UNITED STATES of America, Plaintiff-Appellee, v. Elmer Jay CLARK, Defendant-Appellant, 227 F. App'x 658

MEMORANDUM Elmer J. Clark (Clark) appeals the district court’s denial of his motion to suppress. The district court’s finding of abandonment was clear error as there was insufficient evidence to objectively establish a denial of ownership or voluntary physical relinquishment by Clark of the property containing evidence sought to be suppressed. However, the search was conducted incident to a lawful arrest. Clark suffered no prejudice from the district court’s reaching a proper result using erroneous rationale. Reversal is neither necessary nor appropriate. See United States v.

Doe, 136 F.3d 631, 636 (9th Cir.1998) (citing United States v. Castillo-Felix, 539 F.2d 9, 13 (9th Cir.1976)); United States v. Todhunter, 297 F.3d 886, 889 (9th Cir.2002) (stating that the court may affirm the district court’s denial of a motion to suppress “ ‘on any basis fairly supported by the record’ ”) (quoting United States v. Mariscal, 285 F.3d 1127, 1129 (9th Cir. 2002)). Clark also challenges the district court’s consideration of evidence of predicate prior convictions in classifying him as a career criminal. Prior convictions are appropriate for consideration as sentencing factors. Almendarez-Torres v.

United States, 523 U.S. 224, 243, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). The Judge, when applying the Armed Criminal Career Act based upon prior guilty pleas, is “generally limited to examining the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Shepard v. United States, 544 U.S. 13, 16, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

Here, the district court properly reviewed charging documents, transcripts of plea colloquies, written plea agreements, and findings of fact of record for six of Clark’s prior convictions as explicitly authorized by Shepard. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.