ACCA Occasions After Erlinger

The Jury’s Role in the ACCA Different-Occasions Inquiry After Erlinger v. United States: Harmless Error and Collateral Review

The Armed Career Criminal Act’s enhancement turns on a statutory phrase: under 18 U.S.C. § 924, "[i]n the case of a person who violates section 922(g) of this title and has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be . . . imprisoned not less than fifteen years." In Erlinger v. United States, 602 U.S. 821 (2024), the Supreme Court held that "[t]he Fifth and Sixth Amendments require a unanimous jury to make the determination beyond a reasonable doubt that a defendant’s past offenses were committed on separate occasions for ACCA purposes." Almendarez-Torres v. United States "persists as a ‘narrow exception’ permitting judges to find only ‘the fact of a prior conviction’": a judge may "do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of." A sentencing court may still consult Shepard documents, but only for the "limited function" of identifying the prior conviction and its then-existing elements — "[N]o more" is allowed. And "[t]here is no efficiency exception to the Fifth and Sixth Amendments": however plain the answer may seem, the defendant may hold the government to proof "beyond a reasonable doubt to a unanimous jury of his peers ‘regardless of how overwhelmin[g]’ the evidence may seem to a judge."

The substance of what the jury must now find comes from Wooden v. United States, 595 U.S. 360 (2022), which rejected a split-second, elements-based test and held that "whether criminal activities occurred on one occasion or different occasions requires a multi-factored inquiry that may depend on a range of circumstances, including timing, location, and the character and relationship of the offenses." "Offenses committed close in time, in an uninterrupted course of conduct, will often count as part of one occasion; not so offenses separated by substantial gaps in time or significant intervening events." "Proximity of location is also important; the further away crimes take place, the less likely they are components of the same criminal event." And "the character and relationship of the offenses may make a difference: The more similar or intertwined the conduct giving rise to the offenses—the more, for example, they share a common scheme or purpose—the more apt they are to compose one occasion". On that approach, ten burglaries of adjoining storage units in a single building on a single night made up one occasion, not ten — and Erlinger assigns that fact-laden, holistic inquiry to the jury.

On direct review, Erlinger errors are being policed through harmless-error doctrine rather than automatic vacatur. Chief Justice Roberts, concurring in Erlinger, wrote that "violations of that right are subject to harmless error review" and that "[t]he Seventh Circuit should thus consider on remand the Government’s contention that the error here was harmless." The courts of appeals have agreed. In United States v. Davion Rivers, 134 F.4th 1292 (11th Cir. 2025), the Eleventh Circuit "reject[ed] Rivers’s suggestion that Erlinger error is structural" and held, "as all our sister circuits to address the issue have, that we review Erlinger errors for harmlessness." The standard is demanding: "on harmless-error review, the government bears the burden of showing beyond a reasonable doubt that a rational jury would have found that the defendant’s prior drug offenses all were ‘committed on occasions different from one another.’" And the burden has teeth — the Rivers court vacated the ACCA sentence because the government could not make that showing for drug sales close in time and location.

Application of that standard divides on the facts. The Sixth Circuit in United States v. Dwayne Robinson, Jr., 133 F.4th 712 (6th Cir. 2025) "concluded as a general matter that courts may find Erlinger errors harmless" and explained that the inquiry looks to "all ‘relevant and reliable information’ in the ‘entire record,’" including facts recited in the presentence report; an omitted jury finding is harmless where the court can conclude "beyond a reasonable doubt" that the jury would have made it anyway. But where the record leaves room for genuine doubt, the error requires resentencing: the same court "refused to find an Erlinger error harmless in Cogdill," where "a reasonable jury could find the two later trafficking offenses did not" occur on different occasions because "both offenses involved trafficking in the same drug in the same county within a few months of each other."

Collateral attacks are faring very differently. In Bonds v. United States, No. 1:22-cv-00158 (E.D. Tenn. July 30, 2025), the district court joined an emerging consensus that "Erlinger constitutes a new procedural rule that regulates the manner of determining whether a defendant is eligible for an enhanced sentence under the ACCA" and is therefore "not retroactively applicable to cases on collateral review and does not provide a basis for relief under § 2255." Nor does Wooden supply an independent route, because "Wooden decided a matter of statutory interpretation, not constitutional law." The practical line after Erlinger v. United States, 602 U.S. 821 (2024) is thus procedural posture: a defendant whose occasions finding was made by a judge and whose case remains on direct review gets harmless-error scrutiny of a record no jury ever saw, and prevails if a rational juror could have harbored reasonable doubt about separateness; a prisoner whose conviction was already final when Erlinger came down obtains no relief under § 2255 unless and until the Supreme Court makes the rule retroactive — something the district courts have uniformly concluded it has not done.