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UNITED STATES of America, Plaintiff-Appellee, v. Develae PAIGE, Defendant-Appellant

United States Court of Appeals for the Sixth Circuit2011-03-15No. No. 09-6067
634 F.3d 871

Summary

Holding. The district court's determination that Paige qualified as an Armed Career Criminal was affirmed because his five robbery convictions properly counted as separate predicate convictions under the Hill test, and Begay v. United States did not implicitly overrule Hill.

Develae Paige was convicted of being a felon in possession of a firearm and sentenced as an Armed Career Criminal based on prior convictions including one aggravated assault and five aggravated robberies. Although all five robberies occurred on the same day and Paige pleaded guilty to them simultaneously, they involved separate times, locations, and victims. Paige challenged his Armed Career Criminal designation, arguing the robberies should be treated as a single continuous crime spree rather than five distinct offenses qualifying as separate predicate convictions.

The court applied the established test from United States v. Hill to determine whether the robberies were committed on different occasions. Under that test, offenses qualify as separate occasions if the point where one offense ends and another begins can be identified, if the offender could have ceased criminal activity after the first offense, or if the offenses occurred at different locations. The court found Paige's five robberies satisfied all three Hill criteria and thus properly counted as separate predicate convictions. Paige argued that Begay v. United States had implicitly overruled Hill, but the court rejected this argument, finding that Begay addressed only whether driving under the influence constitutes a violent felony and did not address the "different occasions" question central to Hill.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether multiple offenses committed on the same day count as separate occasions under the Armed Career Criminal Act
  • Whether Begay v. United States implicitly overruled the Hill test for determining separate occasions
  • Application of the Hill test's three criteria to determine when prior felonies qualify as separate predicate offenses

Procedural posture

Paige appealed his Armed Career Criminal sentencing from the district court, challenging whether his five robbery convictions should count as separate predicate offenses.

Authorities cited

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Opinion

majority opinion

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Defendant-appellant Develae Paige appeals the district court’s judgment sentencing him as an Armed Career Criminal. We AFFIRM.

I. BACKGROUND

On May 13, 2009, a jury convicted Paige of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (2006). The Presentence Report indicated that Paige should be sentenced as an Armed Career Criminal pursuant to U.S.S.G. § 4B1.4(b)(3)(B) and 18 U.S.C. § 924(e)(1). The Armed Career Criminal Act imposes a mandatory fifteen-year prison term on defendants who have been convicted for a violation of 18 U.S.C. § 922(g) if they have three previous convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The Presentence Report classified Paige as an Armed Career Criminal because he had previously been convicted of one aggravated assault and five aggravated robberies. Although the five robberies occurred on the same day, were close in location, and Paige pled guilty to them at the same time, they involved distinct times, locations, and victims. Paige objected to being sentenced as an Armed Career Criminal. He argued that the robberies should be considered as one continuous crime spree and thus count only as one conviction for purposes of determining his status as an Armed Career Criminal. The district court conducted a sentencing hearing on September 2, held that Paige was an Armed Career Criminal, and sentenced him to a term of sixteen years and eight months imprisonment. Paige appeals.

II. ANALYSIS

We review de novo the district court’s decision that Paige’s five robberies were committed on different occasions under the Act. United States v. Hill, 440 F.3d 292, 295 (6th Cir.2006).

In Hill, we held that two offenses are committed on different occasions under the Act if: (1) “it is possible to discern the point at which the first offense is completed, and the subsequent point at which the second offense begins”; (2) “it would have been possible for the offender to cease his criminal conduct after the first offense, and withdraw without committing the second offense”; or (3) “the offenses are committed in different residences or business locations.” Id. at 297-98. Since Hill, we have continued to follow this analysis to determine whether prior offenses qualify for Armed Career Criminal status, and it is consistent with the approach taken by the other circuits. Paige concedes that his five robbery convictions would count separately under all three of the Hill tests, and that his appeal fails if Hill remains good law. (Brief of the Defendant/Appellant at 10.) Absent an intervening Supreme Court or en banc decision, we lack the authority to overrule Hill. See, e.g., Ahearn v. Jackson Hosp. Corp., 351 F.3d 226, 235 (6th Cir.2003).

Paige claims that in Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), the Supreme Court implicitly overruled Hill insomuch as the Hill test may find some non-recidivist individuals to be Armed Career Criminals. Thus, the issue before us is whether Begay in fact implicitly overruled Hill. We hold that it did not.

Begay addressed the narrow question of “whether driving under the influence of alcohol is a ‘violent felony’ as the Act defines it,” and concluded that it is not. Id. at 139, 128 S.Ct. 1581. Begay did not address the issue presented in Hill and this case: whether crimes are considered to have been committed on different occasions under the Act. Begay discusses Congress’s purposes and intent in enacting the Act, and Paige points to several statements in the opinion that he claims suggest that it overruled Hill. See, e.g., id. at 146, 128 S.Ct. 1581 (‘We have no reason to believe that Congress intended a 15-year mandatory prison term where that increased likelihood [of recidivism] does not exist.”); id. at 147, 128 S.Ct. 1581 (stating that the purpose of the Act is to “punish only a particular subset of offender, namely, career criminals”). However, these statements are insufficient to implicitly overrule Hill when they do not address the portion of the statute at issue in Hill and do not suggest that the Hill tests fail to accurately capture Congress’s views regarding recidivism. Thus, we find that the district court’s decision is consistent with current Sixth Circuit precedent.

III. CONCLUSION

Begay did not implicitly overrule Hill. The district court’s determination that Paige is an Armed Career Criminal is consistent with Hill. Thus, we AFFIRM the decision of the district court.