U.S. v. Hill, 04-6206.

• Decision Date: 01 March 2006
• Docket Number: No. 04-6206.,04-6206.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paul Garnet HILL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 292

440 F.3d 292

UNITED STATES of America, Plaintiff-Appellee, v. Paul Garnet HILL, Defendant-Appellant.

No. 04-6206.

United States Court of Appeals, Sixth Circuit.

Argued: August 9, 2005.

Decided and Filed: March 1, 2006.

ARGUED: April R. Goode, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. Jerry R. Kitchen, Assistant United States Attorney, Jackson, Tennessee, for Appellee. ON BRIEF: April R. Goode, Office of the Federal Public Defender for the Western District of Tennessee, Memphis, Tennessee, for Appellant. James W. Powell, Assistant United States Attorney, Jackson, Tennessee, for Appellee.

Before: BOGGS, Chief Judge; SUTTON, Circuit Judge; RICE, Senior District Judge.^*

OPINION

WALTER HERBERT RICE, Senior District Judge.

Defendant Paul Garnet Hill ("Hill") pled guilty to violating 18 U.S.C. § 922(g), which prohibits the possession of a firearm by a convicted felon. The district court sentenced him as an armed career criminal to a 188-month term of incarceration, in accordance with the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and United States Sentencing Guidelines ("U.S.S.G.") § 4B1.4. That statute imposes a mandatory minimum sentence of 15 years on anyone who has been convicted of violating § 922(g) and has three previous convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another." Before this Court, Hill raises three challenges to that sentence. Initially, he argues that the district court improperly sentenced him under the ACCA, as a result of erroneously finding that he had three previous convictions for a violent felony that had been committed on different occasions. Second, he contends that the district court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), by finding that each of his three previous convictions was for a violent felony, as opposed to requiring such a finding be made by a jury or based upon his admission. Lastly, he requests that this matter be remanded for re-sentencing under United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We conclude that Hill was properly sentenced under the ACCA and that the district court did not violate Apprendi. However, we remand this matter for resentencing in accordance with the Supreme Court's decision in Booker.

I. Background

Hill was charged in a one-count indictment with possessing a .380-caliber semi-automatic pistol and 17 rounds of ammunition on or about November 11, 2003, in the Western District of Tennessee, after having been previously convicted of crimes punishable by imprisonment for a term exceeding one year. On June 10, 2004, Hill entered a guilty plea to that charged offense.

A probation officer then prepared a presentence investigation report ("PSI"), in which it was recommended that Hill be sentenced in accordance with the ACCA and U.S.S.G. § 4B1.4, the provision of the Sentencing Guidelines in which the ACCA is implemented. That recommendation was based upon the probation officer's conclusion that Hill had three prior convictions for violent felonies which had been committed on occasions different from one another, to wit: an aggravated burglary committed on April 6, 1999, in Gibson County, Tennessee, and two burglaries committed on the same day in November, 1993, in Crockett County, Tennessee. Having concluded that Hill was an armed career offender under the ACCA, the probation officer recommended that the district court, in accordance with U.S.S.G. § 4B1.4, adopt a sentencing range of from 188 to 235 months.

Hill objected to that recommendation, arguing that he had not been convicted of the requisite three predicate offenses under the ACCA, since the two November, 1993, burglaries had not been committed on occasions different from one another. The district court conducted a sentencing hearing on September 24, 2004, during which Hill testified about the two burglaries he had committed in November, 1993. He indicated that he had initially entered an abandoned business, called Planter's Gin, where he stole a pair of bolt cutters. Hill then took the bolt cutters across the street to the property owned by Steven Kelly, where he used them to remove the motor from a boat so that he could steal the motor. Hill also stole other property belonging to Steven Kelly, such as a weedeater and fishing equipment, on which he did not use the bolt cutters.

The district court rejected Hill's objection to the recommendation in the PSI that he be sentenced in accordance with the ACCA and U.S.S.G. § 4B1.4, finding that Hill had entered one building and committed a burglary, and then crossed the street and entered a second building to commit another burglary. The district court concluded that those two burglaries had been committed on different occasions and that, therefore, Hill had been convicted of three predicate offenses. Having overruled that objection, the district court sentenced Hill in accordance with the ACCA and adopted the recommendations in the PSI concerning the guideline range, imposing a 188-month term of incarceration upon him.

II. Analysis

This court will address Hill's three challenges to his sentence in the above order.

A. Convictions Committed on Occasions Different from One Another

In accordance with the ACCA, a criminal defendant convicted of violating § 922(g) must be sentenced to a minimum term of incarceration of 15 years, if he has been convicted of three previous predicate offenses, in other words three previous convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another." See 18 U.S.C. § 924(e).¹ The district court sentenced Hill under the ACCA, after concluding that he had been previously convicted of three violent felonies which had been committed on occasions different from one another. On appeal, Hill does not challenge that those three offenses were violent felonies or that the April, 1999, aggravated burglary was committed on an occasion different from that upon which the other two offenses were committed. Rather, Hill argues that the two November, 1993, burglaries were not committed on occasions different from one another. According to Hill, those two offenses were part of a single criminal episode, since they were committed so close to each other that there was not a discernible lapse of time between them.² We review de novo the decision of the district court that the two November, 1993, burglaries were "committed on occasions different from one another." United States v. Murphy, 107 F.3d 1199, 1208 (6th Cir.1997).

Hill's challenge to his sentence under the ACCA raises the recurrent question of whether two violent felonies, perpetrated in temporal and physical proximity to each other, were committed on different occasions, as opposed to being part of a single criminal episode.

In United States v. Brady, 988 F.2d 664 (6th Cir.) (en banc), cert. denied, 510 U.S 857, 114 S.Ct. 166, 126 L.Ed.2d 126 (1993), the defendant committed an armed robbery at the Mack Avenue Beauty Shop and, thirty minutes later, committed a second armed robbery at the Club Continental Bar. Id. at 666. He argued that the two robberies should count as only one predicate offense for purposes of the ACCA, because they represented a single, continuous crime spree rather than two separate offenses. This Court, sitting en banc, rejected that argument, writing "[c]onsistent with the holdings of our sister circuits, we believe that offenses committed by a defendant at different times and places and against different victims, although committed within less than an hour of each other, are separate and distinct criminal episodes and that convictions for those crimes should be counted as separate predicate convictions under § 924(e)(1)." Id. at 669. We also noted that "while defendant Brady sat at the Club Continental Bar with his concealed shotgun, he could have decided that the one robbery he had committed was enough for the evening. Instead, he decided to rob again." Id.

We next addressed the question of whether two violent felonies, committed in close temporal and physical proximity of each other, constitute two predicate offenses under the ACCA in United States v. Wilson, 27 F.3d 1126 (6th Cir.1994). Therein, the defendant's three predicate offenses under the ACCA were for criminal sexual conduct. Two of those offenses had been committed on the same date and in the same house, although against separate victims and on different floors within that house. Id. at 1131. We found no error in the district court's determination that these were separate offenses for purposes of § 924(e), noting that, while the defendant "could have halted his criminal rampage at any time[], he chose to continue selecting different victims in separate places." Id.

This court also addressed the issue in United States v. Graves, 60 F.3d 1183 (6th Cir.1995). Therein, Graves appealed his sentence under the ACCA, arguing that two of his three previous convictions had not been committed on separate occasions. Those two offenses were for burglary of a home and his assault on a police officer in the woods just outside of the home. Noting that the Brady court had "considered whether or not the defendant safely escaped from one crime scene before he committed the second crime," we held that the defendant's offenses constituted a single episode of criminal conduct, because the assault upon the officer was at the same location and within moments of the burglary, given that Graves had not left the location of the burglary when he committed the assault. Id. at 1186-87.

The question of whether two violent felonies committed in temporal and physical proximity of each other constitute two predicate offenses under the ACCA was also addressed in United States v. Murphy, 107 F.3d 1199 (6th Cir.1997). Therein,...