Opinion
No. 107,152.
2013-08-29
STATE of Kansas, Appellee, v. Sean B. WINDSOR, Appellant.
Appeal from Sedgwick District Court; Phillip B. Journey, Judge. Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Appeal from Sedgwick District Court; Phillip B. Journey, Judge.
Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant. Boyd K. Isherwood, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.
Before LEBEN, P.J., PIERRON and STANDRIDGE, JJ.
MEMORANDUM OPINION
LEBEN, J.
Sean Windsor appeals his convictions for aggravated assault and criminal threat. He raises two claims of jury-instruction error, but since he didn't object to the jury instructions, we may only reverse his conviction if clear error is shown, which requires that we be persuaded that the jury would have reached a different verdict but for the claimed instruction error. We are not so persuaded on either of Windsor's claims.
Windsor also claims that he should have received a new trial because a juror saw him in restraints after trial proceedings had concluded for the day. But we reverse a district court's denial of a new trial only for abuse of discretion, and the district court offered to do several things to avoid any potential prejudice caused to Windsor from this event. We find no abuse of discretion in the district court's denial of the new-trial motion, and we affirm the district court's judgment.
Factual and Procedural Background
On March 24, 2010, Brandon Baber was ambushed in a Wichita house, beaten up, made to strip down to his underwear, and then ordered out of the house. Shortly before that, Baber and his friend, Boyce Ingram, had met up with Ashlee Calaoagan and followed her into an unfamiliar house to smoke methamphetamine. After a few minutes, Sean Windsor and Erik Terrazas entered the house and began to beat Baber with handguns. Earlier that day, Windsor, Calaoagan, and Terrazas had discussed the fact that Baber owed them all money.
In an interview with detectives, Ingram initially stated that Windsor put a gun to Ingram's head and told him he would shoot him if he moved. At trial, although detectives recounted what Ingram had told them, Ingram testified that Windsor had never put a gun to his head—Ingram had simply gotten scared and dropped to the ground, where he remained while Baber was beaten. At some point, Terrazas fired his gun inside the house. Terrazas then ordered Baber to “strip.” Baber threw his clothes, necklace, and watch on the floor. After Baber had stripped down to his boxers, Terrazas emphatically told him to get out of the house. Baber and Ingram both fled the scene.
Baber heard gunshots as he fled from the house but was unaware of who fired them. Terrazas testified that he fired the shots outside. But Terrazas also indicated that he did not have total control over the outside shots: “And outside I was trying to cock the gun and it went off. When it went off, it fell. It went off again and then I picked it up and ran.” Calaoagan also testified that Terrazas fired all of the shots and that Windsor never fired his gun.
As a result of the beating, Baber's left middle finger was split open, scarred, and left crooked. Baber also suffered a cut to the back of his head. Baber testified that he was scared for his life throughout the encounter; he didn't recover his necklace or watch.
Windsor was arrested 5 days later. The handgun found at the scene of Windsor's arrest was later linked to bullet casings found at the scene of the crime. Windsor and Terrazas both testified that Terrazas gave his gun to Windsor following the crime.
For his actions against Baber, Windsor was charged with aggravated robbery, aggravated assault, and criminal possession of a firearm. For his actions against Ingram, Windsor was charged with aggravated battery and criminal threat. Windsor pled guilty to the criminal-possession charge and eventually went to trial on the remaining four charges.
Windsor was in custody during trial, and one day shortly after trial proceedings had finished, a juror returned to the courtroom and saw Windsor being transported by officers to the elevator. Although he was in custody, Windsor did not wear shackles or handcuffs during the trial. Windsor was concerned about the potentially prejudicial effect of the juror having seen him in custody, and he was also concerned that two additional jurors could have seen him with officers near the elevators. Windsor's attorney said that he wanted to preserve the issue for appeal.
The judge acknowledged that Windsor had to be escorted by officers through the building, including public areas, presenting a difficult logistical situation. The judge commented that this incident did not yet justify a new trial and recommended giving a curative jury instruction—meant to counteract any prejudice to Windsor—stating that the presumption of Windsor's innocence still applied: “[T]hat curative instruction should be considered by [Windsor] as a possible remedy, and I'll leave that to his option.” Alternatively, the judge indicated he could call in the suspected jurors and tell them not to discuss what they might have seen. Although Windsor and his counsel discussed these options, our record does not show that they ever responded to the judge. Nonetheless, the judge stated that he would give the curative instruction and take measures to prevent future mishaps. From the record on appeal, it appears that neither Windsor nor the judge referenced the earlier incident for the remainder of the trial.
At another point during trial, the jury as a whole was potentially made aware of the fact that Windsor had been in custody. While testifying about whether Ingram, who was incarcerated, feared retaliation from inmates for his testimony against Windsor, a detective revealed that there had been some contact between Ingram and Windsor “in a visitation area.” The detective was responding to a question by defense counsel on cross-examination asking whether there had been any contact between Ingram and Windsor at the crime scene. The detective apologized for apparently misunderstanding the question. Windsor did not object to the testimony at any point during cross-examination. However, on direct examination, Windsor had previously objected to questions asking whether Ingram ever indicated that he feared retaliation from other inmates.
The jury convicted Windsor of criminal threat against Ingram and aggravated assault against Baber. The jury acquitted Windsor of the aggravated-robbery and aggravated-battery charges.
Windsor filed a motion for new trial, arguing that he was entitled to a new trial because jurors had seen him in restraints, the detective's testimony had placed Windsor in the “visitation area” (implying that Windsor was an inmate who Ingram might fear reprisal from), and the State had questioned Ingram about whether he was reluctant to testify due to the fear of retaliation from other inmates. The court refused to grant a new trial, finding that Windsor had made no reasonable showing of prejudice. Specifically, the court found that Windsor was never shackled during the trial and was in the least restrictive circumstances of restraint, that there was no evidence that the juror's inadvertent viewing of Windsor in custody was communicated to other jurors or affected the trial in any way, and that Windsor received a “very favorable verdict” under the circumstances.
Windsor received a 33–month prison sentence, and he has appealed to this court.
Analysis
I. The District Court's Jury Instruction on the Aggravated–Assault Charge Was Not Clearly Erroneous.
Windsor's first claim on appeal is that the district court's jury instruction on aggravated-assault was in error. Specifically, he contends that the district court should have given an instruction defining intentional conduct to go along with the jury instruction on the elements of an aggravated-assault charge.
Because Windsor didn't object to the aggravated-assault jury instruction at trial, we may reverse only for clear error: Under K.S .A.2011 Supp. 22–3414(3), no party may claim that failing to give a jury instruction was error unless the party objected at trial or unless the failure to give an instruction is clearly erroneous. To determine whether it was clearly erroneous to fail to give an instruction, we first must determine whether the failure was erroneous at all. State v. Williams, 295 Kan. 506, Syl. ¶ 4, 286 P.3d 195 (2012). If there was an error in the instructions, we must then determine whether reversal is required. The test for that is “whether [the reviewing court] is firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.” 295 Kan. 506, Syl. ¶ 5. The defendant has the burden to show error. 295 Kan, 506, Syl. ¶ 5.
Windsor argues on appeal that our Supreme Court misapplied Kansas caselaw on clear error in Williams, and he urges that we apply a different test than the one set out there. But we are, of course, bound to follow Kansas Supreme Court precedent unless there's some indication that court is departing from it. State v. Ottinger, 46 Kan.App.2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. –––– (May 4, 2012). That's not the case here: the Kansas Supreme Court continues to apply the standard it set out in Williams. See, e.g., State v. Rodriguez, 295 Kan. 1146, 1152–53, 289 P.3d 85 (2012); State v. Phillips, 295 Kan. 929, 936, 287 P.3d 245 (2012); State v. Jones, 295 Kan. 804, 808–09, 286 P.3d 562 (2012). So we must follow the standard announced in Williams.
At the outset, it's far from certain that there was any error here at all. The notes on use to the Kansas pattern jury instructions in effect when Windsor was tried suggested that an instruction explaining general intent to the jury should be given when (a) a crime requires a general criminal intent and (b) the defendant's state of mind is a substantial issue in the case. Notes on Use, PIK Crim.3d 54.01–A. Aggravated assault is a general-intent crime. State v. Hawkins, 40 Kan.App.2d 10, 14–15, 188 P.3d 965 (2008), rev. denied 287 Kan. 767 (2009). Thus, the usage notes would suggest that the general-intent instruction, PIK Crim.3d 54.01–A, be given if the defendant's state of mind was a substantial issue. And that's where things become more complicated here.
As the jury was separately told by the district judge in answer to a jury question, the aggravated-assault charge referred only to the events outside the house—essentially, the gunshots fired while Barber was fleeing the scene. Further, it was essentially undisputed that Terrazas—not Windsor—fired the shots. But the jury was properly instructed on aiding-and-abetting liability, so Windsor could be convicted if either his own conduct or that of Terrazas satisfied the general-intent requirement.
Windsor characterizes Terrazas' actions in firing the gun as accidental. Based on that, Windsor argues that the jury should have been instructed—in the words of the pattern instruction, PIK Crim.3d 54.01–A—that the conduct must have been “intentional[, which] means williul and purposeful and not accidental.” So even if Windsor had been aiding in the crime, he argues, Terrazas' conduct would not have fit the definition of aggravated assault.
Actually, though, even by Terrazas' own testimony, he was trying to cock the gun, not disarm it, when he dropped it and it went off. Terrazas never denied that he had intended to fire the gun, and he'd already intentionally fired one shot inside the house. So there's quite a bit of evidence suggesting that Terrazas intentionally placed Baber in reasonable apprehension of immediate bodily harm while Barber was fleeing from the house. While Terrazas' state of mind was an issue, it's not so certain that it was a “substantial issue” so as to require a general-intent instruction.
We need not resolve that question here, though, because even if the instruction should have been given, there was no clear error under Williams. Windsor has not shown how a layperson's understanding of intent would differ from the definition of intentional conduct for aggravated assault, see K.S.A. 21–3201 (defining criminal intent), K.S.A. 21–3408 (defining assault), and K .S.A. 21–3410 (defining aggravated assault), or in PIK Crim.3d 54.01–A. See State v. Eichman, 26 Kan.App.2d 527, 530–31, 989 P.2d 795,rev. denied 268 Kan. 890 (1999). A general definition of “intentional” conduct is that it's “[d]one deliberately.” American Heritage Dictionary 913 (5th ed.2011) (defining intentional). We believe that jurors would understand the difference between intentional and accidental conduct, and we are not convinced that the jury would have reached a different verdict had an instruction defining general intent been given. We find no clear error in this jury instruction.
II. The District Court Did Not Abuse Its Discretion by Denying Windsor's Motion for a New Trial.
Windsor asked the district court to grant him a new trial because some jurors may have seen him in restraints and there was some testimony that could have suggested that he was in custody before trial. The district court may grant a new trial “if required in the interest of justice.” K.S.A.2011 Supp. 22–3501.
On appeal, we review for abuse of discretion. State v. Warrior, 294 Kan. 484, 509–10, 277 P.3d 1111 (2012). The district court abuses its discretion if no reasonable person would have exercised his or her discretion in the way the district court did, or if the district court's ruling was based on a factual or legal error. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied132 S.Ct. 1594 (2012).
Several Kansas cases have discussed the potential prejudice involved when jurors see a defendant in restraints. Recently, in State v. Race, 293 Kan. 69, 80, 259 P.3d 707 (2011), a juror saw the defendant being transported in handcuffs through a courthouse hallway. When interviewed by the judge, the juror said he hadn't been paying much attention to the defendant, that the observation wouldn't affect his decision, and that he hadn't told any other jurors about what he'd seen. 293 Kan. at 84. Our Supreme Court found no abuse of discretion in the district court's denial of a motion for mistrial on these facts. 293 Kan. at 84. Other cases have found no abuse of discretion in similar situations. See State v. Dixon, 289 Kan. 46, 53, 62, 209 P.3d 675 (2009) (finding no abuse of discretion in denying mistrial where one juror saw defendant in shackles and told other jurors but judge questioned the juror and gave a curative instruction); State v. Cahill, 252 Kan. 309, 315, 845 P.2d 624 (1993) (finding no abuse of discretion in refusal to dismiss potential jurors who may have seen the defendant in shackles); State v. Yurk, 203 Kan. 629, 631, 456 P.2d 11 (1969) (finding no abuse of discretion in denial of mistrial motion where defendant could have been observed by jurors in hallway while handcuffed).
In our case, any potential prejudice stemmed from a brief, accidental observation by a juror of the defendant being transported while in custody. This is hard to avoid in most courthouses, which lack completely separate corridors for public and prisoner entry and exit from the courtroom. Here, although the judge did not interview the juror who apparently saw Windsor in restraints, that may have been by design—to keep from drawing attention to it—and the judge gave Windsor the option to bring the juror or jurors in for questioning or a private admonition to caution against any prejudice resulting from the incident. The judge also offered to give a curative jury instruction. But either because the judge forgot or because Windsor did not request that instruction, no curative instruction was given. Windsor's failure to object to completing the trial without questioning the jurors or giving a curative instruction arguably waives his right to appellate review on the issue. See State v. Longobardi, 243 Kan. 404, 410–11, 756 P.2d 1098 (1988).
Even if Windsor hasn't waived the right to appeal on this issue, though, Windsor hasn't demonstrated any prejudice. We have no indication that any juror took any special notice of Windsor being in custody; it's not even clear on our record exactly what was seen. We also note that the jury acquitted Windsor of two of the charges against him—aggravated battery and aggravated robbery—indicating that the jury understood the presumption of innocence. We find no abuse of discretion in the denial of the mistrial motion on this basis.
Windsor separately argues that the detective's testimony, from which one might infer that Windsor was in jail pending trial, justified a new trial. But Windsor failed to make any objection to that testimony at trial, and a party must make a contemporaneous and specific objection to the admission of evidence to preserve the issue for appeal. See K.S.A. 60–404; State v. Harris, 293 Kan. 798, 813–14, 269 P.3d 820 (2012). Although Windsor did object to an earlier line of questioning about whether Ingram feared reprisal from inmates, that objection was not contemporaneous and specific to the testimony Windsor now argues should have led to a mistrial—the implication that Windsor was incarcerated. Windsor has not preserved this issue (regarding testimony about potential contact in the visitation area) for appeal. See Longobardi, 243 Kan. at 410–11.
III. There Is No Alternative–Means Error Requiring Reversal of Windsor's Criminal–Threat Conviction.
Windsor was convicted of criminal threat against Ingram, which requires that he communicate a threat to commit violence either (a) with the intent to terrorize Ingram or (b) in reckless disregard of the risk of causing terror to Ingram. Thus, there were two alternative means by which this crime could have been convicted, and the jury was instructed on both. In such cases, there must be sufficient evidence to support both means. State v. Rojas–Marceleno, 295 Kan. 525, Syl. ¶ 13, 285 P.3d 361 (2012).
Windsor argues that there was evidence only of intentional conduct, not ones merely taken in reckless disregard of the risk of terrorizing Ingram. Specifically, Windsor argues that the only evidence the State presented to support the criminal-threat charge was that Windsor had pointed his gun at Ingram and said, “[D]on't move, or I'll shoot.”
The State claims that the invited-error doctrine bars Windsor from raising this issue on appeal. A party who leads the court into error cannot complain about that issue on appeal. State v. Divine, 291 Kan. 738, 742, 246 P.3d 692 (2011); see State v. McCoy, 34 Kan.App.2d 185, 190, 116 P.3d 48,rev. denied 280 Kan. 988 (2005) (“The application of the invited error doctrine to jury instructions is widely recognized.”)
Here, Windsor asked for a jury instruction on the criminal-threat charge that included both means, intentional and reckless conduct. The court gave that instruction, and Windsor now uses it as a basis to argue on appeal that the evidence wasn't sufficient to support a conviction on the reckless-conduct alternative means. In a similar case, State v. Schreiner, 46 Kan.App.2d 778, 788–89, 264 P.3d 1033 (2011), rev. denied 296 Kan. –––– (February 20, 2013), our court recently applied the invited-error rule. We agree with the Schreiner panel that since Windsor asked for a jury instruction allowing the jury to consider both means, he should not be allowed to claim insufficient evidence for one of those means on appeal. If there was insufficient evidence for that alternative means, the jury should not have been instructed on it.
But even if we were to consider Windsor's argument, there is no alternative-means problem here because there was evidence that could support either means, i.e., either intentional or reckless conduct. The State presented evidence that Ingram initially told detectives that Windsor put a gun to Ingram's head and threatened to shoot Ingram if he moved. If the jury believed that version of events, it could easily conclude that Windsor threatened Ingram with violence with the intent to terrorize him. But Ingram actually testified to a different version of events. He testified that Windsor didn't directly threaten him—he simply got scared and dropped to the floor during the violence against Baber. Under these facts, the jury could conclude that Windsor's actions and statements against Baber constituted an indirect, reckless threat against Ingram. Generally, a threat need not “ ‘be in any particular form or in any particular words, and it may be made by innuendo or suggestion, and need not be made directly to the intended victim. [Citations omitted.]’ “ State v. Rivera, 42 Kan.App.2d 914, 919, 218 P.3d 457 (2009), rev. denied 290 Kan. 1102 (2010) (quoting State v. Knight, 219 Kan. 863, 866, 549 P.2d 1397 [1976] ). Essentially, the violence and humiliation inflicted on Baber could constitute an implicit threat committed with reckless disregard to the risk of causing terror in Ingram. Even though Ingram was not the target of the violence, Ingram would naturally experience terror upon being ambushed and watching his friend battered and humiliated.
In addition, one other possibility exists that could support the view that Windsor's threatening conduct was reckless with respect to Ingram: The jury may have concluded that any threats made to Ingram were done only with the intent to facilitate the crimes against Baber rather than to terrorize Ingram. In that light, the jury could have found that the threats to Ingram weren't intended to cause terror to him but were nonetheless made in reckless disregard to the terror Ingram likely would experience.
IV. The District Court's Jury Instruction on Reasonable Doubt Was Not Clearly Erroneous.
Windsor contends that the district court's explanation to the jury of what constitutes reasonable doubt was in error. As with the jury instruction on aggravated assault, Windsor didn't object to the instruction, so we may reverse only upon a showing of clear error.
The pattern jury instruction on reasonable doubt at the time of Windsor's trial provided:
“If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State, you should find the defendant guilty.” (Emphasis added.) PIK Crim.3d 52.02.
In contrast, the judge in Windsor's case used the word “any” instead of “each” in the last sentence:
“If you have a reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty.” (Emphasis added.)
This difference is perhaps explained through some history regarding the pattern instruction on reasonable doubt. The instruction given by the court in Windsor's case was once the approved pattern instruction. See State v. Womelsdorf, 47 Kan.App.2d 307, 334, 274 P.3d 662 (2012), petition for rev. filed May 10, 2012. Later, the committee on pattern instructions changed “any” to “each” in the second part of the pattern instruction, arguably providing greater clarity.
But our court long ago approved the earlier pattern instruction—the one Windsor's court gave his jury—against the objection Windsor is making. See State v. Beck, 32 Kan.App.2d 784, 88 P.3d 1233,rev. denied 278 Kan. 847 (2004). Moreover, in Beck, the defendant had objected to the instruction at trial, so the court was not applying the less-deferential clear-error standard that we must apply in Windsor's case.
We also note another important point made in Beck: There, as here, the separate instruction regarding the elements of the charged crime told the jury that each separate element of each charged offense must be proved by the State. For example, for the criminal-threat charge at Windsor's trial, the jury was told that each of three propositions must be proved to establish that Windsor committed that offense:
“INSTRUCTION NO. 16 CRIMINAL THREAT
The defendant is charged with the crime of criminal threat in Count 3. The defendant pleads not guilty.
To establish this charge, each of the following claims must be proved:
1. That the defendant threatened to commit violence; and
2. Such threat was communicated with the intent to terrorize Boyce D. Ingram, II or was communicated in reckless disregard to the risk of causing terror to Boyce D. Ingram, II;
3. That this act occurred on or about the 24th day of March, 2010[,] in Wichita, Sedgwick County, Kansas[.]” (Emphasis added.)
The instructions must be considered as a whole, not in isolation. Beck, 32 Kan.App.2d at 787. In context, then, we construe together the instruction that each of the claims must be proved to establish the criminal-threat charge and the reasonable-doubt instruction. The reasonable-doubt instruction first told the jury that “[i]f you have a reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant not guilty.” (Emphasis added.) The instruction then told the jury that “[i]f you have no reasonable doubt as to the truth of any of the claims made by the State, you should find the defendant guilty.” (Emphasis added.) Taking these instructions together, and including the elements instruction that required proof of each of the listed claims to find the defendant guilty, we find no error—and certainly no clear error. See State v. Harris, No. 107,465, 2012 WL 5205722, at *2 (Kan.App.2012) (unpublished opinion), petition for rev. filed November 19, 2012; State v. Burdick, No. 103,263, 2012 WL 5869433, at *5 (Kan.App.2012) (unpublished opinion), petition for rev. filed December 17, 2012.
Windsor suggests that a recent case, Miller v. State, No. 103,915, 2012 WL 401601 (Kan.App.2012) (unpublished opinion), rev. granted 296 Kan. –––– (March 14, 2013), suggests a different result. But the jury instruction in Miller was different than the one given in Windsor's case. In Miller, the court switched the words “each” and “any” in the current pattern instruction. Thus, the jury in Miller was told something quite odd:
“ ‘If you have a reasonable doubt as to the truth of each of the claims required to be proved by the State, you must find the defendant not guilty. If you have no reasonable doubt as to the truth of any of the claims required to be proved by the State, you should find the defendant guilty.’ “ 2012 WL 401601, at *2. (Emphasis added.)
Our court found that this error substantially changed the meaning of the instruction so that it “[told] jurors that they should acquit Miller only if they have a reasonable doubt about each claim or element the State must prove. And it [told] them they should convict Miller if they hold no reasonable doubt as to any of those claims.” 2012 WL 401601, at *2. The Miller instruction did misstate the law; the instruction given in Windsor's case did not.
Our court has found no clear error in several other cases when considering this same instruction given to Windsor's jury and the same claim of error that he makes here. See Womelsdorf, 47 Kan.App.2d at 333–34;State v. Rossing, No. 107,073, 2012 WL 6734652, at *7 (Kan.App.2012) (unpublished opinion), petition for rev. filed January 22, 2013; State v. Snowden, No. 107,284, 2012 WL 5869612, at *14 (Kan.App.2012) (unpublished opinion), petition for rev. filed December 17, 2012; Harris, 2012 WL 5205722, at *2;Burdick, 2012 WL 5869433, at *5;State v. Myers, No. 105,252, 2012 WL 2476978, at *9 (Kan.App.2012) (unpublished opinion); State v. Kling, No. 106,361, 2012 WL 2045375, at *2–3 (Kan.App.2012) (unpublished opinion), petition for rev. filed July 2, 2012. We find no clear error in the reasonable-doubt instruction the court gave here.
V. The District Court Did Not Err by Considering Windsor's Criminal History When Determining His Sentence.
Windsor's final argument is that the district court violated his constitutional rights when it used his criminal history to calculate his sentence without following the procedural safeguards of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Apprendi requires that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum ... be submitted to a jury, and proved beyond a reasonable doubt .” 530 U.S. at 490.
But a defendant's prior convictions were explicitly excluded from that requirement in the Apprendi decision. 530 U.S. at 490. And the Kansas Supreme Court has recognized the continuing validity of this prior-conviction exception to Apprendi's requirements. See State v. Snellings, 294 Kan. 149, 167, 273 P.3d 739 (2012); State v. Ivory, 273 Kan. 44, 47, 41 P.3d 781 (2002). The district court did not err when it used Windsor's prior convictions to calculate his sentence.
We therefore affirm the district court's judgment.