United States v. Sergio Antonio Hood

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 21-13903

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

SERGIO ANTONIO HOOD,

Defendant-Appellant.

____________________

Appeal from the United States District Court

for the Middle District of Florida

D.C. Docket No. 8:20-cr-00383-CEH-AEP-1

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2 Opinion of the Court 21-13903

____________________

Before LUCK, LAGOA, and WILSON, Circuit Judges.

PER CURIAM:

This case returns to us on remand from the Supreme Court.

Sergio Hood appeals his convictions and total 262-month sentence

for possession of ammunition by a felon, obstruction of justice, and

tampering with a witness. He argues that the district court’s deter-

minations related to his prior convictions were error and, ulti-

mately, that his conviction and sentence are unconstitutional. In

our previous panel opinion, we affirmed Hood’s convictions and

sentence. United States v. Hood, No. 21-13903, 2024 WL 714131, at

*1 (11th Cir. Feb. 21, 2024). Hood petitioned for a writ of certiorari,

which the Supreme Court granted in light of its intervening deci-

sion in Erlinger v. United States, 602 U.S. 821 (2024). See Hood v.

United States, No. 23-7504, 2024 WL 4426468, at *1 (U.S. Oct. 7,

2024). We now reconsider Hood’s appeal with the benefit of the

Supreme Court’s guidance in Erlinger. After careful review, we af-

firm Hood’s conviction, vacate his sentence under Erlinger, and re-

mand for resentencing.

I. FACTUAL & PROCEDURAL BACKGROUND1

A federal grand jury returned a three-count indictment

against Hood, charging him with: possession of ammunition by a

1 We present the facts and procedural history as we recounted them in our

previous panel opinion.

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21-13903 Opinion of the Court 3

felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Count

One); obstruction of justice, in violation of 18 U.S.C. §§ 1503 and 2

(Count Two); and tampering with a witness, in violation of 18

U.S.C. §§ 1512(b)(2) and 2 (Count Three). As support for Count

One, the indictment listed Hood’s prior federal convictions for pos-

session of firearms as a felon and distribution of controlled sub-

stances, as well as his prior Florida state conviction for lewd or las-

civious battery.

Prior to trial, the government filed a motion in limine to ad-

mit evidence related to Hood’s prior federal gun convictions to

support the felon in possession charge. Specifically, the govern-

ment sought to admit, among other things, certified records of

Hood’s prior conviction for two counts of possession of a firearm

by a felon, in violation of 18 U.S.C. § 922(g), to prove his felon sta-

tus, and a copy of the same records, signed by Hood, to prove that

he knew of his status. The government argued that, even if Hood

stipulated to his prohibited-person status, the evidence was still ad-

missible under Federal Rule of Evidence 404(b). It noted that,

while the Supreme Court held in Old Chief v. United States, 519 U.S.

172 (1997) that a defendant must be permitted to stipulate to the

prior offense without identifying the nature of the underlying of-

fense when the sole purpose of the evidence is to prove the element

of prior conviction, Rule 404(b) guarantees the opportunity to seek

admission of prior conviction evidence with multiple utility. The

government asserted that the prior conviction evidence was admis-

sible because it was relevant to an issue other than Hood’s charac-

ter, the records could prove that he committed the acts, and the

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4 Opinion of the Court 21-13903

significant probative value was not outweighed by undue preju-

dice.

Hood opposed the admission of this evidence. He argued

that the probative value of the evidence was substantially out-

weighed by its unfair prejudice and that the admission would have

a substantial and injurious effect on the jury verdict, such that this

evidence needed to be excluded under Federal Rule of Evidence

403.

The district court held a hearing on the motion. The court

determined that the evidence was admissible for the purpose ar-

gued by the government and that Rehaif v. United States, 588 U.S.

225 (2019) “add[ed] the distinct requirement . . . of establishing

[Hood’s] knowledge.” Noting that this Circuit had affirmed the

admission of prior gun‑related convictions to prove the knowledge

element, the district court determined that the evidence was ad-

missible at trial with specific redactions and a limiting jury instruc-

tion.

Hood proceeded to trial. During jury selection, the court

determined that the nature of Hood’s prior felony conviction for

lewd and lascivious battery was inadmissible but followed its pre-

trial ruling regarding his prior gun-related convictions. The court

read Count One to the prospective jurors, stating that Hood,

“knowing that he had previously been convicted in a court of a

crime punishable by imprisonment for a term exceeding one year

including possession of firearms as a convicted felon and distribu-

tion of controlled substances . . . did knowingly possess . . .

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ammunition.” During voir dire, the government asked jurors if

they could follow the court’s limiting instructions as to the prior

convictions evidence and consider the evidence only for its proper

purpose. One prospective juror stated that it might affect their

judgment but agreed that they would probably be able to over-

come the prejudice during deliberations. Multiple other prospec-

tive jurors stated that the knowledge that Hood was previously

convicted of a crime involving firearms would make them more

likely to believe that he would commit another firearm crime.

The government stated its intention to introduce Hood’s

prior firearm possession and drug distribution convictions as im-

peachment evidence against Hood, should he testify. Hood then

testified on his own behalf. Factually, he denied possessing a gun

and stated that he was at his brother’s house watching sports when

the alleged shooting occurred. However, cell phone records

showed that Hood left his brother’s home before the shooting oc-

curred. As to his felon status, Hood testified that he had been con-

victed of two gun charges and three drug charges. He stated, “I

have nothing illegal, no guns, no drugs, no nothing. I’m already

on probation for that so I know I’m prohibited of having those

things.” Testimony from Hood’s U.S. Probation Officer and certi-

fied records of Hood’s convictions admitted into evidence con-

firmed that, at the time of the shooting, Hood was on supervised

release for two counts of possession of a firearm by a felon.

Tampa Police Department Detective Daniel Romonosky

testified that, following the incident, Hood was arrested and held

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in state custody for about a year, until he was transferred to federal

custody for his supervised release revocation hearing. He testified

that, while in custody, Hood called his brother multiple times, us-

ing different inmates’ pin numbers, to discuss his alibi that they had

been together at the time of the shooting. Before jury delibera-

tions, the district court instructed the jury:

During the trial, you heard evidence of acts allegedly

done by the Defendant on other occasions that may

be similar to acts with which the Defendant is cur-

rently charged. You must not consider any of this ev-

idence to decide whether the Defendant engaged in

the activity alleged in the indictment. This evidence

is admitted and may be considered by you in deter-

mining whether the Defendant had the state of mind

or intent necessary to commit the crime charged in

the indictment and whether the Defendant had a mo-

tive or the opportunity to commit the acts charged in

the indictment.

At the end of the six-day trial, the jury found Hood guilty on

all three counts. The U.S. Probation Office generated Hood’s

presentence investigation report (“PSI”). The PSI grouped Counts

Two and Three in accordance with U.S.S.G. § 3D1.2(a), then

grouped Counts Two and Three with Count One in accordance

with § 3D1.2(c). The PSI calculated an offense level of 20 in accord-

ance with U.S.S.G. § 2K2.1(a)(4)(A), based on the determination

that Hood was previously convicted of three counts of distribution

of methylenedioxymethamphetamine (“MDMA”), a controlled

substance offense. Probation then applied: (1) a four-level

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enhancement, under § 2K2.1(b)(6)(B), because Hood possessed

ammunition in connection with another felony offense2; and (2) a

two-level adjustment, under U.S.S.G. § 3C1.1, for obstruction of

justice. The resulting adjusted offense level was 26.

Additionally, the PSI determined that Hood qualified as an

armed career criminal under U.S.S.G. § 4B1.4 because he had at

least three prior convictions for a violent felony or serious drug of-

fense, committed on occasions different from one another. This

classification was based on Hood’s convictions for: (1) distribution

of MDMA on March 1, 2011, in violation of 21 U.S.C. § 841(a)(1)

and (b)(1)(C); (2) distribution of MDMA on March 2, 2011, in vio-

lation of § 841(a)(1) and (b)(1)(C); and (3) distribution of MDMA on

June 21, 2011, in violation of §§ 841(a)(1), (b)(1)(C) and 2. The PSI

determined that the application of the armed career criminal en-

hancement resulted in a total offense level of 34 because Hood pos-

sessed ammunition in connection with aggravated assault with a

deadly weapon, a crime of violence.

The PSI then detailed Hood’s criminal history. It listed

Hood’s prior convictions, which included petit theft, lewd and las-

civious battery, distribution of MDMA, possession of a firearm by

2 Hood was charged in Hillsborough County Circuit Court with aggravated

assault with a deadly weapon (Count 1) and shooting at or within a vehicle

(Count 2) for the offense conduct in this case. But Count 1 was dismissed, and

Count 2 was pleaded down to a lesser included offense of trespass in an occu-

pied structure. References throughout the PSI to the offense conduct being in

connection with “another felony offense” or “crime of violence” refer to these

charges.

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a felon, and trespass. Based on his convictions, the PSI calculated

an initial criminal history score of six but added two points, see

U.S.S.G. § 4A1.1(d), because Hood committed the instant offense

while on supervised release. A total criminal history score of eight

yielded a criminal history category of IV. However, the PSI as-

signed a criminal history category of VI under § 4B1.4(c)(2) because

of Hood’s armed career criminal status and because he possessed

the ammunition in connection with a crime of violence. Hood’s

total offense level of 34 and a criminal history category VI yielded

a guideline range of 262 to 327 months’ imprisonment.

In his objections to the PSI, Hood objected, in relevant part,

to the application of the Armed Career Criminal Act (“ACCA”), 18

U.S.C. § 924(e). Specifically, he argued that the imposition violated

the Fifth and Sixth Amendments because the requirements were

not charged in the indictment nor proven to a jury beyond a rea-

sonable doubt. He also objected to the PSI’s reliance on non-Shep-

ard 3 approved documents. Hood also objected to the classification

of his prior convictions under 18 U.S.C. § 2 as ACCA predicate “se-

rious drug offense[s]” because § 2 offenses are not included in the

statutory definition. He objected to the classification of his predi-

cate conviction, which consisted of three separate counts, as being

three predicate offenses “committed on occasions different from

3 Shepard v. United States, 544 U.S. 13, 26 (2005) (referring to “the terms of the

charging document, the terms of a plea agreement or transcript of colloquy

between judge and defendant in which the factual basis for the plea was con-

firmed by the defendant, or to some comparable judicial record of this infor-

mation”).

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one another,” arguing that the determination erroneously relied on

non-elemental facts. Finally, he challenged the ACCA’s “occasions

clause” as void for vagueness.

The government filed a sentencing memorandum in re-

sponse to Hood’s objections and in support of its sentencing rec-

ommendation. In relevant part, the government contended that

the ACCA need not be set forth in the indictment nor proved be-

yond a reasonable doubt because it is a sentencing enhancement

provision, not a distinct offense. Next, it argued that Hood’s prior

convictions were supported by the Shepard-permissible indictment,

plea colloquy, and undisputed facts from the PSI from his prior fed-

eral case. Third, the government argued that Hood’s § 2 argument

was a misunderstanding of his prior convictions, as § 2 does not

define a crime and Hood was principally liable for all three counts.

Fourth, responding to Hood’s “occasions clause” argument, the

government contended that Hood’s prior convictions were all tem-

porally distinct, i.e., successive rather than simultaneous, and thus

committed on different occasions. Finally, the government argued

that the application of the ACCA in Hood’s case did not violate the

Fifth or Sixth Amendments. To support its contentions, the gov-

ernment submitted alongside its memorandum: (1) the certified

judgment; (2) the transcript of the guilty plea hearing; (3) the tran-

script of the sentencing hearing; and (4) the indictment from

Hood’s prior convictions for three counts of distribution of

MDMA.

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Hood then filed a sentencing memorandum, in which he

briefly reasserted his arguments that he should not be classified as

an armed career criminal, and that his sentence should be limited

accordingly.

The district court addressed Hood’s objections at sentenc-

ing. The district court overruled Hood’s objection arguing that the

government needed to allege the ACCA violations in the indict-

ment, finding that this Court’s precedent did not require such.

The court then determined that Hood’s prior convictions were

supported by Shepard-approved documents, and relying on these

documents, determined that Hood’s prior convictions were three

separate, temporally distinct offenses that qualified Hood as an

armed career criminal under the ACCA. The court next overruled

Hood’s § 2 objection to the ACCA, determining that, although

Hood pleaded guilty to aiding and abetting in addition to his drug

distribution charges, this did not disqualify the convictions as

ACCA predicates. The court then overruled Hood’s Fifth and Sixth

Amendment objections because this Court’s caselaw foreclosed the

arguments.

The district court imposed a total sentence of 262 months’

imprisonment, consisting of 262 months on Count 1, 120 months

on Count 2, and 240 months on Count 3, to run concurrently, and

a five‑year term of supervised release. This appeal ensued.

II. DISCUSSION

On appeal, Hood argues that: (1) the district court erred in

admitting evidence of his prior felon-in-possession convictions at

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trial; (2) 18 U.S.C. § 922(g)(1) violates the Commerce Clause, both

facially and as applied; (3) his sentence should be vacated and re-

manded in light of the Supreme Court’s decision in Wooden v.

United States, 595 U.S. 360 (2022), and because the ACCA sentenc-

ing enhancement violates the Fifth and Sixth Amendments since

the “occasions different” requirement was neither charged in the

indictment, nor found by the jury; and (4) the district court erred

in determining that Hood’s convictions under 18 U.S.C. § 2 quali-

fied as “serious drug offenses” because it is not among the statutes

listed in the ACCA’s definition. We address these arguments in

turn.

A. The Admission of Hood’s Prior Convictions

We review the admission of evidence under Federal Rule of

Evidence 404(b) for abuse of discretion. United States v. Culver, 598

F.3d 740, 747 (11th Cir. 2010). “If a reviewing court finds that a

district court has abused its discretion in admitting evidence in vi-

olation of Rule 404(b), then its decision to uphold the conviction is

properly reviewed under a harmless error standard.” United States

v. Hubert, 138 F.3d 912, 914 (11th Cir. 1998). Under that standard,

“[r]eversal is warranted ‘only if [the error] resulted in actual preju-

dice because it had substantial and injurious effect or influence in

determining the jury’s verdict.’” United States v. Phaknikone, 605

F.3d 1099, 1109 (11th Cir. 2010) (second alteration in original)

(quoting United States v. Guzman, 167 F.3d 1350, 1353 (11th Cir.

1999)). “Overwhelming evidence of guilt is one factor that may be

considered in finding harmless error.” Id. (quoting Guzman, 167

F.3d at 1353).

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Rule 404(b) prohibits the introduction of evidence of “a

crime, wrong, or other act” to “prove a person’s character in order

to show that on a particular occasion the person acted in accord-

ance with the character.” It does, however, allow such evidence

for other purposes, “such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack

of accident.” Fed. R. Evid. 404(b)(2). “Rule 404(b) is a rule of in-

clusion, and accordingly 404(b) evidence, like other relevant evi-

dence, should not be lightly excluded when it is central to the pros-

ecution’s case.” United States v. Kapordelis, 569 F.3d 1291, 1313 (11th

Cir. 2009) (alteration adopted) (quoting United States v. Jernigan, 341

F.3d 1273, 1280 (11th Cir. 2003), abrogated in part on other grounds by

Rehaif v. United States, 588 U.S. 225 (2019)).

We recognize a three-part test to determine whether evi-

dence is admissible under Rule 404(b): (1) the evidence must be rel-

evant to an issue other than the defendant’s character; (2) there

must be sufficient proof that a jury could find by a preponderance

of the evidence that the defendant committed the act; and (3) the

probative value of the evidence must not be substantially out-

weighed by undue prejudice, as established in Federal Rule of Evi-

dence 403. United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir.

2007).

The first prong of the Rule 404(b) test can be satisfied “where

the state of mind required for the charged and extrinsic offenses is

the same.” Id. at 1345. “[B]y pleading not guilty, [a defendant]

place[s] th[e] [knowledge] element of the § 922(g) offense in issue.”

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Jernigan, 341 F.3d at 1281 n.7. This Court has held that a prior con-

viction in which the defendant possessed a gun provides a “logical

connection between a convicted felon’s knowing possession of a

firearm at one time and his knowledge that a firearm is present at

a subsequent time (or, put differently, that his possession at the

subsequent time is not mistaken or accidental).” Id. at 1281 (stating

that a defendant’s prior offenses involving the knowing possession

of a firearm “plainly bore” on the defendant’s knowledge that the

gun was present in the charged instance).

The third prong of the Rule 404(b) test consists of balancing,

under Rule 403, the probative value of the evidence against its prej-

udicial effect and requires the court to conduct the Rule 403 inquiry

based “upon the circumstances of the extrinsic offense.” Edouard,

485 F.3d at 1345 (quoting United States v. Dorsey, 819 F.2d 1055, 1059

(11th Cir. 1987)). Rule 403 is an extraordinary remedy that courts

should employ “only sparingly since it permits the trial court to ex-

clude concededly probative evidence.” United States v. Smith, 459

F.3d 1276, 1295 (11th Cir. 2006) (quoting United States v. Norton, 867

F.2d 1354, 1361 (11th Cir. 1989)). Accordingly, we view the dis-

puted evidence “in a light most favorable to its admission, maxim-

izing its probative value and minimizing its undue prejudicial im-

pact.” Id. (quoting United States v. Elkins, 885 F.2d 775, 784 (11th

Cir. 1989)).

The risk of undue prejudice can be reduced by an appropri-

ate limiting instruction. United States v. Ramirez, 426 F.3d 1344,

1354 (11th Cir. 2005); see, e.g., United States v. Diaz-Lizaraza, 981

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F.2d 1216, 1225 (11th Cir. 1993) (noting that, where the district

court issued a limiting instruction both at the presentation of the

evidence and in its final charge to the jury, “any unfair prejudice

possibly caused by its introduction was mitigated”). Indeed, a dis-

trict court’s reticence and careful efforts “to preclude the admission

of certain especially prejudicial aspects of” a prior conviction

through limiting instructions are significant. See Jernigan, 341 F.3d

at 1282.

Section 922(g) governs offenses for unlawful possession of a

firearm and ammunition and “entails three distinct elements: (1)

that the defendant was a convicted felon; (2) that the defendant was

in knowing possession of a firearm; and (3) that the firearm was in

or affecting interstate commerce.” Id. at 1279; § 922(g)(1). The

Supreme Court has held that, in a prosecution under §§ 922(g) and

924(a)(2), the government “must prove both that the defendant

knew he possessed a firearm and that he knew he belonged to the

relevant category of persons barred from possessing a firearm.” Re-

haif, 588 U.S. at 237.

In the § 922(g) context, the Supreme Court has held that “ev-

idence of the name or nature of the prior offense generally carries

a risk of unfair prejudice to the defendant.” Old Chief, 519 U.S. at

174–77, 185, 191. However, when proffered evidence “has the dual

nature of legitimate evidence of an element and illegitimate evi-

dence of character,” the court must determine “whether the dan-

ger of undue prejudice outweighs the probative value of the

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evidence in view of the availability of other means of proof.” Id. at

184.

Hood argues that the district court committed fundamental

and harmful error when, at trial, it granted the government’s mo-

tion to admit evidence of his prior convictions under a Rule 404(b)

exception to show that Hood had “knowledge” of his prohibited

person status. He argues that the district court incorrectly deter-

mined that Rehaif established a requirement for the court to allow

evidence that the defendant knew of his prohibited person status

or that he was prohibited from possessing the firearms, even when

the defendant stipulated to that issue. Hood contends that, because

he did not dispute knowledge of his status, the element was not at

issue in his case, and thus his prior crimes were unnecessary and

only showed propensity. He also asserts that the court failed to

follow Old Chief and should have allowed him to stipulate to his

prohibited status in exchange for prohibiting the admission of the

evidence. He contends that the district court’s limiting instruction

to the jury could not cure undue prejudice. And he asserts that any

probative value of the evidence was substantially outweighed by

unfair prejudice.

Here, the district court did not abuse its discretion in allow-

ing Hood’s prior convictions into evidence because they were rel-

evant to show his knowledge about Count One. By pleading not

guilty to the charges, Hood made knowledge of possession of am-

munition an issue in the case, regardless of his alibi defense and

testimony that he was not present at the shooting. See Jernigan, 341

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F.3d at 1281 & n.7. As for Hood’s reliance on Old Chief, the Su-

preme Court held that the district court abused its discretion by

admitting a prior conviction record for the sole purpose of estab-

lishing that the defendant was a convicted felon in order to satisfy

the prior conviction element of § 922(g)(1), despite the defendant’s

stipulation as to the conviction. See 519 U.S. at 174. Here, how-

ever, Hood’s prior convictions were admitted for a separate evi-

dentiary purpose, and Old Chief thus does not preclude their admis-

sion. Id. Similarly, because the government’s burden to prove that

Hood knew that he belonged to a category of persons prohibited

from possessing a firearm is separate from its burden to prove that

he knowingly possessed a firearm, his stipulation to the former

does not bar the government’s introduction of evidence intended

to satisfy the latter requirement. See Rehaif, 588 U.S. at 237; Jerni-

gan, 341 F.3d at 1279.

The prior convictions’ probative value was also not “sub-

stantially outweighed” by their prejudicial effect. Any risk of unfair

prejudice to Hood was minimal due to the district court’s careful

efforts to redact the conviction records, and any undue prejudice

that resulted from the district court’s allowance of the prior con-

victions was mitigated by the three limiting instructions that it gave

to the jury. Accordingly, we affirm as to this issue.

B. The Constitutionality of 18 U.S.C. § 922(g)(1)

For the first time on appeal, Hood argues that his conviction

must be vacated because § 922(g)(1) is unconstitutional, both fa-

cially and as applied, for exceeding congressional authority under

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21-13903 Opinion of the Court 17

the Commerce Clause. He contends that Congress is not permit-

ted to criminalize the intrastate possession of ammunition simply

because the ammunition crossed state lines at some time. Hood,

however, acknowledges that his arguments here are foreclosed by

this Court’s precedent, although he criticizes that precedent as be-

ing based on a statutory interpretation decision that used a stand-

ard well below the contemporary substantial effects test in United

States v. Lopez, 514 U.S. 549 (1995).

Generally, we review the constitutionality of a statute de

novo, as it is a question of law. United States v. Wright, 607 F.3d 708,

715 (11th Cir. 2010). But if the issue is raised for the first time on

appeal, we review for plain error only. Id. Plain error occurs only

if (1) there was error, (2) it was plain, (3) it affected the defendant’s

substantial rights, and (4) it seriously affected the “fairness, integ-

rity, or public reputation of judicial proceedings.” Id. (quoting

United States v. Jones, 289 F.3d 1260, 1265 (11th Cir. 2002)). Addi-

tionally, the prior-precedent rule requires us to follow a prior bind-

ing precedent unless it is overruled by this Court en banc or by the

Supreme Court. United States v. White, 837 F.3d 1225, 1228 (11th

Cir. 2016). “To constitute an ‘overruling’ for the purposes of this

prior panel precedent rule, the Supreme Court decision must be

‘clearly on point.’” United States v. Kaley, 579 F.3d 1246, 1255 (11th

Cir. 2009) (quoting Garrett v. Univ. of Ala. at Birmingham Bd. of Trs.,

344 F.3d 1288, 1292 (11th Cir. 2003)).

“We have clearly held that § 922(g) is constitutional under

the Commerce Clause.” United States v. Longoria, 874 F.3d 1278,

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18 Opinion of the Court 21-13903

1283 (11th Cir. 2017). We have also rejected as-applied challenges

to § 922(g), holding that the government proves a “minimal nexus”

to interstate commerce where it demonstrates that the firearms

were manufactured outside of the state where the offense took

place and, thus, necessarily traveled in interstate commerce. See

Wright, 607 F.3d at 715–16. And we have specifically rejected con-

stitutional challenges to § 922(g) under Lopez, concluding that

“[n]othing in Lopez suggest[ed] that the ‘minimal nexus’ test should

be changed.” United States v. McAllister, 77 F.3d 387, 390 (11th Cir.

1996).

Here, because Hood did not object on these grounds below,

we review only for plain error. The district court did not plainly

err in convicting Hood under § 922(g) because we have upheld the

constitutionality of § 922(g) against both facial and as applied chal-

lenges under the Commerce Clause, as Hood argues here. Thus,

Hood’s challenge to the constitutionality of § 922(g) is foreclosed

by the prior-precedent rule, and we affirm as to this issue.

C. The Constitutionality of Hood’s Sentence

We review constitutional challenges to a sentence de novo.

Longoria, 874 F.3d at 1281.

As an initial matter, we reject Hood’s argument that the

ACCA’s occasions clause is void for vagueness under the Due Pro-

cess Clause of the Fifth Amendment. “To overcome a vagueness

challenge, statutes must ‘give the person of ordinary intelligence a

reasonable opportunity to know what is prohibited, so that he may

act accordingly,’ and ‘must provide explicit standards for those

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who apply them.’” Leib v. Hillsborough Cnty. Pub. Transp. Comm’n,

558 F.3d 1301, 1310 (11th Cir. 2009) (quoting Grayned v. City of Rock-

ford, 408 U.S. 104, 108 (1972)). The plain language of the ACCA’s

occasions clause gives persons of ordinary intelligence fair notice

that committing qualifying offenses on different occasions will re-

sult in the sentencing enhancement, and it permits non‑arbitrary

enforcement. Therefore, the occasions clause is not unconstitu-

tionally vague.

Turning to the Erlinger issue, under the Fifth and Sixth

Amendments, “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statu-

tory maximum must be submitted to a jury, and proved beyond a

reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

The ACCA states:

In the case of a person who violates section 922(g) of

this title and has three previous convictions by any

court referred to in section 922(g)(1) of this title for a

violent felony or a serious drug offense, or both, com-

mitted on occasions different from one another, such

person shall be fined under this title and imprisoned

not less than fifteen years.

18 U.S.C. § 924(e)(1). This provision “kicks in only if (1) a § 922(g)

offender has previously been convicted of three [predicate felony

offenses], and (2) those three felonies were committed on ‘occa-

sions different from one another.’” Wooden, 595 U.S. at 368 (quot-

ing § 924(e)).

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20 Opinion of the Court 21-13903

The Supreme Court addressed the correct approach for de-

termining whether a state conviction qualifies as a predicate ACCA

violent felony in Descamps v. United States, 570 U.S. 254, 270 (2013)

and Mathis v. United States, 579 U.S. 500 (2016). The Court empha-

sized the “elements-only” categorical approach in making such a

determination, noting that the consideration of non-elemental

facts would require impermissible judicial fact-finding. Mathis, 579

U.S. at 510–12. And the Court specifically stated that an elements-

centric approach was necessary to avoid Sixth Amendment con-

cerns that would arise from sentencing courts’ making findings of

fact that properly belong to juries—i.e., whether the elements of

the predicate convictions were proven beyond a reasonable doubt.

See Descamps, 570 U.S. at 267.

However, Descamps and Mathis focused solely on the predi-

cate felony stage of the ACCA inquiry. United States v. Dudley, 5

F.4th 1249, 1260 (11th Cir. 2021). “Unlike the predicate felony de-

termination, which focuses solely on the statutory legal elements,

the different-occasions inquiry necessarily ‘requires looking at the

facts underlying the prior convictions.’” Id. (quoting United States

v. Richardson, 230 F.3d 1297, 1299 (11th Cir. 2000)). In Erlinger, the

Court considered for the first time “whether a judge may decide

that a defendant’s past offenses were committed on separate occa-

sions under a preponderance-of-the-evidence standard, or whether

the Fifth and Sixth Amendments require a unanimous jury to make

that determination beyond a reasonable doubt.” 602 U.S. at 825.

And, the Court concluded, the latter is correct: “[T]he government

must prove beyond a reasonable doubt to a unanimous jury the

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21-13903 Opinion of the Court 21

facts necessary to sustain the punishment it seeks,” id. at 824, in-

cluding “whether the defendant’s prior offenses occurred on differ-

ent occasions for purposes of applying ACCA’s mandatory mini-

mum sentence,” id. at 847–48.

In this case, it was the district court and not the jury that

decided whether Hood had committed three ACCA predicate of-

fenses on different occasions. The district court, therefore, erred

under Erlinger.

In United States v. Rivers, this Court held that Erlinger error is

not structural and is instead reviewed for harmlessness only. 134

F.4th 1292, 1305 (11th Cir. 2025). As this Court explained, “Erlinger

error is not structural because it does not render the defendant’s

trial ‘fundamentally unfair or an unreliable vehicle for determining

guilt or innocence,’” nor is it “the sort of error that destabilizes the

defendant’s entire trial on a fundamental level, as violations of basic

rights to counsel, an impartial trial judge, or a public trial would.”

Id. at 1305–06 (quoting Neder v. United States, 527 U.S. 1, 9 (1999)).

Still, harmless-error review “is not a dead end” for an appellant in

a criminal case. United States v. Margarita Garcia, 906 F.3d 1255,

1266 (11th Cir. 2018). On harmless-error review, the government

still bears the burden of demonstrating beyond a reasonable doubt

that the jury verdict would have been the same absent the error.

Neder, 527 U.S. at 18.

In Rivers, this Court determined that an Erlinger error had

occurred because the district court, and not a jury, found that Riv-

ers’s prior drug offenses were committed on different occasions.

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22 Opinion of the Court 21-13903

134 F.4th at 1305. This Court further held that, although Erlinger

error is not structural, the error that occurred in the case was none-

theless harmful, because the government did not meet its “burden

of showing beyond a reasonable doubt that a rational jury would

have found that the defendant’s prior drug offenses all were ‘com-

mitted on occasions different from one another.’” Id. at 1306 (quot-

ing § 924(e)). Citing the Supreme Court’s guidance in Wooden and

Erlinger, this Court examined the “times, locations, purpose, and

character of Rivers’s prior crimes” and concluded that, “[o]n bal-

ance, given all these factors, a jury might reasonably conclude [that

Rivers’s drug] sales were part of a single criminal episode” orches-

trated by one undercover officer. Id at 1306–07 (internal quotations

omitted). This Court found significant that all of Rivers’s prior

drug offenses were committed “within a relatively short span of

eight days” and in the same city. Id. at 1307. As to the latter two

factors, “[a]ll of Rivers’s sales were not only all to the [same under-

cover officer], but also . . . for small drug and small cash amounts

($50, $40, $100, $100),” making “the character and purpose of the

purchases [ ] strikingly similar”—despite the fact that Rivers did not

sell the same type of drugs on every occasion. Id. On this record,

this Court was unable to determine that a jury would have found

unanimously and beyond a reasonable doubt that Rivers’s predi-

cate offenses were committed on at least three separate occasions.

Here, as in Rivers, we conclude based on the record that the

government has not met its burden of proving beyond a reasonable

doubt that a rational jury would have found (also beyond a reason-

able doubt) that the relevant ACCA predicates were committed on

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21-13903 Opinion of the Court 23

three different occasions. At sentencing, the United States intro-

duced various pieces of evidence, including the indictment, the

plea colloquy, and a copy of the judgment in Hood’s prior felony

case, which showed that Hood’s three prior drug-related offenses

occurred on March 1, 2011; March 2, 2011; and June 21, 2011—all

in the same geographic area in Florida. Regarding the events that

occurred on back-to-back days in March 2011, Hood testified as fol-

lows:

THE COURT: Now, this indicates, first, that back on

March 1st, 2011, that you sold ten MDMA tablets to a

person that turned out to be an undercover Hills-

borough County Sheriff’s detective. Did you in fact

sell those tablets to the undercover detective?

THE DEFENDANT: Yes.

THE COURT: Did you know it was MDMA that you

were selling?

THE DEFENDANT: No.

THE COURT: What did you think it was?

THE DEFENDANT: I didn’t know—I don’t know

what’s in the pills. I don’t make them.

THE COURT: Did you have some other name for it?

THE DEFENDANT: Just they call Red Monkeys . . . .

THE COURT: Okay. But did you know that it was

some illegal drug that you were selling?

THE DEFENDANT: Oh, yeah, yeah.

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24 Opinion of the Court 21-13903

THE COURT: Okay. But you didn’t—how did they

ask for them?

THE DEFENDANT: They say, do you have any pills,

Red Monkeys? I said, I don’t have them, but I can go

get them for you.THE COURT: Okay. So on that oc-

casion, they asked for in that—they asked for that

type of pill and you said the pills—and you went and

got them?

THE DEFENDANT: Yes.

THE COURT: And then you in turn sold them; is that

correct?

THE DEFENDANT: Yes.

THE COURT: And then the same thing happened—

and did the same thing happen, then, the next day

where there was 40 pills that were sold?

THE DEFENDANT: Yes.

THE COURT: And you knew that there was some

kind of illegal drugs; is that correct?

THE DEFENDANT: Yes.

THE COURT: Then later, on March 21st, you sold

the same undercover detective two guns; is that true?

THE DEFENDANT: Yes.

The record thus shows that not only did Hood commit the two

March 2011 drug offenses (both for relatively small drug and cash

amounts) within a day of each other, but he committed them in

the same area and with the same undercover detective—factors

that the Rivers Court found significant in concluding that a jury

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21-13903 Opinion of the Court 25

might have found that the defendant’s drug sales were part of a sin-

gle criminal episode. Additionally, both transactions involved the

sale of MDMA, lending support for the conclusion that Hood’s

sales on March 1 and March 2 had the same purpose and character.

On balance, a jury might reasonably conclude that these sales were

part of a single criminal episode orchestrated by an undercover of-

ficer, which would lower the number of predicate offenses to be-

low three.

Of course, it is still possible that, based on these facts, a jury

could have found that Hood’s March 2011 drug sales were not part

of a single criminal episode, and that Hood in fact distributed con-

trolled substances on three separate prior occasions. What mat-

ters, though, for purposes of harmless-error review, is the govern-

ment’s burden on this particular record. And, as in Rivers, we can-

not say that the record shows beyond a reasonable doubt that a

unanimous jury would have found beyond a reasonable doubt that

Hood’s predicate drug offenses were committed on three separate

occasions. Therefore, because the government has not carried its

burden under our harmless-error inquiry, we remand on this issue.

D. Hood’s Prior Convictions Under 18 U.S.C. § 2

Finally, Hood contends that the district court erroneously

determined that his prior convictions under 18 U.S.C. § 2 qualify as

“serious drug offenses” to support the ACCA enhancement. We

review de novo whether a prior conviction qualifies as a serious drug

offense for ACCA purposes. White, 837 F.3d at 1228.

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26 Opinion of the Court 21-13903

The ACCA defines a “serious drug offense” as, in relevant

part, “an offense under the Controlled Substances Act (21 U.S.C.

801 et seq.), the Controlled Substances Import and Export Act (21

U.S.C. 951 et seq.), or chapter 705 of title 46, for which a maximum

term of imprisonment of ten years or more is prescribed by law.”

§ 924(e)(2)(A)(i). Section 841(a)(1) makes it unlawful to manufac-

ture, distribute, dispense, or possess with intent to manufacture,

distribute, or dispense a controlled substance, and § 841(b)(1)(C)

creates a maximum penalty of twenty years’ imprisonment for

such an offense.

Hood argues that § 2—the federal aiding and abetting stat-

ute—is not among those specific portions of the U.S. Code enu-

merated in the ACCA’s definition of “serious drug offense.” He

asserts that canons of statutory interpretation indicate that Con-

gress did not intend for § 2 offenses to be “serious drug offenses”

under the ACCA definition. Therefore, he argues, his prior convic-

tions under § 2 cannot properly be “serious drug offenses,” and he

lacks the requisite number of predicate offenses to qualify for the

ACCA enhancement and should be resentenced.

Under § 2, whoever “aids, abets, counsels, commands, in-

duces or procures” the commission of an offense, or “willfully

causes” another to perform an act that would be an offense if per-

formed by him, is punishable as a principal. Aiding and abetting,

under § 2, “is not a separate federal crime, ‘but rather an alternative

charge that permits one to be found guilty as a principal for aiding

or procuring someone else to commit the offense.’” United States

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21-13903 Opinion of the Court 27

v. Sosa, 777 F.3d 1279, 1292 (11th Cir. 2015) (quoting United States

v. Hornaday, 392 F.3d 1306, 1311 (11th Cir. 2004)). In concluding

that a Georgia conviction for aiding and abetting burglary qualified

as a “violent felony” ACCA predicate offense, we have held that

“an ostensible [ACCA] predicate crime is not deprived of that status

merely because the conviction may have been based on conduct

that aided and abetted the crime.” United States v. Coats, 8 F.4th

1228, 1245 (11th Cir. 2021). We noted that, because every jurisdic-

tion has expressly abrogated the distinction between principals and

aiders and abettors, “[w]ere it otherwise, Congress would have en-

acted a sentencing enhancement statute for which no prior crimi-

nal conviction could ever serve as a predicate crime.” Id.

We thus conclude that the district court did not err in classi-

fying Hood’s § 2 convictions as “serious drug offense[s]” under the

ACCA because, for ACCA predicate purposes, there is no distinc-

tion between a person charged as a principal and a person charged

as an aider and abettor. Therefore, we affirm as to this issue.

III. CONCLUSION

For the foregoing reasons, we affirm Hood’s conviction, va-

cate his sentence, and remand for resentencing.

AFFIRMED IN PART; VACATED AND REMANDED IN

PART.