United States v. McElroy

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS NOV 27 2001

TENTH CIRCUIT PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
Nos. 99-5154, 00-5036, 00-5116
v. (D.C. Nos. 89-CR-36-C, 99-CR-148E)
(N.D. Okla.)
J. GERALD MCELROY,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, Circuit Judge, BALDOCK and BRORBY, Senior Circuit
Judges.

These consolidated appeals arise from criminal proceedings brought against

Joseph Gerald McElroy in 1989, in which he was convicted on twenty-six counts

alleging conspiracy, wire fraud, and misapplication of bank funds. In subsequent

years, Mr. McElroy was released from prison, reincarcerated for probation

violations, and released again. He now appeals his reincarceration for additional

This order and judgment is not binding precedent, except under the
*

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
probation violations, as well as his new sentence for failing to voluntarily

surrender in violation of 18 U.S.C. § 3146(a)(2). We reverse and remand with

respect to Mr. McElroy’s probation violation, and we affirm his sentence for

failure to appear.

On February 1, 1990, Mr. McElroy was sentenced to four years in prison on

Count One of the 1989 fraud charge. His sentences on the remaining counts were

suspended and he was placed on probation on those counts for a term of five years,

to begin upon the expiration of the sentence imposed on Count One. In 1996, his

probation was revoked just on Count Two and he was sentenced to three years in

prison on that count. The district court ordered that the remaining counts were to

become inactive under 18 U.S.C. § 3564(b) while Mr. McElroy served his sentence

on Count Two, and were to recommence upon his release from custody, with credit

for time served.

In 1999, Mr. McElroy’s probation on the remaining counts was revoked and

he was sentenced to five-year concurrent terms on those counts. The district court

authorized him to voluntarily surrender on August 30 at the designated prison

facility. Mr. McElroy did not appear on that date and was subsequently charged

with and convicted of failing to appear. He was given a sentence of twelve

months and one day, required by statute to be imposed consecutively to any other

sentence.

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 In No. 99-5154, Mr. McElroy contends the district court did not have

jurisdiction to revoke his probation in 1999 because he had already completed his

probationary period by that time. Under 18 U.S.C. § 3565(c), the power of the

court to revoke a sentence of probation and impose another sentence extends

beyond the term of probation only if a warrant or summons has been issued prior

to the expiration of the probation period. Mr. McElroy argues that his period of

probation had expired prior to both the issuance of summons and the revocation

order, and that the court was therefore without power under section 3565(c) to

revoke his probation and impose another sentence.

In so doing, Mr. McElroy relies on 18 U.S.C. § 3564(b), which provides that

“[a] term of probation runs concurrently with any Federal, State, or local term of

probation, supervised release, or parole for another offense to which the defendant

is subject or becomes subject during the term of probation.” Mr. McElroy points

to material in the record submitted by the government with respect to his 1996

revocation proceeding which indicates that on October 18, 1992, he was released

from federal custody on Count One and began his probation on the remaining

counts. Rec., vol. I, doc. 219 at 1. Indeed, both the 1996 petition seeking

revocation of probation and the attached letter from Mr. McElroy’s probation

supervisor state that he was released and began probation on October 18, 1992.

Nonetheless, the 1996 order revoking probation on Count Two inexplicably states

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that Mr. McElroy did not begin service of his probation on Counts Two through

Twenty-six until August 5, 1993, some ten months later. The probation petition

filed in 1999 likewise simply states that he began serving his probation terms on

August 5, 1993. Mr. McElroy argues that these ten months would make the

difference in calculating whether he had completed his probation on Counts Three

through Twenty-six before May 12, 1999, the date on which the petition to revoke

probation on those counts was filed. 1

The government points out that Mr. McElroy did not raise this matter in the

1999 revocation hearing and in fact stipulated to the allegations in the revocation

petition which he now challenges. However, the government also recognizes that

“[c]hallenges to a district court’s subject matter jurisdiction may be raised at any

time,” and that “[s]ubject matter jurisdiction may not be conferred on a federal

court by stipulation, estoppel, or waiver.” United States v. Burch, 169 F.3d 666,

668 (10th Cir. 1999). We believe the record before us raises a fact question as to

1
Our review of the record has revealed several other instances in which the
same event was assigned different dates at different times by various government
officials. For example, the 1999 probation petition states that probation on
Counts Three through Twenty-six was tolled until February 20, 1997, while the
presentence report states that this probation was tolled until February 20, 1998,
and the parties agreed at the 1999 revocation hearing that the date should have
been October 20, although no year was specified. Similarly, the 1999 probation
petition states that Mr. McElroy’s supervision would expire September 1, 1999,
while the presentence report states that it would expire on December 30, 1999.
We are unclear whether these discrepancies might also be relevant to whether the
term of probation had expired prior to the revocation order.

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whether Mr. McElroy’s probation on Counts Three through Twenty-six had

expired prior to the revocation of his probation on those counts. We also conclude

that, under Burch, Mr. McElroy did not waive his challenge to the court’s

jurisdiction by failing to raise the matter earlier or by stipulating to the allegations

in the revocation petition. Accordingly, we grant the government’s request to

remand the matter to the district court for further factual development. 2

In Nos. 00-5036, 00-5116, Mr. McElroy challenges his sentence for failing

to appear. 3 He contends the district court erred in refusing to consider his belated

objections to the presentence investigation report.

After Mr. McElroy was convicted of failing to appear, the trial judge set his

sentencing for March 29, 2000. At the request of the probation office, sentencing

2
Mr. McElroy also argues that his counsel was ineffective in the 1999
revocation proceeding by failing to inquire into whether the probationary period
had been completed, and instead advising Mr. McElroy to stipulate to the
allegations in the revocation petition. Ineffective assistance claims brought on
direct appeal are presumptively dismissible because they require the development
of a factual record. See United States v. Gell-Iren, 146 F.3d 827, 831 (10th Cir.
1998). That is particularly true when, as here, the facts of the underlying claim
are themselves undeveloped. We therefore dismiss without prejudice Mr.
McElroy’s claim in Appeal No. 99-5154 that his counsel was ineffective with
respect to ascertaining whether his period of probation had expired and in
advising him to stipulate to the allegations in the petition.
3
He also challenges his conviction for failing to appear, arguing that his
counsel was ineffective in failing to present evidence to the jury or request a jury
instruction on his assertion that his probation period had expired prior to the
revocation of his parole. As with Mr. McElroy’s ineffectiveness claim in the
revocation proceeding, we dismiss the claim without prejudice as premature.

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was reset for May 9. On that date, at Mr. McElroy’s request, the judge gave him

twenty additional days to develop evidence with respect to his objections to the

presentence report and set his sentencing for June 6. Although Mr. McElroy’s

objections to the report were due on May 30, he did not submit them until June 6

about twenty minutes before the sentencing proceeding. The minute sheet reflects

that the court struck the objections as untimely, noting also that the court had

reviewed them and found them to have “no real merit.” Aplt. App. at 145.

Mr. McElroy contends the tardiness of his objections should not have been

fatal, pointing out that under the applicable rule “[f]or good cause shown, the

court may allow a new objection to be raised at any time before imposing

sentence.” Fed. R. Crim. P. 32(6)(D). He claims the court’s failure to address his

untimely objections left open the possibility that he was sentenced on the basis of

misinformation in violation of his right to due process.

Under Rule 32(6)(D), a sentencing court has discretion to consider

objections not raised in a timely manner when good cause is shown. See United

States v. Jones, 70 F.3d 1009, 1010 (8th Cir. 1995) (per curiam). See also United

States v. Chung, 261 F.3d 536, 539 (5th Cir. 2001) (citing cases). Because Mr.

McElroy has failed to provide us with the transcript to the sentencing proceeding,

we are unable to determine whether he provided good cause for his failure to

comply with the court’s deadline. We are thus unable to review the court’s

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exercise of discretion. We observe, however, that Mr. McElroy has not provided

this court any reason for his tardiness. Moreover, despite the sentencing court’s

decision to strike Mr. McElroy’s objections, the court nonetheless considered them

and found them to be without merit. We discern no ground for concluding the

district court abused its discretion.

In sum, in No. 99-5154, we VACATE the order revoking Mr. McElroy’s

probation and REMAND for further proceedings. In Nos. 00-5036, 00-5116, we

AFFIRM the conviction and sentence. The claims of ineffective assistance of

counsel raised in both appeals are DISMISSED without prejudice.

ENTERED FOR THE COURT

Stephanie K. Seymour
Circuit Judge

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