United States of America v. Tristan Chandler Stevens

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 6, 2024 Decided June 28, 2024
No. 23-3046
UNITED S TATES OF A MERICA,
APPELLEE
v.
TRISTAN C HANDLER S TEVENS ,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cr-00040-2)
Megan J. Saillant, Assistant Federal Public Defender,
argued the cause and filed the briefs for appellant.
T. Dietrich Hill, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Chrisellen R. Kolb
and Elizabeth H. Danello, Assistant U.S. Attorneys.
Before: HENDERSON , M ILLETT and P ILLARD, Circuit
Judges.
Opinion for the Court filed by Circuit Judge HENDERSON.

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KAREN LEC RAFT HENDERSON , Circuit Judge: On January
6, 2021, Tristan Stevens participated in an attack on police
officers defending the United States Capitol’s Lower West
Terrace. The district court convicted him of, inter alia, four
counts of feloniously assaulting and impeding police officers
in violation of 18 U.S.C. § 111(a)(1) and one count of
committing civil disorder in violation of 18 U.S.C. § 231(a)(3).
At sentencing, the court concluded that Stevens committed the
Section 111(a)(1) offenses with an intent to commit another
felony: Section 231(a)(3) civil disorder. The court accordingly
applied Sentencing Guideline Section 2A2.2 (Aggravated
Assault) to Stevens’ Section 111(a)(1) offenses. See U.S.
S ENT’ G GUIDELINES M ANUAL (U.S.S.G) § 2A2.2 (U.S. S ENT’ G
C OMM’N 2021).1
Stevens appeals his sentence, arguing that the court should
have applied guideline Section 2A2.4 (Obstructing or
Impeding Officers) to his four Section 111(a)(1) offenses.
U.S.S.G. § 2A2.4. We disagree. We have recently held that
“aggravated assault” unambiguously includes assault with
intent to commit another felony and thus Section 2A2.2, not
Section 2A2.4, is the applicable guideline. See United States v.
Sargent, 2024 WL 2873106, at *4–7 (D.C. Cir. June 7, 2024).
The court properly applied Section 2A2.2 to Stevens’ Section
111(a)(1) offenses because his conduct constituted “felonious
assault” and he acted with the “intent to commit another
felony.” U.S.S.G. § 2A2.2 cmt. n.1. We therefore affirm his
sentence.
1 All references are to the 2021 United States Sentencing
Guidelines Manual—in effect at the time of Stevens’ sentencing—
unless marked otherwise.

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I. B ACKGROUND
By statute, the U.S. Sentencing Commission
(Commission) “establish[es] sentencing policies and practices
for the Federal criminal justice system.” 28 U.S.C. § 991(b)(1).
It does so by publishing “guidelines . . . for use of a sentencing
court in determining the sentence to be imposed in a criminal
case” and “general policy statements regarding application of
the guidelines or any other aspect of sentencing.” Id.
§ 994(a)(1)–(2). The Sentencing Commission also publishes
“commentary” to accompany the Guidelines. U.S.S.G.
§ 1B1.7. Commentary notes “may interpret the guideline or
explain how it is to be applied” and “[f]ailure to follow such
commentary could constitute an incorrect application of the
guidelines, subjecting the sentence to possible reversal on
appeal.” Id. (citing 18 U.S.C. § 3742). The Supreme Court has
instructed us to treat the guidelines as “the equivalent of
legislative rules adopted by federal agencies” and guideline
commentary as “an agency’s interpretation of its own
regulations.” Stinson v. United States, 508 U.S. 36, 45 (1993).
At sentencing, the court first looks to the sentencing range
the Guidelines establish. 18 U.S.C. § 3553(a)(4). It selects the
applicable guideline for a particular offense of conviction from
the Guidelines’ Statutory Index. U.S.S.G. § 1B1.2; see id. app.
A. The appropriate guideline directs the court to the base
offense level and any specific offense characteristics. Id.
§ 1B1.1(a)(2). The court can then adjust the offense level under
various circumstances, including the victim’s status and the
defendant’s acceptance of responsibility. Id. § 1B1.1(a)(3), (5).
It then selects the defendant’s criminal history category to
determine the advisory sentence range. Id. § 1B1.1(a)(6), (7).
The Statutory Index often lists multiple guidelines for one
offense. In that situation, the court determines which guideline

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“is most appropriate for the offense conduct charged in the
count of which the defendant was convicted.” Id. § 1B1.2 cmt.
n.1. The Statutory Index lists two guidelines for Section 111
convictions: Section 2A2.2 (Aggravated Assault) and Section
2A2.4 (Obstructing or Impeding Officers). U.S.S.G. app. A, at
558. Section 2A2.4 carries a base offense level of 10, which
level can be enhanced based on physical contact, possession
and threatened use of a dangerous weapon or bodily injury to
the victim. Id. § 2A2.4(a)–(b). Because the base offense level
already incorporates a victim’s official status, Section 2A2.4
does not permit a Section 3A1.2 level enhancement. See id.
§§ 2A2.4 cmt. n.2; 3A1.2 cmt. n.2. According to Section
2A2.4(c)’s Cross Reference, “conduct constitut[ing]
aggravated assault” triggers the application of Section 2A2.2.
Id. § 2A2.4(c)(1). Section 2A2.2 carries a base offense level of
14 with several enhancement options, including an official
victim adjustment in certain circumstances.2 Id. § 2A2.2(a)–
(b). The commentary defines “aggravated assault” as a
“felonious assault” involving, inter alia, “an intent to commit
another felony.” Id. § 2A2.2 cmt. n.1.
Both houses of the Congress convened on January 6, 2021
to certify the results of the 2020 presidential election.3 Vice
President Mike Pence presided over the certification. Capitol
Police restricted access to the Capitol building and erected an
exterior perimeter.
The Congress halted the certification process that
afternoon when rioters penetrated the police perimeter. In front
2 Pursuant to Section 3A1.2, the offense level increases by 6 if
the victim is “a government officer or employee,” the offense
conduct was “motivated by such status” and the applicable guideline
“is from Chapter Two, Part A (Offenses Against the Person).”
U.S.S.G. § 3A1.2(a)–(b).
3 We draw the following facts from the trial record.

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of the Lower West Terrace, rioters broke through the police
line and officers fell back to a narrow scaffolding tunnel
(Tunnel). There they established a new defensive line. Rioters
breached the Tunnel’s first set of doors but the police line—
equipped with riot shields—held the second set of doors.
Around this time, rioters elsewhere entered the Capitol
building.
Rioters in the Tunnel attacked officers with punches, metal
poles and chemicals. Officers and rioters continuously pushed
against each other. And rioters occasionally intensified their
pushes into “heave-hos.” J.A. 506. This struggle continued
until around 5:00 p.m., when police officers cleared the Tunnel
of rioters. With the Capitol building secured, the Congress
resumed the certification process later that evening.
Earlier on January 6, 2021, Stevens attended the rally at
the White House Ellipse. He then walked to the Capitol with
others. Around 2:50 p.m., Stevens entered the Tunnel. He
directed several of the “heave-ho” pushes against the police
line before exiting. He then returned, picked up a riot shield
and moved to the front. He pressed the shield against Capitol
Police Officer Sergeant Aquilino Gonell’s head, dislodging his
face shield and exposing him to chemicals. Gonell struck back
with his baton but Stevens pinned him against the wall with the
shield. Stevens left the Tunnel shortly thereafter but entered
one last time around 4:15 p.m. to lead another push against the
police line. The officers eventually secured the Tunnel and
Stevens then left the Capitol grounds.
A grand jury indicted Stevens—and eight co-defendants—
on fifty-three counts. As relevant here, the Indictment charged
Stevens for his assault on Gonell pursuant to 18 U.S.C.
§ 111(a)(1) (Count 21). It also charged Stevens with aiding and
abetting the assaulting, resisting and impeding of law

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enforcement officers in the Tunnel under 18 U.S.C. § 111(a)(1)
(Counts 14, 16 and 33). Part of Chapter 7–Assault, 18 U.S.C.
§ 111(a)(1) criminalizes “forcibly” assaulting, resisting,
opposing, impeding, intimidating or interfering with certain
governmental officers and employees. A simple Section 111(a)
assault constitutes a misdemeanor. If the conduct “involve[s]
physical contact with the victim of that assault or the intent to
commit another felony,” the offense rises to a felony. 18 U.S.C.
§ 111(a). An enhanced penalty applies if the offender uses a
deadly or dangerous weapon or inflicts bodily injury. Id.
§ 111(b).
Count 35 of the Indictment charged Stevens with
committing civil disorder in violation of 18 U.S.C. § 231(a)(3).
Part of Chapter 12–Civil Disorders, 18 U.S.C. § 231(a)(3)
criminalizes “any act to obstruct, impede, or interfere with
any . . . law enforcement officer” engaged in official duties
“incident to and during the commission of a civil disorder.” A
violation of Section 231(a)(3) constitutes a felony. Id.
In a bench trial, the district court tried Stevens alongside
co-defendants Patrick McCaughey and David Mehaffie. The
court found Stevens guilty of felony assault on Count 21—a
Section 111(a)(1) count—but declined to apply the enhanced
penalty under Section 111(b) because the riot shield, as Stevens
used it, did not constitute a deadly or dangerous weapon. The
court convicted Stevens on all but one of the other nine counts
charged against him.4 With regard to the four Section 111(a)(1)
charges (Counts 14, 16, 21 and 33), the court determined that
Stevens committed felonies because he acted with the intent to
4 The court acquitted Stevens on Count 34, Obstruction of an
Official Proceeding under 18 U.S.C. § 1512(c)(2), because the
government failed to prove his intent.

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commit another felony—civil disorder under Section
231(a)(3).5
As noted supra, the Statutory Index lists guideline Section
2A2.2 and Section 2A2.4 as applicable to Section 111
convictions. U.S.S.G app. A, at 558. The district court therefore
had to determine the “most appropriate [guideline] for the
offense conduct” of conviction. Id. § 1B1.2 cmt. n.1. Stevens
objected to the application of Section 2A2.2, both in his
Sentencing Memorandum and at sentencing. Acknowledging
that Stevens was convicted of two separate felonies—a Section
111(a)(1) felony and a Section 231(a)(3) felony—his counsel
argued that they involved the same intent, that is, he violated
Section 111(a)(1) but without the intent to commit another
felony.
For the Section 111(a)(1) offenses (Counts 14, 16, 21 and
33), the district court disagreed. First, the court did not rely
exclusively on the commentary definition of “aggravated
assault.” It also cited for support the Black’s Law Dictionary
definition of “aggravated assault”—which includes assault
with “the intent to commit another crime.” Aggravated Assault,
B LACK’S LAW D ICTIONARY (11th ed. 2019). The court also
concluded that “another felony” need not involve completely
separate conduct or intent. It noted that Stevens’ Section
231(a)(3) conviction involved an element of “mob resistance
to law enforcement” distinct from the “run-of-the-mill assaults
on police officers” covered by Section 111(a)(1). J.A. 2208.
For the Section 111(a)(1) offenses, then, the court applied
5 Based on the assault on Gonell (Count 21), the court found
that Stevens committed felony assault because he “act[ed] with the
intent to commit civil disorder, a felony” and additionally made
physical contact with the officer. J.A. 2095.

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Section 2A2.2 and the official victim adjustment set forth in
Section 3A1.2 to reach an adjusted offense level of 20.
For the Section 231(a)(3) offense (Count 35), the district
court declined to apply the Cross Reference. Instead, it applied
Section 2A2.4 and assigned an adjusted offense level of 10.6
According to the court, the government failed to show Stevens
“committed civil disorder with the intent to commit another
felony.” J.A. 2212. It then created two groups: Group 1 for
offenses against the line officers (Counts 14, 16 and 33) and
Group 2 for offenses against Sergeant Gonell (Count 21). For
both groups, the highest offense level was 20. The court added
2 points for the grouping units, reaching a total adjusted offense
level of 22. See U.S.S.G. § 3D1.4. Combined with Stevens’
lack of past criminal activity, he faced a Guidelines range of
41–51 months’ incarceration. The court ultimately varied
upward from the Guidelines range because of Stevens’ lack of
remorse and a need for general deterrence, respect for law
enforcement and just punishment for the offense. Stevens was
sentenced to 60 months’ incarceration and 24 months’
supervised release.
II. ANALYSIS
Stevens makes two challenges.7 First, he argues assault
with intent to commit another felony is not “aggravated
6 18 U.S.C. § 231 is not listed in the Statutory Index but the
most analogous guideline is Section 2A2.4. See U.S.S.G. § 2X5.1
(“If the offense is a felony for which no guideline expressly has been
promulgated, apply the most analogous offense guideline.”).
7 Co-defendant McCaughey also appealed, challenging his
conviction. See United States v. McCaughey, Case No. 23-3061. We
consolidated McCaughey’s and Stevens’ appeals ex mero motu.
After the Supreme Court granted certiorari in Fischer v. United

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assault.” Under Kisor v. Wilkie, 588 U.S. 558 (2019), he
claims, the court should not defer to the Guidelines
commentary definition of “aggravated assault.” Second, he
argues that his conduct does not qualify as “aggravated assault”
even under the commentary definition. “We review de novo the
district court’s interpretation of the Sentencing Guidelines in
calculating a defendant’s Sentencing Guidelines range.”
United States v. Brown, 892 F.3d 385, 401 (D.C. Cir. 2018)
(per curiam). If a defendant fails to preserve a challenge, we
review for plain error. See United States v. Hunter, 809 F.3d
677, 681 (D.C. Cir. 2016).
A. “Aggravated Assault”
Stevens disputes the meaning of “aggravated assault” and
argues that the district court wrongly deferred to the
commentary definition. We recently considered whether
“aggravated assault” as defined in Section 2A2.2 includes
intent to commit another felony. In United States v. Sargent,
another January 6 defendant made the same challenge that
Stevens makes. 2024 WL 2873106, at *4–7.
We rejected Sargent’s arguments because “aggravated
assault” in Section 2A2.2 “unambiguously encompasses
Sargent’s actions on January 6, 2021.” Id. at *4. As we
explained, we need not decide the proper deference standard to
Guidelines commentary if “the language at issue has a plain
and unambiguous meaning with regard to the particular dispute
in the case.” Id. (quoting Robinson v. Shell Oil Co., 519 U.S.
337, 340 (1997)). Examining the text and structure of the
Guidelines, the Court found that Sargent’s conduct—a
violation of Section 111(a)(1) with intent to commit a violation
of the Section 231(a)(3) civil disorder offense—constituted
States, 144 S. Ct. 537 (2023) (mem.), we severed McCaughey’s
appeal and held it in abeyance.

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aggravated assault within the meaning of Section 2A2.2. Id. at
*5–7. The Commission, with the Congress’ approval,8 initially
assigned Section 2A2.2 as the sole guideline for several
offenses. Id. at *6. One of the specified offenses, 18 U.S.C.
§ 113(b) (1982), punished “[a]ssault with intent to commit any
felony” within “maritime and territorial jurisdiction.” Sargent,
2024 WL 2873106, at *6. The Congress later moved Section
113(b) to Section 113(a)(2). Id. Under the 2021 Guidelines,
only Sections 2A2.2, 2A3.2, 2A3.3 and 2A3.4 apply to a
Section 113(a)(2) violation; all but Section 2A2.2 relate to
conduct involving sexual assault. U.S.S.G. app. A, at 558.
Now, for any non-sexual assault committed under Section
113(a)(2) “with intent to commit another felony, the Guidelines
require district courts to apply § 2A2.2.” Sargent, 2024 WL
2873106, at *6 (emphasis in original). Further, Sargent held,
Section 2A2.4 ordinarily applies to offenses involving
interference with law enforcement. Id. It is the sole guideline
applicable to over thirty offenses, none of which include the
“intent to commit another felony” element. Id. Finally, the
Commission replaced Section 2A2.3 (Minor Assault) with
Section 2A2.4 in the Statutory Index reference for Section 111
offenses.9 U.S.S.G. app. C, amend. 64 (effective Oct. 15,
1988). Thus, the Commission intended Section 2A2.4 to apply
to minor assaults “while § 2A2.2 would be applied to assaults
that were aggravated by other, separate factors.” Sargent, 2024
WL 2873106, at *7. Because “‘aggravated assault’ plainly
captures Sargent’s conduct,” we declined to consider what
8 “[O]rdinarily and in practice, the commentary undergoes the
same congressional and public review as the Guidelines.” Sargent,
2024 WL 2873106, at *2.
9 Section 2A2.3’s heading referred to “Minor Assault” at the
time the Commission established Section 2A2.4. U.S.S.G. § 2A2.3
(1988). The Commission omitted “Minor” in a 2014 “stylistic change
that does not affect the application of § 2A2.3.” U.S.S.G. suppl. to
app. C, amend. 781 (effective Nov. 1, 2014).

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degree of deference to accord the “aggravated assault”
commentary definition. Id.
Sargent’s resolution of the “aggravated assault”
commentary issue decides Stevens’ challenge as well and
requires us to reject his challenge. See LaShawn A. v. Barry, 87
F.3d 1389, 1395 (D.C. Cir. 1996) (en banc). The commentary
definition of “aggravated assault” unambiguously covers
Stevens’ conduct—namely, assaulting, impeding and resisting
officers under Section 111(a)(1) with an intent to commit civil
disorder under Section 231(a)(3). See Sargent, 2024 WL
2873106, at *4.
B. Application of Guideline Section 2A2.2
Notwithstanding “aggravated assault” includes assault
with intent to commit another felony, Stevens still argues that
his conduct does not constitute “aggravated assault.”
According to Stevens, Section 2A2.2 does not apply to him.
The Guidelines commentary defines “aggravated assault” as
(1) “felonious assault” that involves, inter alia, (2) “an intent
to commit another felony.” U.S.S.G. § 2A2.2 cmt. n.1. Stevens
challenges both prongs’ applicability. We conclude that
Stevens has shown no plain error in the district court’s
conclusion that he committed felonious assault. We
additionally find that he acted with an intent to commit another
felony. Thus, the district court properly applied Section 2A2.2
to Stevens’ Section 111(a)(1) convictions.
1. “Felonious Assault”
Stevens raises two arguments regarding “felonious
assault”: he was not convicted of felonious assault; and he only
aided and abetted the resisting, opposing, impeding and
interfering with police officers under Counts 14, 16 and 33. He
does not similarly challenge Count 21, on which the court

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convicted Stevens of felony assault of Sergeant Gonell.
Stevens did not make these “felonious assault” arguments in
district court and we therefore review them for plain error. See
Hunter, 809 F.3d at 681; Fed. R. Crim. P. 52(b).10 Stevens must
show (1) an error; (2) that is plain; and (3) affects substantial
rights. Greer v. United States, 593 U.S. 503, 507–08 (2021). If
he makes this showing, we may grant relief if the error “had a
serious effect on the fairness, integrity or public reputation of
judicial proceedings.” Id. at 508 (quotation omitted). A “plain”
error must be “clear under current law.” United States v. Olano,
507 U.S. 725, 734 (1993).
Stevens argues that as to the Section 111(a)(1) offenses
against the line officers—Counts 14, 16 and 33—the court did
not convict him of assault. The court convicted him of “[a]t the
very least, . . . resisting, opposing, impeding and interfering
with officers by forming a barrier to prevent them from clearing
10 Stevens urges us to review this argument de novo because he
is simply making new arguments in support of a preserved claim. See
Yee v. City of Escondido, 503 U.S. 519, 534 (1992) (“Once a federal
claim is properly presented, a party can make any argument in
support of that claim . . . .”). In Yee, the petitioners challenged an
ordinance as a taking based on physical occupation and regulations.
Id. at 534–35. The Court concluded that these were two “separate
arguments in support of a single claim—that the ordinance effects an
unconstitutional taking.” Id. at 535 (emphasis in original). But
Stevens makes two separate claims. At sentencing and on appeal, he
has argued that he had no intent to commit “another felony.” And for
the first time on appeal, he argues that he “did not commit a felonious
assault.” Stevens Br. 26 (emphasis in original). Stevens has thus
made two distinct claims challenging different elements of the
“aggravated assault” commentary definition and we therefore review
for plain error. Cf. In re Harman Int’l Indus., Inc. Sec. Litig., 791
F.3d 90, 100 (D.C. Cir. 2015) (“[O]n appeal a party may ‘refine and
clarify its analysis in light of the district court’s ruling,’ including
citing ‘additional support . . . .’” (citations omitted)).

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the tunnel.” J.A. 2075 (Oral Ruling, Sept. 13, 2022). Stevens
also suggests that his aiding and abetting convictions on Counts
14, 16 and 33 prevent those counts from constituting “felonious
assault.” Application of the Guidelines, however, is determined
by considering “all acts and omissions committed, aided,
abetted, counseled, commanded, induced, procured, or
willfully caused by the defendant.” U.S.S.G. § 1B1.3(a)(1)(A)
(emphasis added).
Whether he personally assaulted, or aided and abetted the
assaulting of, law enforcement officers, Stevens’ actions—
aiding other rioters whose assaults on the officers involved
physical contact or the intent to commit another felony—
constituted felony assault. In support of Stevens’ convictions,
the district court found that Stevens engaged in the heave-ho
pushes in the tunnel “to aid those rioters ahead of him who were
engaged with the police,” J.A. 2086; the court repeatedly
described those protestors as “coordinating their pushes to
exert the greatest possible amount of force on the police line,”
J.A. 2076, “continuing to press against police,” id., “bringing
shields and other objects to use against the police” as they
entered the tunnel, J.A. 2077, and “trying to push through the
officers,” J.A. 2083. At sentencing, the district court explicitly
found that Stevens “assaulted and impeded officers” and did so
with the intent to commit another felony, rendering applicable
the Guideline for aggravated assault. J.A. 2208. See also id.
(finding that Stevens “assault[ed], obstruct[ed] and imped[ed]
a line of officers”).
2. “Intent to Commit Another Felony”
Stevens also argues that he had no intent to commit
another felony at the time he violated Section 111(a)(1). He
preserved this argument in his Sentencing Memorandum and at
sentencing and so we review de novo whether the Section

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231(a)(3) civil disorder offense constitutes “another felony”
separate from the Section 111(a)(1) count. See Brown, 892 F.3d
at 401. We conclude that it does.
Each of the two felonies features distinct requirements.
Section 111(a)(1) requires the government to prove only that
the defendant had “an intent to assault, not an intent to assault
a federal officer.” United States v. Feola, 420 U.S. 671, 684
(1975); see also United States v. Arrington, 309 F.3d 40, 44
(D.C. Cir. 2002). On the other hand, in Stevens’ view, Section
231(a)(3) requires a “purpose of obstructing, impeding, or
interfering with one or more law enforcement officers” and that
the assault be committed “incident to and during a civil
disorder” that affected commerce. J.A. 2133 n.3. Section
231(a)(3)’s distinct requirements qualify it as “another felony”
separate from Section 111(a)(1).
Stevens cites to a commentary definition of “another
felony offense” elsewhere in the Guidelines. See U.S.S.G.
§ 2K2.1 cmt. n.14(C). To whatever extent that definition
informs the meaning of “another felony” in Section 2A2.2’s
commentary, it supports the government’s interpretation.
Section 2K2.1 enhances a firearm possession offense if the
defendant “used or possessed any firearm in connection with
another felony offense.” U.S.S.G. § 2K2.1(b)(6)(B) (emphasis
added). Some courts interpreted “another felony offense” to
exclude any felonious conduct contemporaneously occurring
with the base offense conduct. See, e.g., United States v.
Fenton, 309 F.3d 825, 827 (3d Cir. 2002) (a defendant
convicted of violating a felon-in-possession statute based on
his having stolen the firearm is not subject to the “another
felony offense” enhancement based on his theft of the firearm).
In response, the Commission broadened the term to apply to
“any federal, state, or local offense, other than the explosive or
firearms possession or trafficking [base] offense, punishable by

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imprisonment for a term exceeding one year, regardless of
whether a criminal charge was brought, or a conviction
obtained.” U.S.S.G. § 2K2.1 cmt. n.14(C); see United States v.
Keller, 666 F.3d 103, 109 (3d Cir. 2011). Thus, any felony
offense other than the base offense of conviction fits the
meaning of “another felony offense.” The broad commentary
definition of “another felony offense” suggests that “another
felony” in Section 2A2.2’s commentary also carries a broad
meaning.
In sum, the district court found at trial that Stevens violated
Section 111(a)(1) with intent to commit civil disorder under
Section 231(a)(3). Because Stevens’ actions constituted felony
assault and he acted with the intent to commit “another felony,”
the district court properly adhered to Section 2A2.4(c)(1)’s
Cross Reference and applied Section 2A2.2 at Stevens’
sentencing.
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.

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