United States District Court, D. Minnesota
Demetrius C. Derden, pro se.
PATRICK J. SCHILTZ, District Judge.
Demetrius Derden pleaded guilty to interference with commerce by robbery under the Hobbs Act. 18 U.S.C. § 1951(a). At sentencing, the Court concluded that Derden was a career offender for purposes of § 4B1.1 of the United States Sentencing Guidelines because he had been convicted of two prior crimes of violence. There was no dispute that one of Derden's prior convictions - a 2006 conviction for first-degree aggravated robbery - was a crime of violence for purposes of § 4B1.1. But the parties disputed whether the second of Derden's prior convictions - a 2004 conviction for theft from a person - was also a crime of violence.
Derden's theft conviction was for violating Minn. Stat. § 609.52, subd. 2(1). This is the "kind of statute [that] sets out one or more elements of the offense in the alternative - for example, stating that burglary involves entry into a building or an automobile." Descamps v. United States, 133 S.Ct. 2276, 2281 (2013). The Supreme Court refers to such statutes as "divisible." Id. In order to determine which of the multiple crimes described within Minn. Stat. § 609.52, subd. 2(1) Derden had been convicted of committing - and thus whether Derden had been convicted of a crime of violence - this Court took the "modified categorical approach, " which "permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction." Id. Specifically, the Court relied on two uncontested assertions in the presentence investigation report ("PSR"): (1) an assertion that, during the theft, Derden punched the victim on the side of her face, took her purse, and ran away; and (2) an assertion that Derden had received a sentence of 93 days in custody. Based on these assertions, the Court concluded that Derden had been convicted of taking property "from the person of another" in violation of Minn. Stat. § 609.52, subds. 2(1) & 3(3)(d)(i). (The modified categorical approach permits sentencing courts to rely on unchallenged facts in the PSR. United States v. Montgomery, 701 F.3d 1218, 1223 (8th Cir. 2012); United States v. Menteer, 408 F.3d 445, 446-47 (8th Cir. 2005) (per curiam).)
In United States v. Abari, 638 F.3d 847, 850-51 (8th Cir. 2011), the Eighth Circuit held that this precise offense is a "violent felony" for purposes of the Armed Career Criminal Act ("ACCA"). The definition of "violent felony" for purposes of the ACCA is virtually identical to the definition of "crime of violence" for purposes of § 4B1.1, and the Eighth Circuit generally treats them the same. See United States v. Williams, 664 F.3d 719, 721 n.2 (8th Cir. 2011). For that reason, the Court concluded that Derden had committed two crimes of violence - and thus was properly deemed a career offender - for purposes of § 4B1.1. The Court sentenced Derden to 170 months' imprisonment, which was well with the Guidelines range of 151 to 188 months.
This matter is before the Court on Derden's motion under 28 U.S.C. § 2255 to vacate his sentence. ECF No. 90. Derden argues that (1) under Descamps, the Court erred in using the modified categorical approach to determine whether his prior Minnesota conviction for theft was a crime of violence, and (2) his lawyer was ineffective for not noticing this purported error and for not objecting to the Court's alleged failure to rule on an objection that Derden says that he made to the PSR. Derden's § 2255 motion is denied for several reasons:
First, the Eighth Circuit has consistently held that § 2255 does not provide relief for errors made in interpreting the Sentencing Guidelines - including errors made in applying the career-offender provisions - so long as the defendant did not receive a sentence in excess of the statutory maximum. See, e.g., Sun Bear v. United States, 644 F.3d 700, 705-06 (8th Cir. 2011) (en banc); Meirovitz v. United States, 688 F.3d 369, 371-72 (8th Cir. 2012); Donnell v. United States, 765 F.3d 817, 819 n.2 (8th Cir. 2014). Derden points out that the Sun Bear and Meirovitz courts noted that the sentences imposed in those cases - unlike the sentence imposed in Derden's case - would have fallen within the Guidelines range even without the careeroffender enhancement. Sun Bear, 644 F.3d at 705; Meirovitz, 688 F.3d at 371. But it is clear that, in each case, the basis for the Eighth Circuit's ruling was that the defendant's sentence did not exceed the statutory maximum. Sun Bear, 644 F.3d at 706 ("Sun Bear's 360-month sentence is not unlawful. An unlawful or illegal sentence is one imposed without, or in excess of, statutory authority."); Meirovitz, 688 F.3d at 371-72 ("... Meirovitz's life sentence does not exceed the statutory maximum."); see also Hawkins v. United States, 706 F.3d 820, 823 (7th Cir.) (explaining that a Guidelines error that does not result in a sentence above the statutory maximum "could not be corrected in a postconviction proceeding"), supplemented on denial of reh'g by 724 F.3d 915 (2013). Derden's sentence did not exceed the statutory maximum, and therefore he cannot use § 2255 to raise an alleged error in calculating his Guidelines range.
Second, even if Derden could use § 2255 to challenge this Court's interpretation of the Sentencing Guidelines, Derden's challenge would be rejected. Descamps held that the modified categorical approach cannot be used when the defendant has been convicted of violating an indivisible criminal statute. But, as already explained, Derden was convicted of violating a divisible statute. To elaborate:
Minn. Stat. § 609.52, subd. 2(1) makes it unlawful to intentionally and without claim of right:
take the movable property of another, or
use the movable property of another, or
transfer the movable property of another, or
conceal the movable property of another, or
retain possession of the movable property ...