United States v. Aaron M. Deroo ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-3421
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of North Dakota.
Aaron M. Deroo, *
*
Defendant-Appellant. *
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Submitted: May 15, 2002
Filed: September 27, 2002
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Before MURPHY, HEANEY, and BRIGHT, Circuit Judges.
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MURPHY, Circuit Judge.
Aaron Deroo1 pled guilty to being a felon in possession of ammunition and
later filed an appeal (on December 4, 1998) from the denial of his post conviction
motion under 28 U.S.C. § 2255. The matter has been before the court twice
previously and remanded both times for further proceedings. A panel ruled at the first
stage of Deroo's appeal that his § 2255 motion was not barred by a waiver provision
in his plea agreement and that he had not received ineffective assistance of counsel
1
Although Deroo's name has sometimes been spelled with a capital "R," it
appears that this spelling is correct.
in connection with his guilty plea. Both remands have related to his sentencing under
the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). On the most recent
remand we directed the district court to conduct a full examination of Deroo's prior
burglary convictions to determine whether they qualify as predicate offenses under
the statute. United States v. DeRoo, 13 Fed. Appx. 436, 438 (8th Cir. 2001)
(unpublished) (per curiam). The district court held a hearing, studied the record, and
then issued written findings concluding that Deroo had four qualifying felonies, one
more than necessary. Deroo appeals, and we affirm.
I.
Deroo was charged in United States District Court for the District of North
Dakota with being a felon in possession of ammunition, in violation of 18 U.S.C. §
922(g)(1), after a search warrant was executed at his residence and more than 65
rounds of ammunition were found. He pled guilty pursuant to a plea agreement, and
was sentenced under the ACCA. § 924(e)(1). This statute applies if a defendant has
had three previous convictions for a violent felony or serious drug crime. The court
found that Deroo qualified as an armed career criminal because of burglary
convictions in 1989 and 1990 and two controlled substance offenses to which he pled
in 1992. He was sentenced to 210 months.2 See United States Sentencing
Commission, Guidelines Manual, § 4B1.4.
In 1989 Deroo and an accomplice, Spencer Tranby, had been apprehended
while committing a burglary in Becker County, Minnesota. Following their arrest for
the Becker County burglary, Deroo and Tranby confessed to eleven other burglaries
they had committed in Hubbard County, Minnesota between May and June 1989.
Deroo was charged in state court with six counts of second degree burglary for the
2
Deroo escaped from the jail where he was being held while awaiting
sentencing but was apprehended a day later.
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Hubbard County burglaries. He pled guilty in October 1989 under the first three
counts, in each instance pleading to the lesser included offense of third degree
burglary. He was later charged with second degree burglary for the Becker County
offense, and he pled guilty to it in January 1990. Both sides agree that the 1990
conviction is a qualifying prior felony under the ACCA.
Deroo's plea agreement for his federal conviction for felon in possession
contained a provision waiving his right to "any appeal or other post-conviction
relief." Deroo did not attempt to appeal from the judgment, but he did petition to
vacate his conviction and sentence under 28 U.S.C. § 2255, claiming he had received
ineffective assistance of counsel. The district court declined to rule on the merits of
the petition because of the appellate waiver provision. We granted a certificate of
appealability on the issue of whether Deroo's petition was barred by the waiver.
DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000). A panel of this court
concluded that it was not, but that Deroo's counsel had not been ineffective. The
panel ruled sua sponte, however, that Deroo's drug convictions could not count as
predicate offenses under the ACCA because they were not "serious drug offenses."
Id. at 923-27. The court found that it was unclear from the record whether Deroo
otherwise had three qualifying felony convictions, id. at 927, and remanded for
reconsideration of his sentence.
On remand the government asserted that Deroo's Hubbard County burglary
convictions from 1989 were sufficient to bring him under the ACCA because they
were separate violent felonies. Deroo argued that he believed the issue had already
been decided in his favor, but that an evidentiary hearing would be needed if it had
not. The district court ruled that the issue had not been determined and that Deroo
had committed a sufficient number of violent felonies to invoke the ACCA, including
a number of burglaries in Hubbard County over a period of one month. It found that
an evidentiary hearing was unnecessary and again sentenced Deroo to 210 months as
an armed career criminal.
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Deroo appealed, and we vacated the sentence because it was not clear from the
district court's order which burglaries it had relied on, when or where the burglaries
had occurred, and whether they were separate offenses or part of a continuous course
of criminal conduct. DeRoo, 13 Fed. Appx. at 438. We remanded with directions to
resentence Deroo after "full examination of the 1989 convictions and relevant
findings." Id.
The district court convened the parties once again and heard arguments. It also
examined court records from the 1989 convictions, including the complaint and the
transcript of the change of plea hearing. These records showed that Deroo confessed
to having burglarized eleven cabins on six lakes between May and June 1989, that he
was charged with the burglary of six, and that he pled guilty to three. The court made
findings regarding the location and timing of these three burglaries and determined
that each counted as a predicate offense for purposes of the ACCA. It concluded that
these three felonies, together with the 1990 Becker County conviction, gave Deroo
four qualifying convictions, one more than necessary under the statute. Deroo sought
to provide his own testimony, and that of his accomplice Tranby, that they had
committed the three 1989 burglaries within approximately one hour.
Deroo again appealed, contending that the district court had failed to conduct
a full examination of the 1989 convictions and had denied him an opportunity to
present evidence. He argued that the 1989 burglaries do not qualify as predicate
offenses because they were part of a continuous course of criminal conduct and took
place in close temporal proximity. After the conclusion of briefing and the court's
decision that oral argument was not needed, he moved on May 9, 2002 to substitute
new counsel and requested time to file a supplemental brief. We granted his requests,
and substituted counsel submitted a brief with substantially similar arguments to
those previously made and also moved to supplement the record with a June 2002
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affidavit signed by Deroo and the June 2002 deposition transcript of Spencer Tranby.3
The two claimed in their testimony that they had committed the three 1989 burglaries
to which Deroo pled within approximately one hour. Deroo's affidavit asserts that
the burglaries were committed as part of "a single continuous course of conduct"
conceived at a "single planning session." Deroo's counsel asked Tranby at his
deposition whether the two "had a single specific plan" that was "followed . . .
without deviation." Tranby responded "yeah."
II.
Congress passed the ACCA to protect the public from continuing crimes by
armed felons. See generally H.R. Rep. No. 98-1073, at 1-3 (1984). It provides a
minimum sentence of fifteen years if a defendant qualifies as an armed career
criminal. 18 U.S.C. § 924(e). This classification applies to a defendant convicted of
being a felon in possession of a weapon or ammunition who has "three previous
convictions by any court . . . for a violent felony or a serious drug offense, or both,
committed on occasions different from one another." § 924(e)(1). The term "violent
felony" includes felony burglaries. § 924(e)(2)(B)(ii).
To qualify as predicate offenses under the statute, each conviction must be a
separate and distinct criminal episode, rather than part of a continuous course of
conduct. See United States v. Hamell, 3 F.3d 1187, 1191 (8th Cir. 1993). See also
United States v. Gray, 85 F.3d 380, 381 (8th Cir. 1996). Crimes occurring even
minutes apart can qualify, however, if they have different victims and are committed
in different locations. See Gray, 85 F.3d at 381 (two burglaries of houses located
near each another within a twenty five minute period); Hamell, 3 F.3d at 1191 (two
assaults within twenty five minutes; one inside a bar, the other outside).
3
Counsel for the government received notice of this deposition only three days
before it was taken and was unable to attend and cross examine Tranby.
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On remand the district court examined records relating to Deroo's prior
convictions, including his own testimony from the 1989 change of plea hearing.
These materials indicated that in 1989 Deroo had confessed to burglarizing cabins
between May and June of that year on Spider Lake, Boulder Lake, Island Lake, Third
Crow Wing Lake, Stoney Lake, and East Crooked Lake. Deroo pled guilty to third
degree burglary under the first three counts against him. The first count involved a
cabin on Spider Lake which Deroo and Tranby broke into and from which they took
various property including a fish locator, twenty arrows, a stereo, and alcoholic
beverages. The second burglary count involved a cabin on Boulder Lake, from which
the two stole a revolver, a 35 mm camera, jewelry, liquor, and other items. The third
conviction was a burglary of a cabin on Island Lake, from which they took a rifle,
fishing equipment and a bottle of liquor. Each cabin had a different owner. Even if
Deroo's assertion that the three burglaries occurred within an hour of one another
were correct, the burglaries involved breaking into three separate homes located on
different lakes and unrelated victims who suffered individual losses of varying types
of property. Cf. Gray, 85 F.3d at 381. The district court did not err by finding that
these burglary convictions were three separate felonies under the ACCA. See United
States v. Johnson, 285 F.3d 744, 748 (8th Cir. 2002) (standard of review).
The district court was instructed to make a full examination of the 1989
convictions and to enter findings as to whether they were separate offenses or part of
a continuing course of criminal conduct. Although Deroo claims that the district
court was required to receive his testimony, we left it to the discretion of the judge
to assess whether an evidentiary hearing would be a necessary part of such an
examination. A district court generally has discretion to determine the appropriate
procedure to follow in conducting a sentencing hearing, including whether to allow
testimony or to receive additional evidence. United States v. Granados, 202 F.3d
1025, 1027-28 (8th Cir. 2000). See also United States v. Boyles, 235 F.3d 1057,
1057 (8th Cir. 2000) (per curiam) (court may consider specific facts underlying
convictions but is not required to do so). While it might have been preferable if the
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district court had given Deroo the opportunity to add to the record, we cannot say that
it abused its discretion in declining to hear the proffered testimony of Deroo and
Tranby. Since the proffered testimonial material offered in June of this year was not
part of the record before the district court, Deroo's motion to supplement the record
is denied. Cf. United States v. Elizalde-Adame, 262 F.3d 637, 640-41 (7th Cir.
2001). We have nevertheless carefully examined the material, and see that it adds
very little to the arguments previously made by Deroo.
III.
The court has given Deroo ample opportunity over several years to argue his
§ 2255 motion, itself raising the ACCA issue and twice remanding it for further
consideration by the district court. In the end, however, Deroo has been unable to
show that the district court erred in determining that he qualifies as an armed criminal
offender or that it erred in its application of the ACCA. We therefore affirm the
judgment of the district court.
A true copy.
ATTEST:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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