The Armed Career Criminal Act (ACCA); Whether the government constructively amended the indictment by failing to charge ACCA’s occasions-different element; Erlinger v United States; Forfeited argument; Plain-error review

Addressing a novel “argument that the government constructively amended the indictment by failing to charge ACCA’s occasions-different element[,]” the court held that defendant-Starling’s claim failed on the fourth prong of plain-error review – he did not show the “Erlinger error seriously affected the fairness, integrity, or reputation of” the proceedings. He was convicted of FIP. On appeal, in addition to raising an issue related to Tennessee law, he raised “two Erlinger arguments.” One was “a garden-variety argument” about the requirement that a “jury had to unanimously find ACCA’s occasions-different element fulfilled beyond a reasonable doubt.” But he waived his jury trial right, “and the district court found the element beyond a reasonable doubt at the bench trial. So the real dispute” centered on his constructive-amendment Erlinger argument. The court applied plain-error review because he failed “to timely raise his argument before the district court.” Applying that standard, it found that his claim failed on the fourth prong for two reasons. First, the evidence that his “previous offenses took place on separate occasions ‘was overwhelming and essentially uncontroverted.’ The three convictions—from 2003, 2006, and 2011—were too far apart in time to avoid the conclusion that they occurred on separate occasions.” In addition, he “was on notice that ACCA was part of the case from his initial appearance onward. He didn’t ignore the magistrate judge’s warning at that hearing, either. In his motion to dismiss his indictment (on other grounds), Starling acknowledged that he ‘has three prior felony convictions that appear to enhance his mandatory minimum sentence.’” Further, in his trial brief, he “acknowledged that ‘[t]he government believes that [he] is an Armed Career Criminal for purposes of sentencing.’” The court held that was enough under its “constructive-amendment caselaw.” Affirmed.