                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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.                                                   )    ON APPEAL FROM THE UNITED
                                                     )    STATES DISTRICT COURT FOR THE
DAVID EARL HILL,                                     )    WESTERN DISTRICT OF MICHIGAN
                                                     )
        Defendant-Appellant.                         )




      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.




        *
         The Hon. Jane A. Restani, Chief Judge of the United States Court of International Trade, sitting by
designation.
05-2161
United States v. Hill

       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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United States v. Hill

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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05-2161
United States v. Hill

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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05-2161
United States v. Hill

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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