RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0067p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 09-6067
v.
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Defendant-Appellant. -
DEVELAE PAIGE,
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Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 08-20424-001—Jon Phipps McCalla, Chief District Judge.
Argued: March 11, 2011
Decided and Filed: March 15, 2011
Before: KENNEDY and MARTIN, Circuit Judges; MURPHY, District Judge.*
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COUNSEL
ARGUED: Mary C. Jermann-Robinson, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Memphis, Tennessee, for Appellant. Alexia M. Fulgham, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. ON BRIEF:
April R. Goode, Stephen B. Shankman, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Memphis, Tennessee, for Appellant. G. Kirby May, ASSISTANT
UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee.
*
The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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No. 09-6067 United States v. Paige Page 2
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OPINION
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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.
No. 09-6067 United States v. Paige Page 3
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 (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. 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 (“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 (stating
No. 09-6067 United States v. Paige Page 4
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.