                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 15a0169n.06

                                           No. 14-5490
                                                                                        FILED
                                                                                  Mar 04, 2015
                                                                              DEBORAH S. HUNT, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellee,                        )
                                                  )      ON APPEAL FROM THE UNITED
v.                                                )      STATES DISTRICT COURT FOR THE
                                                  )      EASTERN DISTRICT OF KENTUCKY
STEEVE ALEXIS,                                    )
                                                  )                  OPINION
       Defendant-Appellant.                       )


BEFORE: GIBBONS and STRANCH, Circuit Judges; REEVES, District Judge.*

       PAMELA L. REEVES, District Judge. In December 2013, Steeve Alexis pled guilty

to illegally possessing a firearm in violation of 18 U.S.C. § 922(g)(1).            Under ordinary

circumstances, the United States Sentencing Guidelines range for Alexis would have been 70-87

months’ imprisonment; however, because Alexis had three previous serious drug convictions, the

Presentence Investigation Report designated him an armed career criminal with a guidelines

range of 188-235 months.

       Alexis objected to the classification. Because the three previous serious drug convictions

were contained in a single judgment and received concurrent sentences, Alexis argued that they

should count only as one conviction for the purpose of the armed career criminal designation.

The district court overruled Alexis’s objection and sentenced him to 232 months’ imprisonment.

       On appeal, Alexis makes three different arguments not raised below: (1) current

application of the Armed Career Criminal Act (the “ACCA”) contradicts legislative intent to

* The Honorable Pamela L. Reeves, United States District Judge for the Eastern District of Tennessee,
sitting by designation.
United States v. Steeve Alexis
No. 14-5490

enhance the sentences of the most dangerous offenders; (2) Alexis should not be classified as an

armed career criminal because his felony convictions would not trigger enhanced punishments

under the Federal Sentencing Guidelines or the Immigration and Nationality Act; and (3) Alexis

should not be designated as an armed career criminal because he has no history of violent

conduct or armed crime.

        These policy arguments have previously been considered and rejected by our court. The

applicable law is well-settled, and the district court properly applied it to the undisputed facts of

Alexis’s case. Accordingly, Alexis’s sentence will be affirmed.

                                                        I.

        On July 2, 2009, Steeve Alexis sold oxycodone to a police operative. Just over two

weeks later, on July 17, 2009, Alexis sold oxycodone to a police operative a second time. That

day, police attempted to arrest Alexis, and he fled—leading the police on a high speed chase,

traveling between 65 and 75 miles per hour and running three stop lights. The police terminated

the chase after judging further pursuit to be too dangerous, and Alexis eventually escaped on foot

after driving his car through two fences. Ten days after fleeing from the police, Alexis sold

oxycodone to a police operative for a third time. He was finally arrested on July 31, 2009.

        In February 2010, Alexis pled guilty to three separate counts of an indictment charging

him with trafficking in a controlled substance—one count for each of the three occasions Alexis

sold oxycodone to a police operative.1 On February 16, 2010, the court sentenced Alexis to

seven years for each count of trafficking in a controlled substance, to be served concurrently.

Alexis was paroled on January 6, 2011.




1
 Alexis also pled guilty to two other counts charging him with fleeing and evading police in the first degree, and
criminal mischief in the first degree.

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United States v. Steeve Alexis
No. 14-5490

        On October 29, 2012, Alexis sold narcotics to a confidential informant at his residence in

Winchester, Kentucky. Based on that purchase, the Winchester Police Department obtained and

executed a search warrant at Alexis’s home, where they seized cocaine, marijuana, drug

paraphernalia, and a loaded 9mm firearm. Alexis was charged in a single-count indictment for

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He pled guilty

pursuant to a plea agreement on December 23, 2013.

        The Probation Office’s Presentence Investigation Report (the “PSR”) recommended

Alexis be designated an armed career criminal under 18 U.S.C. § 924(e)(1) because Alexis had

three qualifying “serious drug offenses”—the three convictions for trafficking oxycodone.

Alexis did not dispute the existence of the prior convictions. Instead, he argued that, because his

sentences ran concurrently for all three drug offense convictions, they should not count

separately for the purposes of the ACCA. At sentencing, the district court overruled Alexis’s

objection, stating that:

        In this particular matter, the factual information is not in dispute as set forth in the
        [PSR]. It is quite lengthy, and it indicates that there were three separate purchases
        of oxycodone from the defendant on July 2nd, July 17th, and July 27th, again, as
        set forth in the descriptive paragraph, paragraph 44, in addition to the fleeing and
        evading conviction as well.

        If the Court only considers the drug convictions, they would be included as three
        qualifying offenses under the Armed Career Criminal Act.

Accordingly, the district court overruled Alexis’s objection and adopted the PSR.

        Without the armed career criminal designation, Alexis would have had a guidelines range

of 70-87 months in prison.       Because Alexis was designated an armed career criminal, his

guidelines range increased to 188-235 months in prison, with a mandatory minimum of 180




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United States v. Steeve Alexis
No. 14-5490

months. The district court sentenced Alexis to 232 months in prison on April 16, 2014. This

appeal followed.2

                                                         II.

         De novo review applies to the district court’s conclusion that Alexis’s three drug-

trafficking crimes were committed on different occasions and satisfy the three “serious drug

offenses” predicate to designation as an armed career criminal. United States v. Hill, 440 F.3d

292, 295 (6th Cir. 2006).

         Plain-error review applies to Alexis’s three policy-based arguments that were not raised

during sentencing. United States v. Hockenberry, 730 F.3d 645, 663 (6th Cir. 2013) (citing

United States v. Lumbard, 706 F.3d 716, 720 (6th Cir. 2013)). In Lumbard, we explained that

plain-error review involves a four-step inquiry under Federal Rule of Criminal Procedure 52(b):

         First, we are to consider whether an error occurred in the district court. Absent
         any error, our inquiry is at an end. However, if an error occurred, we then
         consider if the error was plain. If it is, then we proceed to inquire whether the
         plain error affects substantial rights. Finally, even if all three factors exist, we
         must then consider whether to exercise our discretionary power under Rule 52(b),
         or in other words, we must decide whether the plain error affecting substantial
         rights seriously affected the fairness, integrity or public reputation of judicial
         proceedings.

Lumbard, 706 F.3d at 721 (internal quotation marks omitted).

                                                         III.

    1. Correct Application of Sixth Circuit Precedent

         Under the ACCA, defendants who have been convicted of illegally possessing a firearm

in violation of 18 U.S.C. § 922(g) face a mandatory minimum fifteen-year prison sentence if they

2
 Alexis has filed a motion pursuant to Federal Rule of Evidence 201 requesting that this court take judicial notice of
the indictment and final judgment from the Harrison County, Kentucky, Circuit Court, Case No. 09-CR-033, the
case from which Alexis’s armed career criminal designation stems. Rule 201 permits judicial notice of facts not
subject to reasonable dispute because they can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned. The Harrison County Circuit Court’s records fall squarely within this category.
Alexis’s motion is therefore granted.

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United States v. Steeve Alexis
No. 14-5490

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). In Hill, 440 F.3d

at 297-98, we established that two offenses are committed on different occasions from one

another 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.” Offenses are separate if they meet any of the three tests established by Hill. United

States v. Jones, 673 F.3d 497, 503 (6th Cir. 2012) (citing United States v. Paige, 634 F.3d 871,

873 (6th Cir. 2011)); see also United States v. Banner, 518 F. App’x 404, 406 (6th Cir. 2013)

(“So long as a defendant’s offenses meet one of the Hill tests, the amount of time between the

individual offenses is relatively unimportant.”). Finally, the fact that multiple offenses were

charged in one indictment and consolidated for plea purposes is irrelevant, as is the fact that the

sentences for multiple offenses ran concurrently. United States v. Martin, 526 F.3d 926, 940 (6th

Cir. 2008).

        Alexis’s three drug offenses meet the first and second Hill tests. Fifteen days separated

the first and second offenses, and ten days separated the second and third offenses. “Because

each offense occurred on a separate day, there is a distinct separation between the beginning and

ending of all three offenses.” Banner, 518 F. App’x at 406. Additionally, during the time

separating Alexis’s offenses, he had the ability to cease his criminal conduct and withdraw

without committing a subsequent offense. We have held that periods of time far shorter than ten

days between offenses qualify as separate episodes. See, e.g., United States v. Thomas, 381 F.

App’x 495, 506 (6th Cir. 2010) (holding that a defendant committed separate offenses when he



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No. 14-5490

robbed multiple individuals within minutes at the same location because he retreated on foot to

the corner of the block or to hide behind cars between every robbery, each time making a

conscious decision to return to the scene to rob another victim).

        Because Alexis was convicted of illegally possessing a firearm after previously being

convicted of three separate, serious drug offenses, he meets the standard for designation as an

armed career criminal, and the district court was correct to overrule Alexis’s objection to the

PSR.

    2. Policy-Based Challenges to the ACCA

        On appeal, Alexis does not challenge the district court’s application of Hill. Instead, he

challenges our interpretation of the ACCA and the Act itself. In doing so, Alexis makes three

policy arguments not raised before the district court.

        First, Alexis argues that his classification as an armed career criminal contradicts the

legislative intent of protecting the public and deterring hardened, violent criminals because

Alexis “is capable of rehabilitation and committed these related predicate offenses in a short span

of three weeks.” (Appellant’s Brief, p. 12). We addressed and rejected this argument in Banner

as follows:

        Defendant asks us to change the aforementioned established law on the basis of a
        policy argument outlined by the dissent in Brady. [United States v. Brady, 988
        F.2d 664, 670–77 (6th Cir. 1993) (Jones, J., dissenting)]. In reliance on the Brady
        dissent, defendant argues that the ACCA was meant to enhance punishments for
        “only incorrigible, habitual criminals,” but not for individuals who happened to
        commit three crimes in a relatively short time period like defendant. Id. at 672.
        Since the Brady decision, however, this Court has repeatedly rejected this
        argument. . . . We will continue to follow this circuit’s established precedent.

518 F. App’x at 407 (collecting cases). Importantly, even if we were persuaded by Alexis’s

policy arguments, we do not have the authority to overrule Hill, which would require a ruling of




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No. 14-5490

the Supreme Court or our en banc court. See Paige, 634 F.3d at 873 (citing Ahearn v. Jackson

Hosp. Corp., 351 F.3d 226, 235 (6th Cir. 2003)).

        Second, Alexis contends that the ACCA should adopt the framework of the Federal

Sentencing Guidelines or Immigration and Nationality Act by evaluating the sentence imposed

for past convictions to determine their severity as opposed to using the categorical approach

employed by the ACCA. Alexis points out that under the Federal Sentencing Guidelines he

would only have one predicate sentence for his past felony convictions. Alternatively, in a

deportation hearing, his culpability would be measured by the length of the sentence imposed for

his felony convictions. Alexis argues that both of these approaches better serve the policy goals

of the ACCA. Such comparisons, however, are inapposite.

        We have previously explained that “whether the offenses were consolidated for

sentencing is immaterial to counting predicate offenses under the ACCA, even though such

consolidation orders may be relevant under the otherwise applicable Sentencing Guidelines.”

United States v. Jones, 52 F. App’x 244, 246-47 (6th Cir. 2002) (citing United States v. Warren,

973 F.2d 1304, 1310 (6th Cir. 1992)). Alexis’s objections appear to be with the content of the

ACCA itself, and not with our interpretation of it. Such objections cannot be remedied by the

courts. “Whatever latent problems may exist with the [ACCA], the responsibility for correcting

them continues to lie with the legislature, and not with this Court.” United States v. Kearney,

675 F.3d 571, 577 n.6 (6th Cir. 2012).

        Third, Alexis argues that he should not be designated as an armed career criminal

because he has no previous history of violent conduct or armed crime. This objection, like the

previous two, concerns the perceived disconnect between the cited purposes of the ACCA and its

application as written. That is an issue that could be addressed by Congress, but cannot be



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No. 14-5490

changed by the courts. Under the ACCA, it is not necessary for a defendant to have a previous

history of violent conduct or armed crime. A history of three serious drug offenses committed

on separate occasions followed by a felon-in-possession conviction satisfies the ACCA’s

requirements for armed career criminal designation.

                                                IV.

        The district court properly applied our precedent in determining that each of Alexis’s

three drug felonies was a separate offense for the purposes of the ACCA. Because each of

Alexis’s policy-based objections is foreclosed by well-established Sixth Circuit precedent and

the text of the ACCA, there is no clear error in the district court’s decision. Alexis’s sentence is

affirmed.




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