by Sam Rutherford

The Supreme Court of the United States held that a jury must determine beyond a reasonable doubt whether a defendant’s prior violent felony or serious drug offenses were committed on separate occasions, thus qualifying the defendant for an enhanced sentence under the Armed Career Criminal Act (“ACCA”).

Background

Under 18 U.S.C. § 922(g), it is unlawful for certain categories of individuals to possess firearms, including those previously convicted of felonies. Convictions under that statute ordinarily carry a maximum sentence of up to 10 years in prison. 18 U.S.C. § 924(a)(2). However, if the defendant has three or more prior “violent felony” or “serious drug offense” convictions that were “committed on occasions different from one another,” the ACCA increases his or her sentence to a minimum of 15 years in prison. 18 U.S.C. § 924(e)(1).

In 2017, Paul Erlinger was charged in the U.S. District Court for the Southern District of Indiana with being a felon in possession of a firearm in violation of § 922(g). He entered a guilty plea but argued at sentencing that all of his prior felony convictions were at least 10 years old and that in the intervening years, he had turned his life around—i.e., Erlinger had secured and maintained steady employment, built a good life for himself and his family, and remained abstinent from drugs. The District Court agreed that any sentence beyond five years was “too high” for his offense, but because Erlinger had three prior offenses on separate occasions, it was required to impose a 15-­year sentence under the ACCA.

However, shortly after the District Court sentenced Erlinger, the U.S. Court of Appeals for the Seventh Circuit determined that two of the three prior convictions the sentencing judge relied on to impose an ACCA sentence no longer qualified as violent or serious drug offenses. Recognizing that the Seventh Circuit’s determination left Erlinger with only one prior qualifying conviction, the District Court vacated his ACCA-­enhanced sentence and scheduled a new sentencing hearing.

Undeterred, the Government pursued another 15-­year sentence under the ACCA, this time relying on four burglaries Erlinger committed when he was just 18 years old. According to the Government’s version of the facts, Erlinger burglarized a pizza shop, a sporting goods store, and two restaurants on different occasions, thus qualifying him for another ACCA sentence. Erlinger, however, maintained that the decades old convictions had occurred during a single criminal episode and did not count as separate offenses for purposes of an ACCA enhancement. Moreover, he argued that the Fifth and Sixth Amendments require a jury to make the determination of whether they count as a single or separate offenses beyond a reasonable doubt.

The District Court rejected this argument and proceeded to determine, based only on a preponderance of the evidence, that Erlinger’s burglaries were committed on separate occasions. The District Court determined that Erlinger still qualified for sentencing under the ACCA and reimposed its original 15-­year prison term, noting that it thought the sentence was “unfortunate” and “excessive.”

Erlinger renewed his argument that the Fifth and Sixth Amendments require a jury finding that his prior offenses were committed on separate occasions before he could be sentenced under the ACCA. This time, however, the Government agreed with him. It argued that in light of the Supreme Court’s decision in Wooden v. United States, 595 U.S. 360 (2022), which held that determining whether prior offenses were committed on separate occasions under the ACCA entails an examination of a “range of facts,” and in light of Supreme Court authority holding that facts that increase a defendant’s sentence must be found by a jury or admitted by the defendant, see Apprendi v. New Jersey, 530 U.S. 466 (2000), Erlinger’s sentence was clearly unconstitutional.

The Seventh Circuit rejected the Government’s concession of error and affirmed Erlinger’s sentence. He filed a petition for writ of certiorari in the Supreme Court, which the Government joined, arguing that the “Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context.” The Supreme Court granted review and appointed a private attorney as amicus curiae to defend the Seventh Circuit’s decision since the Government was unwilling to do so.

Analysis

Justice Gorsuch, joined by Chief Justice Roberts and Justices Thomas, Sotomayor, Kagan, and Barret, agreed that Erlinger’s sentence violated the Fifth and Sixth Amendments. The Sixth Amendment guarantees that criminal defendants have “the right to a speedy and public trial, by an impartial jury.” This guarantee includes the requirement that all jury verdicts be unanimous. Ramos v. Louisiana, 590 U.S. 83 (2020). Similarly, the Fifth Amendment promises that no citizen may be deprived of their liberty without “due process of law.” Due process requires that the Government prove to a jury every element of a charged offense beyond a reasonable doubt. United States v. Haymond, 588 U. S. 634 (2019) (plurality opinion).

Moreover, from the beginning of our country, the Government has always been required to include in an indictment any fact which constitutes an element of the crime charged, and failure to do so was fatal to the indictment. See Haymond. This requirement historically included “any particular fact which the laws ma[d]e essential to the punishment.” Id. The point of these constitutional protections, the Court emphasized, is to require that “a unanimous jury … find every fact essential to an offender’s punishment,” thus ensuring that the sentence a court imposes is “premised on laws adopted by the people’s elected representatives and facts found by members of the community.” In other words, “[t]hese principles represent not ‘procedural formalit[ies]’ but ‘fundamental reservation[s] of power’ to the American people.” Quoting Blakely v. Washington, 542 U. S. 296 (2004).

Over time, however, state legislatures, Congress, and the courts began experimenting with “new trial and sentencing practices” that authorized judges to impose punishment based on facts not found by the jury’s guilty verdict or the defendant’s guilty plea. Despite the proliferation of these laws, the Supreme Court has “cautioned that, while some experiments may be tolerable, all must remain within the Fifth and Sixth Amendments’ guardrails.” See Apprendi; see also Alleyne v. United States, 570 U.S. 99 (2013) (principle that only a jury may determine facts that increase penalties applies when a court imposes a sentence the exceeds the maximum penalty authorized by a jury’s findings and increases the minimum punishment). These “guardrails” guarantee “that a judge could not swell the penalty above what the law … provided for the acts found by a jury of the defendant’s peers.” Haymond (internal quotation marks and citation omitted).

For example, in Apprendi, the Supreme Court reviewed a case involving a defendant’s conviction under a statute that ordinarily carried a maximum punishment of 10 years in prison. Another state statute authorized the trial judge, under a preponderance of evidence standard, to impose a “sentencing enhancement” and increase the sentence significantly if it found that the crime was racially motivated—i.e., a hate crime. The Supreme Court struck down the sentence as violating the Fifth and Sixth Amendments because only a jury may find “facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” Apprendi.

The Supreme Court has applied this principle to a number of other recent sentencing innovations. For example, the Blakely Court held that any fact, other than the fact of a prior conviction, relied upon to impose a sentence outside a legislatively mandated sentencing guideline range must be submitted to a jury and proved beyond a reasonable doubt. See, e.g., United States v. Booker, 543 U.S. 220 (2005) (applying Blakely to federal sentencing guidelines but determining that federal guidelines are advisory rather than mandatory). The Supreme Court has also observed that this reasoning “does not just apply when a judge seeks to issue a sentence that exceeds the maximum penalty authorized by a jury’s findings (or a guilty plea). It is a principle that also applies when a judge seeks to increase a defendant’s minimum punishment.”

In Alleyne, for example, the defendant was convicted of a crime that normally carried a sentence of between five years to life in prison. But another statutory “sentencing enhancement” permitted the court to increase the minimum sentence from five to seven years in prison if it found certain additional facts by a preponderance of evidence at the sentencing hearing. “That innovation, too, the Court held, improperly invaded the jury’s province because ‘[a] fact that increases’ a defendant’s exposure to punishment, whether by triggering a higher maximum or minimum sentence, must ‘be submitted to a jury’ and found unanimously and beyond a reasonable doubt.” Quoting Alleyne (emphasis in original).

The obvious impact this authority has on Erlinger’s sentence, as the Government “[c]ommendably” conceded, rendered it unconstitutional, the Court stated. Under § 922(g), Erlinger faced a sentence of between 0 and 10 years in prison. To trigger enhanced penalties under the ACCA, the Government had to prove he committed at least three prior violent or serious drug crimes “on occasions different from one another.” § 924(e)(1). “And under Wooden, deciding whether those past offenses occurred on three or more different occasions is a fact-­laden task,” according to the Court. Before the “ACCA’s more punitive mandatory minimum sentence may be lawfully deployed,” the statute requires consideration of whether the prior offenses were “committed close in time,” the “proximity” of their “location[s],” and whether the purpose and character of the offenses were “similar or intertwined.” Wooden.

The Court explained that the constitutional problem with Erlinger’s sentence is that the sentencing judge took the decision away from the jury and made these determinations himself by a preponderance of the evidence, rather than the constitutionally-­required “beyond a reasonable doubt.” However, “there is no doubt what the Constitution requires in these circumstances: Virtually ‘any fact’ that ‘increase[s] the prescribed range of penalties to which a criminal defendant is exposed’ must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).” Quoting Apprendi.

The only exception to this constitutional command is that sentencing judges may find the existence of a prior conviction, but not facts underlying it. Almendarez-­Torres v. United States, 523 U.S. 224 (1998). “Under that exception, a judge may ‘do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.’” Quoting Mathis v. United States, 579 U. S. 500 (2016).

In making this determination, the sentencing court may consider documents related to the prior conviction such as “judicial records, plea agreements, and colloquies between a judge and the defendant,” which are often referred to a Shepard documents. See Shepard v. United States, 544 U. S. 13 (2005). While a sentencing court may permissibly consider such documents to determine the “fact of a prior conviction and the then-­existing elements of that offense,” the Court noted that “a judge may not use information in Shepard documents to decide ‘what the defendant … actually d[id],’ or the ‘means’ or ‘manner’ in which he committed his offense in order to increase the punishment to which he might be exposed.” Quoting Mathis.

In this case, and contrary to arguments offered by the court-­appointed amicus curiae, the Court determined that the sentencing court far exceeded the bounds of this exception by determining the manner in which Erlinger’s prior offenses were committed. The Court ruled the sentencing court erred because courts “may not assume the jury’s factfinding function for themselves, let alone purport to perform it using a mere preponderance-­of-­the-­evidence standard.” Thus, the Court held that Erlinger’s ACCA-­enhanced sentence violated the Fifth and Sixth Amendments.

Conclusion

Accordingly, the Court reversed the Seventh Circuit’s decision affirming Erlinger’s sentence, vacated his sentence, and remanded the case for further proceedings consistent with its opinion. See: Erlinger v. United States, 2024 U.S. LEXIS 2715 (2024).  

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