                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 05a0330n.06
                                 Filed: April 28, 2005

                                           No. 04-5681

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                         ON APPEAL FROM THE UNITED
                                                           STATES DISTRICT COURT FOR
JASON DARWIN POWERS,                                       THE WESTERN DISTRICT OF
                                                           KENTUCKY
          Defendant-Appellant.




                                                      /

Before:          MARTIN, COOK and LAY,* Circuit Judges.

          BOYCE F. MARTIN, JR., Circuit Judge. The defendant, Jason Darwin Powers, was

sentenced as an armed career criminal to a mandatory minimum prison term of fifteen years. He

appeals the district court’s decision to sentence him pursuant to the Armed Career Criminal Act, 18

U.S.C. § 924(e), claiming that the crimes constituting two of the predicate convictions under the Act

were not committed “on occasions different from one another,” id., and therefore should count as

only one predicate conviction. Moreover, Powers asserts that in light of the Supreme Court’s recent

Sixth Amendment jurisprudence, the finding that his predicate convictions were not “on occasions




          *
        The Honorable Donald P. Lay, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
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Page 2

different from one another” must be made by a jury and proved beyond a reasonable doubt.

Precedent requires that we reject Powers’s arguments and AFFIRM his sentence.

                                                   I.

       On October 31, 2003, Powers was arrested while in possession of twenty-one grams of

methamphetamine, five hundred eighty-one grams of marijuana, $1,420 in currency, $860 in

counterfeit currency, a .40 caliber pistol, digital scales, and plastic baggies. He later pled guilty to

violations of 18 U.S.C. §§ 922(g)(1) and 924(a)(2), and 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and

841(b)(1)(D). At the sentencing hearing, Powers objected to being sentenced under the Armed

Career Criminal Act, contesting the fact that he had three prior convictions for violent felonies, a

finding that would enhance his sentence from a maximum of ten years to a minimum of fifteen.

Specifically, Powers asserted that two prior burglaries, both occurring within one hour on March 14,

1989, should be counted as only one predicate conviction, and not two separate predicate

convictions.

       Powers testified at the sentencing hearing that he and two friends decided to rob both an

archery store and a hobby store. They planned to climb through the air-conditioning ducts into the

stores and steal various archery and hobby related products. Upon arriving at the hobby store, they

realized none of them was quite tall enough to reach the air-conditioning ducts and they needed a

ladder. To find the much-needed ladder, they drove to the archery store, broke in, and stole, in

addition to twenty-two compound bows, three boxes of arrows, three black powder rifles and other

archery accessories, a deer-stand as an acceptable substitute for the ladder. Powers and his

accomplices then drove back to the hobby store, used the deer stand to reach the air-conditioning
No. 04-5681
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Page 3

ducts, broke into the hobby store, and stole between six and nine thousand dollars worth of “remote

control airplanes and some models.” The two shops are approximately one-half-mile apart and the

two burglaries were committed in less than one hour.

       The district court reluctantly concluded that Sixth Circuit case law required the conclusion

that the offenses were separate predicate offenses for purposes of the Act, and thus sentenced

Powers to the mandatory minimum fifteen year term.

                                                 II.

       Under the Armed Career Criminal Act, it is at times more advantageous for a criminal

defendant to characterize his past conduct as one continuous crime spree as opposed to separate

incidents. The Act states:

       In the case of a person who violates section 922(g) of this title and has three previous
       convictions by any court referred to in section 922(g)(1) of this title for a violent
       felony or a serious drug offense, or both, committed on occasions different from one
       another, such person shall be fined not more than $25,000 and imprisoned not less
       than fifteen years.

18 U.S.C. § 924(e)(1) (emphasis added). Thus, the Act, at least in theory, is designed to punish

armed career criminals or continuous recidivists. The language of the Act has, however, generated

much litigation and little agreement as to what is meant by “occasions different from one another.”

This Circuit, sitting en banc, decided United States v. Brady, holding 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).” 988 F.2d 664,

669 (6th Cir. 1993) (en banc).
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       In Brady itself, two of the defendant’s predicate convictions were for robberies that occurred

on the same night. Id. at 665. On the night of December 22, 1976, Brady brandished a sawed-off

shotgun and robbed several women at the Mack Avenue Beauty Shop. Id. at 666. This robbery

occurred at approximately 9:30 p.m. Id. No more than thirty minutes later, Brady entered the Club

Continental Bar and ordered drinks. Id. About fifteen minutes later, he brandished the same

weapon, robbed several people, and shot a woman in the leg. Id. Brady argued that his two

convictions for armed robbery “should count only as one predicate offense because they

represent[ed] a single, continuous crime spree rather than two separate offenses. Brady focuse[d]

on the thirty to forty-five minute time period that separated the two offenses and argue[d] that close

proximity in time merges otherwise distinct offenses for purposes of determining predicates under

§ 924(e)(1).” Id. at 668.

       This Court found it relevant that Brady had successfully completed the first robbery and

escaped from the beauty shop before undertaking the second robbery at the bar. Furthermore, after

each robbery Brady was free to desist and leave, and the crimes were committed “against different

victims at different places and at distinctly different times.” Id. at 668-69. According to the Court,

“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, and, after robbing the patrons of the bar, he shot one female patron in the leg. Thus, seen

from either an objective or subjective point of view, defendant Brady’s crimes were separate

episodes.” Id. at 669-70.
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        We have, in recent cases, remarked on a somewhat inconsistent application of Brady’s

principle. See United States v. Carnes, 309 F.3d 950, 954-56 (6th Cir. 2002). That principle was

first applied in United States v. Wilson, where the Court found separate predicate offenses where a

defendant committed illegal sexual conduct against different victims on different floors of the same

building, concluding that the defendant “could have halted his criminal rampage at any time,” but

like Brady, instead “chose to continue selecting different victims in separate places.” 27 F.3d 1126,

1131 (6th Cir. 1994).

        A year later, in United States v. Graves, 60 F.3d 1183 (6th Cir. 1995), this Court found Brady

inapplicable to a defendant who had committed a burglary and then assaulted a police officer

because the defendant “had not yet left the location of the burglary” when he assaulted the police

officer. Therefore, the assault and burglary were considered to have occurred on the same occasion.

Id. at 1187. This Court noted that “[i]t should not be necessary to reach to apply this statute; instead,

the statute should be applied where the facts demand its application. This is not such a case.” Id.

        The next case to address the issue involved a defendant who committed an armed robbery

of one residence in a duplex, and stayed behind in that residence to prevent its occupant from calling

the police while his cohorts robbed the other unit of the duplex. United States v. Murphy, 107 F.3d

1199 (6th Cir. 1997). Because the defendant was only guilty of aiding and abetting the second

robbery, having not left the first residence, this Court concluded that the defendant had not

successfully completed the first robbery, and thus, there was no “definable endpoint” to the first

event. Id. at 1210. With no definable endpoint to the first robbery, there was no second incident,

and therefore no separate occurrences for purposes of the Armed Career Criminal Act.
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       Then, in United States v. Thomas, 211 F.3d 316 (6th Cir. 2000), this Court held that a

defendant who raped two women during a period in which he maintained control over both women,

did not constitute separate occurrences because of the “absence of a completion or definable

endpoint.” Id. at 321. The Court reached this conclusion despite the fact that the rapes occurred at

separate locations, and each rape itself had an endpoint. Id. at 318.

       And, in Carnes, where the defendant burglarized “two adjacent homes,” this Court stated that

the “obvious way to distinguish between these two robberies is that Carnes had to leave one

residence in order to burglarize the second . . . [t]hus, unlike in Murphy or Thomas, it is possible to

identify an endpoint between the two offenses.” Carnes, 309 F.3d at 955-56.

       It seems that our case law, specifically Carnes, dictates that this Court must reject Powers’s

argument. While Powers asserts that he and his companions went to the hobby store first, there is

no evidence that they actually started burglarizing the hobby store before moving onto the archery

store. In fact, Powers simply testified that they went to the hobby store, realized they could not

reach the air-conditioning ducts, and therefore burglarized the archery store to get a ladder. Here,

as in Carnes, “it is possible to identify an endpoint between the two offenses.” Carnes, 309 F.3d

at 956. When Powers robbed and then left the archery store, that offense was completed for

purposes of our analysis, and became the first predicate offense. Then Powers robbed the hobby

store and that became the second predicate offense. The district court therefore, appropriately

applied Sixth Circuit precedent.1


       1
        Writing only for myself, I continue to adhere to my belief that the “on occasions different
from one another” language was not meant to encompass the conduct in this case. As I stated in
response to the Court’s holding in Brady, “[i]f this is what Congress intended, this is what Congress
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                                                  III.

       Powers also argues that Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v.

Washington, 124 S. Ct. 2531 (2004), United States v. Booker, 125 S. Ct. 738 (2005), and Shepard

v. United States, 125 S. Ct. 1254 (2005), require a “revisitation” of the prior conviction exception

to the Sixth Amendment. See Almendarez-Torres v. United States, 523 U.S. 224 (1998). In

Apprendi, the Supreme Court referred to Almendarez-Torres as an “exceptional departure,”

Apprendi, 530 U.S. at 487, from the Sixth Amendment’s general rule that “[o]ther than the fact of

a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt,” id. at 490. More

recently, in his Shepard concurrence, Justice Thomas wrote that Almendarez-Torres

       has been eroded by this Court’s subsequent Sixth Amendment jurisprudence, and a
       majority of the Court now recognizes that Almendarez-Torres was wrongly decided.
       The parties do not request it here, but in an appropriate case, this Court should
       consider Almendarez-Torres’ continuing viability. Innumerable criminal defendants
       have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres,
       despite the fundamental imperative that the Court maintain absolute fidelity to the
       protections of the individual afforded by the notice, trial by jury, and beyond-a-
       reasonable-doubt requirements.



should have said. Because Congress did not say clearly that was the statutory intent, I cannot join
in the conclusion that there is no ambiguity in section 924(e)(1).” Brady, 988 F.2d at 670. I also
continue to believe that Judge Jones’s dissent in Brady persuasively demonstrates that the legislative
history indicates that if actions were part of one continuous crime spree, they should be treated as
one predicate offense. Id. at 677. Furthermore, as Judge Jones wrote, “Congress’ comments plainly
presuppose that the Act is intended to apply to only incorrigible, habitual criminals or, as the Second
Circuit in Towne stated, to ‘recidivists . . . who have engaged in violent criminal activity on at least
three separate occasions, and not individuals who happen to acquire three convictions as a result of
a single criminal episode.’” Id. at 672 (quoting United States v. Towne, 870 F.2d 880, 891 (2d Cir.
1989)). While I continue to be persuaded by Judge Jones’s dissent, I am bound to apply this
Circuit’s precedent that forecloses Powers’s argument.
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Shepard, 125 S. Ct. at 1264 (Thomas, J., concurring in part and concurring in judgment) (internal

citations and quotation marks omitted).

       Powers concedes that, after Apprendi, but prior to Blakely, Booker, and Shepard, this Court

held in United States v. Gatewood, 230 F.3d 186 (6th Cir. 2000) (en banc), that notwithstanding

Apprendi, the Almendarez-Torres prior conviction exception was still good law. Id. at 192. In

addition to his general argument that Almendarez-Torres needs to be “revisited,” Powers’s more

specific argument is that the “on occasions different from one another” language of the Armed

Career Criminal Act requires findings to be made in addition to the mere fact of a prior conviction

and therefore falls within the Apprendi line of cases, and beyond the limited reach of the

Almendarez-Torres exception. Unfortunately for Powers, yet again, this Court has already

specifically decided that issue and held that “the determinations by a district court that prior felony

convictions exist and were committed on different occasions, are so intimately related that the

‘different occasions’ requirement of § 924(e) sufficiently comes within the exception in Apprendi

for a prior conviction.” United States v. Burgin, 388 F.3d 177, 186 (6th Cir. 2004); see also United

States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (“the separateness of the convictions is not a

fact which is different in kind from the types of facts already left to the sentencing judge by

Almendarez-Torres and Apprendi”); United States v. Morris, 293 F.3d 1010 (7th Cir. 2002); United

States v. Campbell, 270 F.3d 702 (8th Cir. 2001). Burgin was decided prior to Booker and Shepard,

but while both Booker and Shepard might foreshadow the demise of Almendarez-Torres, and

consequently Burgin, “Almendarez-Torres remains the law.” Gatewood, 230 F.3d at 192; see also

United States v. Barnett, 398 F.3d 516, 525 (6th Cir. 2005) (“[T]here is no language in Booker
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Page 9

suggesting that the Supreme Court, as part of its remedial scheme adopted in that case, intended to

alter the exception to Apprendi allowing district courts to consider the fact and nature of prior

convictions without submitting those issues to the jury.”).       Powers’s sentence is therefore

AFFIRMED.
