F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                              FEB 22 2002
                                         TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

                   Plaintiff-Appellee,                        No. 00-1447
          v.                                             (99-CR-413-WM)
 VICTOR THEODORE MARTINEZ,                                    (D. Colorado)

                   Defendant-Appellant.




                                ORDER AND JUDGMENT            *




Robert G. Levitt, Denver, Colorado, for the defendant-appellant.

James C. Murphy, Assistant United States Attorney (Thomas L. Strickland, United
States Attorney, and James R. Allison, Assistant United States Attorney with him
on the brief), Denver, Colorado, for the plaintiff-appellee.


Before HENRY , BALDOCK , ** and MURPHY , Circuit Judges.


      Victor Theodore Martinez appeals (1) the denial of his motion to suppress

evidence and (2) his subsequent sentence of 235 months’ imprisonment for


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        This order and judgment is not binding precedent, except under the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

      **
               Judge Baldock vouched in for oral arguments.
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (possession of a firearm by a

felon). As to the denial of the motion to suppress, Mr. Martinez argues that

certain police officers illegally searched his vehicle. As to the sentencing

concerns, Mr. Martinez challenges both the district court’s enhancement of his

sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1) (the

“ACCA”), and the district court’s refusal to depart downward from the

Sentencing Guidelines (“USSG”). As to the ACCA enhancement, Mr. Martinez

contests (a) the use of a particular prior conviction where that conviction was

based on an Alford plea pursuant to North Carolina v. Alford, 

, 31

(1970); (b) the characterization of another prior conviction (for attempted

burglary) as premised upon conduct constituting a crime of violence; and (c) the

application of the ACCA enhancement in the calculation of his criminal history

category. He also maintains that the government failed to give him timely notice

of its intent to seek an enhancement under the ACCA. Our jurisdiction is

pursuant to 18 U.S.C. § 1291 and, for the reasons set forth below, we affirm the

denial of the motion to suppress and we affirm Mr. Martinez’s conviction and

sentence.




                                         -2-
                                  I. BACKGROUND

      On November 16, 1999, at approximately 4:00 p.m., Isadore Romero

reported to police that Mr. Martinez had been at Mr. Romero’s house driving a

black sport utility vehicle. Mr. Romero observed Mr. Martinez talking to Mr.

Romero’s son, Ray Romero. Isadore Romero advised Colorado Springs Police

Officer Jeff Jensen that Mr. Martinez and Ray Romero appeared to be having an

argument, and that he (Isadore Romero) observed Mr. Martinez seated in the

driver’s position with a black pistol in his lap.

      Approximately thirty minutes earlier, Officer Jensen had observed Mr.

Martinez driving a black Isuzu Trooper (a type of sport utility vehicle) in the

vicinity of a liquor store in the Colorado Springs area, had run a computer check,

and had learned that Mr. Martinez’s license was suspended. Officer Jensen was

also aware that Mr. Martinez was a convicted felon and prohibited from

possessing a firearm. Officer Jensen had also recognized another gentleman,

Jerome Ambers, in the passenger seat of the vehicle. At the time, Officer Jensen

was distracted by a higher priority call and was unable to attempt to approach Mr.

Martinez. However, around 5:00 p.m. that same day, after receiving the report

from Mr. Romero, Officer Jensen obtained the cellular telephone number for Mr.

Ambers and called Mr. Ambers to see if Mr. Ambers was still with Mr. Martinez.

Mr. Ambers confirmed that he was still with Mr. Martinez, and provided Officer


                                           -3-
Jensen with the location. Officer Jensen requested other units be dispatched to

this area.

       At approximately 6:00 p.m., Officer Jackson Andrews observed the black

Isuzu Trooper and recognized Mr. Martinez as the driver. Officer Andrews knew

of Isadore Romero’s report and also knew of Mr. Martinez’s status as a convicted

felon. Officer Andrews radioed that he had located Mr. Martinez. Officer

Andrews then activated his emergency lights and approached the Isuzu Trooper.

Officer Andrews observed the Isuzu accelerate quickly in reverse, striking the

police car. The Isuzu then accelerated forward and began traveling west.

       Officer Michael Roy, who was nearby, followed Officer Andrews in a brief

pursuit of Mr. Martinez. Mr. Martinez soon stopped his vehicle. The officers

removed Mr. Martinez from the vehicle and placed him under arrest. Officer

Roy put Mr. Martinez in the back of Officer Roy’s police car and returned to the

Isuzu. Officer Roy glanced into the vehicle and observed a black handgun toward

the rear compartment area. Officer Roy secured the weapon for placement into

evidence.

       Mr. Martinez was convicted in the State of Colorado of being a felon in

possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) and

was sentenced to 235 months’ imprisonment. Prior to trial, Mr. Martinez filed a




                                        -4-
motion to suppress the firearm obtained from his vehicle. The district court

denied the motion.



                                  II. DISCUSSION

A. Motion to Suppress

      When we review a district court’s denial of a motion to suppress, we accept

“the district court’s factual findings unless they are clearly erroneous, viewing the

evidence in the light most favorable to the government. However, the ultimate

determination of reasonableness under the Fourth Amendment is a question of law

and is reviewed de novo under the totality of the circumstances.” United States v.

Basham, 

, 1203 (10th Cir. 2001).

      Mr. Martinez challenges the denial of his motion to suppress the firearm on

several grounds. First, he contends that any probable cause that may have existed

when Isadore Romero first complained to the officer had become stale by the time

Officer Andrews stopped and arrested Mr. Martinez a few hours later. Mr.

Martinez maintains that Officer Andrews never intended to follow up on the

complaint, and saw Mr. Martinez only by happenstance.

      Second, Mr Martinez contends that the search of the vehicle was overly

intrusive and not supported by probable cause. He claims that because he was

placed in the police cruiser, safety concerns did not justify the search of his entire


                                          -5-
vehicle. Third, and similarly, Mr. Martinez contends that there was no rationale

for a search incident to arrest once he was removed to the patrol car. Fourth and

finally, Mr. Martinez contends that the vehicle search was also invalid as an

inventory search.

      We find no error. Rather, we determine that the police officers did possess

probable cause to stop and arrest Mr. Martinez and, further, that the police

officers properly searched the Isuzu Trooper as a vehicle search incident to arrest.

We first consider the police officers’ probable cause to stop and arrest Mr.

Martinez. The determination of whether information is stale depends on “the

nature of the criminal activity, the length of the activity, and the nature of the

property to be seized.” United States v. Snow, 

, 1460 (10th Cir.

1990) (quotation marks omitted). Where the offense in question is “ongoing and

continuing[,] . . . . the passage of time is not of critical importance.” Sturmoski,

, 457 (10th Cir. 1992). The district court’s finding that Officer

Jensen observed Mr. Martinez in the same vehicle just hours before the stop and

arrest is not clearly erroneous. Furthermore, the reports that Mr. Martinez was

driving the vehicle without a license and possessed a gun were also received only

hours before the stop and arrest. Cf. United States v. Iiland, 

, 1268

(10th Cir. 2001) (upholding probable cause to support search warrant where

primary information underlying warrant was four to six months old). Moreover,



                                          -6-
the officers pursued Mr. Martinez after he had intentionally backed his vehicle

into the officer’s car and departed from the scene and this act gave the officers

further cause to pursue Mr. Martinez. The officers had ample probable cause to

pursue and subsequently arrest Mr. Martinez.

      Second, we consider the propriety of the police officers’ warrantless search

of Mr. Martinez’s vehicle. This search was valid as a search incident to arrest.

See New York v. Belton, 

, 460 (1981) (holding that “when a

policeman has made a lawful custodial arrest of the occupant of an automobile, he

may, as a contemporaneous incident of that arrest, search the passenger

compartment of that automobile” and “examine the contents of any containers

found within the passenger compartment”) (footnotes omitted); United States v.

Olguin-Rivera, 

, 1204-07 (10th Cir. 1999) (extending Belton search

to covered cargo area of sport utility vehicle). We thus affirm the denial of the

motion to dismiss.



B. Sentence Enhancement

      Mr. Martinez next challenges the application of the ACCA enhancement in

the calculation of his criminal history category. See 18 U.S.C. § 924(e). He

challenges: (1) the use of a conviction reached pursuant to an Alford plea as the

basis for a prior sentence; (2) the characterization of a conviction for attempted



                                         -7-
burglary as a crime of violence; and (3) the application of the ACCA

enhancement as a violation of Apprendi v. New Jersey, 

(2000).

       On April 19, 1995, Mr. Martinez pleaded guilty to the crime of felony

menacing/use of a deadly weapon, committed in 1994. On April 5, 1996 he

pleaded guilty to (1) attempted first degree burglary, committed in 1995, and (2)

conspiracy to commit aggravated robbery and first degree burglary, committed on

January 6, 1996. The ACCA applies when a defendant has three previous violent

felony convictions committed on occasions different from one another.. See 18

U.S.C. § 924(e)(1). Because the district court determined that Mr. Martinez had

acquired three such convictions, the court imposed the ACCA sentence

enhancement.

       We review de novo sentence enhancements imposed under the ACCA. See

United States v. Bull, 

, 1217 (10th Cir. 1999). We hold that Mr.

Martinez has the three requisite convictions for application of the ACCA.

       1. Alford plea

       First, Mr. Martinez attempts to differentiate his conviction for felony

menacing that resulted from a plea entered pursuant to     North Carolina v. Alford ,

(1970). An Alford plea permits a defendant to maintain his

innocence while agreeing to forego his right to a trial.   

(“An individual

accused of [a] crime may voluntarily, knowingly, and understandingly consent to



                                             -8-
the imposition of a prison sentence even if he is unwilling or unable to admit his

participation in the acts constituting the crime.”). Because the USSG did not

enumerate an Alford disposition in the definition of “prior sentence,” Mr.

Martinez contends, this conviction should not be counted as a prior felony

conviction. See USSG §2K2.1, Applic. Note 15; § 4A1.2(a)(1) (defining “prior

sentence” as “any sentence previously imposed upon adjudication of guilt,

whether by guilty plea, trial, or plea of nolo contendere”);    cf. USSG §

4A1.2(a)(4) (“The term ‘prior sentence’ means any sentence previously imposed

upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo

contendere, for conduct not part of the instant offense.”).

       We agree with the government that an        Alford plea is an “adjudication of

guilt” under § 4A1.2(e)(1) and therefore can properly be counted as a prior

sentence under the USSG. We also note that the state trial court could not have

accepted a plea under Alford unless there existed independent factual evidence of

Mr. Martinez’s guilt.    See United States v. Mackins , 

, 268 (3d Cir.

2000) (noting that “there must always exist some factual basis for a conclusion of

guilt before a court can accept an    Alford plea; indeed, a factual basis for such a

conclusion is an essential part of an Alford plea”) (internal quotation marks

omitted). “In the face of a claim of innocence[,] a judicial finding of some

factual basis for defendant’s guilt is an essential part of the



                                             -9-
constitutionally-required finding of a voluntary and intelligent decision to plead

guilty.” Willett v. Georgia , 

, 540 (5th Cir. 1979). We therefore

reject Mr. Martinez’s contention and conclude that the district court properly

adduced his “ Alford plea [with] the same finality . . . accord[ed] any other

‘adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere.’”

Mackins , 218 F.3d at 269 (quoting § 4A1.2(a)(1)).     1



       2. Crime of violence

       Mr. Martinez also challenges the characterization of his previous

conviction for attempted first degree burglary as a “crime of violence.”    18 U.S.C.

§ 924(e)(1). Under the USSG:




       1
           The Third Circuit has further noted:

       [A] Note to § 8A1.2 states that “‘[p]rior criminal adjudication’ means
       conviction by trial, plea of guilty (including an Alford plea), or plea
       of nolo contendere.” § 8A1.2, comment. (n. 3(g)). Chapter Eight of
       the Guidelines, dealing with the sentencing of organizations,
       however, was added by amendment on November 1, 1991. In
       contrast, the language of § 4A1.2(a)(1) at issue in this case was
       enacted on November 1, 1987. Not to have included an Alford plea
       in § 4A1.2(a)(1) and its inclusion in § 8A1.2, four years later, cannot
       be read to evidence an intent on the part of the drafters of the
       Guidelines to exclude Alford pleas from § 4A1.2(a)(1). To the
       contrary, the Note to § 8A1.2 could be read as evidencing an
       understanding by the drafters of § 8A1.2 that, as we have concluded,
       an Alford plea is nothing more than a plea of guilty.

United States v. Mackins, 

, 268 n.3 (2000).


                                           -10-
       (B) the term “violent felony” means any crime punishable by
       imprisonment for a term exceeding one year . . . that–

              (i) has as an element the use, attempted use, or
              threatened use of physical force against the person of
              another; or
              (ii) is burglary, arson, or extortion, involves use of
              explosives, or otherwise involves conduct that presents a
              serious potential risk of physical injury to another . . .

18 U.S.C. § 924(e)(2) (emphasis added). The government relies on § 924(e)(2)(i)

and maintains that Colorado’s definition of attempted first degree burglary

satisfies the requirement of the element of the “threatened use of physical force.”

de novo a sentence enhancement under § 924(e).              See United

States v. Adkins , 

, 1118 (10th Cir. 1999). We review the entire

record and supporting documentation to determine the legitimacy of the sentences

imposed below.     See 

analytic approach mapped out in         Taylor v. United States , 

(1990), the sentencing court, when applying § 924(e), must “look only to

the fact of conviction and the statutory definition of the prior offense.”       

(footnotes omitted). Because the enhancement statute does not specifically list

the crime of attempted burglary as a violent felony, we look to whether attempted

burglary “is a crime that either has an element of use, attempted use[,] or

threatened use of physical force against the person of another, or whether that



                                             -11-
crime involves conduct that presents a serious potential risk of physical injury to

another.” See United States v. Phelps , 

, 1342 (10th Cir. 1994). We

look to elements of the relevant state statutes and we are also authorized to look

to the charging documents if necessary.   See Taylor , 495 U.S. at 602 (outlining

inquiry as to state statute’s definition of “burglary” under § 924(e)).

      Under Colorado law:

      A person commits first degree burglary if the person knowingly
      enters unlawfully, or remains unlawfully after a lawful or unlawful
      entry, in a building or occupied structure with intent to commit
      therein a crime . . . against another person or property, and if in
      effecting entry or while in the building or occupied structure or in
      immediate flight therefrom, the person . . .  assaults or menaces any
      person, or the person . . . is armed with explosives or a deadly
      weapon.

Colo. Rev. Stat. Ann. § 18-4-202 (emphasis added). “A person commits criminal

attempt if, acting with the kind of culpability otherwise required for commission

of an offense, he engages in conduct constituting a substantial step toward the

commission of the offense.”    

      We also note that the charging document alleged that Mr. Martinez was

“armed with a deadly weapon, to wit: a baseball bat and did assault and menace”

another person. Aplt’s App. vol. I, at 38 (Information). We hold that Mr.

Martinez’s conviction for attempted first degree burglary under Colorado law

necessarily contained the element of the “threatened use of physical force” – the

threatening of another with a baseball bat. § 924(e)(2)(B). Furthermore, Mr.

                                          -12-
Martinez does not dispute that he voluntarily entered into a plea of guilty in

regard to this offense. Thus, Mr. Martinez has three prior violent felony

convictions, and the district court properly applied the ACCA enhancement.

      3. Apprendi

      Relying on Apprendi v. New Jersey, 

(2000), Mr. Martinez

next challenges the application of the ACCA enhancement in the calculation of

his criminal history category. See 18 U.S.C. § 924(e); USSG § 4B1.4. The

district court determined that Mr. Martinez had three prior violent felony

convictions and was therefore subject to the enhancement. This finding is not

subject to challenge under Apprendi. See United States v. Martinez-Villalva, 

, 1331-32 (10th Cir. 2000).

      C. Failure to give notice

      Mr. Martinez next contends he did not receive notice of the government’s

intent to rely on prior convictions as a sentencing enhancement until one month

before trial and that this lack of notice constituted a due process violation. He

avers that he might have chosen to plead guilty rather than proceed to a jury trial

had he been apprized earlier of the government’s intention to seek a sentencing

enhancement. He did not receive this notice until after the jury verdict.

      We review de novo Mr. Martinez’s assertion that his due process rights

were violated. United States v. Walters, 

, 1215 (10th Cir. 2001).



                                         -13-
First, we note that procedural due process does not require pre-trial notice of the

possibility of enhanced sentencing for recidivism. Procedural due process

requires only reasonable notice of, and an opportunity to be heard concerning, the

prior convictions. See Oyler v. Boles, 

, 452 (1962) (“Nevertheless, a

defendant must receive reasonable notice and an opportunity to be heard relative

to the recidivist charge even if due process does not require that notice be given

prior to the trial on the substantive offense.”); cf. United States v. Gregg, 

, 570 (10th Cir. 1986) (noting that ACCA does “not prescribe any

specific method of alleging . . . prior convictions” in pursuit of enhancement).

Although we recognize that the ACCA is a sentence enhancement statute that

does not create a separate offense, we have not previously addressed the concept

of “reasonable notice” with respect to enhancements sought under the ACCA.

      We agree with the government that the actual notice given to Mr. Martinez

was sufficient, and therefore we hold that there was no due process violation. In

fact, under United States v. Johnson, 

, 860 (10th Cir. 1992), we

noted that the district court must invoke a § 924(e)(1) enhancement if it comes to

the court’s attention that the defendant meets the requirements of the subsection.

As we have observed in a previous unpublished decision, other courts have more

specifically addressed the notice issue as it pertains to specific prior convictions.




                                         -14-
United States v. Weeden, No. 96-6313, 

, at **2 (10th Cir. July 8,

1997) (collecting cases).

      Here, each of the previous convictions was set out in the presentence

investigation report (“PSR”), which was made available before sentencing, giving

Mr. Martinez ample opportunity to investigate his earlier convictions and to

challenge the applicability of those convictions under § 924(e)(1). He also had

opportunity to challenge the characterization of his previous convictions in his

written objections to the PSR and at his sentencing hearing. See Aple’s Second

Supp. App. at 2, 9-15, 18 (PSR, dated May 26, 2000); 

(Aplt’s objections

to PSR, dated June 16, 2000); 

(Aplt’s pro se objections to PSR, dated

June 14, 2000); Aplt’s App. vol. II, at 478-490 (Sentencing Hr’g Tr., dated Oct. 5,

2000, at 10-22). We agree with every circuit that has addressed the issue that

formal, pretrial notice is not constitutionally required. 2 Thus, we hold that due

      2
          See United States v. Mack, 

, 231 (3d. Cir. 2000) (noting that
“[e]very circuit that has addressed the issue has concluded that formal, pretrial
notice is not constitutionally mandated”); United States v. O’Neal, 

,
126 (4th Cir. 1999) (noting that “the listing of these convictions in the PSR is
more than adequate to provide such notice”); United States v Mauldin, 

, 1163 (6th Cir. 1997) (affirming sentence with ACCA enhancement where
defendant received notice before sentencing); United States v. Bates, 

, 1105 (8th Cir. 1996) (holding no due process violation where “[t]wo of the
three convictions relied upon to enhance [the defendant’s] sentence were proven
at trial” and the third “was fully set out in the presentence investigation report”);
United States v. Gibson, 

, 625-26 (11th Cir. 1995) (holding that
defendant “received reasonable notice of his prior convictions and an opportunity
to challenge them to satisfy due process” where “[a]lthough the government listed
                                                                         (continued...)

                                         -15-
process does not require the government to provide formal, pretrial notice of its

intention to seek a sentence under the ACCA. See also United States v. Alvarez ,

, 1006 (9th Cir. 1992) (“We . . . find no support for the contention

that the predicate felonies must be alleged in some formal notice pleading.”). We

further hold that, in this case, Mr. Martinez had sufficient, actual notice, prior to

sentencing, of the government’s intention to use each of his convictions for

enhancement purposes and there is no due process violation.

D. Downward Departure

      Mr. Martinez filed a motion for a downward departure pursuant to USSG

5K2.13, in part based upon his diminished capacity.   3
                                                          “We have jurisdiction to



      2
        (...continued)
only one prior conviction in the indictment . . . the government filed a response to
the district court’s standing discovery order prior to sentencing” in which the
government “included a print-out of [the defendant’s] prior criminal history and
copies of each information and judgment filed in state court relating to three of
[defendant’s] prior state convictions”); United States v. Hardy, 

, 150
(7th Cir. 1995) (finding no due process violation where defendant “did not
receive formal notice until the day of sentencing that he could be sentenced as an
armed career criminal” but “received actual notice much earlier”); United States
v. Craveiro, 

, 264-65 (1st Cir. 1990) (holding no constitutional
violation where “the government notified defendant of the ACCA’s applicability
through its Information Charging Prior Offenses, filed over a month before the
original date set for sentencing”).
      3
        Section 5K2.13 authorizes the court, within its discretion, to depart
downward for diminished mental capacity if the offense committed is non-violent.
Section 5K2.0 is the general provision providing the court with authority to
consider aggravating or mitigating circumstances in granting a downward
departure.

                                          -16-
review a district court’s refusal to depart downward only when ‘the district court

refused to depart because it erroneously interpreted the USSG as depriving it of

the power to depart based on the proffered circumstances.’”       United States v.

Rowen , 

, 1063 (10th Cir. 1996) (quoting       United States v.

Barrera-Barron , 

, 245 (10th Cir. 1993)).

       The record indicates that the district court carefully considered the

psychiatric report and determined that it could not “conclude that [Mr.

Martinez’s] actions on the day in question or the prior events were what the law

recognizes as diminished capacity.” Aplt’s App. vol. II, at 546 (Sentencing Tr.

Hr’g, dated Oct. 5, 2000, at 21). We hold therefore that the district court

recognized its discretion to depart, and reluctantly concluded that such that such a

departure was not appropriate. In expressing his reluctance the district court

judge stated that he:

       just d[id] not have the ability to depart from what the law requires
       under these circumstances and what you are presented with. . . . I
       cannot do really anything other that to proceed to sentencing under
       the guidelines and I regret that that’s my duty. Because if I had the
       luxury, if you will, of discretion, I would not sentence you as
       severely as the guidelines provide . . . . I will not depart from the
       guideline range . . . .

Aplt’s App. vol. II, at 546-47 (Sentencing Hr’g Tr. dated Oct. 5, 2000, at 21-22).

Although the first part of the above statement could be read, on its own, to imply

that the court felt it lacked discretion to depart under any circumstances, such



                                           -17-
would not be a fair reading, when taken in context of the record in its entirety.

See United States v. Fortier, 

, 1231 (10th Cir. 1999) (reiterating

that “we treat ambiguous statements made by district judges as though the judge

was aware of his or her legal authority to depart but chose instead, in an exercise

of discretion, not to depart”). A district court has no authority to depart on

invalid grounds. When reviewed with the entirety of the transcripts of the

sentencing hearings, the district court’s statements show that the sentencing judge

was aware of his power to depart on valid grounds but declined to do so. The

denial of the downward departure was within the discretion of the district court,

and we have no jurisdiction to review that decision. Cf. United States v. Slater,

, 634-35 (10th Cir. 1992) (remand necessary where district court

erroneously held it was without authority under USSG § 5H1.4 to depart from the

sentencing guidelines).



                                 III. CONCLUSION

      For the reasons stated above, we AFFIRM Mr. Martinez’s conviction.



                                                Entered for the Court,



                                                Robert H. Henry
                                                Circuit Judge

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