United States v. Taylor , 113 F.3d 1136,

1144 (10th Cir. 1997); accord Adkins , 196 F.3d at 1118. The evidence fully

establishes that Fortune actually possessed a weapon. Blake testified that he saw

16
Fortune use a gun during the robbery, and the videotape from a surveillance

camera in the store corroborates Blake’s testimony. That officers discovered the

weapon beneath the armrest of the automobile only strengthened the government’s

already solid case of actual possession.

V. THE “THREE STRIKES” LAW

Fortune challenges both the constitutionality and the district court’s

application of the “Three Strikes” provision in 18 U.S.C. § 3559(c). The statute

requires a trial court to “sentence to life in prison any person who is convicted in

federal court of a ‘serious violent felony’ if that person has previously been

convicted in state or federal court of two or more ‘serious violent felonies.’”

United States v. Gottlieb , 140 F.3d 865, 866 (10th Cir. 1998) (quoting

§ 3559(c)(1)); accord United States v. Mackovich , ___ F.3d ____, Nos. 99-2006

& 99-2179, 2000 WL 485091, at *9 (10th Cir. Apr. 25, 2000); United States v.

Willis , 102 F.3d 1078, 1085 (10th Cir. 1996). The offense of robbery is

“generally considered a ‘serious violent felony’ for purposes of the Three Strikes

statute.” Gottlieb , 140 F.3d at 866 (citing § 3559(c)(2)(F)); accord United States

v. Oberle , 136 F.3d 1414, 1423 (10th Cir.), cert. denied , 119 S. Ct. 197 (1998).

However, not all serious violent felonies count as “strikes.” The statute provides

that a robbery is a “nonqualifying felony” if the defendant establishes, by clear

17
and convincing evidence, that

(i) no firearm or other dangerous weapon was used in the
offense and no threat of use of a firearm or other dangerous weapon
was involved in the offense; and
(ii) the offense did not result in death or serious bodily injury
(as defined in section 1365) to any person.

18 U.S.C. § 3559(c)(3)(A); accord Mackovich , 2000 WL 485091, at *9-*10;

Romero , 122 F.3d at 1342. Against this statutory backdrop, we address Fortune’s

arguments in reverse order.

A. Application

The district court imposed a sentence of life imprisonment on the following

grounds. The court counted as Fortune’s first “strike” a conviction in Oklahoma

state court for robbery with firearms (case number CRF-69-2665). The court

counted as Fortune’s second “strike” a conviction in Oklahoma state court for

first degree rape. The court also noted that, “although not necessary for the

enhancement,” Fortune pleaded guilty to robbery with firearms in a separate case

in Oklahoma state court (case number CRF-69-2975). Tr. at 194. After

reviewing court records and police reports relating to these charges, the court

determined that Fortune’s previous robbery convictions involved firearms and did

not constitute “nonqualifying felonies” under § 3559(c)(3)(A).

On appeal, Fortune concedes the district court’s use of the rape conviction

was proper, but argues that his previous robbery offenses should not have been

18
counted as “strikes.” Fortune asserts that “[t]here is no evidence that death or

serious bodily injury occurred as a result of the alleged robberies,” Appellant’s

Brief at 35, and the government does not contend on appeal that Fortune failed to

satisfy the requirements of § 3559(c)(3)(A)(ii). Fortune then asserts that he

satisfied the requirements of § 3559(c)(3)(A)(i) by presenting clear and

convincing evidence that neither CRF-69-2665 nor CRF-69-2975 involved the use

(or threat of use) of a firearm. The government disagrees, arguing that firearms

were indeed “used” in both of these cases. “We review de novo a sentence

enhancement imposed pursuant to section 3559(c).” Romero , 122 F.3d at 1342;

accord Gottlieb , 140 F.3d at 868; see also Willis , 102 F.3d at 1085 (stating that

this court reviews de novo “challenges to the legality of a sentence”).

Our analysis necessarily begins with the Gottlieb decision, in which we

discussed the meaning of “use” and “threat of use” for purposes of

§ 3559(c)(3)(A)(i) . Analogizing to 18 U.S.C. § 924(c), we borrowed the Supreme

Court’s definition of “use” in Bailey v. United States , 516 U.S. 137 (1995). We

thus concluded that “use” involves “active employment of the firearm by the

defendant” that “makes the firearm an operative factor in relation to the predicate

offense.” Gottlieb , 140 F.3d at 868 (quoting Bailey , 516 U.S. at 143). “Active

employment” includes “brandishing, displaying, bartering, striking with, and most

obviously, firing or attempting to fire, a firearm.” Id. (quoting Bailey , 516 U.S.

19
at 148); see also id. at 869 (“As the Bailey Court recognized, the plain meaning of

the word ‘use’ implies ‘action and implementation.’”). We added that the term

“use” does not encompass “mere possession or storage of a firearm.” Id. at 868.

We then commented that the phrase “threat of use” in § 3559(c)(3)(A)(i) could be

construed to mean “a communicated intent to use a firearm” or “a risk that a

firearm would be used in the offense;” we also noted that the phrase could

incorporate both meanings. Id. at 873.

With these definitions in mind, we affirm the district court’s finding that

CRF-69-2665 involved the “use” or “threat of use” of a firearm. The police

report submitted in connection with this offense indicates that Fortune and a co-

defendant used a weapon to steal another person’s leather coat. The report states

that the victim “positively identified” Fortune as “the subject who had pulled the

gun and taken his coat.” Appellant’s Appendix (“Aplt. App.”) at 50; Tr. at 171-

72. The witness list for the case similarly states that the victim planned to testify

that at the time of the robbery, Fortune “pulled a .25 caliber blue steel pistol from

his pocket, threatened him with it & took a black leather coat from his person.”

Aplt. App. at 53. A follow-up report reiterates that the victim “positively

identified” Fortune as “the one who pointed the gun at him, a .25 automatic, blue

steel, and took his black leather coat.” Id. at 54; Tr. at 172-73. These documents

affirmatively establish that CRF-69-2665 involved the use or threat of use of a

20
firearm, foreclosing any argument that the robbery fails to qualify as a “strike”

under § 3559(c)(3)(A). Because CRF-69-2665 and the rape conviction

independently support the district court’s imposition of a life sentence, we need

not consider whether CRF-69-2975 constitutes an additional “strike.”

B. Constitutionality

Fortune’s constitutional challenge to the “Three Strikes” provision is

twofold. First, Fortune submits that § 3559(c)(3) “unconstitutionally shifts the

burden to the defendant to prove a prior robbery conviction does not qualify as a

predicate offense.” Appellant’s Brief at 29. In Fortune’s view, the statute

“requires that the robbery conviction involve the use or threatened use of a

dangerous weapon or death or serious bodily injury before it will qualify as a

predicate offense. As written, the statute presumes the existence of these

elements and shifts the burden to the defendant to disprove the elements.” Id.

Second, Fortune argues that even if this burden-shifting scheme is constitutional,

the standard of proof imposed by the statute is too high. According to Fortune,

§ 3559(c)(3) violates the Due Process Clause by requiring a defendant to establish

nonqualifying offenses with “clear and convincing” evidence. “We review de

novo challenges to the constitutionality of a statute.” United States v. Hampshire ,

95 F.3d 999, 1001 (10th Cir. 1996); accord Bolton , 68 F.3d at 398; United States

v. Wilks , 58 F.3d 1518, 1519 (10th Cir. 1995).

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 Our recent decision in United States v. Smith , ___ F.3d ____, No. 98-1188,

2000 WL 345683 (10th Cir. Apr. 4, 2000) forecloses both of Fortune’s arguments.

Following cases such as Parke v. Raley , 506 U.S. 20, 28, 31, 34 (1992), Patterson

v. New York , 432 U.S. 197, 207-08 (1977), and United States v. Wicks , 132 F.3d

383, 388-89 (7th Cir. 1997), we expressly held in Smith that “the burden shifting

scheme found in § 3559(c)(3)(A) does not violate due process.” 2000 WL

345683, at *2-*3. We also declined to reach the defendant’s challenge to the

“clear and convincing evidence” requirement of § 3559(c)(3)(A), because the

defendant could not establish nonqualification “[u]nder any standard of proof.”

Id. at *3. We decline to reach Fortune’s challenge to § 3559(c)(3)(A) in the

instant case for the same reason. Here, the government established by at least a

preponderance of the evidence that Fortune used or threatened to use a dangerous

weapon during the commission of the crime charged in CRF-69-2665. The

government made this affirmative showing of nonqualification by submitting the

police report, the witness list, and a follow-up report. Consequently, Fortune’s

argument fails even if we assume the government (rather than Fortune) should

bear the burden of proof. We therefore “affirm the district court while reserving

judgment on the constitutionality of the ‘clear and convincing evidence’ provision

of § 3559(c)(3)(A).” Mackovich , 2000 WL 485091, at *12; see also Smith , 2000

WL 345683, at *3 (citing United States v. Kaluna , 192 F.3d 1188, 1196-98 (9th

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Cir. 1999) (en banc), cert. denied , 120 S. Ct. 1561 (2000) for a similar

proposition).

AFFIRMED.

Entered for the Court

Mary Beck Briscoe
Circuit Judge

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