NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0088n.06 No. 10-6300 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee , v. RI CHARD HUGHE S, Def endant- Appellant,

_______________________________________ ) ) ) ) ) ) ) ) ) ) ) O N A P P E A L F R O M T H E UNI TED STATES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF TEN

NESSEE
OP INION

Before: M cK

EAGU E and WHITE , Circuit Judges; BARRETT, District Judge. * Michael R. Barre tt, District Judge. Appellant Richard Hughes appea ls the district court' s sentenc e. We Aff

irm

. Mr. Hug hes pleade d guilty to being a felon in possession of a gun in violation of 18 U.S.C. § 922(g ). Acc ording to the Presentenc e Investig ation Report (“PSR”) and revised PSR , Mr. Hughes qualified as an Armed Caree r Criminal under the Armed Caree r Criminal Act (“A CCA”), 18 U.S.C. § 924(e)

. At the sentenc ing hear ing, the Gover nment introduced copies of the judgme nt sheets and informations, as well as the arr est ticket and aff idavit of complaint for two burg laries. These crimes involved the burg lary of two separ ate storag e sheds. L awn equipment and power tools wer e taken from both locations and then deposited into a third, abandone d shed. Under Count One, Mr. Hughes

wa s convicted of burg lary of a building to wit: a shed, located in the rea r of 3044 Danville, o n The Honora

ble Michae l R. Ba

rre tt, United States District J udg e for the Southern District of * Ohio, sitti ngby

desig nation.No. 10-6300

United States v. Richard H ughes August 22, 2003. Under Count Two, Mr. Hughes wa s convicted of burg lary of a buildi ngto wit: a shed, loc ated in the r ear of 3078 Da

nville, on August 22, 2003. Be fore the district court, Mr. Hughes’ position was that althoug h two sheds in two differ ent locations had been burg larized, the criminal episode was not complete until Mr. Hughes deposited the items taken in the burg laries into the third shed. The district court deter mined that the burg laries

wer e separ ate, in distinct locations, and separ ated by time and that Mr. Hughes could n o t h av e proce eded to the se cond burg lary without having c ompleted the first. The district cour t sentence d Mr. Hughes to 180 months imprisonm ent. On appeal, M r. Hughe s argues t hat hi s conviction for two counts of burglar y of a building did not involve criminal acts committed on differ ent occa sions, but rathe r, they wer e one continuing criminal episode. ( Appellant’s B r. 10, 16.) The Court revie ws de novo the district court’ s deter mination that the two burg laries wer e committed on occa sions differe nt from one a nother. United States v. Hill , 440 F.3d 292, 295 (6th Cir. 2005) (citing United States v. Murphy , 107 F.3d 1199, 1208 ( 6th Cir. 1997)). To trig g er a sentenc e enhanc ement under the ACCA, a defe ndant’s prior felony convictions must involve separ ate criminal “episode s.” United States v. Martin , 526 F.3d 926, 938–39 (6th Cir. 2008) (citing United States v. Hughe s , 924 F.2d 1354, 1361 ( 6th Cir. 1991)). This Court has held that “an episode [i s] an incident that is part of a series, but f orms a separ ate unit within the whole. Although related to the entire course of events, an episode is a punctuated occur renc e with a limit ed duration.” United States v. Thomas , 211 F.3d 316, 319 (6th Cir. 2000) (quotations omitted). More

2No. 10-6300

United States v. Richard H ughes
rec ently , in United States v. Hill , 440 F.3d 292, 297 (6th Cir. 2006), this Court deter mined that there

are at least thre e indicia that indicate whethe r off enses a re se parate from e ach othe r: First, two offenses are “committed on occa sions differe nt from one a nother” under the ACCA, if it is possib l e t o discern the point at which the first offe nse is completed, and the subsequent point at which the second offe nse beg ins.

. . . Second, two offe nses are commi tted for ACCA purposes if it would have bee n possible for t h e o ffe nder to cea se his criminal conduct afte r the first offe nse, and wit h d ra w without committing the second offe nse. . . . Finally , separ ate offe nses are committed if the off enses a re c ommitt ed in diffe rent re sidence s or business locations. Hill , 440 F.3d at 297–98 (quoting 18 U .S.C. § 924(e)(1) ). M r. Hughes burg larized two differ ent sheds at two differ ent addre sses. The first burg la r y w a s
a completed act befor e the second, and the subsequent dispositi on of the stolen g oods does not alter this deter mination. See Hill , 440 F.3d at 298. The prese nce of a defina ble end point is most g erma ne to the analy si s . S

ee i d

. At sentenc ing, the district court conducte d an analy sis under Hill and deter mined that the burg laries wer e separ ated by location and time. The district judge further found t h at M r. Hu ghes could not have proce eded to the second burg lary until the first was completed. There fore , the district court did not err i n d et ermini ng the burg laries to be separ ate offe nses. Acc ording ly , we Aff

irmthe district court’s judgment.

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