Armed Career Criminal Act (ACCA) mandatory minimum sentence; 18 USC § 924(e)(1); The different-occasions requirement; Erlinger v United States; Whether the failure to submit the different-occasions question to a jury was harmless; United States v Campbell; Wooden v United States; United States v Kimbrough; United States v Cogdill

The court affirmed defendant-Durham’s mandatory minimum sentence under the ACCA, holding that the district court’s Erlinger error in failing to submit the issue whether his prior felonies “occurred on different occasions” to the jury was harmless. But it vacated defendant-Barnes’s sentence where it was a “closer” question, concluding similarities to Kimbrough and Cogdill precluded it “from finding that the Erlinger error was harmless.” Consistent with Sixth Circuit precedent at the time of sentencing, the district court applied the ACCA’s 15-year mandatory minimum sentences to both defendants after determining that they had three prior qualifying felonies. However, after the Supreme Court decided Erlinger, “a jury, not a judge, must determine whether crimes occurred on different occasions.” The court had to determine whether the error in each case was harmless under Campbell. Both defendants conceded that they had three prior felonies, but neither would concede that they occurred on different occasions. As to Durham, he had 10 burglary offenses, which the court divided “into four buckets: 1) four burglaries in [10/09]; 2) the burglary of two different homes on [10/19/10]; 3) a burglary on [12/15/10]; and 4) four burglaries between [1/4], and [1/28/11].” The question became “whether at least two of his 2010 and 2011 offenses occurred on different occasions.” The court concluded “it is beyond reasonable doubt that a jury would have found that at least two of the 2010 and 2011 offenses occurred on different occasions.” It found that his offenses were “more like those at issue in Campbell,” and that this case was distinguishable from Wooden, Kimbrough, and Cogdill. Turning to Barnes, the district court ruled that he was subject to § 924(e)(1) where he committed four first-degree robbery offenses on four different dates (three in 8/08 and one in 6/09). But the temporal and physical proximity of the 8/08 robberies left the court with doubts whether a jury would find that at least two of these robberies occurred on different occasions—the 8/08 offenses “are separated by less than a month, and the first two offenses occurred at the same location.” However, the 8/6 and 8/31 “offenses were separated by several weeks and more than ten miles.” The court noted the similarities between Barnes’s case and Kimbrough, where it vacated an ACCA sentence. It remanded Barnes’s case for further proceedings.