Petition for Writ of Certiorari — Ronnie R. Lovell, Petitioner v. United States

Supreme Court briefJul 10, 2023

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NO.

____________

IN THE UNITED STATES SUPREME COURT

______________________________________________________________________

RONNIE R. LOVELL,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

______________________________________________________________________

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

__________________________________________________________

Erin P. Rust

Assistant Federal Defender

FEDERAL DEFENDER SERVICES

OF EASTERN TENNESSEE, INC.

835 Georgia Avenue, Suite 600

Chattanooga, Tennessee 37402

(423) 756-4349

Attorney for Mr. Ronnie Lovell

QUESTION PRESENTED FOR REVIEW

Can a district court judge determine that an individual’s prior offenses occurred “on occasions

different,” as required by the Armed Career Criminal Act, 18 U.S.C. § 924(e), by a

preponderance of the evidence or do the Fifth and Sixth Amendments require this fact to be

charged in the indictment and proven to a jury beyond a reasonable doubt?

PARTIES TO THE PROCEEDINGS

All parties appear in the caption of the case on the cover page.

RELATED CASES

There are no related cases.

All relevant opinions below are included in the Appendix filed herewith.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ........................................................................... ii

PARTIES TO THE PROCEEDINGS ................................................................................... iii

RELATED CASES................................................................................................................ iii

TABLE OF CONTENTS .......................................................................................................iv

TABLE OF AUTHORITIES ................................................................................................... v

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

JURISDICTIONAL STATEMENT ........................................................................................ 2

PRAYER FOR RELIEF……………………………………………………………………...3

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .............................. 3

STATEMENT OF THE CASE AND FACTS ...................................................................... 4

REASONS FOR GRANTING THE WRIT .......................................................................... 7

The Sixth Circuit’s approach is wrong……………………………………………...7

A. Under the Fifth and Sixth Amendments, the occasions-different fact must be

charged in an indictment and proved to a jury…………………………………...7

B. This Court’s existing precedent confirms that jury factfinding is the

constitutional solution……………………………………………………………9

C. Wooden lays bare the constitutional violations inherent in the current

approach……………………………………………………………………...…12

II.

The lower courts are united in error……...……………………………………...…15

CONCLUSION .................................................................................................................... 18

TABLE OF AUTHORITIES

CASES

Page

Alleyne v. United States,

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

Almendarez-Torres v. United States,

523 U.S. 224 (1998) ............................................................................................. 7, 11

Apprendi v. New Jersey,

530 U.S. 466 (2000) ............................................................................................ 5-6, 7

Descamps v. United States,

570 U.S. 254 (2013) ....................................................................................................8

Mathis v. United States,

136 S. Ct. 2243 (2016) ........................................................................................... 8, 9

Nijhawan v. Holder,

557 U.S. 29 (2009) .............................................................................................. 11-12

Pereida v. Wilkinson,

141 S. Ct. 754 (2021) ..................................................................................................9

Shepard v. United States,

544 U.S. 13 (2013) ......................................................................................................8

United States v. Barrera,

No. 20-10368, 2022 WL 1239052 (9th Cir. Apr. 27, 2022) ..................................... 16

United States v. Brady,

988 F.2d 664 (6th Cir. 1993) (en banc) ...................................................................... 7

United States v. Burgin,

388 F.3d 177 (6th Cir. 2004) .................................................................................... 15

United States v. Castleman,

572 U.S. 157 (2014) ................................................................................................. 10

United States v. Daniels,

2022 WL 1135102 (4th Cir. Apr. 18, 2022) ............................................................ 16

United States v. Dudley,

5 F.4th 1249 (11th Cir. 2021) ...................................................................................14

United States v. Harris,

794 F.3d 885 (8th Cir. 2015) ..................................................................................... 16

United States v. Hayes,

555 U.S. 415 (2009) ............................................................................................ 10-11

United States v. Haynes,

No. 19-12335, 2022 WL 3643740 (11th Cir. Aug. 24, 2022) ................................... 16

United States v. Hennessee,

932 F.3d 437 (6th Cir. 2019) ................................................................................... 8-9

United States v. Jurbala,

198 F. App’x 236 (3d Cir. 2006) ............................................................................... 15

United States v. Longoria,

874 F.3d 1278 (11th Cir. 2017) ................................................................................. 15

United States v. Man,

No. 21- 10241, 2022 WL 17260489 (9th Cir. Nov. 29, 2022) .................................. 17

United States v. Michel,

446 F.3d at 1122 (10th Cir. 2006) ............................................................................. 15

United States v. Miller,

305 F. App’x 302 (8th Cir. 2008) .............................................................................. 15

United States v. Morris,

293 F.3d 1010 (7th Cir. 2002) .................................................................................... 15

United States v. Paige,

634 F.3d 871 (6th Cir. 2011) ....................................................................................... 7

United States v. Perry,

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

United States v. Reed,

39 F.4th 1285 (10th Cir. 2022)………………………………….….…….….……… 16

United States v. Santiago,

268 F.3d 151 (2d Cir. 2001) ....................................................................................... 15

United States v. Stearns,

387 F.3d 104 (1st Cir. 2004) ...................................................................................... 15

United States v. Stowell,

40 F.4th 882 (8th Cir. 2022) ....................................................................................... 16

United States v. Stowell,

No. 21-2234, 2022 WL 16942355 (8th Cir. Nov. 15, 2022)………………..……16-17

United States v. Stitt,

139 S. Ct. 399 (2018) (“Stitt II”)……………………..………………………………4

United States v. Stitt,

860 F.3d 854 (6th Cir. 2017) (en banc) (“Stitt I”)…………………………...……….4

United States v. Tatum,

165 F. App’x 367 (5th Cir. 2006) ............................................................................. 15

United States v. Thompson,

421 F.3d 278 (4th Cir. 2005) ................................................................................ 14, 15

United States v. Walker,

953 F.3d 577 (9th Cir. 2020) ...................................................................................... 15

United States v. Wilson,

406 F.3d 1074 (8th Cir. 2005) .................................................................................... 15

Wooden v. United States,

142 S. Ct. 1063 (2022) ...................................................................................... 4, 12-14

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. amend. V .............................................................................................................. 3

U.S. Const. amend. VI ............................................................................................................. 3

8 U.S.C. § 1101(a)(43)(K)(ii)................................................................................................. 11

8 U.S.C. § 1101(a)(43)(P)....................................................................................................... 11

8 U.S.C. § 1326 ..................................................................................................................... 11

18 U.S.C. § 921(a)(33)(A) ..................................................................................................... 10

18 U.S.C. § 922(g) (“ACCA”) ................................................................................................ 3

vii

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

18 U.S.C. § 922(g)(9) ....................................................................................................... 10, 12

18 U.S.C. § 924(a)(2) (2021) .................................................................................................. 3

18 U.S.C. § 924(e) (“ACCA”) ........................................................................................ passim

18 U.S.C. § 924(e)(1) .................................................................................................... 3, 7, 12

28 U.S.C. § 1254(1) ..................................................................................................................2

COURT RULES

Supreme Court Rule 13.1……………………………………………………………………..2

Supreme Court Rule 13.5………………………………………...……………..…………….2

Supreme Court Rule 22………………………………………………………………...……..2

Supreme Court Rule 29.4…………………………………..…………………………………2

OTHER AUTHORITIES

Reed v. United States, No. 22-36

U.S. Brief in Opposition to Cert. Pet. (Dec. 12, 2022)……………..…………….14, 17

viii

OPINIONS BELOW

United States v. Lovell, Opinion and Judgment, No. 20-6287, Doc. 54-2

(6th Cir. Feb. 10, 2023)..……………………………………………..……….............1a-8a

United States v. Lovell, Sentencing Judgment, 3:14-cr-55, R. 63,

(E.D. Tenn. Oct. 28, 2020)………………………………………….….....................9a-15a

JURISDICTIONAL STATEMENT

Ronnie Lovell was sentenced to serve 180 months of imprisonment in 2020 after

pleading guilty to being a felon in possession of a firearm pursuant to 18 U.S.C. § 924(e). Mr.

Lovell filed a timely notice of appeal from that judgment on November 10, 2020. He appealed

that sentence to the United States Court of Appeals for the Sixth Circuit, which affirmed the

sentence on February 10, 2023.

This Court's jurisdiction is invoked under Title 28, United States Code, Section

1254(1). Pursuant to Rule 13.1 of the Supreme Court the time for filing a petition for certiorari

review is 90 days from the judgment of the Court of Appeals. Mr. Lovell filed an application

for a 60-day extension of time pursuant to Supreme Court Rules 13.5 and 22. That application

(No. 22A950) was granted by Justice Kavanaugh and extended the time for filing Mr. Lovell’s

petition for certiorari through July 10, 2023. Accordingly, this petition is timely filed.

Pursuant to Rule 29.4(a), appropriate service is made to the Solicitor General of the

United States and to Assistant United States Attorney Luke A. McLaurin, who appeared in the

United States Court of Appeals for the Sixth Circuit on behalf of the United States Attorney’s

Office, a federal office which is authorized by law to appear before this Court on its own behalf.

PRAYER FOR RELIEF

Petitioner, Ronnie Lovell, respectfully prays that a writ of certiorari issue to review the

opinion and judgment of the United States Court of Appeals for the Sixth Circuit.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment provides:

No person shall be held to answer for a . . . crime, unless on a presentment or

indictment of a Grand Jury . . . nor be deprived of life, liberty, or property, without

due process of law . . . .

The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a . . . trial, by an

impartial jury . . . and to be informed of the nature and cause of the accusation . . .

18 U.S.C. § 922(g) states in relevant part:

It shall be unlawful for any person –

(1) who has been convicted in any court of, a crime punishable by imprisonment

for a term exceeding one year ; . . . to . . . possess in or affecting commerce, any

firearm or ammunition . . . .

18 U.S.C. § 924(a)(2) (2021) states in relevant part:

Whoever knowingly violates subsection (a)(6), (d), (g), (h), (i), (j), or (o) of section

922 shall be fined as provided in this title, imprisoned not more than 10 years, or

both.

18 U.S.C. § 924(e)(1) provides:

In the case of a person who violates section 922(g) of this title and has three

previous convictions by any court referred to in section 922(g)(1) of this title for a

violent felony or a serious drug offense, or both, committed on occasions different

from one another, such person shall be fined under this title and imprisoned not less

than fifteen years, and, notwithstanding any other provision of law, the court shall

not suspend the sentence of, or grant a probationary sentence to, such person with

respect to the conviction under section 922(g).

STATEMENT OF THE CASE AND FACTS

Ronnie Lovell was convicted in federal court of being a felon in possession of

ammunition. Pet. Appx. at 1a. When he was first sentenced, the district court determined that

he qualified for sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e)

(“ACCA”) due to his six prior convictions for Tennessee aggravated burglary. Id. It

accordingly sentenced him to ACCA’s 15-year (i.e., 180-month) mandatory minimum. Id. Mr.

Lovell appealed that sentence, and while his appeal was pending, the Sixth Circuit decided

United States v. Stitt, 860 F.3d 854, 856 & 862 (6th Cir. 2017) (en banc) (“Stitt I”), which held

that Tennessee aggravated burglary wasn’t a violent felony for ACCA purposes. Id. at 2a.

Based on Stitt I, the Sixth Circuit remanded his case for resentencing. Id.

But, before the district court imposed a new sentence, this Court reversed Stitt I,

holding that Tennessee aggravated burglary does qualify as an ACCA violent felony. Id.

(citing United States v. Stitt, 139 S. Ct. 399, 406–07 (2018) (“Stitt II”)). At his resentencing

Mr. Lovell maintained his objection to the ACCA enhancement, arguing that his burglary

convictions still failed to qualify as ACCA predicates, albeit based on a different theory than

that rejected by this Court in Stitt II. Id. The district court overruled those objections, and

reimposed ACCA’s 15-year mandatory minimum. Id.

Mr. Lovell also appealed that sentence, and while his appeal was pending this Court

issued its decision in Wooden v. United States, 142 S. Ct. 1063 (2022). See id. Accordingly,

on appeal Mr. Lovell argued remand was required for the district court to apply the now-factintensive test laid out in Wooden. Id. at 2a-6a. Specifically, Mr. Lovell argued that a district

court should be given the opportunity to apply the Wooden test to his burglary convictions,

because five of the six burglary convictions were included in a single indictment, and because

he was arrested only once, after all the burglaries occurred. Id. He also noted that he was

sentenced on all six on the same day, to a single, concurrent sentence, and that it was not clear

from the information in the record that the burglaries occurred either at a significant distance

from each other, or on separate dates (as each indictment listed the offense as occurring “on or

about” specified dates). Id. He also argued that there was not anything in the record that

addressed whether the offenses shared a common scheme or purpose, as that factor did not

matter when he was sentenced before the district court. See id. The Sixth Circuit concluded

that the lack of information in the record regarding these factors meant that Mr. Lovell had

failed to surmount the hurdles of plain error review, even though at both of his sentencing

hearings the district court and the parties were operating under caselaw that was expressly

overturned by this Court in Wooden. Id.

On appeal Mr. Lovell also argued that Wooden requires that the government allege in

its indictment, and prove beyond a reasonable doubt to a jury, that his prior convictions

occurred “on occasions different” in order to be counted as separate convictions for purposes

of ACCA. Id. at 7a. Specifically, he noted that under Apprendi v. New Jersey, 530 U.S. 466

(2000), a judge may find the “fact of a prior conviction,” but all other “fact[s] that increase[]

the penalty for a crime beyond the prescribed statutory maximum” must be included in the

indictment and proved to a jury beyond a reasonable doubt. Pet. Appx. at 7a (citing Apprendi,

530 U.S. at 490). Mr. Lovell then argued that the factual findings necessary to the occasionsdifferent inquiry set forth by this Court in Wooden fall under Apprendi’s general rule, and

therefore may be found only by a jury—not by the sentencing judge. See id.

The Sixth Circuit rejected this argument as well, explicitly noting that “the Supreme

Court hasn’t yet addressed this question,” and therefore finding itself bound by its own prior

caselaw holding that the facts involved in the occasions-different test fall within the Apprendi

exception for “the fact of a prior conviction.” Id. It accordingly held that whether prior offenses

occurred on different occasions need neither be charged in an indictment nor proven to a jury

beyond a reasonable doubt, and it affirmed Mr. Lovell’s 15-year mandatory minimum

sentence. Id.

REASONS FOR GRANTING THE WRIT

I. The Sixth Circuit’s approach is wrong.

A. Under the Fifth and Sixth Amendments, the occasions-different fact must be

charged in an indictment and proved to a jury.

ACCA applies to increase the penalty range for a person convicted of violating 18

U.S.C. § 922(g)(1) only if the person previously committed at least three ACCA-qualifying

offenses “on occasions different from one another.” 18 U.S.C. § 924(e)(1). The Sixth Circuit

held thirty years ago that ACCA’s occasions-different requirement is not an element, to be

charged and found by a jury beyond a reasonable doubt, but is instead a fact that the district

judge may find at sentencing by a preponderance of the evidence. Under its initial rule,

sentencing judges may analyze all sorts of information that “lay behind” the elements of the

conviction, such as the crime’s time, place, and victim. United States v. Brady, 988 F.2d 664,

670 (6th Cir. 1993) (en banc); see United States v. Paige, 634 F.3d 871, 873 (6th Cir. 2011).

But the law has evolved to reveal that this approach violates the Fifth and Sixth Amendments.

In a series of constitutional decisions running from Apprendi to Alleyne, this Court has

developed a bedrock rule: The Fifth and Sixth Amendments require any fact that increases the

statutory maximum or minimum penalty for a crime to be charged in the indictment, submitted

to a jury, and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490

(2000); Alleyne v. United States, 570 U.S. 99, 111 (2013). Facts determined at sentencing

cannot enhance the statutory sentencing range. Id. There is just one exception to this rule which

allows a sentencing court to consider “the fact of a prior conviction,” and that exception is

“narrow.” Apprendi, 530 U.S. at 490; Alleyne, 570 U.S. at 111, n.1; see Almendarez-Torres v.

United States, 523 U.S. 224, 230, 234, 244 (1998).

To fit within this exception for “the fact of a prior conviction,” the features of the prior

conviction that trigger the increased penalty must be elements of the prior offense—i.e., facts

that the jury must find beyond a reasonable doubt to sustain the conviction. Mathis v. United

States, 136 S. Ct. 2243, 2248, 2252 (2016). Thus, when acting on Apprendi’s narrow exception

for the “fact of a prior conviction,” the sentencing judge cannot make findings about facts that

lay behind that conviction, but rather can determine only “what crime, with what elements, the

defendant was convicted of.” Id. at 2252; see also Descamps v. United States, 570 U.S. 254,

269-70 (2013) (“the only facts the court can be sure the jury so found are those constituting

elements of the offense—as distinct from amplifying but legally extraneous circumstances”);

Shepard v. United States, 544 U.S. 13, 20-21, 26 (2013). If the features of the prior conviction

are not “the simple fact of a prior conviction,” but rather include circumstances that would let

the judge “explore the manner in which the defendant committed that offense,” they do not fit

within the narrow exception to Apprendi. Mathis, 136 S. Ct. at 2252.

In short, this Court has established a distinction between “elemental facts” and “nonelemental facts.” Descamps, 570 U.S. at 270. The former are the facts that either the jury

necessarily found or the defendant necessarily admitted to sustain the conviction. The latter

are facts that were legally extraneous to the conviction. When a federal sentencing court

determines the “fact of a prior conviction,” it can consider only “elemental facts”—otherwise

it will run afoul of the Sixth Amendment.

In light of the evolving law, and solely to safeguard its rule that a sentencing judge may

engage in the factfinding necessary to establish that offenses were committed on different

occasions, the Sixth Circuit has devised an accommodation with the Apprendi doctrine. Under

its current rule, a sentencing judge deciding the different-occasions question is limited to

considering Shepard documents but is not limited to Shepard elemental evidence. United

States v. Hennessee, 932 F.3d 437 (6th Cir. 2019) (holding that a sentencing judge may consult

Shepard documents to discern the non-elemental facts of time, place, and victim of prior

Tennessee robbery conviction to find that the defendant had committed two crimes “on

occasions different from one another”). In other words, the sentencing judge can consider

whatever non-elemental facts happen to appear in the relevant Shepard documents, even

though the entire point of Shepard and its progeny is to limit the sentencing court’s

consideration to a certain type of evidence, namely, the evidence of elemental facts.

Though it preserves the status quo, this accommodation conflicts with Mathis and the

Fifth and Sixth Amendments. Under the reasoning of Mathis and its underlying Sixth

Amendment concern, the only facts a district court may properly—or fairly—discern from the

Shepard evidence are the elements of the offense. Mathis, 136 S. Ct. at 2252 (“A judge ‘can

do no more, consistent with the Sixth Amendment, than determine what crime, with what

elements, the defendant was convicted of.”). Because “the who, what, when, and where of a

conviction” all “pose questions of fact,” Pereida v. Wilkinson, 141 S. Ct. 754, 765 (2021), the

occasions-different question must be charged in the indictment and proven to a jury beyond a

reasonable doubt.

B. This Court’s existing precedent confirms that jury factfinding is the

constitutional solution.

Existing Supreme Court precedent confirms that when a sentencing court finds the

circumstance-specific, non-elemental facts relevant to the occasions-different inquiry, it

violates the Sixth Amendment. The Sixth Circuit’s reliance on its pre-Wooden precedent

ignores the logic of this Court’s prior cases, logic that dictates the result Mr. Lovell urges here.

In United States v. Hayes, 555 U.S. 415 (2009), this Court addressed the definition of

“misdemeanor crime of domestic violence” for purpose of the firearms ban at 18 U.S.C.

§ 922(g)(9). A person previously convicted of a “misdemeanor crime of domestic violence”

may not possess a firearm, and if he does, is subject to conviction and punishment up to 10

years in prison. 18 U.S.C. § 922(g)(9). A “misdemeanor crime of domestic violence” is defined

as an offense that is a misdemeanor and “has, as an element, the use or attempted use of

physical force, or the threatened use of a deadly weapon, committed by a current or former

spouse, parent, or guardian of the victim,” or other specified domestic relationship with the

victim. 18 U.S.C. § 921(a)(33)(A). The Court divided the question whether a person was

convicted of a “misdemeanor crime of domestic violence” into two distinct components. The

first requirement relates to the category of offense: The offense as defined by law must have

as an element the use or threatened use of physical force or threatened use of a deadly weapon.

Hayes, 555 U.S. at 421-22. This legal determination is made by the district court, subject to

the ordinary limitations of the categorical approach. United States v. Castleman, 572 U.S. 157,

168 (2014).

The second requirement is circumstance-specific: The particular defendant who

committed the offense must have been in one of the specified domestic relationships with the

victim. Hayes, 555 U.S. at 422-23. This fact-based determination, because it is not elemental,

is not made by the district court but must be proved by the government to the jury beyond a

reasonable doubt (or admitted by the defendant). Id. at 426 (“To obtain a conviction in a

§ 922(g)(9) prosecution, the Government must prove beyond a reasonable doubt that the victim

of the predicate offense was the defendant’s current or former spouse or was related to the

defendant in another specified way.”). This is true even when the relationship between the

defendant with the victim is apparent from Shepard evidence of the conviction.

In Nijhawan v. Holder, 557 U.S. 29 (2009), the Court cited Hayes when it tangentially

addressed prosecutions for illegal reentry after conviction for an aggravated felony under 8

U.S.C. § 1326. Illegal reentry carries a sentence of up to two years in prison, but if the

defendant was previously convicted of an “aggravated felony” it carries a sentence of up to 20

years. 8 U.S.C. § 1326(a), (b)(2). As discussed above, the fact of the prior aggravated felony

conviction is generally a sentencing factor that the judge can find at sentencing. AlmendarezTorres, 523 U.S. at 226-27. But the statute discussed in Nijhawan defines some aggravated

felonies by using two components: one being the fact of a prior conviction of a certain type of

crime and the other being the fact that the defendant “committed” the prior crime in a specific

way or under specific circumstances. Nijhawan, 557 U.S. at 37-38 (quoting 8 U.S.C.

§ 1101(a)(43)(K)(ii), (P)). This Court recognized that while the first part of this hybrid type of

aggravated-felony definition falls within the Almendarez-Torres exception to Apprendi, the

second part—the part pertaining to how the defendant committed the crime—is “circumstancespecific,” and falls beyond the bounds of the fact of a prior conviction. Id. at 40. As a result,

that fact would have to be found by a jury in a criminal prosecution (i.e., treated as an element

of the instant offense) to “eliminat[e] any constitutional concern.” Id.

And the government agreed with that conclusion. There, the specific fact at issue was

whether a person alleged to be removable had previously committed fraud involving loss to

victims in excess of $10,000. Id. at 32. In response to hypothetical constitutional concerns

relating to any later illegal reentry trial, the government “stated in its brief and at oral argument

that the later jury, during the illegal reentry trial, would have to find loss amount beyond a

reasonable doubt, eliminating any constitutional concern.” Id. at 40 (citing Hayes).

As with the inquiry in Hayes and the potential illegal reentry inquiry in Nijawan, the

inquiry under ACCA has “two separate statutory conditions.” Wooden, 142 S. Ct. at 1070: (1)

the legal determination that the defendant has three previous convictions for an offense that is

categorically a “violent felony” or “serious drug offense,” and (2) the factual determination

that the defendant “committed” these three offenses “on occasions different from one another.”

18 U.S.C. § 924(e). As with the facts pertaining to the defendant’s relationship with the victim

for purposes of § 922(g)(9), the facts pertaining to how, when, and where the defendant

“committed” the ACCA predicate crimes “must be established,” and to do so the government

must prove them to the jury beyond a reasonable doubt. Hayes, 555 U.S. at 426.

C. Wooden lays bare the constitutional violations inherent in the current

approach.

If existing Supreme Court precedent does not already do so, this Court’s recent decision

in Wooden plainly reveals the error of Hennesee’s rule and the Sixth Circuit’s approach. It

shows just how contextual and circumstance-specific the occasions-different question really

is, far beyond the elements of any offense. At the same time, more than one Justice recognizes

the lurking constitutional issues.

In Wooden, this Court explained that ACCA has “two separate statutory conditions.”

142 S. Ct. 1063, 1070 (2022). The Government must first prove that the defendant “has

previously been convicted of three violent felonies” and must then prove that “those three

felonies were committed on ‘occasions different from one another.’” Id. (quoting 18 U.S.C.

§ 924(e)(1)). Regarding the second condition, it concluded that the term “occasion” as used in

ACCA must be interpreted consistent with its ordinary meaning, i.e., “essentially an episode

or event” under which “multiple crimes may occur on one occasion even if not at the same

moment.” Id. at 1069; id. at 1070 (“[A]n occasion may . . . encompass a number of nonsimultaneous activities; it need not be confined to a single one.”); id. (“[A]n ‘occasion’ means

an event or episode—which may, in common usage, include temporally discrete offenses.”).

Of special relevance here is the range of information that conceivably goes into the

factual determination that offenses were committed on different occasions, and the

circumstance specific and contextual nature of that inquiry. These circumstances include the

timing, location, character, and relationship of the offenses, with no one circumstance

necessarily predominating. Offenses committed “close in time, in an uninterrupted course of

conduct, will often count as part of one occasion.” Id. at 1071. But offenses “separated by

substantial gaps in time or significant intervening events” often may not. Id. “Proximity of

location is also important; the further away crimes take place, the less likely they are

components of the same criminal event.” Id. Also, “the character and relationship of the

offenses may make a difference: 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.

Though it was easy in Wooden’s case to conclude that his ten burglaries were

committed on a single occasion, the Court cautioned that in harder cases the question should

be answered while keeping in mind the history and purpose of ACCA. It is intended to target

repeat violent offenders, “those who commit a large number of fairly serious crimes as their

means of livelihood [and so] are especially likely to inflict grave harm when in possession of

a firearm.” Id. at 1074 (internal quotation marks omitted); id. (“[T]he statute targets a particular

subset of offenders—those who have repeatedly committed violent crimes.” Id. (internal

quotation marks omitted).

The Court did not address or decide the Sixth Amendment issue in Wooden, because it

was not raised, see id. at 1068 n.3, but Justices Gorsuch and Sotomayor recognized that “[a]

constitutional question simmers beneath the surface of today’s case,” and that there “is little

doubt” that the Court will have to consider the constitutional question “soon.” Id. at 1087 n.12

(Gorsuch, J. & Sotomayor, J., concurring in part and in the judgment). As they noted, judges

in at least three circuits have already seriously questioned whether the “occasions different”

inquiry, when done by judges, is constitutional. See United States v. Dudley, 5 F.4th 1249,

1273-78 (11th Cir. 2021) (Newsom, J., concurring in part and dissenting in part); United States

v. Perry, 908 F.3d 1126, 1134-36 (8th Cir. 2018) (Stras, J., concurring); United States v.

Thompson, 421 F.3d 278, 287-95 (4th Cir. 2005) (Wilkins, C.J., dissenting).

Indeed, after scrutinizing the circuit courts’ current approach in light of Wooden’s

expansive interpretation of the term “occasion” in this context, the Department of Justice now

agrees that a jury, not a judge, must find that offenses were committed on different occasions

before the person may be sentenced under the ACCA, and has been notifying courts of its

changed position, including the court below in this case. See U.S. Brief in Opposition to Cert.

Pet. at 6-7, Reed v. United States, No. 22-36 (Dec. 12, 2022) (“[T]he government now

acknowledges, given the nature of the different-occasions inquiry articulated in Wooden, that

the Constitution requires a jury to find (or a defendant to admit) that the defendant’s ACCA

predicates were committed on occasions different from one another.”).

II. The lower courts are united in error.

The Sixth Circuit is not alone in its erroneous approach before Wooden or in its

adherence to that approach after Wooden. Before Wooden, every court of appeals to address

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); Thompson, 421 F.3d at 285; 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 at 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 finding that two of defendant’s prior offenses were committed

on different “occasions”). In these courts’ view, ACCA’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 [ACCA]’s various

requirements.” Id.

After Wooden, and despite the government’s agreement that the current approach is

wrong, lower courts insist nothing has changed. The Sixth Circuit denied rehearing en banc in

Williams, its post-Wooden decision that adheres to prior precedent after ordering the

government to respond. The Tenth Circuit denied rehearing en banc of its post-Wooden

decision that adheres to prior precedent. See United States v. Reed, 39 F.4th 1285 (10th Cir.

2022) (No. 21-2073), pet. for rh’g denied (Sept. 1, 2022), pet. for cert. denied, No. 22-336

(filed Oct. 6, 2022). The Ninth and Eleventh Circuits have likewise denied rehearing of

unpublished decisions adhering to prior precedent. United States v. Barrera, No. 20-10368,

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

Cir. Sept. 21, 2022), pet. for cert. denied, No. 22-6843 (filed Feb. 17, 2023); United States v.

Haynes, No. 19-12335, 2022 WL 3643740, at *5 (11th Cir. Aug. 24, 2022), pet. for rh’g denied

(Nov. 1, 2022), pet. for cert. denied, No. 22-6682 (filed Jan. 30, 2023). The Fourth Circuit

adhered to its pre-Wooden precedent in United States v. Daniels, 2022 WL 1135102 (4th Cir.

Apr. 18, 2022), pet. for cert. denied, Daniels v. United States, No. 22-5102 (filed July 11,

2022).

More than a year has passed since Wooden was decided, during which hundreds,

perhaps into the thousands, of people have been subjected to an enhanced ACCA sentence

across the country, but the Eighth Circuit has agreed to revisit the question en banc. In United

States v. Stowell, 40 F.4th 882 (8th Cir. 2022), a divided panel of the Eighth Circuit concluded

it was bound by circuit precedent to conclude that the occasions different element involves

“recidivism-related facts” that do not need to be submitted to the jury. Stowell, 40 F.4th at 885

(quoting United States v. Harris, 794 F.3d 885, 887 (8th Cir. 2015)). Judge Kelly dissented,

explaining that she would have vacated and remanded for resentencing to allow the district

court to consider the question in the first instance, with the benefit of Wooden. Id. at 886-87.

The Eighth Circuit has since granted Stowell’s petition for rehearing en banc, with oral

argument occurring on April 11, 2023. Stowell, No. 21-2234, 2022 WL 16942355 (8th Cir.

Nov. 15, 2022). The en banc opinion has not yet been released.

Even if one or a few courts eventually change course in light of Wooden, the circuit

split generated would endure, as the chances that all the rest of the circuits will follow suit are

virtually nonexistent. Further percolation will not only fail to further develop the arguments,

given the government’s agreement, but it also perversely permits the government to urge

adherence to circuit precedent to ensure unconstitutional sentencing, as it did in this case. If

some few courts in the resulting incoherent vacuum do not view themselves bound by

precedent in the wake of Wooden, the result is intolerably different treatment in the lower

courts. Compare Pet. Appx. 7a (relying on its prior precedent to reject Mr. Lovell’s

constitutional arguments and affirm his ACCA sentence following Wooden), with Govt. Br.

Opp. at 7, Reed v. United States, No. 22-236 (citing United States v. Man, No. 21- 10241, 2022

WL 17260489 (9th Cir. Nov. 29, 2022) (assuming, without deciding, constitutional error

occurred in light of government’s post-Wooden concession and remanding where error was

not harmless). Amid differing approaches, scores of defendants each year will be subject to an

unconstitutional system due solely to the jurisdiction they happen to be in. For Mr. Lovell, at

stake here are constitutional rights that, if not reviewed now, may be forever lost to him.

Only this Court can correct the lower courts’ insistent error, resolve the government’s

incoherent stance, and establish a consistent national rule that accords with the Fifth and Sixth

Amendments.

CONCLUSION

In consideration of the foregoing, Mr. Ronnie Lovell submits that the petition for

certiorari should be granted.

Respectfully submitted,