United States v. Dereld Humphrey

759 F.3d 909, 2014 U.S. App. LEXIS 13728, 2014 WL 3538486
CourtCourt of Appeals for the Eighth Circuit
DecidedJuly 18, 2014
Docket13-3689
StatusPublished
Cited by19 cases

This text of 759 F.3d 909 (United States v. Dereld Humphrey) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Dereld Humphrey, 759 F.3d 909, 2014 U.S. App. LEXIS 13728, 2014 WL 3538486 (8th Cir. 2014).

Opinion

WOLLMAN, Circuit Judge.

Dereld Humphrey pleaded guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The district court 1 sentenced Humphrey as an armed career criminal, see 18 U.S.C. § 924(e)(1), and imposed the statutory mandatory minimum sentence of 180 months’ imprisonment. Humphrey appeals, arguing that the district court erred in sentencing him as an armed career criminal because he does not have three predicate offenses as required by § 924(e)(1). We affirm.

I. Background

After Humphrey pleaded guilty to being a felon in possession of a firearm, a probation officer prepared a presentence investigation report (PSR) and recommended that Humphrey be sentenced under the Armed Career Criminal Act (ACCA). The ACCA imposes a mandatory minimum fifteen-year prison sentence on a defendant who violates § 922(g)(1) and “has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another[.]” § 924(e)(1).

The PSR identified three of Humphrey’s prior convictions as the basis for this recommendation: a first-degree assault conviction, a first-degree robbery conviction, and an armed criminal action conviction. These convictions arose from crimes that Humphrey committed over the course of two days when he was fifteen years old. Specifically, on December 10, 1995, at approximately 6:20 p.m., Humphrey and at least one other individual approached a *911 man in a parking lot in St. Louis, Missouri, pointed a gun at the man, and ordered the man to give them his money. Before the man could comply, Humphrey’s cohort shot the man. Approximately fifteen minutes later and three blocks away, Humphrey and at least one other individual approached a woman, threatened her with a gun, and forcibly stole her money and food stamps. At approximately 6:30 p.m. on December 11, 1995, Humphrey and at least one other individual approached a woman as she exited her vehicle, pointed a gun at her, and demanded that she give them her money. When she refused, Humphrey’s cohort struck the woman in the head with the gun. Humphrey pleaded guilty to the three offenses set forth above as a result of his involvement in these incidents.

At his sentencing for the felon in possession offense, Humphrey objected to the PSR’s recommendation that he be sentenced as an armed career criminal. He did not contest that his three prior convictions were for violent felonies, nor did he challenge the determination that his armed criminal action conviction, which stemmed from the December 11, 1995, incident, constituted a predicate offense for purposes of the ACCA. Instead, Humphrey argued that his convictions for the first-degree assault and first-degree robbery December 10, 1995, offenses should have counted as one predicate offense under the ACCA because they were not committed “on occasions different from one another,” leaving him with only two of the three predicate offenses required to trigger application of the ACCA. The district court overruled Humphrey’s objection, determining that the two December 10 offenses were committed on different occasions and that Humphrey was thus subject to an enhanced sentence under the ACCA.

II. Discussion

The sole issue on appeal is whether the district court erred in concluding that Humphrey’s convictions for first-degree assault and first-degree robbery each constituted a predicate offense for purposes of the ACCA. “We review de novo whether a prior conviction is a predicate offense under the ACCA.” United States v. Van, 543 F.3d 963, 966 (8th Cir.2008). “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.” United States v. Deroo, 304 F.3d 824, 828 (8th Cir.2002). We have considered at least three factors “in deciding whether offenses are sufficiently separate and distinct ...: (1) the time lapse between offenses, (2) the physical distance between their occurrence, and (3) their lack of overall substantive continuity, a factor that is often demonstrated in the violent-felony context by different victims or different aggressions.” United States v. Willoughby, 653 F.3d 738, 742-43 (8th Cir.2011).

Humphrey contends on appeal that the first-degree assault and the first-degree robbery were part of a continuous course of conduct because the offenses were committed by the same group of individuals, involved the same type of criminal conduct, and were committed fifteen minutes apart and within three blocks of each other. Humphrey relies on Willoughby and United States v. Petty, 828 F.2d 2 (8th Cir.1987) (per curiam), to support this argument, but both cases are readily distinguishable. In Willoughby, we held that the defendant’s drug sales to a confidential informant, and seconds later to a police officer who was standing next to the confidential informant, were part of one continuous course of conduct because the drug sales were “committed, in essence, simulta *912 neously.” 653 F.3d at 740-42. Similarly, in Petty, we held that the defendant’s “simultaneous robbery of six individuals at a restaurant” constituted one predicate offense for purposes of the ACCA, even though the defendant was convicted of six counts of armed robbery as a result of his conduct. 828 F.2d at 3.

Unlike the offenses committed in Willoughby and Petty, the first-degree assault and the first-degree robbery offenses were not committed simultaneously. Rather, Humphrey committed the first-degree assault in one location against one victim, and then fifteen minutes later and three blocks away he committed the first-degree robbery against an unrelated victim. “[W]e have indicated that a criminal offense is a distinct criminal episode when it occurs in a different location and at a different time.” United States v. Chappell, 704 F.3d 551, 552 (8th Cir.2013). Moreover, we have held that “[c]rimes occurring even minutes apart can qualify [as separate and distinct criminal episodes] ... if they have different victims and are committed in different locations.” Deroo, 304 F.3d at 828. Our precedent thus makes clear that the December 10 offenses were separate and distinct criminal episodes rather than part of a continuous course of conduct. See Chappell,

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Bluebook (online)
759 F.3d 909, 2014 U.S. App. LEXIS 13728, 2014 WL 3538486, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-dereld-humphrey-ca8-2014.