United States v. Butler

Case: 23-60594 Document: 76-1 Page: 1 Date Filed: 12/09/2024

United States Court of Appeals

for the Fifth Circuit

United States Court of Appeals

Fifth Circuit

No. 23-60594

FILED

December 9, 2024

United States of America, Lyle W. Cayce

Clerk

Plaintiff—Appellee,

versus

Betty Butler,

Defendant—Appellant.

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:22-CR-62-1

Before Elrod, Chief Judge, and Higginbotham and Southwick,

Circuit Judges.

Jennifer Walker Elrod, Chief Judge:

Appellant Betty Butler pleaded guilty to a single-count superseding

indictment that charged her with unlawfully possessing a gun after being

convicted of a felony, stemming from the execution of a DEA search warrant

at her home. At sentencing, and under our then-existing precedent, the

district court conducted a factual inquiry into Butler’s prior convictions and

determined that Butler had at least three convictions for prior serious drug

offenses that were committed on different occasions, which enhanced

Case: 23-60594 Document: 76-1 Page: 2 Date Filed: 12/09/2024

No. 23-60594

Butler’s sentence to a statutory minimum of 180 months in prison under the

Armed Career Criminal Act (“ACCA”).

Later, the Supreme Court decided Erlinger v. United States, 602 U.S.

821 (2024), which held that the Fifth and Sixth Amendments require a jury—

not a judge—to resolve the ACCA’s “different occasions” inquiry

unanimously and beyond a reasonable doubt. Id. at 835.

Butler now appeals her sentence and argues that it should be

overturned on the grounds that Erlinger has overturned our prior case law

and that a jury should have made the determination of whether her prior

offenses occurred on different occasions. The government does not disagree

that Erlinger requires a jury determination for the “different occasions”

inquiry but argues that the lack of a jury determination in this case is harmless

error and does not warrant overturning Butler’s conviction. We agree with

the government.

While we acknowledge that Erlinger vacated our prior precedent

authorizing the sentencing judge to conduct the ACCA “different

occasions” inquiry,1 any rational jury would have found beyond a reasonable

doubt that Butler committed her previous serious drug offenses on different

occasions based on the entire record. See United States v. Matthews, 312 F.3d

652, 665 (5th Cir. 2002); see also Neder v. United States, 527 U.S. 1, 18–19

(1999). Therefore, we AFFIRM Butler’s sentence and the district court’s

final judgment.

1

See, e.g., United States v. Valencia, 66 F.4th 1032, 1032–33 (5th Cir. 2023), cert.

granted, judgment vacated, 144 S. Ct. 2710 (2024).

2

Case: 23-60594 Document: 76-1 Page: 3 Date Filed: 12/09/2024

No. 23-60594

I

A

In December 2021, a little over a year after Butler was released from

post-release supervision for a previous drug offense incarceration, DEA and

Homeland Security agents executed a search warrant on her home. The

DEA had been investigating a potential drug trafficking organization since

2019, and during surveillance operations in late 2021, Butler’s home was

observed as a place used to store suspected drug currency. While executing

the search warrant, federal agents recovered a firearm and a small amount of

marijuana from Butler’s bedroom nightstand. Butler admitted to possessing

the firearm.

B

In June 2022, Butler was indicted and charged with being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The

government then brought a superseding indictment, alleging that Butler

qualified for sentencing enhancement under § 924(e)(1), the Armed Career

Criminal Act, because she had at least three previous convictions for serious

drug offenses committed on different occasions from one another. Butler

pleaded guilty to the superseding indictment. However, she did not admit

that her prior felony convictions qualified her as an armed career criminal

under § 924(e)(1).

Following her guilty plea, Butler moved for a jury determination as to

whether the underlying offenses for the predicate convictions for her alleged

armed career criminal status were committed on “separate occasions.”

Butler also filed written objections to the presentence report’s conclusion

that she qualified as an armed career criminal and was therefore subject to

the ACCA’s enhanced sentence.

3

Case: 23-60594 Document: 76-1 Page: 4 Date Filed: 12/09/2024

No. 23-60594

At sentencing, the district court acknowledged Butler’s objections to

the presentence report and heard her motion for a jury determination of her

armed career criminal status. Specifically, Butler argued that the Sixth

Amendment required a jury finding beyond a reasonable doubt that her prior

felony drug offenses occurred on separate occasions. Although the

government agreed that a jury determination was appropriate, it noted that

our precedent at the time did not require a jury to make such a finding.

Correctly relying upon our prevailing precedent that authorized a

district court to conduct the ACCA’s “different occasions” inquiry, and the

Shepard2 documents attached to the presentence report, the district court

found that Butler had committed four serious drug offenses on different

occasions from one another. In particular, the district court found that at

least three of Butler’s offenses occurred in different years, and it believed

that any rational juror would have concluded the same given the facts. The

district court adopted the entirety of the presentence report as its findings of

fact and sentenced Butler to an enhanced statutory minimum sentence of 180

months in prison under the ACCA, followed by four years of supervised

release. Butler timely appealed.

II

Butler now appeals her conviction on the ground that the district

court’s failure to allow a jury to determine the facts surrounding her prior

convictions for purposes of the ACCA sentencing enhancement was a

violation of her constitutional rights under Erlinger. Erlinger’s applicability

to Butler’s case is a question of law reviewed de novo. See United States v.

2

The district court reviewed the charging documents and judgments as to the

relevant convictions.

4

Case: 23-60594 Document: 76-1 Page: 5 Date Filed: 12/09/2024

No. 23-60594

Roussel, 705 F.3d 184, 201 (5th Cir. 2013); see also Matthews, 312 F.3d at 661;

United States v. Stone, 306 F.3d 241, 243 (5th Cir. 2002).

Under 18 U.S.C. § 922(g)(1), it is unlawful for a felon to possess a

firearm. At the time of Butler’s offense, the statutory maximum sentence for

a violation of § 922(g)(1) was 10 years’ imprisonment, or 120 months. See 18

U.S.C. § 924(a)(2) (2018 ed.).3 Pursuant to the ACCA, a defendant

convicted under § 922(g)(1) is subject to an enhanced punishment if she has

three or more prior convictions for violent felonies or serious drug offenses

“committed on occasions different from one another.” Id. § 924(e)(1). Such

a defendant’s sentencing range is increased to a mandatory minimum of 15

years’ imprisonment and a maximum of life imprisonment. Id.

A multi-factored inquiry must therefore be made into whether a

defendant’s underlying offenses for her previous predicate convictions—

violent felonies or serious drug offenses—occurred on a single occasion or

separate occasions for purposes of the ACCA enhancement. See Wooden v.

United States, 595 U.S. 360, 369 (2022). Until recently, we had long held that

the sentencing judge was authorized to make this factual inquiry into a

defendant’s past convictions. See, e.g., United States v. White, 465 F.3d 250,

254 (5th Cir. 2006); United States v. Davis, 487 F.3d 282, 287–88 (5th Cir.

2007).

In June 2024, the Supreme Court decided Erlinger v. United States,

and subsequently vacated the judgments in a trio of cases, which had all re-

3

In June 2022, less than three weeks after Butler was indicted, Congress passed

the Bipartisan Safer Communities Act, which increased the maximum penalty for a

violation of § 922(g)(1) from 10 years to 15 years’ imprisonment and moved the statutory

maximum provision to § 924(a)(8). See Bipartisan Safer Communities Act, Pub. L. No.

117-159, § 12004(c), 136 Stat. 1313, 1329 (2022); see also 18 U.S.C. § 924(a)(8). Section

924(a)(8)’s 15-year statutory maximum would not have applied to Butler, however,

because she was indicted before the statutory amendment.

5

Case: 23-60594 Document: 76-1 Page: 6 Date Filed: 12/09/2024

No. 23-60594

affirmed our holdings in White and Davis that the sentencing judge could

make the “different occasions” inquiry under the ACCA and remanded

them to our court.4 Erlinger held that the Fifth and Sixth Amendments

require a jury—not a judge—to resolve the ACCA’s “different occasions”

inquiry unanimously and beyond a reasonable doubt. 602 U.S. at 835. And

Butler’s case falls squarely under the Erlinger precedent. The district court

made the factual findings as to whether Butler’s prior serious drug offenses

occurred on different occasions, instead of a jury, as required by the

Constitution. As such, we hold that Erlinger applies and that the district

court erred in usurping the jury’s role.

We must now turn to whether the district court’s constitutional error

requires vacatur of Butler’s sentence and a remand for resentencing. The

government does not disagree that Butler should have been afforded a jury

determination of the “different occasions” inquiry but argues that a

harmless-error analysis nonetheless applies. Butler argues that the district

court’s conduct constitutes plain error and falls within the limited class of

constitutional errors that require automatic reversal. We agree with the

government.

Erlinger reinforces certain constitutional guardrails afforded to a

defendant subject to the sentencing enhancement under the ACCA, but the

Court did not address what standard of review should apply when those

guardrails are crossed. Both Chief Justice Roberts in his concurrence and

Justice Kavanaugh in his dissent emphasize that most constitutional errors,

4

See Valencia, 66 F.4th at 1032. cert. granted, judgment vacated, 144 S. Ct. 2710;

United States v. Washington, No. 22-10574, 2023 WL 5275013 (5th Cir. Aug. 16, 2023), cert.

granted, judgment vacated, 144 S. Ct. 2711 (2024); United States v. Kerstetter, 82 F.4th 437

(5th Cir. 2023), cert. granted, judgment vacated, No. 23-7478, 2024 WL 4426463 (U.S. Oct.

7, 2024).

6

Case: 23-60594 Document: 76-1 Page: 7 Date Filed: 12/09/2024

No. 23-60594

including violations of the Sixth Amendment, are generally subject to

harmless-error review. Erlinger, 602 U.S. at 850 (Roberts, C.J., concurring);

id. at 859–61 (Kavanaugh, J., dissenting) (first citing Washington v. Recuenco,

548 U.S. 212, 218 (2006); and then citing Neder, 527 U.S. at 18–19). And

Justice Kavanaugh would have held that the constitutional error was

harmless. Id. at 861 (Kavanaugh, J., dissenting). However, the Court’s

majority opinion was silent on this issue, and it remanded having only

decided that a jury must resolve the “ACCA’s occasions inquiry

unanimously and beyond a reasonable doubt . . . [and] no more than that.”

Id. at 835 (majority opinion).

Errors that “infringe upon the jury’s factfinding role” are generally

“subject to harmless-error analysis.” Neder, 527 U.S. at 18. This analysis is

also applicable when there is a “[f]ailure to submit a sentencing factor to the

jury.” Recuenco, 548 U.S. at 222. Moreover, as the majority opinion makes

clear, Erlinger is underpinned by the principles of Apprendi v. New Jersey, 530

U.S. 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013).5 So under

Erlinger, Butler has essentially established Apprendi and Alleyne error,

because the district court’s factual finding that her serious drug offenses

occurred on different occasions “had the effect of increasing both the

maximum and minimum sentences [she] faced.” Erlinger, 602 U.S. at 835

(emphasis in original). And we have long held that Apprendi errors are

subject to a harmless-error analysis. See United States v. Virgen-Moreno, 265

F.3d 276, 297 (5th Cir. 2001); see also United States v. Aguirre-Rivera, 8 F.4th

405, 412 (5th Cir. 2021) (applying harmless-error review when the district

5

Erlinger, 602 U.S. at 835 (“Really, this case is as nearly on all fours with Apprendi

and Alleyne as any we might imagine.”).

7

Case: 23-60594 Document: 76-1 Page: 8 Date Filed: 12/09/2024

No. 23-60594

court relied on an incorrect mandatory minimum sentence, which was based

on facts not found by a jury).

“An otherwise valid conviction will not be set aside if the reviewing

court may confidently say, on the whole record, that the constitutional error

was harmless beyond a reasonable doubt.” Matthews, 312 F.3d at 665

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)). In this context,

Butler’s sentence should be affirmed if, “[a]fter a careful review of the whole

record . . . any rational petit jury, when presented with a proper jury

instruction, would have found beyond a reasonable doubt” that her prior

serious drug offenses occurred on different occasions. Id.

Here, the record is straightforward. The parties do not dispute that

Butler was convicted of four serious drug offenses—as defined under the

ACCA—before her conviction under § 922(g)(1). Moreover, the record

clearly reflects that Butler’s four serious drug offenses were committed on

different occasions from one another.

Butler’s first predicate conviction arises out of her guilty plea for

working with Percy Butler on July 26, 1995, to sell cocaine to Barry Lowery.

Butler’s next predicate conviction is related to a separate sale of cocaine seven

months after the July 26, 1995 sale. Butler pleaded guilty to working with

Robby Vaughn on February 29, 1996, to sell cocaine to Marshand Crisler.6

Butler’s third predicate conviction is based on a May 21, 1996 violation of 21

U.S.C. § 841(a)(1), for which Butler pleaded guilty to possession of crack

cocaine base with intent to distribute. Nearly a decade later, Butler’s final

predicate conviction is based on a May 11, 2005 violation of Mississippi law,

6

While Butler’s first two predicate convictions for selling cocaine were entered on

the same day, April 11, 1997, the ACCA’s “occasions” inquiry looks at when the

underlying offenses were committed, not when the subsequent convictions were entered.

See 18 U.S.C. § 924(e)(1).

8

Case: 23-60594 Document: 76-1 Page: 9 Date Filed: 12/09/2024

No. 23-60594

for which Butler pleaded guilty to possessing more than a kilogram of

marijuana with intent to distribute.

At sentencing, the district court relied on the presentence report and

Shepard documents, which included judgments and indictments for the state

convictions and a judgment for the federal conviction. And while Butler

objected to several paragraphs of the presentence report related to her status

under the ACCA, she made no objection to the factual bases of her

underlying convictions.

Based on the record, which we have reviewed de novo, several things

become clear: Butler’s previous convictions span a range of months to several

years between offenses; Butler’s offenses involved different parties—

whether co-defendants or buyers; and three out of four of Butler’s

convictions involved different forms of illegal substances, i.e., powder

cocaine, crack cocaine, and marijuana. As such, any rational jury would have

found beyond a reasonable doubt that Butler’s serious drug offenses occurred

on different occasions. See Wooden, 595 U.S. at 369–70; Matthews, 312 F.3d

at 665.

III

In sum, we hold that the district court committed constitutional error

when it failed to allow a jury to determine whether Butler’s prior serious drug

offenses occurred on different occasions for ACCA purposes. However, that

error was harmless. Accordingly, we AFFIRM Butler’s sentence and the

district court’s final judgment.

9