                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0358n.06

                                            No. 07-5567                                  FILED
                                                                                     Jun 11, 2010
                           UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )
       Plaintiff-Appellee,                                )        ON APPEAL FROM THE
                                                          )        UNITED STATES DISTRICT
               v.                                         )        COURT FOR THE WESTERN
                                                          )        DISTRICT OF TENNESSEE
DEMONDO HINES,                                            )
                                                          )
       Defendant-Appellant.                               )
                                                          )



BEFORE: MARTIN and GRIFFIN, Circuit Judges; and DUGGAN, District Judge.*

       GRIFFIN, Circuit Judge.

       Defendant Demondo Hines appeals his 180-month mandatory minimum Armed Career

Criminal sentence entered by the district court in connection with his guilty plea to being a felon in

possession of a firearm, 18 U.S.C. § 922(g). Hines’s sole argument on appeal is that the district

court allegedly erred in sentencing him as an Armed Career Criminal. We disagree and affirm.

                                                  I.

       At the time of the present offense, Hines had several prior felony convictions. Pertinent to

this appeal are four aggravated robberies Hines committed in 1995 in Memphis, Tennessee.

Specifically, on July 29, 1995, at approximately 10:40 p.m., Hines and another man approached a


       *
       The Honorable Patrick J. Duggan, United States District Judge for the Eastern District of
Michigan, sitting by designation.
No. 07-5567
United States v. Hines


woman at 1026 Jackson Street, stuck a handgun in her side, stole her car and purse, and drove

northbound on Jackson Street. Later on July 30, 1995, at 12:09 a.m., Hines and three other men

approached a limousine driver on Vance Street. One of the men jumped into the back seat of the

parked limousine, stole a purse left behind by a passenger, and struck the driver in the face. A

couple of hours later, at 2:10 a.m., Hines and several others brandished a pistol at four women

walking down Main Street, instructing them to drop their purses. The men grabbed the purses and

fled on foot. Finally, at 4:30 a.m. on Beal Street, Hines and several men exited a parked vehicle,

displayed a pistol, and took money and personal property from two women walking down the street.

Hines fled the scene in the first victim’s car.

       On January 25, 2006, a federal grand jury indicted Hines for being a felon in possession of

a firearm in violation of 18 U.S.C. § 922(g). Hines pled guilty to the indictment pursuant to a plea

agreement with the government, which contained an agreed-to 70-month term of imprisonment

pursuant to FED . R. CRIM . P. 11(c)(1)(c).

       Hines’s presentence report (“PSR”) assessed his base offense level at 24, U.S.S.G. §

2K2.1(a)(2) (2006), “Unlawful Receipt, Possession, or Transportation of Firearms or

Ammunition[,]” and recommended a four-level upward adjustment, U.S.S.G. § 2K2.1(b)(6), because

he purportedly used the firearm in connection with another felony offense. The PSR calculated his

criminal history at Category VI based on 18 criminal history points. The PSR also afforded a three-

level reduction for acceptance of responsibility, U.S.S.G. § 3E1.1(a)-(b), yielding a total offense




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United States v. Hines


level of 25 and an advisory Guidelines range of 110-137 months of imprisonment. See U.S.S.G. ch.

5, pt. A (Sentencing Table) (2006).

       However, the PSR recommended applying U.S.S.G. § 4B1.4 (2006), “Armed Career

Criminal,” instead of § 2K2.1(a)(2), because Hines had at least three prior violent felony convictions.

See 18 U.S.C. § 924(e). The PSR assessed his base offense level at 34 because § 4B1.4(b)(3)(A)

provides that if the firearm illegally possessed by Hines in the § 922(g) conviction was used in

connection with a crime of violence, the base offense level is 34 rather than 33, which would

otherwise apply.     The PSR continued to apply a three-level reduction for acceptance of

responsibility, § 3E1.1(a)-(b), and Hines’s criminal history remained at Category VI, § 4B1.4(c)(1),

yielding a total offense level of 31 and an advisory Guidelines range of 188-235 months of

imprisonment. See U.S.S.G. ch. 5, pt. A (Sentencing Table) (2006).

       On April 12, 2007, the district court conducted Hines’s sentencing. At the hearing, the

district court recalculated Hines’s total offense level at 30, which produced an advisory Guidelines

range of 168-210 months of imprisonment. See U.S.S.G. ch. 5, pt. A (Sentencing Table) (2006).

       Next, the district court stated that if it were to sentence Hines as an Armed Career Criminal,

the resulting 180-month mandatory minimum prison sentence under 18 U.S.C. § 924(e) would

conflict with the 70-month agreed-to sentence contained in the parties’ plea agreement. In light of

this development, the district court engaged in a lengthy discussion with Hines, placing him under

oath, and asking him repeatedly whether he wanted to withdraw his guilty plea and proceed to trial.




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United States v. Hines


See FED . R. CRIM . P. 11(c)(5)(B). Hines responded that he was guilty, did not want to withdraw his

plea, and had no desire for a trial.

        After Hines declined to withdraw his plea, the district court considered his argument that the

aggravated robberies in June 1995 should count as only one predicate offense because they

represented a single, continuous six-hour crime spree, rather than four separate criminal episodes.

The district court rejected Hines’s position, ruling that the aggravated robberies, although close in

time, occurred at different locations, involved different victims, and, most importantly, after Hines

had completed each robbery, he had safely escaped and could have ceased his criminal conduct. The

district court thereafter applied U.S.S.G. § 4B1.4 and sentenced Hines to the statutory mandatory

minimum of 180 months of imprisonment pursuant to 18 U.S.C. § 924(e).

        Hines timely appeals his sentence.

                                                  II.

        We review de novo Hines’s sole contention on appeal – that the district court erred in

classifying him as an Armed Career Criminal.1 United States v. Hill, 440 F.3d 292, 295 (6th Cir.

2006). The Armed Career Criminal Act (“ACCA”) 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


        1
         Hines has not argued that the district court erred in concluding that each of his predicate
aggravated robbery convictions are violent felonies under 18 U.S.C. § 924(e). Accordingly, we deem
the issue forfeited. United States v. Johnson, 440 F.3d 832, 845-46 (6th Cir.2006) (“[A]n appellant
abandons all issues not raised and argued in its initial brief on appeal[.]”) (internal quotation marks
and citations omitted).

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United States v. Hines


       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).

       Whether his four convictions for aggravated robbery are separate predicate offenses under

ACCA is a function of whether they represent multiple criminal episodes that were distinct in time,

as opposed to multiple convictions arising out of a single criminal episode. United States v. Murphy,

107 F.3d 1199, 1209 (6th Cir. 1997). We have defined an “episode” as “an incident that is part of

a series, but forms a separate unit within the whole. Although related to the entire course of events,

an episode is a punctuated occurrence with a limited duration.” Id. (citation omitted). Hines argues

that because his convictions stem from a single, six-hour crime spree, he is not the type of

continuous recidivist that ACCA is designed to punish.

       While in many cases this inquiry “involves a detailed analysis of the distinct nature of a series

of uninterrupted offenses, see, e.g., [Murphy, 107 F.3d at 1208-10], this is not one of those cases.”

United States v. Brown, 306 F. App’x 941, 942 (6th Cir. 2009) (unpublished). We previously

rejected Hines’s close-in-time argument in United States v. Brady, 988 F.2d 664 (6th Cir. 1993) (en

banc). Sitting en banc, we held “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).” Id.

       In Brady, two of the defendant’s predicate convictions were for robberies that occurred on

the same night. Id. at 666. Specifically, on December 22, 1976, the defendant brandished a

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United States v. Hines


sawed-off shotgun and robbed several women at the Mack Avenue Beauty Shop. Id. This robbery

occurred at approximately 9:30 p.m. Id. Thirty minutes later, the defendant entered the Club

Continental Bar. Id. About fifteen minutes later, he brandished the same weapon, robbed several

people, and shot a woman in the leg. Id. The defendant argued that his two prior 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. [The defendant] 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.

        We rejected this argument because the defendant’s crimes were committed “against different

victims at different places and at distinctly different times” and he had successfully completed his

first robbery and escaped from the beauty shop before he committed the second robbery at the bar.

Id. at 669. According to our en banc court,

        while [the] defendant [] sat at the Club Continental Bar with his concealed shotgun,
        he could have decided that the one robbery . . . 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,
        [the] defendant[’s] crimes were separate episodes.

Id. at 669-70.

        Hines does not challenge on appeal that his predicate offenses occurred at different locations,

at separate times, and involved different victims. Most importantly, he escaped each robbery safely

before deciding to resume his criminal activity. Under these circumstances, we hold that Brady


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controls Hines’s argument. Moreover, in the district court during the sentencing hearing, Hines’s

counsel stated that “legally speaking under the law, yes. . . .[t]here are four criminal episodes”

Counsel also conceded that Brady was controlling precedent, arguing “that the Brady decision was

in error and that we are preserving this issue for the purpose of appeal to try to change the court of

appeals mind about that case law.”

       It is a well-established rule that a panel of this court may not overrule a prior published

decision absent en banc review or an intervening and binding change in the state of the law. See

Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009); Salmi v. Sec’y of Health & Human

Servs., 774 F.2d 685, 689 (6th Cir. 1985). The Brady decision is a published en banc opinion and

remains controlling authority.

                                                 III.

       For these reasons, we affirm Hines’s sentence.




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