Erlinger v. United States

Issues

Does it violate a criminal defendant’s Fifth Amendment right to due process or Sixth Amendment right to trial by jury when a sentencing judge, rather than a jury, determines whether a defendant’s prior convictions were “committed on occasions different from one another,” as is necessary to impose an enhanced sentence under the Armed Career Criminal Act?

Oral argument:

March 27, 2024

Court below:

United States Court of Appeals for the Seventh Circuit

This case asks the Supreme Court to define the contours of a criminal defendant’s constitutional rights when subject to the Armed Career Criminal Act of 1984’s (“ACCA”) occasions clause in light of the Court’s decision in Wooden v. United States. The ACCA authorizes enhancing a criminal defendant’s sentence when the defendant’s three prior convictions were committed “on occasions different from one another.” Under Wooden, that clause requires determining whether the previous offenses occurred on different occasions or, rather, arose “from a single criminal episode.” Paul Erlinger argues that the Fifth and Sixth Amendment prohibit a sentencing judge from making that determination, rather a jury must decide the factual questions necessary under the ACCA beyond a reasonable doubt. Nick Harper, court-appointed amicus curiae in support of the judgment below, counters that the Constitution does not require the occasions clause to be decided by a jury because history and Supreme Court precedent authorize legislatures to assign recidivism-related determinations to sentencing judges. The outcome of this case has implications for criminal defendants’ rights at sentencing.

Questions as Framed for the Court by the Parties

Whether the Constitution requires a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were “committed on occasions different from one another,” as is necessary to impose an enhanced sentence under the Armed Career Criminal Act.

Facts

Petitioner Paul Erlinger (“Erlinger”) pled guilty to being a felon in possession of firearms in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) on April 20th, 2018. Erlinger v United States of America, 2021 U.S. Dist. LEXIS 129075 at 2. At his sentencing hearing, the United States District Court for the Southern District of Indiana found that Erlinger was eligible for a sentencing enhancement under the Armed Career Criminal Act of 1984 (“ACCA”). Id. The ACCA is a three strikes law which imposes a fifteen year minimum sentence on persons who illegally possess a firearm after being convicted of at least three violent felonies or serious drug offenses. The district court based this decision on Erlinger’s four prior convictions: one in 2001 for a residential burglary in Illinois, one in 2001 for a burglary in Pike County Indiana, and two in 2003 for dealing in methamphetamine in Pike County. United States v Erlinger, 77 F.4th 617 at 619.

The United States Court of Appeals for the Seventh Circuit vacated this sentence because of separate, subsequent opinions which ruled only one of those convictions qualified as a prior conviction under the ACCA. Id. at 619-20. On resentencing the government argued the ACCA enhancement still applied and included evidence of three additional convictions linked to burglaries Erlinger committed at different businesses on different dates, those being April 4th, 8th, and 11th of 1991 in Dubois County, Indiana. Id. at 620. Erlinger objected to this inclusion, arguing that the Indiana definition of burglary was broader than the federal definition used in the ACCA and therefore inapplicable under that statute. Id. Erlinger also objected on the grounds that the three Dubois County burglaries were not committed on separate occasions as the ACCA requires and that the factual determination resolving that question would have to be resolved by a jury, rather than a judge. Id. The district court overruled his objections and found that the government submitted evidence that was sufficient to prove he had committed three distinct burglaries which were applicable under the ACCA. Therefore, the district court reimposed the ACCA enhanced fifteen-year sentence. Id.

Erlinger appealed this decision to the Seventh Circuit, contending that his Indiana burglary convictions were not predicate offenses under the ACCA because the Indiana statutory definition of a “dwelling” was broader than the federal statute for burglary. He also argued that the question of whether his three burglaries were not committed on separate occasions should have been decided by a jury, rather than the judge. Id. at 619. The Seventh Circuit found that an applicable Indiana burglary statute in Ind. Code § 35-43-2-1 was consistent with the generic burglary offense required from the ACCA, as it required the same entering of an entirely enclosed space federal burglary demands. Id. at 620-21. The Seventh Circuit also found that the standard under United States v Elliot, 703 F.3d 378 (7th Cir. 2012) only required a fact finder to make determinations of whether prior convictions were committed on different occasions from one another, not necessarily a judge or member of the jury as Erlinger insisted. Id. at 621.

Erlinger filed a petition for writ of certiorari on October 4, 2023, which the Supreme Court granted on November 20, 2023.

Analysis

CONSTITUTIONAL REQUIREMENTS AND APPRENDI CASE

Erlinger argues that the Fifth Amendment right to due process, the Sixth Amendment right to trial by jury, and Apprendi v. New Jersey require that the jury decide beyond a reasonable doubt the inquiry mandated by 18 U.S.C. § 924(e)(1). The code section, known as the “occasions clause,” asks whether the defendant’s three prior convictions were committed “on occasions different from one another.” Brief for Petitioner, Paul Erlinger at 11–12, 16–18, 24–25. Erlinger submits the ACCA’s occasions clause triggers Apprendi’s rule governing which factual questions qualify as elements of an offense such that the Fifth and Sixth Amendments’ protections require a determination by the jury instead of the sentencing judge. Brief for Petitioner at 11–12. Erlinger contends that the ACCA’s occasions clause is an element because it requires an enhanced sentence when a defendant’s previous convictions have been committed on different occasions, and it does not fall under the “fact of a prior conviction” exception created in Almendarez-Torres v. United States. Id. at 11–13, 24–25. Erlinger asserts that Almendarez-Torres’s exception to the Apprendi rule is best understood as limited only to the fact of a prior conviction. Id. at 13, 26. Erlinger rejects that Almendarez-Torres created an “all-purpose recidivism,” arguing that while the Court there spoke of “recidivism” generally, the term was meant to be used interchangeably with “the fact of a prior conviction.” Id. at 27–28. Erlinger contends that subsequent case law supports rejecting an all-purpose conception of Almendarez-Torres. Id. at 29. Erlinger argues that Apprendi narrowed Almendarez-Torres’s exception to only those recidivism facts that were previously found “pursuant to proceedings with substantial safeguards of their own,” citing to the Court’s emphasis that the sentencing enhancement at issue in Almendarez-Torres merely required the “prior commission of a serious crime.” Id. at 15–16. Erlinger further cites to the Apprendi Court referring to the decision as “arguabl[y] . . . incorrectly decided” and “at best an exceptional departure from the historic practice.” Id. at 15. Erlinger claims two ACCA occasions clause cases, Descamps v. United States and Mathis v. United States, illustrate a narrow conception of Almendarez-Torres by holding that the Sixth Amendment requires an ACCA sentencing enhancement to be based only on facts necessarily found by the jury, and that the exception applies only to the “simple fact” of a prior conviction. Id. 16–18, 26–27.

Erlinger asserts that under the Court’s recent decision in Wooden v. United States (2022), the ACCA’s occasion clause falls outside of the Almendarez-Torres exception because Wooden created a multi-factored inquiry to determine whether the previous offenses occurred on different occasions or, rather, arose “from a single criminal episode.” Id.18–19. Erlinger contends that the considerations announced in Wooden—e.g., whether the offenses were uninterrupted, the presence/absence of intervening events, proximity of location, similarity, common scheme or purpose—present questions of fact that go beyond determining the convicted offense and its elements. Id.

Nick Harper, court-appointed amicus curiae to brief and argue in support of the judgment below, counters that the Constitution does not require the occasions clause to be decided by a jury. Brief of Court-Appointed Amicus Curiae in Support of the Judgment Below, at 10–11. Harper contends that Almendarez-Torres holds it is constitutionally permissible for legislatures to assign recidivism-related determinations to sentencing judges, thereby rejecting the narrowed “fact of a prior conviction” conception. Id. at 10–12, 18, 20. Harper argues the facts of Almendarez-Torres necessarily required a sequencing determination by the judge that went beyond the elements of the offense such that the case is irreconcilable with Erlinger’s “elements-only” approach. Id. at 27–30.

Harper asserts that this understanding of the Almendarez-Torres exception aligns with history and precedent, and that it aligns with recidivism’s traditional function as a basis for increased sentences. Id. at 11–12. First, Harper rejects that Almendarez-Torres itself limited its holding by using “recidivism” and “the fact of a prior conviction” interchangeably. Id. at 30–31. Harper maintains that Almendarez-Torres embodies a historical practice of legislatures treating recidivism as a sentencing factor, rather than an element of the offense. Id. at 13. In support of this claim, Harper cites to historic state statutes authorizing sentencing judges to make factual determinations regarding sequencing of offenses and identity of the offender; Harper also cites to the common-law tradition of excluding propensity evidence. Id. at 15–18, 22–23. Harper rejects the proposition that Apprendi and the Court’s ACCA cases narrowed Almendarez-Torres; instead, Harper argues that those cases expressly declined to revisit its holding, and none decided the Sixth Amendment question at issue—that is, the cases involved nothing more than constitutional avoidance. Id. at 33–35. Harper concedes the Apprendi line of cases speak of “the fact of a prior conviction” but asserts that because Apprendi merely declined to enlarge Almendarez-Torres’s recidivism rule, the phrase must be understood as referring to its general holding. Id. at 31–32. Harper maintains that the ACCA cases (e.g., Descamps and Mathis) principally justified the “elements-only” approach on statutory grounds, secondarily raising Sixth Amendment concerns. Id. at 34–35. Harper thus requests the Court to adhere to Almendarez-Torres and cautions that the “element’s only” approach would “effectively overrule” its holding. Id. at 33, 35.

THE PERMISSIBILITY OF “SHEPARD DOCUMENTS”

Erlinger argues that it is constitutionally impermissible for sentencing courts to use “Shepard documents”—named after Shepard v. United States—when making a determination under the ACCA’s occasions clause because that practice “sidestep[s]” Apprendi. Brief for Petitioner at 37. Erlinger submits that Shepard, following Taylor v. United States, authorized sentencing courts to “‘examine a limited class of documents’” from the convicting court—such as, charging documents, jury instructions, plea agreements, etc. Id. at 38. Erlinger contends that Shepard recognized Apprendi by expressly delineating between the permissible use of such documents to discern the crime and elements of a prior conviction as opposed to “‘making a disputed finding of fact about what the defendant and state judge must have understood as the factual basis for the prior plea,’ which would violate the Sixth Amendment.” Id. at 38–39. Erlinger asserts that Descamps and Mathis limited the permissible use of Shepard documents to the ACCA-mandated inquiry of whether the elements of a state-law conviction was for criminal conduct covered by the ACCA—i.e., whether the offense is a predicate felony. Id. at 37–38. Erlinger submits that these cases emphasized the “limited function” of Shepard documents by prohibiting them from being “repurposed” for discerning anything other than the elements of an offense—for example, “the means of the conduct.” Id. at 39. Erlinger maintains that the permitted use for Shepard documents does not exist here because the 1991 burglary charges did not require the ACCA’s occasions clause as an element and the court did not find facts related to Wooden’s considerations—e.g., proximity of offenses—and lastly, because the Indiana burglary crimes did not have “alternative elements” requiring the court to discern the crime of which he was convicted. Id. at 40.

Harper counters that even if you accept that the Constitution limits a sentencing judge to the “fact of a prior conviction,” the Court must still affirm the decision below because the ACCA permits judges to make factual determinations on identity, elements of the offense, date of the offense, and location (state or venue) of the offense. Brief of Nick Harper at 36–37. Harper asserts that Shepard requires this fact finding pursuant to the predicate-felony determination of the “who, what, when, and where of a prior offense” so long as it is attained from “conclusive . . . judicial record[s].” Id. at 37. Harper argues that an elements-only approach is inconsistent with precedent because non-element facts are necessary to the predicate-felony determination—e.g., to determine which law applies—and often resolve the occasions clause. Id. at 38. Harper contends that when the court in Erlinger’s case made the predicate-felony determination it found non-elemental facts, the dates of Erlinger’s relevant burglaries, that decide the occasions determination. Id. at 39. Harper submits that, under Wooden, the burglaries having occurred multiple days apart “‘decisively differentiate[s]’ his offenses into different occasions.” Id. Lastly, Harper asserts that the Constitution does not require “two ‘different fact-finders’ applying ‘different burdens of proof’” to the ACCA’s predicate-felony and occasions determinations. Id. at 490.

Discussion

CONSTITUTIONAL PROTECTIONS FOR CRIMINAL DEFENDANTS

The United States, in support of Petitioner, asserts that maintaining a bright line rule with respect to judicial deference towards jurors in fact-finding inquiries related to sentencing under the ACCA is necessary to protect the constitutional rights of criminal defendants under that statute. Brief of the Respondent in Support of Petitioners at 32–33. The government alleges that it is essential that defendants and judges know plainly which forms of sentence-enhancing facts would create a fact-finding question for the jury, as otherwise there is a threat of judges and legislative bodies taking over the rightful authority of juries in that particular context. Id. at 33.

The National Association of Federal Defenders (“NAFD”), in support of Petitioner, further asserts that without this reiteration of a jury’s rightful sovereignty over such questions, there is a significant likelihood that criminal defendants would plead guilty to crimes whose sentences are later dramatically increased by a judge unilaterally applying ACCA enhancements. Such a situation would be unfair, as the essential facts linked to a defendant’s case and its potential punishment are necessary in determinations at the pleading stage. Brief of Amicus Curiae the National Association of Federal Defenders at 6. The NAFD argues that this result is fundamentally unfair to defendants, who often make practical legal decisions at the pleading stage the consequences of which should not suddenly be dramatically altered at the sentencing stage without access to a jury of one’s peers. Id.

FAMM, in support of Petitioner, further asserts that the range and disparity in sentences enhanced under the ACCA has been a recurring constitutional problem for the bill, and that its intended function could be better met through deferring to juries factfinding of the occasions clause, improving judicial efficiency and preserving constitutional protections. Brief of Amicus Curiae FAMM at 16.

Nick Harper, (“Harper”) in support of the Seventh Circuit Court of Appeals decision, counters that it is not a constitutional requirement that juries resolve questions under the occasions doctrine, and that requiring them to do so could create more problems for defendants and the courts than it would solve. Brief of Amicus Curiae Nick Harper, at 35, 41.

Harper asserts that the legislature granted judges a degree of power which was already at their disposal and that attempts to narrow the existing rules would create a separation of powers issue and go against the intensions of the law’s authors. Id. at 27. Harper further argues that because judges regularly make sentencing determinations linked to other components of the ACCA and also regularly do so with respect to other procedures like in double-jeopardy cases, no constitutional violation would be present in continuing to grant them some degree of deference in occasions questions. Id. at 38.

Harper also claims that demanding juries resolve such occasions questions could disproportionately prejudice them against defendants. Id. at 43. Harper argues requiring juries to sift through the details of their past convictions rather than simply receive cold confirmation by a judge that such convictions do exist could taint their view against a defendant they would be sentencing for an otherwise unrelated firearm offense. Id.

MAINTAINING PRECEDENT AND LEGISLATIVE INTENT

The United States, in support of Petitioner, claims that it would be in line with a long line of court precedent to limit a judge’s authority in making determinations about predicate offenses under the ACCA, as every court did so universally prior to Wooden. Brief of the Respondent in Support of Petitioners at 19-20. The government further claims that only a few outlying cases exist reinforcing the Seventh Circuit’s decision. Id. at 25. Erlinger agrees, arguing that there is no justification to stretch precedent further than Apprendi and that the Court would only be muddying existing precedent by doing so. Brief of the Petitioner at 41.

FAMM further highlights that the initial purpose of the ACCA, even-handed enhancement of obvious recidivists, would be better maintained through continued deference to the existing precedent rather than a shift to a new rule which might confuse lawyers, judges, and courts. Brief of Amicus Curiae FAMM at 16.

Harper counters that the latest decision the Supreme Court provided on the question in Almendarez-Torres clearly extended judicial discretion with respect to sentencing recidivists and that affirming this decision would clarify what the Court meant in that decision. Brief of Amicus Curiae Nick Harper at 11. Harper argues that the Court’s opportunity to reaffirm its own precedent in this way would be beneficial for judicial clarity in lower courts and provide more explicit bounds for defendants and prosecutors. Id. at 11.

Harper further asserts that no decision subsequent to Almendarez-Torres has narrowed its interpretations on recidivist sentencing and as such a plain reading of that decision would be necessary to maintain judicial consistency and avoid further confusion and delegitimization of the Court. Id. at 8.