Enhanced sentence under the Armed Career Criminal Act (ACCA); 18 USC § 924(e)(1); Whether the error of having the judge determine whether defendant committed three prior drug offenses “on occasions different from one another” was harmless; Erlinger v United States; United States v Campbell; Wooden v United States

On remand from the Supreme Court, the court held that the district court’s enhancement of defendant-Cogdill’s sentence under the ACCA did not constitute “harmless error” under Erlinger, which requires that the jury, not the judge, determine whether a defendant’s three prior drug convictions occurred on “different occasions.” Cogdill pled guilty to FIP. The district court enhanced his sentence under the ACCA after determining that he had committed three prior drug offenses “on occasions different from one another.” This increased his statutory penalty range from a maximum of 10 years to a minimum of 15 years. It also increased his effective Guidelines range from 10 years to a range of 15 to 17.5 years. The district court sentenced him to a 15-year mandatory minimum term. The court previously affirmed. While Cogdill’s certiorari petition was pending, the Supreme Court decided Erlinger, holding “that the Sixth Amendment requires a jury to decide whether past offenses were committed on different occasions for ACCA purposes.” It then vacated the court’s decision and remanded for reconsideration in light of Erlinger. Finding that the main issue was “whether the district court’s error was harmless[,]” the court held that under its precedent in Campbell, the government had to prove beyond a reasonable doubt that, “absent the error, any reasonable jury would have found that Cogdill committed the prior offenses on different occasions.” The focus in this case was “on whether any rational jury would have found that” Cogdill’s 6/14 and 9/14 Tennessee meth offenses, both of which he pled guilty to in 1/16, “were committed on occasions different from one another.” The court determined that it could not “‘confidently say, based on the whole record, that the government has shown that the constitutional error at issue here was harmless beyond a reasonable doubt.’” In light of “the scant evidence of Cogdill’s prior offenses and how they fare under the relevant factors, a rational jury could reasonably conclude that [he] committed his latter two offenses ‘during a single criminal episode.’” The Supreme Court clearly held in Erlinger that “‘no particular lapse of time . . . automatically separates a single occasion from distinct ones[.]’” Erlinger and Wooden “make clear that the prior offenses’ timing, proximity, and relationship with one another all bear on whether they were committed on the same or different occasions.” Whether the government could meet its burden of proving harmlessness depended on whether it could “prove beyond a reasonable doubt that Wooden’s factors (not just one) favor different occasions.” It did not. The court vacated Cogdill’s sentence and remanded.