Petition for Writ of Certiorari — Tyler G. Williams, Petitioner v. United States

No. 22-____

IN THE

Supreme Court of the United States

____________________

TYLER G. WILLIAMS,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Sixth Circuit

____________________

PETITION FOR A WRIT OF CERTIORARI

____________________

Elizabeth A. Arrick

CASEY BAILEY & MAINES,

PLLC

3151 Beaumont Centre

Circle, Ste. 200

Lexington, KY 40513

L. Nicole Allan

O’MELVENY & MYERS LLP

Two Embarcadero Ctr.

San Francisco, CA 94111

Michael R. Dreeben

Counsel of Record

Rachel A. Chung

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

(202) 383-5400

mdreeben@omm.com

Heather Welles

Natalie D. Camastra

O’MELVENY & MYERS LLP

400 S. Hope Street,

18th Flr.

Los Angeles, CA 90071

i

QUESTION PRESENTED

Whether the Constitution requires an indictment,

jury trial, and proof beyond a reasonable doubt to find

that a defendant’s prior convictions were “committed

on occasions different from one another,” as is necessary to impose an enhanced sentence under the

Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).

ii

RELATED PROCEEDINGS

United States v. Williams, No. 5:20-cr-00107-1

(E.D. Ky.)

United States v. Williams, 39 F.4th 342 (6th Cir.

2022)

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................ i

RELATED PROCEEDINGS ..................................... ii

PETITION FOR A WRIT OF CERTIORARI ........... 1

OPINIONS BELOW .................................................. 1

JURISDICTION ........................................................ 1

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS .................................... 1

INTRODUCTION ..................................................... 2

STATEMENT ............................................................ 4

A.

Legal Framework................................. 4

B.

Proceedings Below ............................... 7

REASONS FOR GRANTING THE PETITION ..... 11

A.

The Decision Below Is Wrong ........... 13

B.

The Courts Of Appeals Will Not

Correct Course Without This

Court’s Intervention .......................... 18

C.

The Question Presented Is

Critically Important .......................... 21

D.

This Is A Suitable Vehicle To

Address The Question Presented ...... 25

CONCLUSION ........................................................ 27

APPENDIX A: Opinion of the United States

Court of Appeals for the Sixth Circuit

(July 6, 2022)...................................................... 1a

iv

TABLE OF CONTENTS

(continued)

Page

APPENDIX B: Judgment in a Criminal Case

by the United States District Court for

the Eastern District of Kentucky (Sept. 1,

2021) ................................................................. 20a

APPENDIX C: Order Denying Petition for

Rehearing of the United States Court of

Appeals for the Sixth Circuit (Oct. 26,

2022) ................................................................. 33a

APPENDIX D: Relevant Statutory Provision ...... 34a

v

TABLE OF AUTHORITIES

Page(s)

CASES

Alleyne v. United States,

570 U.S. 99 (2013) ............................................ 2, 6

Almendarez-Torres v. United States,

523 U.S. 224 (1998) ........................................ 6, 16

Apprendi v. New Jersey,

530 U.S. 466 (2000) ...............................2, 6, 12, 16

Blakely v. Washington,

542 U.S. 296 (2004) .....................................6, 7, 22

Borden v. United States,

141 S. Ct. 1817 (2021)........................................ 24

Cunningham v. California,

549 U.S. 270 (2007) .............................................. 7

Descamps v. United States,

570 U.S. 254 (2013) ............................................ 17

Duncan v. Louisiana,

391 U.S. 145 (1968) ............................................ 21

In re Winship,

397 U.S. 358 (1970) ............................................ 22

Marshall v. Jerrico, Inc.,

446 U.S. 238 (1980) ............................................ 23

Mathis v. United States,

579 U.S. 500 (2016) .................................16, 17, 18

Neder v. United States,

527 U.S. 1 (1999) ................................................ 26

Offutt v. United States,

348 U.S. 11 (1954) .............................................. 23

Peña-Rodriguez v. Colorado,

580 U.S. 206 (2017) ............................................ 21

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Pereida v. Wilkinson,

141 S. Ct. 754 (2021).......................................... 18

Powers v. Ohio,

499 U.S. 400 (1991) ............................................ 23

Quarles v. United States,

139 S. Ct. 1872 (2019)........................................ 24

Ring v. Arizona,

536 U.S. 584 (2002) .............................................. 6

S. Union Co. v. United States,

567 U.S. 343 (2012) .............................................. 7

Shepard v. United States,

544 U.S. 13 (2005) .........................................16, 17

Shular v. United States,

140 S. Ct. 779 (2020).......................................... 24

Stirone v. United States,

361 U.S. 212 (1960) ............................................ 22

Stokeling v. United States,

139 S. Ct. 544 (2019).......................................... 24

Sullivan v. Louisiana,

508 U.S. 275 (1993) ............................................ 22

United States v. Barrera,

2022 WL 1239052 (9th Cir. Apr. 27, 2022) ....... 19

United States v. Booker,

543 U.S. 220 (2005) .............................................. 7

United States v. Burgin,

388 F.3d 177 (6th Cir. 2004).............................. 19

United States v. Cotton,

535 U.S. 625 (2002) ............................................ 14

United States v. Daniels,

2022 WL 1135102 (4th Cir. Apr. 18, 2022) ....... 20

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Dudley,

5 F. 4th 1249 (11th Cir. 2021) ........................... 15

United States v. Gaudin,

515 U.S. 506 (1995) ............................................ 15

United States v. Golden,

2023 WL 2446899 (3d Cir. Mar. 10, 2023) ........ 19

United States v. Hatley,

2023 WL 2366704 (7th Cir. Mar. 6, 2023) ...19, 20

United States v. Haynes,

2022 WL 3643740 (11th Cir. Aug. 24, 2022)..... 20

United States v. Hennessee,

932 F.3d 437 (6th Cir. 2019).............................. 17

United States v. Jurbala,

198 F. App’x 236 (3d Cir. 2006) ......................... 18

United States v. King,

853 F.3d 267 (6th Cir. 2017).........................10, 26

United States v. Longoria,

874 F.3d 1278 (11th Cir. 2017).......................... 19

United States v. Man,

2022 WL 17260489 (9th Cir. Nov. 29, 2022)..... 20

United States v. Michel,

446 F.3d 1122 (10th Cir. 2006).......................... 19

United States v. Morris,

293 F.3d 1010 (7th Cir. 2002)............................ 19

United States v. Perry,

908 F.3d 1126 (8th Cir. 2018)............................ 14

United States v. Reed,

39 F.4th 1285 (10th Cir. 2022) .......................... 20

United States v. Santiago,

268 F.3d 151 (2d Cir. 2001) ..........................18, 19

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Stearns,

387 F.3d 104 (1st Cir. 2004) .............................. 19

United States v. Stitt,

139 S. Ct. 399 (2018).......................................... 24

United States v. Stowell,

40 F.4th 882 (8th Cir. 2022) .............................. 20

United States v. Tatum,

165 F. App’x 367 (5th Cir. 2006) ....................... 18

United States v. Thompson,

421 F.3d 278 (4th Cir. 2005).........................15, 18

United States v. Walker,

953 F.3d 577 (9th Cir. 2020).............................. 19

United States v. Williams,

2023 WL 2239020 (5th Cir. Feb. 23, 2023) ....... 19

United States v. Wilson,

406 F.3d 1074 (8th Cir. 2005 ............................. 19

Welch v. United States,

578 U.S. 120 (2016) .............................................. 4

Wooden v. United States,

142 S. Ct. 1063 (2022) ...... 2-5, 8, 11, 15-16, 25-26

CONSTITUTIONAL AMENDMENTS

U.S. Const. amend V ................................................. 1

U.S. Const. amend VI ............................................... 1

STATUTES

18 U.S.C. § 924(a)(2) ................................................. 4

18 U.S.C. § 924(a)(8) ................................................. 4

18 U.S.C. § 924(e)(1) ..........................................2, 4, 9

28 U.S.C. § 1254(1).................................................... 1

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

Pub. L. No. 117-159, Div. A, Tit. II,

§ 12004(c), 136 Stat. 1313 (June 25, 2022) ......... 4

OTHER AUTHORITIES

Joseph Story, Commentaries on the

Constitution of the United States

(1833) (Lonang Inst. ed., 2005) ......................... 21

U.S. Sent’g Comm’n, Federal Armed

Career Criminals: Prevalence,

Patterns, and Pathways (Mar. 2021) ................ 22

PETITION FOR A WRIT OF CERTIORARI

Petitioner Tyler G. Williams respectfully petitions

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Sixth Circuit

in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at

39 F.4th 342 and reprinted in the Appendix to the Petition (“Pet. App.”) at 1a-19a. The order of the court

of appeals denying rehearing is unpublished but

available at 2022 WL 17409565 and reprinted at Pet.

App. 33a. The judgment of the district court is unpublished but reprinted at Pet. App. 20a-32a.

JURISDICTION

The court of appeals issued its decision on July 6,

2022, Pet. App. 1a, and denied rehearing on October

26, 2022, id. 33a. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

RELEVANT CONSTITUTIONAL AND

STATUTORY PROVISIONS

The Fifth Amendment provides: “No person shall

be held to answer for a capital, or otherwise infamous

crime, unless on a presentment or indictment of a

Grand Jury . . . nor be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend.

V.

The Sixth Amendment provides: “In all criminal

prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury.” U.S.

Const. amend. VI.

2

The relevant statutory provision, Section 924(e) of

Title 18 of the U.S. Code, is reproduced in the appendix.

INTRODUCTION

This case involves a pressing constitutional question in the administration of the Armed Career Criminal Act (ACCA). The ACCA requires a minimum sentence of fifteen years imprisonment—and a maximum

of life—for a defendant convicted of unlawful possession of a firearm if the defendant has three qualifying

prior convictions “committed on occasions different

from one another.” 18 U.S.C. § 924(e)(1). This Court

has held that “any fact,” “[o]ther than the fact of a

prior conviction, . . . that increases the penalty for a

crime beyond the prescribed statutory maximum”—or

increases the mandatory minimum—“must be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490

(2000); see Alleyne v. United States, 570 U.S. 99 (2013)

(applying Apprendi to mandatory minimums). In

Wooden v. United States, 142 S. Ct. 1063 (2022), this

Court held that the ACCA’s “on occasions different

from one another” inquiry turns on whether prior

crimes arose from the “same criminal episode”—and

that question turns on a “multi-factored” inquiry that

considers time, place, intervening events, and “the

character and relationship of the offenses.” Id. at

1067, 1070-71. Those considerations fall outside the

“fact of a prior conviction” and thus squarely implicate

the jury-trial right. Yet in this case, the court of appeals refused to reconsider its pre-Wooden precedent

treating the “occasions” inquiry as a matter for the

judge at sentencing—thus depriving petitioner of the

3

indictment and jury determination beyond a reasonable doubt to which he is entitled.

Wooden reserved whether Apprendi’s principles

apply to the occasions issue because the parties did

not raise it. 142 S. Ct. at 1068 n.3. The time to resolve

that question has arrived. The government agrees

that in light of Wooden’s interpretation of “occasions,”

the jury-trial right applies to that determination. Yet,

as in this case, many courts of appeals refuse to revisit

their pre-Wooden precedent holding that a jury need

not resolve the ACCA’s occasions question. This issue

will persist until this Court definitively resolves it—

and the need for this Court’s intervention is all the

more essential because ACCA defendants face unjustified years in prison while the lower courts refuse to

accord them their constitutional rights.

Only this Court can establish a uniform national

rule that corrects the lower courts’ errors. Before

Wooden, all of the courts of appeals that addressed the

issue adopted the erroneous view that the occasions

issue fell into the narrow exception to Apprendi permitting a court to find the fact of a prior conviction at

sentencing. Until told otherwise, many district courts

will follow that precedent. And the odds of all of the

courts of appeals going en banc to overturn their erroneous pre-Wooden precedent approach zero. This

case proves that point: the court of appeals denied

petitioner’s request to grant rehearing en banc to correct its precedent. This Court should grant review to

address the Apprendi issue it reserved in Wooden and

reverse the decision below.

4

STATEMENT

A. Legal Framework

1. Under the Armed Career Criminal Act of 1984,

a defendant convicted of unlawful possession of a firearm, in violation of 18 U.S.C. § 922(g), faces more severe punishment if he has three or more previous convictions “for a violent felony or a serious drug offense,

or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). At the time of the offense conduct in this case, a violation of Section 922(g)

was punishable by up to ten years imprisonment. See

former 18 U.S.C. § 924(a)(2); Wooden v. United States,

142 S. Ct. 1063, 1068 (2022).1 But if the individual

who violates Section 992(g) has three or more qualifying convictions “committed on occasions different

from one another,” the ACCA increases his prison

term to a minimum of fifteen years and a maximum

of life. 18 U.S.C. § 924(e)(1); Welch v. United States,

578 U.S. 120, 122 (2016).

In Wooden, this Court adopted a multifactor test

for assessing whether crimes occurred on different occasions. Rejecting the government’s position that “an

‘occasion’ happens ‘at a particular point in time’—the

moment ‘when [an offense’s] elements are

1 In the Bipartisan Safer Communities Act, Congress increased

the maximum penalty for a violation of Section 922(g) to “not

more than 15 years” of imprisonment. See Pub. L. No. 117-159,

div. A, tit. II, § 12004(c), 136 Stat. 1313, 1329 (June 25, 2022),

codified at 18 U.S.C. § 924(a)(8). That amendment has no bearing on the constitutional issue in this case. Under the amended

penalty scheme, as in the former one, the ACCA significantly enhances both the minimum and the maximum sentence for a violation of Section 922(g).

5

established,’” 142 S. Ct. at 1069—the Court held that

the proper test asks whether the prior convictions

arose “from a single criminal episode,” id. at 1067.

The Court provided several contextual considerations

that bear on that issue. “Offenses committed close in

time, in an uninterrupted course of conduct, will often

count as part of one occasion; not so offenses separated by substantial gaps in time or significant intervening events.” Id. at 1071. “Proximity of location is

also important,” the Court explained: “the further

away crimes take place, the less likely they are components of the same criminal event.” Id. “And the

character and relationship of the offenses may make

a difference,” the Court added: “The more similar or

intertwined the conduct giving rise to the offenses—

the more, for example, they share a common scheme

or purpose—the more apt they are to compose one occasion.” Id.

Applying that fact-specific inquiry, the Court held

that Wooden’s ten burglaries occurred “on a single occasion” because they were committed “on a single

night, in a single uninterrupted course of conduct,”

and “all took place at one location,” while “[e]ach offense was essentially identical, and all were intertwined with the others.” Id. The Court added that

Wooden’s “burglaries were part and parcel of the

same scheme, actuated by the same motive, and accomplished by the same means.” Id.

2. Having adopted this context-specific inquiry

into the factual relationship between offenses to assess whether they occurred on a single “occasion,”

Wooden raised a corresponding procedural question:

Could the occasions inquiry be resolved by a judge at

6

sentencing? After all, Apprendi recognized only a single exception to its jury-trial-protective holding for

sentencing for a single offense: a judge may determine at sentencing, by a preponderance of the evidence, a minimum- or maximum-increasing fact only

for the “fact of a prior conviction.” Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000); Alleyne v. United

States, 570 U.S. 99, 103 (2013) (Apprendi applies to

facts that require a mandatory minimum); Almendarez-Torres v. United States, 523 U.S. 224, 230,

234, 244 (1998) (recidivism exception). Apart from

that narrow exception, the right to a jury trial—with

the government bearing the burden of proof beyond a

reasonable doubt—attaches to such sentence-enhancing facts. Apprendi explained why those guarantees

apply, notwithstanding a legislature’s designation of

those facts as matters for sentencing: “If a defendant

faces punishment beyond that provided by statute

when an offense is committed under certain circumstances but not others, it is obvious that both the loss

of liberty and the stigma attaching to the offense are

heightened; it necessarily follows that the defendant

should not—at the moment the State is put to proof of

those circumstances—be deprived of protections that

have, until that point, unquestionably attached.” Apprendi, 530 U.S. at 484.

This Court has consistently applied that principle

to require jury determinations, beyond a reasonable

doubt, of facts that increase an individual’s sentence

above the otherwise-applicable minimum or maximum sentence. See, e.g., Ring v. Arizona, 536 U.S.

584 (2002) (imposition of death penalty based on judicial factfinding); Blakely v. Washington, 542 U.S. 296

7

(2004) (mandatory state sentencing guidelines);

United States v. Booker, 543 U.S. 220 (2005) (mandatory federal sentencing guidelines); Cunningham v.

California, 549 U.S. 270 (2007) (mandatory state sentencing enhancements); S. Union Co. v. United States,

567 U.S. 343 (2012) (imposition of criminal fines

based on judicial factfinding). Thus, unless the defendant admits the relevant facts, the judge “exceeds

his proper authority” by imposing an enhanced sentence on the basis of facts not found by a jury.

Blakely, 542 U.S. at 303-04.

B. Proceedings Below

1. In 2004, when petitioner was sixteen years old,

he pleaded guilty to one count of first-degree robbery

and three counts of second-degree robbery in Fayette

County Circuit Court in Kentucky. Pet. App. 2a-3a.

All four offenses arose from a single indictment. Id.

Petitioner committed the robberies with the same two

individuals, one of whom was also a minor. Id.; DE

39-1 at 3.2 On January 15, 2004, petitioner and his

accomplices robbed a Thorntons gas station; on January 23, they robbed a Thorntons again, possibly the

same one; on January 29, they robbed Shoppers Village Liquor; and on March 13, they robbed a BP gas

station. Pet. App. 3a. The stores were in the same

county. Id. 17a. Petitioner pleaded guilty to first-degree robbery for the January 15 offense and seconddegree robbery for the others. DE 46 at 8-9.

2. Nearly 17 years later, in 2020, petitioner was

indicted in the Eastern District of Kentucky for

2 “DE” refers to the district-court docket and “COA” refers to the

Sixth Circuit docket.

8

possession of a mixture or substance containing methamphetamine with intent to distribute and being a

felon in possession of a firearm. Pet. App. 2a. The

indictment did not allege that petitioner should be

treated as an armed career criminal or that he had

ACCA-qualifying convictions committed on occasions

different from one another. DE 1. Petitioner pleaded

guilty to both counts. Pet. App. 2a. His plea agreement reserved his right to challenge an ACCA enhancement at sentencing and on appeal. Id.; DE 29

at 4-5.

Petitioner’s presentence investigation report recommended that he be designated an armed career

criminal under the ACCA based on the four robberies

from 2004. DE 46 at 7. Petitioner filed an objection

to this designation, arguing that “[a]ll counts arose

out of the same indictment without an intervening arrest” and that he “was 16 years old at the time of the

commission of the offenses but was convicted as an

adult.” Id. at 21. At his sentencing on August 31,

2021, petitioner explained that he objected to treating

the three second-degree robberies as ACCA predicates.3 DE 51 at 44. He acknowledged that Sixth Circuit precedent weighed in favor of triggering the enhancement, but explained that Wooden v. United

States, 142 S. Ct. 1063 (2022)—which was pending in

this Court—had the potential to change that law. Id.

The district court applied the ACCA enhancement

and sentenced petitioner to 200 months of imprisonment based on a Guidelines range of 188 to 235

3 Petitioner did not object to treating the first-degree robbery of-

fense as an ACCA predicate. DE 51 at 43.

9

months. Pet. App. 3a. Without the ACCA enhancement, petitioner would have been subject to a Guidelines range of 100 to 125 months. COA 21 at 4.

3. Petitioner appealed the ACCA enhancement,

arguing that (i) the 2004 robberies were not “committed on occasions different from one another,” and (ii)

Kentucky’s second-degree robbery is not a “violent felony” under the ACCA. 18 U.S.C. § 924(e)(1); COA 21

at 6-15. Petitioner also argued that Wooden, which

was still pending in this Court, “raised issues of the

constitutionality of the ‘different occasions’ clause of

the ACCA” because the Sixth Amendment prohibits

judges from “increasing a sentence based on judgemade findings about the non-elemental facts of a conviction.” COA 21 at 14.

After this Court issued its decision in Wooden, the

Sixth Circuit directed the parties to file supplemental

briefs addressing the effect of Wooden on the case.

COA 33. Petitioner argued, in relevant part, that

Wooden underscores that “[w]hether multiple offenses arose from a single episode or occurred on different occasions is an issue of fact [that] must be determined by a jury rather than a judge.” COA 36 at

3.

The panel affirmed the district court’s judgment.

Pet. App. 19a. Applying the different-occasions test

announced in Wooden, it determined that “[g]iven the

substantial gap in time between [petitioner’s] robbery

offenses and some variety in locations, the offenses

10

were committed on separate occasions under the

ACCA.”4 Id. 18a.

The panel also noted that petitioner “raises a separate issue that he seemingly did not raise before the

district court”: “whether his robbery offenses were

committed on separate occasions under the ACCA is

a jury issue.” Id. 18a-19a. The panel rejected that

argument, applying Sixth Circuit precedent holding

that “a sentencing judge may answer the question of

whether prior offenses were ‘committed on occasions

different from one another.’” Id. 19a (quoting United

States v. King, 853 F.3d 267, 274 (6th Cir. 2017)).

4. Petitioner sought rehearing en banc, arguing

that Wooden “fatally undermines [Sixth Circuit] precedent holding that judges may find” “non-elemental

facts of time, place, and victim,” not to mention “proximity of locations, similarity of the offenses, common

scheme or purpose of the offenses, and the existence

of a significant intervening event,” all of which

Wooden made relevant to the occasions inquiry. COA

41 at 13-14. Petitioner informed the court that the

government had come to a similar conclusion, changing its legal position in other cases to contend that

“[i]n light of [Wooden,] . . . a jury should find (or a defendant should admit) that ACCA predicates were

committed on occasions different from one another.”

Id. at 14 and Addendum 1a (citing Notification of

Changed Legal Position, United States v. Cook, No.

22-5056 (6th Cir. Aug. 18, 2022), Dkt. No. 33).

4 The panel also held that Kentucky second-degree robbery qual-

ifies as a “violent felony” under the ACCA. Pet. App. 19a. Petitioner does not seek certiorari on this question.

11

The government did not respond to the merits of

petitioner’s Sixth Amendment argument, instead arguing that petitioner had “waived” the argument by

admitting that “his robbery crimes ‘occurred on separate dates and separate locations.’” COA 56 at 2-3.

Even if petitioner had not waived the argument, the

government contended, “any error would have been

harmless,” as “[n]o rational jury could have found that

[petitioner] committed his robbery crimes on the same

occasion because the undisputed records show that

the offenses occurred days, weeks, or months apart

and at different locations.” Id. at 3-4.

The Sixth Circuit denied the petition for rehearing

en banc. Pet. App. 33a.

REASONS FOR GRANTING THE PETITION

As Justice Gorsuch recognized in Wooden, “[a] constitutional question simmers beneath the surface” of

the Court’s decision. Wooden v. United States, 142 S.

Ct. 1063, 1087 n.7 (2022) (Gorsuch, J., joined by Justice Sotomayor, concurring). Having construed the

ACCA’s occasions clause to turn on multiple facts not

contained in prior judgments of conviction, the question arises whether a judge, rather than a jury, may

make the necessary determinations under “only a preponderance of the evidence standard.” Id. The Court

declined to reach that issue in Wooden because the

defendant “did not raise it.” Id. at 1068 n.3. But as

Justice Gorsuch noted, “there is little doubt that [the

Court] will have to do so soon.” Id. at 1087 n.7 (Gorsuch, J., concurring).

In the year since the Court issued Wooden, the

courts of appeals have by and large bypassed

12

opportunities to address this question. Instead, like

the Sixth Circuit here, many circuits have dismissed

the impact of Wooden on the Apprendi issue and denied en banc review of longstanding circuit precedent

holding that a judge may conduct the occasions inquiry. See infra at 19-20.

These holdings conflict with this Court’s precedents explaining the scope and application of Apprendi. The Constitution requires that, “[o]ther than

the fact of a prior conviction, any fact that increases

the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi v. New

Jersey, 530 U.S. 466, 490 (2000). Wooden leaves no

doubt that whether a defendant’s prior, qualifying

convictions stem from offenses “committed on occasions different from one another” depends on a host of

factual determinations—all of which fall outside the

fact of prior conviction for the separate predicate offenses. Because the ACCA raises a defendant’s sentencing range, Apprendi’s principles directly apply to

the occasions issue. Indeed, the government agrees

with this position. The government recognizes that in

light of Wooden, the different-occasions issue is for the

jury and has so informed this Court. See Br. in Opp.

at 6-7, Reed v. United States, No. 22-336 (U.S. Dec. 12,

2022).

This state of affairs is untenable. The disparity

between the position of the United States and the prevailing rule in the circuits has spawned confusion in

the district courts. And the likelihood that all of the

regional circuits will reconsider and correct their erroneous pre-Wooden precedent is vanishingly remote.

13

In the meantime, defendants will receive unconstitutionally enhanced sentences and will seek rehearing

en banc in court after court. This benefits no one—

not defendants, not the lower courts, and not the government. This Court should therefore intervene to

avoid years of wasteful litigation, to prevent scores of

erroneously imposed ACCA sentences, and to protect

critically important constitutional rights.

The Court should resolve the issue in this case.

The issue is squarely presented: The court of appeals

relied on binding circuit precedent on direct review,

in a published, post-Wooden opinion, to squarely reject the Apprendi claim. The court of appeals then

bypassed the opportunity to revisit its erroneous precedent through the en banc process—depriving petitioner of his constitutional right to have a jury decide

whether he should be categorized as a lifetime armed

career criminal based on actions he took during a

three-week span when he was sixteen—and leaving

the law in the Sixth Circuit in a continued state of

uncertainty.

No need for “percolation” of this straightforward

issue can justify delaying its resolution. The government’s nationwide concession that Apprendi applies

confirms the clarity of the correct answer. The petition should be granted, and the decision below reversed.

A. The Decision Below Is Wrong

Apprendi applies here because of a straightforward syllogism. When any fact other than the fact of

a prior conviction increases the minimum or maximum sentence for an offense, it must be determined

14

by a jury beyond a reasonable doubt. The ACCA increases the minimum and maximum sentence when a

defendant has three prior convictions from offenses

committed on different occasions—and Wooden

makes clear that the occasions issue turns on facts beyond the bare entry of a prior conviction. Therefore,

unless the defendant admits that the ACCA applies,

the occasions issue must be included in the indictment and resolved by the jury beyond a reasonable

doubt.5

1. The ACCA increases the imprisonment range

for a violation of 18 U.S.C. § 922(g) by mandating a

fifteen-year term and elevating the maximum to life.

Even before Wooden, multiple judges recognized that

the ACCA’s “occasions different from one another” requirement turns on facts that cannot be determined

by ascertaining the elements of the offense from a

prior judgment of conviction, so Apprendi requires

that this issue be resolved by a jury. See, e.g., United

States v. Perry, 908 F.3d 1126, 1134 (8th Cir. 2018)

(Stras, J., concurring) (court’s treatment of differentoccasions issue as one for the court “falls in line with

5 “In federal prosecutions, such [sentence-enhancing] facts must

also be charged in the indictment.” United States v. Cotton, 535

U.S. 625, 627 (2002). The Department of Justice has determined, in guidance issued to prosecutors on September 29, 2022,

that “going forward, where the government seeks imposition of

an ACCA sentence, it will charge the pertinent facts in an indictment, and seek either a jury verdict or defendant admission regarding those facts.” Gov’t Mot. to Withdraw Appeal at 3, United

States v. Brown, No. 22-2550 (3d Cir. Mar. 12, 2023), Dkt. No.

30. Here, the indictment to which petitioner pleaded guilty did

not allege that he had ACCA-qualifying convictions for offenses

committed on different occasions. DE 1.

15

our cases but is a departure from fundamental Sixth

Amendment principles”); United States v. Thompson,

421 F.3d 278, 294 (4th Cir. 2005) (Wilkins, C.J., dissenting) (employing Apprendi analysis to find that

facts “about a crime underlying a prior conviction,” including dates, are beyond the “fact of a prior conviction” exception); see also United States v. Dudley, 5 F.

4th 1249, 1275 (11th Cir. 2021) (Newsom, J., concurring in part and dissenting in part) (“[W]hy doesn’t

judicial factfinding involving ACCA’s different-occasions requirement itself violate the Sixth Amendment? After all, we’ve described the different-occasions inquiry as a factual one.”).

As this Court held in Wooden, the proper inquiry

for determining whether offenses were committed on

occasions different from one another is “multi-factored.” 142 S. Ct. at 1070. “Offenses committed close

in time, in an uninterrupted course of conduct, will

often count as part of one occasion; not so offenses separated by substantial gaps in time or significant intervening events.” Id. at 1071. Similarly, “[p]roximity of location” matters; “the further away crimes take

place, the less likely they are components of the same

criminal event.” Id. And “[t]he more similar or intertwined the conduct giving rise to the offenses—the

more, for example, they share a common scheme or

purpose—the more apt they are to compose one occasion.” Id. These facts—and the application of

Wooden’s legal standard to them—raise quintessential matters for jury determination. See United States

v. Gaudin, 515 U.S. 506, 512 (1995) (jury-trial right

embraces both questions of historical fact and “the application-of-legal-standard-to-fact sort of question”).

16

2. The exception to the rule articulated in Apprendi for the fact of a prior conviction does not apply

to the occasions inquiry. Again, multiple judges have

recognized this point. In Almendarez-Torres v. United

States, 523 U.S. 224 (1998), this Court held that a

court (rather than a jury) may find the fact of a prior

conviction. Id. at 226. But this exception is a limited

one: It reaches only the fact of the conviction itself—

and the elements of the offense of conviction. See

Mathis v. United States, 579 U.S. 500, 511-12 (2016).

A judge “can do no more, consistent with the Sixth

Amendment, than determine what crime, with what

elements, the defendant was convicted of.” Id. (citing

Apprendi, 530 U.S. at 490). “[A] judge cannot go beyond identifying the crime of conviction to explore the

manner in which the defendant committed the offense.” Id. at 511 (citing Shepard v. United States,

544 U.S. 13, 25 (2005)). “[A]llowing a sentencing

judge to go any further would raise serious Sixth

Amendment concerns.” Id.

A determination of the fact and elements of a prior

conviction does not suffice to make the occasions determination under Wooden. The fact of multiple prior

convictions says nothing about whether they arose

“from a single criminal episode.” 142 S. Ct. at 1067.

The entry of a conviction does not show whether the

offenses were committed in one uninterrupted course

of conduct, nor the extent of the gaps in time between

them, nor the proximity of the locations at which the

offenses occurred, nor whether they share a common

scheme or purpose. See id. at 1071. Indeed, the entry

of a conviction does not even determine the date on

which an underlying offense was committed. As a

17

result, the occasions issue cannot fall within the exception articulated by Almendarez-Torres because resolving that issue requires determining far more than

the fact of a prior conviction.

3. Some courts—including the Sixth Circuit—

sought to solve this invasion of the jury’s domain by

confining courts determining the ACCA’s occasions issue to the documents identified in Shepard, 544 U.S.

13, see, e.g., United States v. Hennessee, 932 F.3d 437,

442-43 (6th Cir. 2019), but that approach fails, see id.

at 450-52 (Cole, C.J., dissenting) (finding that reasoning “constitutionally problematic”). Shepard documents comprise conviction records such as the charging instrument, guilty-plea transcript, or jury instructions; the court may review this narrow set of documents only to determine which of the alternative elements within a divisible statute necessarily served as

the basis for the prior conviction. Descamps v. United

States, 570 U.S. 254, 262-63 (2013). As Descamps confirmed, Shepard documents cannot be used “to determine what the defendant and state judge must have

understood as the factual basis of the prior plea.” Id.

(internal quotation marks omitted). Mathis reaffirmed this holding, explaining that it is unfair to defendants to rely on “‘non-elemental fact[s]’ in the records of prior convictions,” as these purported facts

“are prone to error precisely because their proof is unnecessary.” 579 U.S. at 512 (quoting Descamps, 570

U.S. at 270); id. (“[A] defendant may have no incentive to contest what does not matter under the law; to

the contrary, he may have good reason not to” (internal quotation marks omitted)). “Such inaccuracies

should not come back to haunt the defendant many

18

years down the road by triggering a lengthy mandatory sentence.” Id.

Shepard documents thus cannot be used to establish the facts underlying a prior conviction. “[T]he

who, what, when, and where of a conviction” all “pose

questions of fact.” Pereida v. Wilkinson, 141 S. Ct.

754, 765 (2021). None of them is embraced by the fact

of the conviction itself, and none is admitted through

a guilty plea. It follows that they cannot be used by a

sentencing court to resolve the “occasions different

from one another” inquiry. Not even the date or location of an offense is an element that can be discerned

from the Shepard documents consistent with Apprendi, Descamps, and Mathis—much less the exact

time between the offenses, their geographic proximity, or how similar they are in nature. The ineluctable

conclusion is that such issues are matters for jury determination beyond a reasonable doubt.

B. The Courts Of Appeals Will Not Correct Course

Without This Court’s Intervention

Both before and after Wooden, the courts of appeals have incorrectly held that a judge (rather than

a jury) may answer the ACCA’s occasions question.

Before Wooden, courts of appeals that addressed

the issue held that Apprendi’s rule did not apply to

the occasions question because that question fell

within the exception outlined by Almendarez-Torres.

See United States v. Santiago, 268 F.3d 151, 156-57

(2d Cir. 2001); United States v. Jurbala, 198 F. App’x

236, 237 (3d Cir. 2006); United States v. Thompson,

421 F.3d 278, 285 (4th Cir. 2005); United States v. Tatum, 165 F. App’x 367, 368 (5th Cir. 2006); United

19

States v. Burgin, 388 F.3d 177, 183 (6th Cir. 2004);

United States v. Morris, 293 F.3d 1010, 1012-13 (7th

Cir. 2002); United States v. Wilson, 406 F.3d 1074,

1075 (8th Cir. 2005), abrogated on other grounds by

United States v. Miller, 305 F. App’x 302, 303 (8th Cir.

2008); United States v. Walker, 953 F.3d 577, 580 (9th

Cir. 2020); United States v. Michel, 446 F.3d 1122,

1132-33 (10th Cir. 2006); United States v. Longoria,

874 F.3d 1278, 1283 (11th Cir. 2017); cf. United States

v. Stearns, 387 F.3d 104, 106, 109 (1st Cir. 2004) (affirming district court’s determination that two of defendant’s prior offenses were committed on separate

“occasions”). In these courts’ view, Section “924(e)’s

‘different occasions’ requirement falls safely within

the range of facts traditionally found by judges at sentencing” because “the separateness” of prior convictions cannot “be distinguished from the mere fact of

their existence.” Santiago, 268 F.3d at 156-57. As a

result, these courts hold “that Apprendi does not require different fact-finders and different burdens of

proof for Section 924(e)’s various requirements.” Id.

After this Court issued its decision in Wooden,

nine courts of appeals have considered the Apprendi

issue—and each has continued to apply its preWooden precedent, with at least four denying petitions to reconsider that precedent en banc. See Pet.

App. 18a-19a, 33a; United States v. Golden, 2023 WL

2446899, at *4 (3d Cir. Mar. 10, 2023); United States

v. Hatley, 2023 WL 2366704, at *5 (7th Cir. Mar. 6,

2023); United States v. Williams, 2023 WL 2239020,

at *1 (5th Cir. Feb. 23, 2023) (per curiam); United

States v. Barrera, 2022 WL 1239052, at *2 (9th Cir.

Apr. 27, 2022), pet. for reh’g denied, No. 20-10368 (9th

20

Cir. Sept. 21, 2022, cert. denied, 2023 WL 2563436

(U.S. Mar. 20, 2023)6; United States v. Daniels, 2022

WL 1135102, at *1 (4th Cir. Apr. 18, 2022) (per curiam), cert. denied, 143 S. Ct. 749 (2023); United

States v. Reed, 39 F.4th 1285, 1295 (10th Cir. 2022),

pet. for reh’g denied, No. 21-2073 (10th Cir. Sept. 1,

2022), cert. denied, 143 S. Ct. 745 (2023); United

States v. Haynes, 2022 WL 3643740, at *5 (11th Cir.

Aug. 24, 2022) (per curiam), pet. for reh’g denied, No.

19-12335 (11th Cir. Nov. 1, 2023), cert. denied, 2023

WL 2357369 (U.S. Mar. 6, 2023); United States v.

Stowell, 40 F.4th 882, 885 (8th Cir. 2022), pet. for

reh’g granted, 2022 WL 16942355 (8th Cir. Nov. 15,

2022). To date, only one court of appeals has granted

rehearing en banc. See Stowell, 2022 WL 16942355

(to be argued April 11, 2023).

Nothing suggests that all the courts of appeals will

reverse their pre-Wooden precedent, let alone anytime soon. Nor would allowing the issue to percolate

provide this Court with helpful analysis. To the contrary, courts of appeals seem to be relying on each

other in refusing to reconsider their precedent postWooden. See Hatley, 2023 WL 2366704, at *5

(“[I]n Wooden’s wake, other circuits have continued to

recognize the propriety of sentencing judges making

6 In United States v. Man, the government “concede[d] that fol-

lowing Wooden . . . , a jury must find, or a defendant must admit,

that a defendant’s ACCA predicate offenses were committed on

different occasions,” and the Ninth Circuit “assume[d], without

holding, that an Apprendi error occurred.” 2022 WL 17260489,

at *1 (9th Cir. Nov. 29, 2022) (mem.). Man thus does not change

binding Ninth Circuit precedent that a “district court does not

commit an Apprendi error by differentiating the occasions on

which ACCA violent felonies were committed.” Id.

21

this finding.”). The constitutional issue here is

straightforward and, as the government has elsewhere conceded, see supra at 10, 14 n.5, resolved by

the application of settled Apprendi principles to the

ACCA’s occasions clause as interpreted in Wooden.

Delaying resolution of this high-stakes question will

only increase the number of defendants who receive

unconstitutionally enhanced sentences. Only this

Court’s intervention can correct the lower courts’ error and establish a consistent national rule that accords with the Fifth and Sixth Amendments.

C. The Question Presented Is Critically Important

Answering the question presented is vital to protecting the Fifth Amendment right to indictment by a

grand jury, the due-process right to proof beyond a

reasonable doubt, and the Sixth Amendment jurytrial right. That question also has sweeping practical

importance for criminal sentencing across the country.

1. “The jury is a central foundation of our justice

system and our democracy.” Peña-Rodriguez v. Colorado, 580 U.S. 206, 210 (2017). “The jury is a tangible

implementation of the principle that the law comes

from the people.” Id. The Framers adopted it because

the jury serves as a “necessary check on governmental

power,” id., an important “protection against arbitrary rule,” Duncan v. Louisiana, 391 U.S. 145, 151

(1968), and the “bulwark” between the individual and

the state, Joseph Story, Commentaries on the Constitution of the United States (1833) 764-65 (Lonang

Inst. ed., 2005). Similarly, grand juries afford “basic

protection” to an individual by “limit[ing] his jeopardy

to offenses charged by a group of his fellow citizens

22

acting independently of either prosecuting attorney or

judge” and thereby “protecting the citizen against unfounded accusation.” Stirone v. United States, 361

U.S. 212, 218 & n.3 (1960).

The Sixth Amendment “right is no mere procedural formality, but a fundamental reservation of

power in our constitutional structure” and “meant to

ensure [the people’s] control in the judiciary.” Blakely

v. Washington, 542 U.S. 296, 305-06 (2004). And the

interlinked protection of the right to have the government prove its case beyond a reasonable doubt guards

against error in a system that prizes the presumption

of innocence. See Sullivan v. Louisiana, 508 U.S. 275,

278 (1993); In re Winship, 397 U.S. 358, 363-64

(1970). Defendants who are deprived of these constitutional rights risk unjustified deprivations of liberty

and unwarranted stigma.

2. The question presented has sweeping practical

importance. During the ten-year period between October 2009 and September 2019, courts imposed 4,480

ACCA sentences. U.S. Sent’g Comm’n, Federal

Armed Career Criminals: Prevalence, Patterns, and

Pathways, 18-19 & n.44 (Mar. 2021). Defendants who

were subject to the ACCA’s fifteen-year mandatory

minimum penalty at sentencing received an average

sentence of 206 months in fiscal year 2019, id. at 6, 7,

26, representing a 70 percent increase in the median

sentence over the maximum ten-year sentence that a

defendant would face without an ACCA enhancement.

Such dramatic increases in individual sentences

heighten the stakes in this case. Entrusting to a

judge alone the determination of the underlying

23

issues undermines the credibility and perceived fairness of the criminal justice system. See Marshall v.

Jerrico, Inc., 446 U.S. 238, 243 (1980) (“[J]ustice must

satisfy the appearance of justice.” (quoting Offutt v.

United States, 348 U.S. 11, 14 (1954)). And excluding

juries from these momentous decisions undermines

public confidence in the law. As this Court has noted,

“[j]ury service preserves the democratic element of

the law.” Powers v. Ohio, 499 U.S. 400, 407 (1991).

Maintaining the connection between criminal judgments and community participation affords yet another reason for this Court to resolve this issue.

3. The significance of these procedural protections is highlighted by the first known jury consideration of the ACCA occasions question. In United

States v. Pennington, the jury found defendant Darius

Pennington guilty of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g). 1:19-CR455-WMR (N.D. Ga. Sept. 20, 2022), Dkt. No. 171. Yet

the jury—not the judge—was permitted to consider

whether the government carried its burden beyond a

reasonable doubt in establishing that the three ACCA

predicate offenses, which occurred months and years

apart and in two different counties, were committed

“on occasions different from one another.” Id., Dkt.

No. 172 (Sept. 20, 2022). In a verdict rendered the

same day as the verdict on the underlying offenses,

the jury determined that the government had not carried its burden, thereby reducing Mr. Pennington’s

sentencing range from fifteen-years-to-life to zero-toten years. Id., Dkt. No. 173 (Sept. 20, 2022).

The jury’s consideration of the ACCA occasions issue has profound practical and constitutional

24

importance not only for Mr. Pennington’s and petitioner’s sentences, but also for the credibility and integrity of the criminal justice system more broadly.

Yet without this Court’s intervention, those benefits

will accrue only if district courts exercise discretion to

move beyond (or defy) circuit law, while the courts of

appeals, case by case, decide whether to reconsider

their precedents—with several already refusing to do

so. The unsettled state of the law has serious and immediate adverse effects on the administration of justice. Only this Court can provide a definitive national

solution to this critical issue.

4. The need for this Court’s intervention is confirmed by the significant number of ACCA cases that

the Court regularly agrees to review.

Besides

Wooden, this Court has in recent years addressed

questions concerning the mens rea necessary to satisfy the ACCA’s elements clause, Borden v. United

States, 141 S. Ct. 1817 (2021); the methodology for determining when a state offense qualifies as a “serious

drug offense,” Shular v. United States, 140 S. Ct. 779

(2020); aspects of generic burglary, Quarles v. United

States, 139 S. Ct. 1872 (2019); when robbery qualifies

under the elements clause, Stokeling v. United States,

139 S. Ct. 544 (2019); another generic-burglary case,

United States v. Stitt, 139 S. Ct. 399 (2018); and the

procedural questions implicated in Mathis,

Descamps, and Shepard. The constitutional issue in

this case cuts across all ACCA cases. If this Court’s

intervention is warranted to resolve discrete circuit

splits that reflect subcategories of ACCA cases, it is

equally warranted to settle a recurring issue that affects all of them.

25

D. This Is A Suitable Vehicle To Address The Question Presented

The Court should resolve the question presented

in this case. The legal issue is cleanly presented in a

published opinion, and the court of appeals denied rehearing en banc. See Pet. App. 33a. And it did so with

full awareness that, after Wooden, the United States

agrees with petitioner that the occasions issue is for

the jury. See supra at 10, 14 n.5.

The question presented is also outcome-determinative. If petitioner is entitled to a grand-jury indictment and jury determination beyond a reasonable

doubt on whether his prior offenses were committed

on occasions different from one another, he cannot be

subjected to the ACCA enhancement. Petitioner was

never charged under the ACCA. He never admitted

the relevant issue—that his prior robberies arose on

different occasions—and under a correct understanding of the law as articulated in Wooden, they did not.7

Despite petitioner’s objection, the judge determined

by a preponderance of the evidence that his prior convictions were committed on different occasions and

7 The government argued in its response to the petition for re-

hearing en banc that petitioner “admitt[ed] the relevant facts in

district court,” thus waiving his claim that he was entitled to indictment and jury consideration of those facts. COA 56 at 2. But

petitioner merely admitted that the robberies “occurred on separate dates and [at] separate locations.” DE 35 at 1. Under

Wooden, these facts are not dispositive of the occasions inquiry

and no waiver occurred. 142 S. Ct. at 1070-71; see DE 35 at 1-2

(“preserv[ing]” objection, pending Wooden, that “predicate offenses were committed on occasions different from one another”

under the ACCA).

26

imposed an enhanced ACCA sentence. Pet. App. 16a19a.

Because he was sentenced before this Court issued

Wooden, petitioner did not raise the jury-trial issue

until his appellate briefing. See supra at 9-10. Nevertheless, the Sixth Circuit did not find that the argument was forfeited or apply plain-error review. Rather, the panel squarely addressed the issue on the

merits by applying pre-Wooden Sixth Circuit precedent holding that “a sentencing judge may answer the

question of whether prior offenses were ‘committed on

occasions different from one another.’” Pet. App. 19a

(quoting United States v. King, 853 F.3d 267, 274 (6th

Cir. 2017)).

That was error. This Court should grant certiorari

to correct it, leaving—as is its usual practice—any

question of harmless error to the court of appeals on

remand. See Neder v. United States, 527 U.S. 1, 25

(1999). The government’s claim below that the error

here was harmless is incorrect.8 But more importantly, it is also beside the point. As the government has acknowledged, an assertion of harmlessness

8 The district court failed to account for important factors under

Wooden that a rational jury could rely on to find for petitioner.

While the court acknowledged that the robberies were “similar”

because they were committed by “[t]he same three individuals

. . . in Fayette County, Kentucky,” it concluded—citing no evidence, much less any elemental facts—that the robberies did

“not share a common scheme.” Pet. App. 17a. But as this Court

acknowledged in Wooden, “a range of circumstances may be relevant” to that question, including “the character and relationship of the offenses.” 142 S. Ct. at 1071. Whether the requisite

relationship existed is not clear beyond a reasonable doubt.

Neder, 527 U.S. at 17.

27

“would not warrant declining review—particularly

given that the courts of appeals have uniformly erred

in resolving that question, which has important implications for the procedures to be followed on a common criminal charge.” Br. in Opp. at 8-9, Reed v.

United States, No. 22-336 (U.S. Dec. 12, 2022).

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

Elizabeth A. Arrick

CASEY BAILEY & MAINES,

PLLC

3151 Beaumont Centre

Circle, Ste. 200

Lexington, KY 40513

L. Nicole Allan

O’MELVENY & MYERS LLP

Two Embarcadero Ctr.

San Francisco, CA 94111

March 27, 2023

Michael R. Dreeben

Counsel of Record

Rachel A. Chung

O’MELVENY & MYERS LLP

1625 Eye Street, NW

Washington, DC 20006

(202) 383-5400

mdreeben@omm.com

Heather Welles

Natalie D. Camastra

O’MELVENY & MYERS LLP

400 S. Hope Street,

18th Flr.

Los Angeles, CA 90071