Sentencing; Enhanced mandatory minimum under the Armed Career Criminal Act (ACCA); 18 USC § 924(e)(1); “Different occasions” determination; Erlinger v United States; Whether the Erlinger error here was harmless; United States v Thomas; Structural error claim; United States v Campbell; Whether the ACCA enhancement implicated double jeopardy; Applicability of United States v Bell; Presentence Report (PSR)

In this previously unpublished opinion, the court affirmed defendant-Ballinger’s mandatory minimum sentence under the ACCA where the fact that he burglarized nine different unconnected victims, along with the large gap in time between offenses, showed that the Erlinger error here was harmless. He pled guilty to FIP in 2022. His 180-month sentence included the AACA’s mandatory minimum enhancement. The PSR contained a list of 22 prior felony convictions, of which 11 were burglaries. When Ballinger was sentenced, district court judges were permitted to determine whether the predicate offenses were committed on different occasions, and the district court judge did so here. But in 2024, the Supreme Court held in Erlinger that “whether predicate violent felonies were committed on different occasions ‘must be submitted to a jury and found unanimously and beyond a reasonable doubt.’” The court rejected Ballinger’s first argument, that applying the ACCA enhancement to his sentence constituted structural error, noting that it had “already decided that Erlinger errors are not structural.” He next asserted that his prior convictions could not constitute admissible evidence because Erlinger prohibited using Shepard documents when determining facts about prior offenses. The court disagreed, noting that in Thomas, it held that “Shepard documents may still be relied on to conduct a harmless error review in the different-occasions context.” The court noted that Ballinger provided no basis for the district court to question the accuracy of the list in the PSR, and the district court was entitled to rely on it. It also found no merit to his claim that the error was not harmless “because some juries have held that large gaps in time still constitute a single occasion. That argument misapprehends the nature of the analysis.” The court noted that it examines “the harmless error question through the objective lens of a reasonable jury. . . . This inquiry does not turn on the empirics of what a specific jury did in another case, but on what a reasonable jury would have done here.” Thus, it considered “whether a reasonable jury could have reasonable doubt that the three burglaries furthest from each other” – 2010, 1/4/16, and 10/17/16 – “took place on ‘occasions different from one another.’” The court held that “no reasonable jury could conclude that any two of these burglaries took place on the same occasion.” Finally, Ballinger’s argument that the enhancement violated he Double Jeopardy Clause failed where he could not establish plain error.