Petition for Writ of Certiorari — Paul Erlinger, Petitioner v. United States

No. 23-____

IN THE

Supreme Court of the United States

____________________

PAUL ERLINGER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

____________________

PETITION FOR A WRIT OF CERTIORARI

____________________

Heather Welles

Louis W. Fisher

O’MELVENY & MYERS LLP

400 S. Hope Street,

18th Flr.

Los Angeles, CA 90071

Jessie A. Cook

3650 N. Washington Blvd.

Indianapolis, IN 46205

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

i

QUESTION PRESENTED

Whether the Constitution requires a 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. Erlinger, No. 2:18-cr-00013-001

(S.D. Ind.)

United States v. Erlinger, No. 2:19-cv-00518, 2021

WL 2915014 (S.D. Ind. July 12, 2021)

United States v. Erlinger, 77 F.4th 617 (7th Cir.

2023)

iii

TABLE OF CONTENTS

Page

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 ........... 14

B.

The Courts Of Appeals Will Not

Correct Course Without This

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

C.

The Question Presented Is

Critically Important .......................... 23

D.

This Case Is An Ideal Vehicle For

Addressing The Question

Presented ........................................... 29

CONCLUSION ........................................................ 31

APPENDIX A: Opinion of the United States

Court of Appeals for the Seventh Circuit

(Aug. 10, 2023) ................................................ 1a

APPENDIX B: Information .................................. 10a

iv

TABLE OF CONTENTS

(continued)

Page

APPENDIX C: Defendant’s Sentencing Memorandum (Apr. 26, 2022) ................................ 14a

APPENDIX D: Excerpts of Sentencing Transcript, United States District Court for the

Southern District of Indiana (May 16,

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

APPENDIX E: Relevant Statutory Provision ...... 62a

v

TABLE OF AUTHORITIES

Page(s)

CASES

Alleyne v. United States,

570 U.S. 99 (2013) ............................................ 2, 7

Almendarez-Torres v. United States,

523 U.S. 224 (1998) ...................................6, 16, 17

Apprendi v. New Jersey,

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

Blakely v. Washington,

542 U.S. 296 (2004) .....................................6, 7, 24

Borden v. United States,

141 S. Ct. 1817 (2021)........................................ 28

Cunningham v. California,

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

Descamps v. United States,

570 U.S. 254 (2013) ....................................... 17-18

Duncan v. Louisiana,

391 U.S. 145 (1968) ............................................ 23

In re Winship,

397 U.S. 358 (1970) ............................................ 24

Kirkland v. United States,

687 F.3d 878 (7th Cir. 2012).............................. 17

Marshall v. Jerrico, Inc.,

446 U.S. 238 (1980) ............................................ 24

Mathis v. United States,

579 U.S. 500 (2016) .............................8, 16, 18, 30

Offutt v. United States,

348 U.S. 11, 14 (1954) ........................................ 24

Peña-Rodriguez v. Colorado,

580 U.S. 206 (2017) ............................................ 23

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

Pereida v. Wilkinson,

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

Powers v. Ohio,

499 U.S. 400 (1991) ............................................ 25

Quarles v. United States,

139 S. Ct. 1872 (2019)........................................ 28

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) .......................................... 9, 16

Shular v. United States,

140 S. Ct. 779 (2020).......................................... 28

Stirone v. United States,

361 U.S. 212 (1960) ............................................ 23

Stokeling v. United States,

139 S. Ct. 544 (2019).......................................... 28

Sullivan v. Louisiana,

508 U.S. 275 (1993) ............................................ 24

United States v. Barrera,

2022 WL 1239052 (9th Cir. Apr. 27, 2022) ....... 20

United States v. Booker,

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

United States v. Brown,

67 F.4th 200 (4th Cir. 2023) .............................. 20

United States v. Burgin,

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

United States v. Cotton,

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

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Daniels,

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

United States v. Dudley,

5 F.4th 1249 (11th Cir. 2021) .......................15, 19

United States v. Erlinger,

No. 2:19-cv-00518, 2021 WL

2915014 (S.D. Ind. July 12, 2021) ....................... 8

United States v. Gallimore,

71 F.4th 1265 (10th Cir. 2023) .....................20, 21

United States v. Gaudin,

515 U.S. 506 (1995) ............................................ 16

United States v. Golden,

2023 WL 2446899 (3d Cir. Mar. 10, 2023) ........ 20

United States v. Hatley,

61 F.4th 536 (7th Cir. 2023) .........................20, 22

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) ......................... 19

United States v. Longoria,

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

United States v. Lovell,

No. 20-6287, 2023 WL 1879530 (6th

Cir. Feb. 10, 2023).............................................. 20

United States v. Man,

2022 WL 17260489 (9th Cir. Nov. 29, 2022)..... 21

United States v. Michel,

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

viii

TABLE OF AUTHORITIES

(continued)

Page(s)

United States v. Miller,

305 F. App’x 302 (8th Cir. 2008) ....................... 19

United States v. Morris,

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

United States v. Perry,

908 F.3d 1126 (8th Cir. 2018)............................ 15

United States v. Reed,

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

United States v. Santiago,

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

United States v. Stearns,

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

United States v. Stitt,

139 S. Ct. 399 (2018).......................................... 28

United States v. Stowell,

-- F.4th --, 2023 WL 6168341 (8th

Cir. Sept. 22, 2023) .......................................20, 22

United States v. Tatum,

165 F. App’x 367 (5th Cir. 2006) ....................... 19

United States v. Thomas,

2023 WL 5535124 (6th Cir. Aug. 8, 2023)......... 21

United States v. Thompson,

421 F.3d 278 (4th Cir. 2005).........................15, 19

United States v. Walker,

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

United States v. Williams,

2023 WL 2239020 (5th Cir. Feb. 23, 2023) ....... 20

United States v. Williams,

39 F.4th 342, 351 (6th Cir. 2022) ...................... 20

ix

TABLE OF AUTHORITIES

(continued)

Page(s)

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,

595 U.S. 360 (2022) .................... 2-5, 11, 15-16, 30

CONSTITUTIONAL PROVISIONS

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

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

STATUTES

18 U.S.C. § 922(g) ...........................................4, 14, 27

18 U.S.C. § 922(g)(1) ........................................... 7, 25

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

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

18 U.S.C. § 924(e) ................................................ 1, 25

18 U.S.C. § 924(e)(1) ..........................................2, 4, 7

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

28 U.S.C. § 2255 ........................................................ 8

Ind. Code 35-34-1-5(a)(7) ........................................ 30

RULES

S. Ct. R. 10(c) ........................................................... 21

OTHER AUTHORITIES

Joseph Story, Commentaries on the

Constitution of the United States

(1833) (Lonang Inst. ed., 2005) ......................... 23

x

TABLE OF AUTHORITIES

(continued)

Page(s)

U.S. Sent’g Comm’n, Federal Armed

Career Criminals: Prevalence,

Patterns, and Pathways (Mar. 2021) ................ 24

PETITION FOR A WRIT OF CERTIORARI

Petitioner Paul Erlinger respectfully petitions for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Seventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals is reported at

77 F.4th 617 and reprinted in the Appendix to the Petition (“Pet. App.”) 1a-9a. The judgment of the district

court is available at United States v. Erlinger, No.

2:18-cr-00013-001 (S.D. Ind. May 16, 2022), ECF No.

109.

JURISDICTION

The court of appeals issued its decision on August

10, 2023. Pet. App. 1a. 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.

The relevant statutory provision, Section 924(e) of

Title 18 of the U.S. Code, is reproduced at Pet. App.

62a.

2

INTRODUCTION

This case presents a critically important question

of constitutional criminal procedure, with a straightforward answer. Facts that can enhance sentences—

including whether predicate offenses were committed

on different “occasions” under the Armed Career

Criminal Act (ACCA)—must be alleged in a federal

indictment and proved to a jury beyond a reasonable

doubt under the Fifth and Sixth Amendments. Yet

since Wooden v. United States, 595 U.S. 360 (2022),

when the Court construed the occasions clause in a

way that necessitates factfinding to enhance a sentence under ACCA and reserved the constitutional issue presented here, the courts of appeals have failed

to revise their holdings to accord with the Constitution, and district courts have taken widely disparate

approaches in similarly situated cases. This Court’s

intervention is necessary to resolve this issue and restore a uniform application of the ACCA.

The ACCA mandates a fifteen-year minimum sentence, and permits a maximum sentence of life imprisonment, for unlawful possession of a firearm if the defendant has three prior qualifying convictions for offenses “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The Fifth and Sixth

Amendments require that “any fact that increases the

mandatory minimum is an ‘element’ that must be

submitted to the jury” and “found beyond a reasonable doubt,” subject only to a “narrow exception . . . for

the fact of a prior conviction.” Alleyne v. United

States, 570 U.S. 99, 102-03 & 111 n.1 (2013) (citing

Apprendi v. New Jersey, 530 U.S. 466 (2000)). And

Wooden held that the ACCA’s “on occasions different

3

from one another” clause can be triggered only after a

fact-intensive inquiry into whether the prior crimes

arose from the “single criminal episode,” which requires a “multi-factored” examination of the time,

place, “character and relationship of the offenses,” as

well as any intervening events. 595 U.S. at 363, 369.

Because those factors fall outside the narrow “fact of

a prior conviction” exception to Apprendi, the existence of three qualifying offenses committed on different occasions must be alleged in the indictment and

proved to a jury.

Nevertheless, in this case, the court of appeals denied petitioner’s constitutional right to a jury determination on the “occasions” question based solely on

its pre-Wooden case law. That error has been replicated in case after case across the nation—despite the

government’s acknowledgment in this case and others

that a “jury should be deciding these questions.” Pet.

App. 7a n.3. The courts of appeals have made clear

that they do not intend to change course without this

Court’s direction. And making matters worse, different district courts—and even judges in the same district—apply different rules, creating chaos in the federal trial courts and precisely the unwarranted disparities and denials of constitutional rights that warrant this Court’s review. The result is disorder, confusion, and unfairness to defendants—with ACCA defendants facing unjustified years in prison while the

courts of appeals refuse to accord them their constitutional rights.

Only this Court can establish a nationally applicable rule on this important question of constitutional

law. The Court should grant review to address—and

4

resolve this Term—the Apprendi issue it reserved in

Wooden.

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,

595 U.S. 360, 364 (2022).1 But if the individual who

violates Section 922(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

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

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

moment ‘when [an offense’s] elements are established,’” 595 U.S. at 366—the Court held that the

proper test asks whether the prior convictions arose

“from a single criminal episode,” id. at 363. 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 369. “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. at 370. 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,”

6

Wooden raised a corresponding procedural question:

Could the occasions inquiry be resolved by a judge at

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) (prior-conviction 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 sentenceenhancing facts. Apprendi explained why those guarantees apply: “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—other than the fact of prior

conviction—not found by a jury. Blakely, 542 U.S. at

303-04.

B. Proceedings Below

1. In 1991, when he was eighteen years old, petitioner pleaded guilty to four counts of burglary, arising from four nonresidential burglaries in Dubois

County, Indiana. All four offenses were charged in a

single complaint on May 8, 1991, and the convictions

were entered on September 30, 1991. Pet. App. 21a.

The complaint alleged that each burglary occurred

within the same county and within the City of Jasper

over the course of a week: April 4, April 8, and April

11, 1991. Pet. App. 22a; C.A. Dkt. 6 App’x at 43-45,

49.2 Petitioner received concurrent sentences for each

conviction.

2. In 2017, petitioner was charged by information

with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Pet. App.

10a-11a. The information alleged four prior convictions purportedly to invoke the ACCA, but did not

2 “C.A. Dkt.” refers to the Seventh Circuit docket.

8

allege that they were committed on occasions different from one another. Id.

Petitioner pleaded guilty and was sentenced to a

term of 180 months to be followed by a one-year term

of supervised release. Pet. App. 2a; Judgment at 2,

No. 2:18-CR-00013 (S.D. Ind. Oct. 24, 2018), ECF No.

51. The court imposed that sentence in accordance

with the mandatory-minimum term required by the

Armed Career Criminal Act. See United States v. Erlinger, No. 2:19-cv-00518, 2021 WL 2915014 at *1

(S.D. Ind. July 12, 2021). On July 12, 2021, the district court granted petitioner’s motion to vacate his

sentence pursuant to 28 U.S.C. § 2255, subject to resentencing, because three of the four offenses that the

court originally relied on no longer qualified as ACCA

predicates under intervening circuit law. Id. at *1-2.

At resentencing, the government recommended

that petitioner again be sentenced under the ACCA

based on four Indiana burglary convictions entered in

1991. Pet. App. 2a-3a. Petitioner objected, arguing

that under Wooden, his 1991 burglary convictions

were not committed on different occasions from each

other because they were committed in the same city,

were charged on the same day, produced concurrent

sentences, and were not separated by intervening arrests. Id. at 3a, 22a. He further argued that “judicial

factfinding” on this point was impermissible, citing

Mathis v. United States, 579 U.S. 500 (2016); Pet.

App. 23a.

At the sentencing hearing, petitioner expanded on

his constitutional argument, contending that the district court “is prohibited by the Sixth Amendment and

by Apprendi [v. New Jersey, 530 U.S. 466 (2002)] . . .

9

from engaging in judicial fact finding other than finding the simple fact of a prior conviction and the elements of that prior conviction.” Pet. App. 37a. Petitioner elaborated on the unreliability of conviction

records as a basis for finding that the ACCA applied,

id. at 37a-41a, and noted that “in order for the [district court] to make a determination that the two addresses set forth in the charging documents are not

adjacent to one other requires judicial fact finding,

which is absolutely barred by the Sixth Amendment.”

Id. at 45a; see also id. at 45a-48a (parties and court

addressing the impact of Wooden on judicial factfinding to impose an ACCA sentence); id. at 56a-57a

(court noting that petitioner had “preserv[ed]” the

Sixth Amendment issue for “appellate review”).

The district court held that, under Shepard v.

United States, 544 U.S. 13 (2005), it could rely on the

generic factual information contained in the 1991

charging document for the purposes of ACCA. Pet.

App. 55a-57a. Although it acknowledged that the sentence enhancement resulted in an “excessive,” “artificially inflate[d]” and “unjust punishment,” the district

court applied the ACCA enhancement and sentenced

petitioner to 180 months of imprisonment. Id. at 58a.

The court found this “unfortunate,” stating that, if it

were not “compelled” to impose the ACCA enhancement, it would have sentenced petitioner to a term of

60 months of imprisonment Id.

3. Petitioner appealed the ACCA enhancement,

arguing that the district court impermissibly engaged

in judicial factfinding and erred in concluding that his

1991 burglary convictions qualified for enhanced penalties under the ACCA.

C.A. Dkt. 6 at 6-15.

10

Petitioner argued that Wooden “raise[d] questions

such as whether the Occasions Clause can be squared

with the Fifth and Sixth Amendment rights of defendants to be sentenced only on facts proven beyond a

reasonable doubt by juries and not by sentencing

judges” because, under this Court’s jurisprudence, judicial factfinding is precluded “where it increases the

maximum potential penalty for an offense and goes

beyond an inquiry into the simple fact of a prior conviction.” C.A. Dkt. 6 at 14-15. The government

agreed that petitioner had not admitted that the burglaries were committed on separate occasions and

that “[f]ollowing Wooden, . . . the Sixth Amendment

requires a jury to determine whether predicate offenses were committed on different occasions.” C.A.

Dkt. 15 at 7, 11.

The court of appeals affirmed, noting that

“Wooden expressly reserved the Sixth Amendment issue” and the court was, therefore, “bound by [its] [preWooden] precedent.” Pet. App. 7a. Applying circuit

precedent, the court of appeals held that the government was not required to prove to a jury beyond a reasonable doubt that petitioner committed the 1991

burglaries on separate occasions. And the court determined that, under Wooden, the 1991 burglaries

were committed on different occasions.3 Id. at 8a.

3 The panel also held that Indiana’s burglary statute was not

overly broad and could properly qualify for an enhanced sentence

under ACCA. Pet. App. 4a-6a. Petitioner does not seek certiorari on this question.

11

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, 595

U.S. 360, 397 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 365 n.3 (majority

opinion). But as Justice Gorsuch noted, “there is little

doubt that [the Court] will have to do so soon.” Id. at

397 n.7 (Gorsuch, J., concurring).

The time has arrived. In the seventeen months

since the Court issued Wooden, the courts of appeals

have repeatedly refused to revisit their precedent on

this question. Instead, like the Seventh Circuit here,

many circuits have dismissed the impact of Wooden

on the Apprendi issue and affirmed longstanding circuit precedent holding that a judge may conduct the

occasions inquiry. Meanwhile, district courts are applying different rules to similarly situated cases, particularly in light of the government’s agreement that

Apprendi applies. See infra at 18-22.

The court of appeals’ holding that Apprendi does

not apply to the occasions issue under ACCA conflicts

with this Court’s precedents. 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

12

submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi, 530 U.S. at 490. 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 that fall outside the fact of

prior conviction for the separate predicate offenses.

Because the ACCA raises a defendant’s statutory sentencing range, Apprendi’s principles directly apply to

the occasions issue.

The government agrees with this position. The

government recognizes that in light of Wooden, the

different-occasions issue is for the jury—as the government told the Seventh Circuit, Pet. App. 7a n.3,

has argued in multiple other courts of appeals, and

has acknowledged to this Court, see, e.g., U.S. Br. in

Opp. 6-7, Reed v. United States, No. 22-336 (filed Dec.

2022). Yet the gridlock in the lower courts persists.

This state of affairs is untenable, and it is only getting worse. It has become clear that the regional circuits will not reconsider and correct their erroneous

pre-Wooden precedent without this Court’s intervention. Most have denied en banc review, with judges

in one circuit (the Fourth) explicitly stating that this

Court should take up the issue. And the only court to

grant en banc—the Eighth Circuit—ultimately declined to resolve the question. District courts, meanwhile, apply Apprendi in some cases while declining

to do so in others. This disparate application of constitutional rights 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

13

imposed ACCA sentences, and to protect critically important constitutional rights.

This case is an ideal vehicle for review. Petitioner

preserved his constitutional claim in the district

court, and the court of appeals relied on binding circuit precedent on direct review, in a published, postWooden opinion, to reject the Apprendi claim. That

rejection was dispositive to the court’s decision to affirm petitioner’s sentence.

No asserted need for percolation of this clear-cut

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

confirms the clarity of the correct answer. And the

discordant results in the district courts underscores

the need for this Court’s review and the unfairness of

deferring it. The petition should be granted, and the

decision below reversed.4

Other pending petitions for certiorari seeking review of the

same issue include Valencia v. United States, No. 23-5606 (filed

Sept. 12, 2023); Thomas v. United States, No. 23-5457 (filed Aug.

22, 2023); and McCall v. United States, No. 22-7630 (filed May

22, 2023). Several other petitions seeking review of the same

issue—filed before it became clear that the courts of appeals

would not correct their flawed pre-Wooden precedent through

the en banc process—were denied on October 2, 2023. See

Turner v. United States, No. 23-5226 (filed July 21, 2023); Williams v. United States, No. 23-5085 (filed July 10, 2023); Jackson

v. United States, No. 22-7772 (filed June 8, 2023); Hunley v.

United States, No. 22-7758 (filed June 8, 2023); Lovell v. United

States, No. 23-5081 (filed July 10, 2023); Buford v. United States,

No. 22-7660 (filed May 25, 2023). Petitions for certiorari on this

issue can be expected to proliferate until this Court resolves the

issue.

4

14

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

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

defendant has three prior convictions for 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 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 minimum 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

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

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), ECF No.

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

not allege that he had ACCA-qualifying convictions for offenses

committed on different occasions from one another.” See Pet.

App. 10a-13a.

15

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 different-occasions issue as one for the court “falls in line

with 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 differentoccasions 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.” 595 U.S. at 369. “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.. 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

16

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”).

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 to “increase the sentence for a recidivist.”

Id. at 226. This recidivism exception is limited to only

the fact of the conviction itself (including the elements

of the offense of conviction). See Mathis, 579 U.S. at

511-12. A judge “can do no more, consistent with the

Sixth Amendment, than determine what crime, with

what elements, the defendant was convicted of.” Id.

“[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, 544 U.S. at 25). “[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.” Wooden, 595 U.S. at

363. 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

17

which the offenses occurred, nor whether they share

a common scheme or purpose. See id. at 369. Indeed,

the entry of a conviction does not even determine the

date on which an underlying offense was committed.

The facts necessary to determine the occasions inquiry necessarily “relate to the commission of the offense,” Almendarez-Torres, 523 U.S. at 244 (internal

quotation marks omitted), and therefore cannot fall

within the fact-of-conviction exception articulated by

Almendarez-Torres.

3. Some courts—including the Seventh 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, . See, e.g.,

Kirkland v. United States, 687 F.3d 878, 883-86 (7th

Cir. 2012); United States v. Hennessee, 932 F.3d 437,

442-43 (6th Cir. 2019). But that approach fails. See

Hennessee, 932 F.3d 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, 26263 (2013).

But 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

18

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

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 under Apprendi 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

Before Wooden clarified the proper multi-factored,

factual occasions-clause test, the courts of appeals

uniformly held that a judge (rather than a jury) may

answer ACCA’s occasions clause question. After

19

Wooden, the courts of appeals have uniformly persisted in this erroneous view. This Court must intervene to correct course.

Pre-Wooden, the courts of appeals held that Apprendi’s jury-trial rule did not apply to the occasions

clause question based on Almendarez-Torres’s narrow

exception to Apprendi. 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 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”). These courts reasoned that 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; see also Dudley, 5 F.4th at

1260 (collecting pre-Wooden cases), cert. denied, 142

S. Ct. 1376 (2022).

20

Since Wooden clarified the multifactored, fact-intensive test for “different occasions” under the ACCA,

ten courts of appeals have considered the Apprendi issue that Wooden left unresolved. None has revised its

pre-Wooden precedents, with several explicitly stating that those precedents remain binding unless overruled en banc or by this Court. United States v. Stowell, -- F.4th --, 2023 WL 6168341, at *1 (8th Cir. Sept.

22, 2023) (en banc); United States v. Gallimore, 71

F.4th 1265, 1269 (10th Cir. 2023); United States v.

Brown, 67 F.4th 200, 215, pet. for reh’g denied, 77

F.4th 301 (4th Cir. 2023); United States v. Golden,

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

United States v. Hatley, 61 F.4th 536, 542 (7th Cir.

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

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

States v. Lovell, No. 20-6287, 2023 WL 1879530, at *3

(6th Cir. Feb. 10, 2023); United States v. Williams, 39

F.4th 342, 351 (6th Cir. 2022), pet. for reh’g denied,

2022 WL 17409565 (6th Cir. Oct. 26, 2022), cert. denied, 143 S. Ct. 1783 (U.S. Apr. 24, 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, 143 S.

Ct. 1009 (2023); United States v. Reed, 39 F.4th 1285,

1295 (10th Cir. 2022), pet. for reh’g denied, No. 212073 (10th Cir. Sept. 1, 2022), cert. denied, 143 S. Ct.

745 (2023); United States v. Barrera, 2022 WL

1239052, at *2 (9th Cir. Apr. 27, 2022), pet. for reh’g

denied, No. 20-10368 (9th Cir. Sept. 21, 2022), cert.

denied, 143 S. Ct. 1043 (2023); United States v. Daniels, 2022 WL 1135102, at *1 (4th Cir. Apr. 18, 2022)

(per curiam), cert. denied, 143 S. Ct. 749 (2023).

21

Courts of appeals have also repeatedly confirmed

that they will not overrule their pre-Wooden precedents on rehearing en banc, and will instead follow

and reinforce those precedents unless this Court corrects them. See, e.g., Stowell, 2023 WL 6168341, at *1

(relying on harmless-error analysis); Gallimore, 71

F.4th at 1269 (Defendant “cannot argue to the contrary absent en banc reconsideration or a superseding

contrary decision by the Supreme Court.” (internal

quotation marks omitted)); United States v. Thomas,

2023 WL 5535124, at *2 (6th Cir. Aug. 8, 2023) (similar).6 At least five courts have denied petitions for rehearing en banc on this question. See supra at 20-21

(collecting cases from Fourth, Sixth, Ninth, Tenth,

and Eleventh Circuits).

Even judges who agree that existing circuit law is

wrong still vote against en banc review because of

their view that this Court should answer the question

presented here because it “implicates ‘an important

question of federal law that has not been, but should

be, settled by the Supreme Court.” Brown, 77 F.4th

at 301 (Heytens, J., statement concerning denial of rehearing en banc) (alterations omitted) (quoting S. Ct.

R. 10(c)). And some judges who disagree that

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, too, thereby declined

to alter otherwise 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.

22

Apprendi’s rule applies to the occasions-clause issue

are likewise “urging the Supreme Court to clarify and

settle the question” and “give the courts of appeals

guidance in this important matter.” Id. at 302 (Niemeyer, J., concurring in part in Judge Heyten’s statement).

Only the Eighth Circuit has granted en banc review to consider Wooden’s implications on this question, and that court recently determined not to decide

the issue. The majority held that “it was harmless

beyond a reasonable doubt” to permit a judge to decide the “different occasions” question because, based

on the PSR and charging documents, it saw no “reasonable possibility” that Apprendi error “contributed

to the sentence” in that case—“[w]hatever [its] views

are on any Sixth Amendment error.” United States v.

Stowell, 2023 WL 6168341, at *2. The en banc court’s

inaction on the constitutional issue—after investing

resources in an en banc proceeding that the United

States had supported precisely to reconsider circuit

law—provides overwhelming evidence that the courts

of appeals will not fix this pervasive constitutional error without direction from this Court.

Further percolation of the question presented will

not yield any new insights. The issue has been extensively debated and analyzed in majority, concurring,

and dissenting opinions. E.g. Brown, 77 F.4th at 209.

The trendline in the courts of appeals is that each will

place conclusory reliance on their own and each

other’s erroneous post-Wooden precedents in declining to reconsider their holdings. E.g., Hatley, 61 F.4th

at 542 (“[I]n Wooden’s wake, other circuits have

23

continued to recognize the propriety of sentencing

judges making this finding.”).

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, which has fallen into intolerable disarray in the

district courts.

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 essential “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 764-65 (1833) (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 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

24

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—for courts, defendants, the government,

and the administration of justice.

a. 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 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

25

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.

b. Meanwhile, the courts of appeals’ failure to resolve the tension between their precedents on the one

hand, and Wooden and Apprendi on the other, is producing chaos in the lower courts, with criminal defendants’ access to their jury-trial rights depending

on the fortuities of geography and individual judge—

even within the same circuit. For example, in the

Middle District of Florida, one judge recently (and unconstitutionally) applied ACCA’s mandatory minimum after a defendant pleaded guilty to an indictment that did not allege ACCA’s “different occasions”

requirement, despite the defendant’s and government’s objection that “the Sixth Amendment requires

a jury to find (or a defendant to admit) that the defendant committed at least three ACCA predicates on

occasions different from one another.” United States

v. Brown, No. 22-cr-64 (M.D. Fla.), ECF No. 70 at 2

(Gov’t’s Response to Def.’s Mot.); id., ECF No. 69 at 23 (Def.’s Mot. to Schedule Def.’s Sentencing Hr’g)

(similar); id., ECF No. 77 (Judgment) (finding the defendant guilty under 18 U.S.C. §§ 922(g)(1) and 924(e)

and imposing ACCA minimum). Yet within the same

district, four other “similarly situated” defendants

had recently been sentenced to non-ACCA sentences

where the defendant did not admit, and no jury found,

prior convictions that occurred on different occasions

26

under ACCA. Id., ECF No. 69 (collecting cases). Similar intra-district discord pervades other districts

across the country.7

The Third Circuit’s approach highlights the need

for this Court’s review. That court has vacated ACCA

sentences and remanded for resentencing in unpublished summary orders, based on the argument—

conceded by the government—that sentencing defendants under the occasions clause when the indictment does not charge it is reversible “Wooden/Apprendi error.” See, e.g., United States v. Spry, No. 223025 (3d Cir.), ECF Nos. 28, 30-1 (granting motion for

7 Compare United States v. McDonald, No. 20-cr-57 (E.D. Pa.),

ECF Nos. 1, 72 (Gov’t Sentencing Memo.) (conceding ACCA did

not apply where occasions clause was not alleged in indictment

“in light of the ‘multi-factored’ and ‘holistic’ inquiry now required

by Wooden”), 74 (imposing non-ACCA sentence); United States

v. Castro, No. 21-cr-378 (E.D. Pa.), ECF Nos. 1, 22, 27 (similar);

and United States v. White, No. 21-cr-460 (E.D. Pa.), ECF Nos.

7, 62, 66 (similar), with United States v. Spry, No. 20-cr-84 (E.D.

Pa.), ECF Nos. 1, 69, 73 (imposing ACCA sentence despite similar government concession regarding occasions clause).

Compare also United States v. Taylor, No. 21-cr-168 (W.D.

Tex.), ECF No. 16 (indictment), 46 (government concession that

occasions clause must be indicted to apply ACCA), 49 (imposing

non-ACCA sentence), with United States v. Charles, No. 22-cr154 (W.D. Tex.), ECF No. 1 (indictment), 73 (judge rejecting similar government concession at sentencing), 66 (ACCA sentence).

Compare also United States v. Macklin, No. 22-cr-20024

(W.D. Tenn.), ECF Nos. 36 (government conceding in sentencing

submission that “[i]n the absence of an admission by Defendant

or a jury finding, . . . it violates the Sixth Amendment, and Defendant should not be sentenced under the ACCA”), 40, 42 (imposing non-ACCA sentence), with United States v. Robinson, 21cr-20096 (W.D. Tenn), ECF Nos. 1, 59, 76, 83 (rejecting similar

government concession); United States v. Thomas, 21-cr-20078

(W.D. Tenn.), ECF Nos. 1, 79, 96 (similar).

27

summary action vacating judgment and remanding).

Yet the court of appeals has not revisited circuit precedent, creating a disconnect between what the court

says and what it does. Such unexplained actions are

inconsistent with a sound administration of criminal

justice.

These differential results for similarly situated defendants in different jurisdictions—and even within

the same circuit or district—is unfair. It results directly from the lack of clarity on Apprendi’s application to the “different occasions” inquiry in Wooden’s

wake and the failure of the courts of appeals to grapple with the issue, absent guidance from this Court.

c. The significance of applying Apprendi’s procedural protections in this context 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-CR-455-WMR (N.D. Ga. Sept.

20, 2022), ECF No. No. 171. And the jury was then

permitted to consider whether the government carried its burden to establish 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., ECF

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., ECF No. 173 (Sept. 20, 2022).

28

d. Denying the jury’s role in finding the facts surrounding the ACCA occasions issue has profound significance for the credibility and integrity of the criminal justice system. Community trust and confidence

in the administration of justice is enhanced when the

jury plays its constitutionally assigned role. Yet without this Court’s intervention, those benefits will accrue only if district courts exercise discretion to move

beyond (or defy) circuit law, often with the government’s support. This state of affairs has serious adverse effects on the administration of justice. One legal regime should prevail nationwide; critical procedural protection should not vary based on the predilections of particular judges. 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 Court has granted two

other ACCA cases for argument this term. See Brown

29

v. United States, No. 22-6389; Jackson v. United

States, No. 22-6389 (addressing definition of “serious

drug offense”). 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.

D. This Case Is An Ideal Vehicle For Addressing The

Question Presented

The Court should resolve the question presented

in this case. The legal issue was preserved in the district court and is cleanly presented in a published

opinion, in which the court held that petitioner was

not constitutionally entitled to a jury finding that his

prior convictions resuled from offenses committed on

different occasions. Pet. App. 1a-2a, 6a-9a. And it did

so with full awareness that, after Wooden, the United

States agrees with petitioner that the occasions issue

must be submitted to the jury as a matter of constitutional law. See supra at 11-12.

The question presented is also outcome-determinative. If petitioner is entitled to a 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 never admitted the relevant

issue—that his prior burglaries arose on different occasions—and under a correct understanding of the

law as articulated in Wooden, they did not.8 Despite

8 Although the government acknowledged that petitioner did not

admit that that the 1991 burglaries occurred on separate

30

petitioner’s Sixth Amendment objection, the court

conducted its own factfinding and felt “compelled to

impose” an enhanced sentence under ACCA, although

such a sentence was “unjust” and “artificially inflate[d].” Pet. App. 58a. This Court should grant review to determine whether that unjust and artificially

inflated sentence was also imposed unconstitutionally.

occasions, it argued that the district court’s finding was harmless because, by pleading guilty to the burglaries, petitioner effectively “admitted to the facts in his charges, including the date

and location of his burglaries,” and thus waived his claim that

he was entitled to indictment and jury consideration of those

facts. C.A. Dkt. 15 at 18. But, through his guilty plea, petitioner

merely admitted that the “that the facts as stated in the information to which I am pleading guilty are true and correct.” Id.

at 18. In Indiana, the specific time and place of a crime are not

considered essential elements of a crime, Ind. Code 35-34-15(a)(7), and petitioner had no incentive to dispute these facts; he

was completely unaware that failure to object to inaccurate temporal facts in the Information could subject him to a ten-year

sentence enhancement almost 30 years later. See Mathis, 579

U.S. at 512-13; Pet App. at 36a-56a (advancing this argument).

And in any event, under Wooden, these facts are not dispositive

of the occasions inquiry. 595 U.S. at 369; see Pet. App. 59a (noting that petitioner’s challenge to the district court’s application

of sentencing enhancement under ACCA was “well preserved”).

Finally, the government has acknowledged that the asserted

“harmlessness of the [Apprendi error in this context] alone 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.” U.S. Br. in Opp. 9-10, Reed

v. United States, No. 22-336 (filed Dec. 2022); see also U.S. Br. in

Opp. 12, No. 22-7660 (filed Aug. 2023) (similar).

31

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Heather Welles

Louis W. Fisher

O’MELVENY & MYERS LLP

400 S. Hope Street,

18th Flr.

Los Angeles, CA 90071

Jessie A. Cook

3650 N. Washington Blvd.

Indianapolis, IN 46205

October 4, 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