Erlinger v. United States, USSC No. 23-370, June 21, 2024, vacating United States v. Erlinger, 77 F.4th 617 (7th Cir. 2023); Scotusblog page (with links to briefs and commentary)
Whether offenses committed on three “occasions different from one another” for purposes of federal Armed Career Criminal Act must be found by a jury beyond a reasonable doubt.
The Supreme Court’s 2000 holding in Apprendi v. New Jersey, 530 U.S. 466, was a watershed in constitutional criminal procedure: except for the fact of a prior conviction, the Fifth and Sixth Amendments require a jury to determine beyond a reasonable doubt any fact that increases the penalty for a crime beyond the prescribed maximum. The principle was applied to strike down mandatory state and federal sentencing guidelines, see Blakely v. Washington, 542 U.S. 296 (2004), United States v. Booker, 543 U.S. 220 (2005); and in Alleyene v. United States, 570 U.S. 99 (2013), the Court required that any fact that increases a minimum sentence must be found by a jury beyond a reasonable doubt.
Still, the Court has not deviated from its exception for the fact of a prior conviction, which it permitted a judge to determine in Almendarez-Torres v. United States, 523 U.S. 224 (1998). But Erlinger further narrows Almendarez-Torres by requiring a jury to decide if a defendant’s prior offenses occurred on “different occasions” under the federal Armed Career Criminal Act (ACCA).
Paul Erlinger was charged by the federal government with possessing a firearm after he was convicted of a felony. Ordinarily, the offense does not carry a mandatory minimum sentence and imposed a maximum sentence of 10 years when Erlinger was charged in 2017. But the government alleged that he was subject to ACCA, 18 U.S.C. § 924(e), which requires a mandatory minimum sentence of 15 years and a maximum sentence of life for a person convicted of possessing a firearm as a felon if the person has three prior convictions for “a violent felony or serious drug offense . . . committed on occasions different from one another.”
Erlinger conceded his four prior burglary convictions qualified as violent felonies, but argued that the offenses did not occur on different occasions. His request for a jury trial to determine whether the burglaries occurred on different occasions was denied by the district court, and the court determined the offenses occurred on different occasions and sentenced Erlinger to 15 years in prison.
In an idiosyncratic split (Majority: Gorsuch, Roberts, Thomas, Sotomayor, Kagan, and Barret; Dissent: Kavanaugh, Alito, Jackson), the Court held that the Fifth and Sixth Amendments require a jury to find beyond a reasonable doubt whether the prior offenses occurred “on occasions different from one another.” (Slip op. at 12). Considering that the district court’s factual finding that Erlinger’s offenses occurred on at least three separate occasions had increased both the maximum and minimum sentences, the Court concluded, “this case is as nearly on all fours with Apprendi and Alleyne as any we might imagine.” (Slip op. at 11).
The Court considered Almendarez-Torres “a narrow exception” permitting judges to find only the fact of a prior conviction, while determining whether a defendant’s prior convictions trigger ACCA’s enhanced penalties required the district court “to do more than identify his previous convictions and the legal elements required to sustain them. It had to find that those offenses occurred on at least three separate occasions. And in doing so, the court did more than Almendarez-Torres allows.” (Slip op. at 15).
In Wisconsin, the maximum sentence for any offense for which imprisonment may be imposed is increased if the defendant was “convicted of a felony during the 5-year period immediately preceding the commission of the crime for which the actor presently is being sentenced, or if the actor was convicted of a misdemeanor on 3 separate occasions during that same period.” Wis. Stat. § 939.62(2). Wisconsin’s habitual criminality statute is therefore distinct from ACCA because Wisconsin refers to convictions occurring on 3 separate occasions, while ACCA refers to offenses committed on separate occasions. The Wisconsin Supreme Court held in State v. Hopkins, 484 N.W.2d 549 (1992), that each conviction for a misdemeanor constitutes a “separate occasion”: “Thus, all that is required by the statute is that a defendant be convicted of three misdemeanors within the five-year period.” Determining whether a defendant was convicted of a misdemeanor on 3 separate occasions during the preceding five years likely remains within a court’s purview under the Almendarez-Torres exception for allowing a judge to find the fact of a prior conviction that increases the maximum sentence.
