UNITED STATES of America, Plaintiff-Appellee, v. Homer Eugene BANNER, Defendant-Appellant.
No. 12-5062.
United States Court of Appeals, Sixth Circuit.
March 27, 2013.
Murphy also argues that the district court abused its discretion by applying the “sophisticated means” enhancement to his sentence. See
IV.
For the foregoing reasons, we DISMISS counts two and three of the indictment, VACATE Murphy‘s sentence, and REMAND to the district court for resentencing. We AFFIRM with respect to Murphy‘s remaining claims.
PER CURIAM.
Homer Eugene Banner argues that three separate drug offenses committed over a fifteen-day period, but consolidated for the purposes of plea and sentencing, should be considered a single criminal episode under the Armed Career Criminal Act,
BACKGROUND
In 2011, defendant was charged with being a felon in possession of firearms in violation of
Although defendant recognized that his argument was foreclosed by controlling legal authority, he objected during his sentencing hearing to the district court‘s classification of him as an armed career criminal based on these three prior offenses. Specifically, defendant argued that the three offenses committed across a fifteen-day span, but consolidated solely for the purposes of his guilty plea and sentencing, should constitute a “single criminal episode” under
STANDARD OF REVIEW
Defendant “presents a legal question concerning the interpretation of a statute, a matter we review de novo.” United States v. Brady, 988 F.2d 664, 666 (6th Cir.1993) (en banc) (citing United States v. Brown, 915 F.2d 219, 223 (6th Cir.1990)).
ANALYSIS
Defendant admits that his previous convictions qualify as serious drug offenses but argues that the three offenses should be collectively considered as a single criminal episode. Therefore, he argues that the district court‘s classification of him as an armed career criminal and corresponding imposition of a fifteen-year mandatory minimum sentence was improper.
So long as a defendant‘s offenses meet one of the Hill tests, the amount of time between the individual offenses is relatively unimportant. For example, in Brady, one of the cases from which these indicia were extracted, this Court held that “offenses committed by a defendant at different times and places ... although committed within less than an hour of each other, are separate and distinct criminal episodes and ... convictions for those crimes should be counted as separate predicate convictions under
Pursuant to this authority, it is clear that defendant‘s drug offenses are separate criminal episodes under the ACCA. Because each offense occurred on a separate day, there is a distinct separation between the beginning and ending of all three offenses. Specifically, defendant‘s second offense took place eight days after his first offense, and his third offense took place seven days after the second offense. As the court‘s opinion in Thomas demonstrates, a temporal proximity of far less time than between seven and eight days has been construed as failing to qualify as a single criminal episode under the ACCA, and defendant‘s argument that the close temporal proximity of his crimes turns them into a single criminal episode must fail. Id. Further, defendant could have easily ceased his criminal conduct after either the first or second offenses, but, instead, he made the conscious decision to participate in each offense after terminating the last with plenty of time to reflect in between. Therefore, defendant‘s offenses easily meet the first and second Hill tests. No more is required to find that defendant is an armed career criminal under the ACCA.
The fact that defendant‘s offenses were consolidated for sentencing and plea purposes does not change this result. Indeed, the “relevant factor for determining the number of predicate offenses under the ACCA is not the date of conviction for those predicate offenses, but the date that the defendant committed the offense for which he is subsequently convicted.” United States v. Roach, 958 F.2d 679, 683 (6th Cir.1992) (noting that this was the government‘s argument and that the court agreed with the government); see also Paige, 634 F.3d at 873 (holding that five robberies were separate offenses even
Defendant asks us to change the aforementioned established law on the basis of a policy argument outlined by the dissent in Brady. Brady, 988 F.2d at 670-77 (Jones, J., dissenting). In reliance on the Brady dissent, defendant argues that the ACCA was meant to enhance punishments for “only incorrigible, habitual criminals,” but not for individuals who happened to commit three crimes in a relatively short time period like defendant. Id. at 672. Since the Brady decision, however, this Court has repeatedly rejected this argument. See, e.g., Jones, 673 F.3d at 503-04 (holding that a burglary and an assault inside the burglarized home were separate offenses because the assault occurred an hour after the defendant entered the residence without consent); Paige, 634 F.3d at 872-73 (holding that five robberies that occurred close in geographical location within the same day constituted separate offenses); United States v. Carnes, 309 F.3d 950, 955-56 (6th Cir.2002) (holding that a defendant who robbed adjacent houses, one immediately after the other, committed two separate crimes since it was possible to distinguish between the end of the first offense and the beginning of the second). We will continue to follow this circuit‘s established precedent.
CONCLUSION
We conclude that the district court did not err when it overruled defendant‘s objection to his classification as an armed career criminal and imposed a term of imprisonment of one hundred and eighty months.
AFFIRMED.