432 F.3d 1127 (10th Cir. 2005), 04-1232, United States v. Herron

Docket Nº:04-1232.
Citation:432 F.3d 1127
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Lyle HERRON, Defendant-Appellant.
Case Date:December 20, 2005
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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432 F.3d 1127 (10th Cir. 2005)

UNITED STATES of America, Plaintiff-Appellee,


James Lyle HERRON, Defendant-Appellant.

No. 04-1232.

United States Court of Appeals, Tenth Circuit.

Dec. 20, 2005


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Philip A. Cherner, Law Office of Philip A. Cherner, Denver, Colorado, for the Defendant - Appellant.

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Martha A. Paluch, Assistant Attorney General (William J. Leone, Acting Attorney General, with her on the brief), Office of the United States Attorney, Denver, Colorado, for the Plaintiff - Appellee.

Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and TYMKOVICH, Circuit Judge.

HARTZ, Circuit Judge.

Appellant James Herron was convicted by a jury of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1), and sentenced to 235 months' imprisonment. On appeal he argues that the district court made the following errors: (1) it admitted into evidence a redacted version of his parole agreement, which improperly informed the jury of his parole conditions; (2) it denied his motion for a mistrial after a witness indicated that he had a violent history; (3) it overruled his objections to portions of the prosecutor's final argument that appealed to the conscience of the community; (4) at sentencing it treated three prior convictions under the Colorado menacing statute as "violent felonies" under the Armed Career Criminals Act, 18 U.S.C. § 924(e); (5) it denied his request at sentencing for a downward adjustment based on acceptance of responsibility; (6) rather than leaving the matter to the jury, it determined that he had been convicted of violent felonies; and (7) it treated the Sentencing Guidelines as mandatory, contrary to United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm the conviction and sentence.


On September 7, 2002, Mr. Herron accompanied his girlfriend, Deborah Lynn, and her daughter to a sporting goods store in Grand Junction, Colorado, to purchase a firearm. He was on parole at the time and subject to supervision by the parole division of the Colorado Department of Corrections. Ms. Lynn testified that she sought the firearm for personal protection. Mr. Herron selected a Bersa .380 handgun from the display case, and the store clerk handed it to him. Both Ms. Lynn and Mr. Herron handled the gun; he pulled the slide and sighted it. He asked the clerk about the gun's features, such as its "knock-down power" and suitability for personal protection. R. Vol. IV at 173. Ms. Lynn testified that the two eventually chose the gun because it fit Ms. Lynn's hand.

Ms. Lynn provided identification as the buyer and filled out the firearm-transaction report. She was cleared as a buyer when the clerk called the Colorado Bureau of Investigation for a background check. Mr. Herron paid for the gun and carried it from the store. The transaction was observed by Greg Thares, a former employee of a private corporation that contracts with the State of Colorado to monitor parolees. Mr. Thares recognized Mr. Herron and reported what he had seen to the local parole office.

After the purchase Mr. Herron and Ms. Lynn went into the desert for target practice. He showed her how to fire the gun, and also fired it himself. They then took the gun back to Ms. Lynn's apartment and placed it in a safe, although they retrieved it later that day so he could show her how to clean it.

Two days later Colorado Parole Officers John Jones and Karen Walters arrested Mr. Herron while he was at work and took him to his apartment. Together with a Grand Junction police officer, they searched the apartment. The Bersa .380 was not there, but they found a receipt for another firearm, a .44 magnum pistol. The second firearm was eventually traced

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to its buyer, James Epple. The officers visited Mr. Epple and showed him a photograph of Mr. Herron. He told the officers that he recognized the man in the photograph and that he had sold the gun to him.

Mr. Herron was indicted on two counts of possession of a firearm by a prohibited person in violation of 18 U.S.C. § 922(g)(1). Before trial he stipulated that he had previously been convicted of an offense that carried a penalty of more than one year in prison. See Old Chief v. United States, 519 U.S. 172, 174 (1997) (in a § 922(g)(1) prosecution the district court must accept defendant's stipulation to the bare fact of a prior felony conviction to avoid unfair prejudice caused by introduction of evidence revealing the nature of the prior offense). At trial the government called eight witnesses to establish the above-recited events. It also proved that both weapons had been transported in interstate commerce, an element of the charged offenses. See § 922(g).

Mr. Epple, however, was unable to identify Mr. Herron at trial as the purchaser of the second weapon, the .44 magnum. The district court then struck Mr. Epple's testimony as irrelevant, and at the close of the government's evidence, it dismissed the charge relating to that weapon. But cf. Fed. R. Evid. 801(d)(1)(c) (prior statement of trial witness identifying a person is not hearsay); United States v. Ingram, 600 F.2d 260, 261 n.* (10th Cir.1979) (same). As for the first weapon, the Bersa .380, Mr. Herron's theory of defense was that his possession was "innocent" because it was transitory and for no illicit purpose.

During the examination of Parole Officer Walters, the government offered into evidence Mr. Herron's parole agreement to establish that it was a condition of his parole that he not possess a firearm. Defense counsel objected to the admission of the document, noting that it contained other parole conditions that might prejudice the jury. The district court agreed to redact many of the conditions but did not redact conditions requiring Mr. Herron to report regularly to his parole officer, to allow searches by his parole officer, to submit to drug testing upon request, and not to possess firearms or other deadly weapons. After the redactions defense counsel objected only to the inclusion in the redacted document of the text of the Colorado statute prohibiting possession of firearms by convicted felons.

Much of the testimony of Parole Officer Walters related to the .44 magnum. She explained that authorities were eager to locate it because they believed it was in the possession of a parolee with a history of violence. Expressing concern that the testimony would be understood as saying that it was Mr. Herron who had a violent history, defense counsel objected and moved for a mistrial. The district court denied the motion but instructed the jury to disregard any reference to Mr. Herron's history.

In closing argument the prosecutor attacked Mr. Herron's innocent-possession defense, calling it inapplicable in the circumstances of this case and explaining when, in his view, it might apply. Defense counsel objected to some of the prosecutor's comments as improper "commentary on the jury's verdict." R. Vol. VI at 499. The district court overruled the objections.

The jury convicted Mr. Herron of possessing the Bersa .380. At sentencing, Mr. Herron requested a downward departure on various grounds, including his acceptance of responsibility for his offense. The district court denied the request. Also, it ruled that an enhancement was required by the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), because Mr. Herron had three prior state convictions for menacing, see Colo. Rev. Stat. Ann.§ 18-3-206 (1999)

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(amended 2000), which qualified as a "violent felony" under the ACCA. The court sentenced Mr. Herron to 235 months' imprisonment, the minimum in the applicable guideline range.


A. Evidentiary Rulings

1. Parole Agreement

During trial the government sought to introduce Mr. Herron's parole agreement to establish that Mr. Herron was aware that it was a condition of his parole that he not possess a firearm. Defense counsel did not challenge that purpose but objected to the admission of the agreement because he could be prejudiced by other terms of his parole, specifically referring to mental health evaluations, drug and alcohol treatment, and limitations on alcohol consumption. The district court redacted parts of the agreement but left intact both Condition 4, which required Mr. Herron to report regularly to his parole officer, to allow searches by his parole officer, and to submit to drug testing;1 and Condition 5, which forbade him from...

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