United States of America v. David Earl Hill

The Hon. Jane A. Restani, Chief Judge of the United States Court of International Trade, sitting by
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designation.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0911n.06
Filed: December 20, 2006
05-2161
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID EARL HILL,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MICHIGAN
Before: DAUGHTREY and COLE, Circuit Judges, RESTANI, Judge., Circuit*
Judges.
PER CURIAM. In this sentencing appeal, defendant David Hill challenges the
calculation of his 175-month sentence for bank robbery, imposed by the district court
following the entry of Hill’s guilty plea to a violation of 18 U.S.C. § 2113. Hill contends that
application of discretionary guideline sentencing under United States v. Booker, 543 U.S.
220 (2005), violates the Ex Post Facto Clause of the Federal Constitution. He also insists
that the district court erred in sentencing him as a career offender under § 4B1.1 of the
United States Sentencing Guidelines. We find no error and affirm.

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In the period since the district court imposed Hill’s sentence, we have held in United
States v. Barton, 455 F.3d 649, 657 (6th Cir. 2006), and in United States v. Shepherd, 453
F.3d 702, 705-06 (6th Cir. 2006), that retroactive application of the remedial sentencing
ruling in Booker does not raise an ex post facto issue. The Barton and Shepherd decisions
are controlling here and moot the first issue raised on appeal.
As to the remaining issue, we note that a defendant qualifies as a “career offender”
under U.S.S.G. § 4B1.1 if (1) the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense and (2) the defendant has at least two
prior felony convictions involving a crime of violence or a controlled substance offense.
Hill, convicted of bank robbery in this case, has three prior convictions for that same
offense. He contends, however, that all three of those convictions should be counted as
a single conviction for purposes of § 4B1.1 because they qualify as “related cases,” based
upon the existence of a “common scheme or plan,” under U.S.S.G. § 4A1.2.
In determining the number of prior felony convictions that a defendant has for
sentence-enhancement purposes, prior sentences in “unrelated cases” are treated
separately while “[p]rior sentences imposed in related cases are to be treated as one
sentence” under U.S.S.G. § 4A1.2(a)(2). Prior cases are “related” if the offenses occurred
on the same occasion, were part of a single common scheme or plan, or were consolidated
for trial or sentencing. U.S.S.G. § 4A1.2 comment (n.3). In this circuit, we have adopted
the test set out in United States v. Ali, 951 F2d 827, 828 (7th Cir. 1992), to determine

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whether prior cases are related as part of a common scheme or plan. See United States
v. Irons, 196 F.3d 634, 639 (6th Cir. 1999) (“defendant has the burden of establishing that
his crimes were jointly planned or that the commission of one entailed the other”). Under
that standard, offenses are “part of the same scheme or plan only if [they] were jointly
planned, or, at a minimum, the commission of one offense necessarily required the
commission of another.” United States v. Carter, 283 F.3d 755, 758 (6th Cir. 2002) (citing
Ali, 951 F.2d at 828; internal quotations omitted).
In this case, because the defendant was sentenced on two of the bank robbery
charges at the same sentencing hearing in Cleveland and they were, therefore, at least
informally “consolidated for sentencing,” the district court – apparently acting out of an
abundance of caution – counted the two of them as a single case for the purpose of
determining Hill’s career criminal status. But, the court counted the defendant’s sentencing
on the third robbery offense, in Toledo, as a separate and non-related case, found that the
defendant met the requirements of the guideline on recidivism, and sentenced him as a
career criminal.
Hill argues on appeal that there is no functional distinction between the offenses he
committed that led to consolidated sentencing in Cleveland and the Toledo case, arguing
that they should all three be deemed a single case under § 4A1.2(a)(2) because they were
the product of a single plan or modus operandi. In this respect, he cites Carter for the
proposition that a number of considerations determine whether cases should be deemed

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related on the basis of a common scheme or plan, including “whether the crimes were
committed within a short period of time, in close geographic proximity, involved the same
substantive offense, were directed at a common victim, were solved during the course of
a single criminal investigation, shared a similar modus operandi, were animated by the
same motive, and were tried and sentenced separately only because of an accident of
geography.” Carter, 283 F.3d at 760. Hill insists that the three bank robberies for which
he was convicted were all committed in northern Ohio within a six-month period for the
common purpose of funding his drug addiction and that they resulted in his arrest and
indictment following an ongoing investigation. The prior convictions therefore satisfy all the
factors in the Carter “test,” according to Hill.
But, a close reading of the Carter opinion reveals that the quoted language is merely
a laundry list of factors that other circuits have found to be relevant in determining whether
cases are part of a common scheme or plan under the federal sentencing guidelines. Id.
Moreover, the opinion makes clear that the test in this circuit is not that of the Fourth
Circuit, from which most of the list of factors in the Carter opinion were gleaned. Id. (citing
United States v. Breckenridge, 93 F.3d 132 (4th Cir. 1996)). In the end, we applied the Ali
test to Carter’s sentencing challenge, citing as controlling precedent our earlier decision
in Irons. Carter, 283 F.3d at 758. That decision is also controlling here.
Moreover, on the basis of the evidence as well as circuit precedent, we reject the
argument that the defendant’s offenses in this case qualify even under an expanded test

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such as that in Breckenridge. The record indicates that the three prior bank robberies for
which Hill was convicted were committed at different geographic locations, on different
dates that were months or weeks apart, and against different victims. Of course, the three
offenses shared a common motive, that of stealing funds from the banks involved, and they
were executed in a similar manner, i.e., with the threatened use of a fake bomb. But
money is inherently the object of a bank robbery, and we have held that use of an identical
modus operandi, standing alone, is insufficient to establish relatedness. See United States
v. Cowart, 90 F.3d 154, 160 (6th Cir. 1996) (“It is beyond question that the simple sharing
of a modus operandi cannot alone convert three separate bank robberies on three different
dates of three different banks into one offense by virtue of their being [sic] a single
common scheme or plan.”).
There was no error in the calculation of the sentence imposed in this case. For that
reason, we AFFIRM the judgment of the district court.

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