Sentencing; Armed Career Criminal Act (ACCA) enhancement; 18 USC § 924(e)(1); The occasions-different element; Wooden v United States; Erlinger v United States; Whether Erlinger errors are “structural”; Harmless error review; United States v Campbell; Apprendi v New Jersey; Alleyne v United States; Whether the government satisfied its burden to show that its failure to submit the occasions-different question to the jury was harmless; Double jeopardy

On remand from the Supreme Court, the court affirmed defendant-Thomas’s ACCA sentence enhancement, following precedent holding that Erlinger errors are subject to harmlessness review and concluding that the government met “its burden to show that its failure to submit the occasions-different question to the jury was harmless.” A jury convicted Thomas of FIP. He argued that he could not be sentenced under the ACCA because he had not been indicted for it and the jury did not find “the essential fact—that he had three prior violent-felony convictions committed on different ‘occasions[.]’” The district court disagreed. Following Sixth Circuit precedent, it determined that he had the three necessary prior convictions, and imposed an enhanced 432-month sentence. The court previously affirmed. The Supreme Court later decided Erlinger, where it held that a jury must “find the three-occasions element of an ACCA conviction.” Thomas now claimed that “Erlinger is a form of structural error and requires automatic reversal.” The government conceded that the occasions-different element should have been charged in the indictment and a jury should have made the determination but argued that the errors here were harmless. The court explained that after briefing in this case, another panel of the court decided Campbell, in which it responded to the same arguments raised here and held that “Erlinger errors are subject to harmless-error review.” The court noted that Campbell was binding, and it also saw “no reason to disagree.” The court further concluded the government satisfied its burden to establish harmless error. “Based on a review of the Shepard documents described in the PSR, the district judge’s error of finding the occasions-different element by a preponderance of the evidence was harmless beyond a reasonable doubt.” Those documents provided “the necessary information to answer the occasions-different inquiry.” The court also rejected Thomas’s argument that double-jeopardy principles prevented the harmless-error conclusion under the circumstances. “Because Erlinger is an outgrowth of Apprendi, the conclusion that a jury must find the occasions-different element effectively confirms that § 922(g)(1) and § 924(e)(1) convictions are related, lesser and greater offenses, respectively. . . . [I]f the government proves both the lesser § 922(g)(1) offense and that the defendant committed three prior violent felonies on different occasions in § 924(e)(1), the defendant is guilty of the greater offense and the enhanced penalties.”