Petition for Writ of Certiorari — Donald Conelious Voltz, Petitioner v. United States

Appendix A

Case 4:21-cr-00011-CLM-JHE Document 49 Filed 02/23/22 Page 1 of 5

FILED

2022 Feb-23 AM 09:24

U.S. DISTRICT COURT

N.D. OF ALABAMA

AO 245 S (Rev. 1/98)(N.D.Ala. rev.) Sheet 1 - Judgment in a Criminal Case

UNITED STATES DISTRICT COURT

Northern District of Alabama

UNITED STATES OF AMERICA

v.

Case Number 4:21-CR-11-CLM-JHE

DONALD CONELIOUS VOLTZ

Defendant.

JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After November 1, 1987)

The defendant, DONALD CONELIOUS VOLTZ, was represented by Kevin Roberts.

The defendant pleaded guilty to count 1. Accordingly, the defendant is adjudged guilty of the following

count, involving the indicated offense:

Title & Section

18 U.S.C. § 922(g)(1)

Nature of Offense

Felon in Possession of a Firearm

Count Number

1

As pronounced on February 18, 2022, the defendant is sentenced as provided in pages 2 through 5 of this

Judgment. The sentence is imposed pursuant to the Sentencing Reform Act of 1984.

It is ordered that the defendant shall pay to the United States a special assessment of $100.00, for count

1, which shall be due immediately.

It is further ordered that the defendant shall notify the United States Attorney for this district within 30 days

of any change of name, residence, or mailing address until all fines, restitution, costs, and special assessments

imposed by this Judgment are fully paid.

Signed February 23, 2022.

COREY L. MAZE

U.S. DISTRICT JUDGE

Case 4:21-cr-00011-CLM-JHE Document 49 Filed 02/23/22 Page 2 of 5

AO 245 S (Rev. 1/98)(N.D.Ala. rev.) Sheet 2 - Imprisonment

Judgment--Page 2 of 5

Defendant: DONALD CONELIOUS VOLTZ

Case Number: 4:21-CR-11-CLM-JHE

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned

for a term of ONE HUNDRED EIGHTY (180) months, as required by 18 USC 924(e). This sentence shall run

concurrently with any yet-to-be-imposed sentences in St. Clair County Court District Court case numbers DC 202082, DC 2020-83, and St. Clair County Traffic Court case numbers TR 2020-111 through 2020-115. And it shall

run concurrently to any other yet-to-be imposed sentences.

The Court makes the following recommendations to the Bureau of Prisons: It is recommended that the

defendant be housed as close to Blount County, Alabama as possible.

The defendant shall promptly surrender to the United States marshal for this district to be detained.

RETURN

I have executed this Judgment as follows:

Defendant delivered on

to

, with a certified copy of this Judgment.

at

United States Marshal

By

Deputy Marshal

Case 4:21-cr-00011-CLM-JHE Document 49 Filed 02/23/22 Page 3 of 5

AO 245 S (Rev. 1/98)(N.D.Ala. rev.) Sheet 3 - Supervised Release

Judgment--Page 3 of 5

Defendant: DONALD CONELIOUS VOLTZ

Case Number: 4:21-CR-11-CLM-JHE

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of 60 months.

The Probation Office shall provide the defendant with a copy of the standard conditions and any special conditions

of supervised release.

STANDARD CONDITIONS OF SUPERVISED RELEASE

While the defendant is on supervised release pursuant to this Judgment:

1)

You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of the time you

were sentenced (if placed on probation) or released from custody (if supervised release is ordered), unless the probation officer instructs

you to report to a different probation office or within a different time frame.

2)

After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and when

to report to the probation officer, and you must report to the probation officer as instructed.

3)

You must not commit another federal, state, or local crime.

4)

You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was

designed, or was modified, for the specific purpose of causing bodily injury or death to another person, such as nunchakus or tasers).

Revocation of supervision is mandatory for possession of a firearm.

5)

You must not unlawfully possess a controlled substance.

6)

You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests thereafter, as determined by the court. You must contribute to the cost of drug testing

unless the probation officer determines you do not have the ability to do so. Based upon a court order entered during the period of

supervision for good cause shown or resulting from a positive drug test or evidence of excessive use of alcohol, you shall be placed

in the Substance Abuse Intervention Program (SAIP) (or comparable program in another district).

7)

You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the

court or the probation officer.

8)

You must follow the instructions of the probation officer related to the conditions of supervision.

9)

You must answer truthfully the questions asked by the probation officer.

10) You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living

arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying

the probation officer at least 10 days in advance is not possible due to unanticipated circumstances, you must notify the probation officer

within 72 hours of becoming aware of a change or expected change. (If you have been convicted of a crime of violence or a drug

trafficking offense, the probation office is responsible for complying with the notice provisions of 18 U.S.C. § 4042(b) and (c) if you

change your residence.)

11) You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to

take any items prohibited by the conditions of your supervision that he or she observes in plain view.

12) You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from doing

so. If you do not have full-time employment, you must try to find full-time employment, unless the probation officer excuses you from

doing so. If you plan to change where you work or anything about your work (such as the position or the job responsibilities), you must

notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10 days in advance is not possible

due to unanticipated circumstances, you must notify the probation officer within 72 hours of becoming aware of a change or expected

change.

13) You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been convicted

of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the probation officer.

14) If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.

15) You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without

first getting the permission of the court.

16) If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require

you to notify the person about the risk, and you must comply with that instruction. The probation officer may contact the person and

confirm that you have notified the person about the risk.

17) You must fully and truthfully disclose financial information as requested by the probation officer related to the conditions of supervision.

Financial information may include, but is not limited to, authorization for release of credit information, bank records, income tax returns,

documentation of income and expenses, and other financial information regarding personal or business assets, debts, obligations, and/or

agreements in which the defendant has a business involvement or financial interest.

18) You must support all dependents.

Case 4:21-cr-00011-CLM-JHE Document 49 Filed 02/23/22 Page 4 of 5

AO 245 S (Rev. 1/98)(N.D.Ala. rev.) Sheet 3 - Continuation of Standard Conditions of Supervised Release

Judgment--Page 4 of 5

Defendant: DONALD CONELIOUS VOLTZ

Case Number: 4:21-CR-11-CLM-JHE

CONTINUATION OF STANDARD CONDITIONS OF SUPERVISED RELEASE

19)

You must comply with the probation office's Policies and Procedures Concerning Court-Ordered Financial Obligations to satisfy the

balance of any monetary obligation resulting from the sentence imposed in the case. Further, you must notify the probation officer of

any change in your economic circumstances that might affect your ability to pay a fine, restitution, or assessment fee. If you become

more than 60 days delinquent in payments of financial obligations, you may be: (a) required to attend a financial education or

employment preparation program under the administrative supervision of the probation officer; (b) placed on home detention subject

to location monitoring for a maximum period of 90 days under the administrative supervision of the probation officer (and you must pay

the cost of monitoring unless the probation officer determines you do not have the ability to do so); and/or (c) placed in a community

corrections center for up to 180 days under the administrative supervision of the probation officer (and you must pay the cost of

subsistence unless the probation officer determines you do not have the ability to do so).

Case 4:21-cr-00011-CLM-JHE Document 49 Filed 02/23/22 Page 5 of 5

AO 245 S (Rev. 1/98)(N.D.Ala. rev.) Sheet 3 (cont'd) - Supervised Release

Judgment--Page 5 of 5

Defendant: DONALD CONELIOUS VOLTZ

Case Number: 4:21-CR-11-CLM-JHE

SPECIAL CONDITIONS OF SUPERVISION

While the defendant is on supervised release pursuant to this Judgment:

1)

2)

3)

4)

5)

You must cooperate in the collection of DNA under the administrative supervision of the probation officer.

You must not use or possess alcohol.

You must not use or possess any narcotic or controlled substance except as prescribed to you by a licensed medical practitioner, and

you must follow the instructions on the prescription. You must not knowingly purchase, possess, distribute, administer, or otherwise use

any psychoactive substances (e.g., synthetic marijuana, bath salts, etc.) that impair a person's physical or mental functioning, whether

or not intended for human consumption, except as with the prior approval of the probation officer.

You must not go to, or remain at, any place where you know controlled substances are illegally sold, used, distributed, or administered

without first obtaining the permission of the probation officer.

You must participate in the Substance Abuse Intervention Program (SAIP) (or comparable program in the district of supervision) under

the administrative supervision of the probation officer, and you must comply with the requirements and rules of the program. This

program includes the following components: (a) testing by the probation officer or an approved vendor to detect prohibited drug or

alcohol use; (b) substance abuse education; (c) outpatient substance abuse treatment, which may include individual or group

counseling, provided by the probation office or an approved vendor, and/or residential treatment; (d) placement in a community

corrections center (halfway house) for up to 270 days; and/or (e) home confinement subject to electronic monitoring for up to 180 days.

You must contribute to the costs of participation unless the probation officer determines you do not have the ability to do so.

Appendix B

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[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-10733

Non-Argument Calendar

____________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONALD CONELIOUS VOLTZ,

Defendant- Appellant.

____________________

Appeal from the United States District Court

for the Northern District of Alabama

D.C. Docket No. 4:21-cr-00011-CLM-JHE-1

____________________

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Opinion of the Court

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22-10733

Before JILL PRYOR, LAGOA, and BRASHER, Circuit Judges.

PER CURIAM:

Donald Conelious Voltz was convicted of possessing a firearm as a felon and sentenced to 180 months’ imprisonment followed by 60 months of supervised release. Voltz now appeals that

sentence. First, Voltz argues that the district court erred in finding

that his 2001 Alabama marijuana conviction was a “serious drug

offense” under the Armed Career Criminal Act (“ACCA”), and thus

erred in applying an ACCA enhancement to his sentence. Second,

Voltz contends that the district court erred in finding that his 2001

Alabama marijuana conviction was a “controlled substance offense” under U.S.S.G. §§ 2K2.1, 4B1.2, and thus erred in calculating

his base offense level. Finally, Voltz says the district court committed reversible constitutional error in determining, via judicial factfinding at sentencing, that he had three prior ACCA predicate convictions for violent felonies or serious drug offenses committed on

different occasions. After careful review, we affirm.

I.

“We review de novo whether a conviction qualifies as a serious drug offense under the ACCA.” United States v. White, 837

F.3d 1225, 1228 (11th Cir. 2016).

The ACCA imposes a mandatory minimum sentence of 15

years for defendants who violate 18 U.S.C. § 922(g) after having

been convicted of three prior violent felonies or “serious drug offense,” committed on different occasions. 18 U.S.C. § 924(e)(1).

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

offense under State law, involving manufacturing, distributing, or

possessing with intent to manufacture or distribute, a controlled

substance (as defined in section 102 of the Controlled Substances

Act (21 U.S.C. [§] 802)), for which a maximum term of ten years or

more is prescribed by law.” Id. § 924(e)(2)(A)(ii). Section 102 of the

CSA, in turn, defines a “controlled substance” as “a drug or other

substance, or immediate precursor, included in [the federal drug

schedules].” 21 U.S.C. § 802(6).

The Sentencing Guidelines provide that “[a] defendant who

is subject to an enhanced sentence under the provisions of 18

U.S.C. § 924(e) is an armed career criminal.” U.S.S.G. § 4B1.4(a).

Section 4B1.4(b) provides enhanced offense levels for such defendants. See id. § 4B1.4(b).

In determining whether a prior state conviction counts as a

“serious drug offense” under the ACCA, we apply the “categorical

approach.” United States v. Jackson, 55 F.4th 846, 850 (11th Cir.

2022), aff’d sub nom. Brown v. United States, 602 U.S. 101 (2024). “Under this approach, a state conviction cannot serve as an ACCA predicate offense if the state law under which the conviction occurred

is categorically broader—that is, if it punishes more conduct—than

[the] ACCA’s definition of a ‘serious drug offense.’” Id. In Jackson,

we held that the “ACCA’s definition of a ‘serious drug offense’ under state law . . . incorporate[s] the version of the federal controlled-substances schedules in effect when [the defendant] was

convicted of his prior state drug offenses.” Id. at 855; see id. at 859.

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The Supreme Court affirmed our reading of the ACCA in Jackson,

holding that “a state drug conviction counts as an ACCA predicate

if it involved a drug on the federal schedules at the time of that

offense.” Brown, 602 U.S. at 123.

At the time of Voltz’s 2001 Alabama marijuana conviction,

the CSA regulated “all parts of the plant Cannabis sativa L.,

whether growing or not; the seeds thereof; the resin extracted from

any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.”

21 U.S.C. § 802(16) (2001). The CSA included no exemption for

hemp. See id. The Alabama law that governed Voltz’s 2001 conviction incorporated a definition of “marihuana” that matched the

2001 CSA’s definition of “marihuana” nearly verbatim and did not

include an exemption for hemp. See Ala. Code §§ 13A-12-213, 202-2(15) (2001).

Here, as Voltz concedes, his argument is foreclosed by the

Supreme Court’s decision in Brown and our decision in Jackson. Because the Alabama law that governed Voltz’s 2001 conviction incorporated a definition of “marihuana” that categorically matched

the 2001 CSA’s definition of “marihuana,” and because neither statute contained an exemption for hemp, the district court did not err

in finding that Voltz’s 2001 Alabama marijuana conviction was a

“serious drug offense” under the ACCA.

II.

We review de novo a district court’s interpretation of the

term “controlled substance offense” under the Sentencing

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Guidelines. United States v. Bishop, 940 F.3d 1242, 1253 (11th Cir.

2019). Under the prior-panel-precedent rule, we are bound to adhere to a prior panel’s holding “unless and until it is overruled or

undermined to the point of abrogation by the Supreme Court or

by this court sitting en banc.” In re Lambrix, 776 F.3d 789, 794 (11th

Cir. 2015) (quotation marks omitted). Additionally, a calculation

error under the Sentencing Guidelines is harmless where the error

does “not affect [the] advisory guidelines range or sentence.”

United States v. Brown, 805 F.3d 1325, 1328 (11th Cir. 2018).

Under U.S.S.G. § 2K2.1(a)(2), a defendant convicted of unlawful possession of firearms or ammunition receives a base offense level of 24 if he “committed any part of the instant offense

subsequent to sustaining at least two felony convictions of either a

crime of violence or a controlled substance offense.” The commentary to U.S.S.G. § 2K2.1 states that “controlled substance offense” has the meaning set forth in U.S.S.G. § 4B1.2(b) and Application Note 1 of the Commentary to § 4B1.2. U.S.S.G. § 2K2.1,

comment. (n.1). Section 4B1.2(b), in turn, defines “controlled substance offense” as follows:

[A]n offense under federal or state law, punishable by

imprisonment for a term exceeding one year, that

prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a

counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or

dispense.

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U.S.S.G. § 4B1.2(b) (2018).

In determining whether a state conviction counts as a “controlled substance offense” under U.S.S.G. §§ 2K2.1(a)(4)(A),

4B1.2(b), we apply the categorical approach. United States v. Dubois,

94 F.4th 1284, 1295 (11th Cir. 2024). Under the categorical approach, we compare the definition of “controlled substance offense” under the Sentencing Guidelines with the state statute of

conviction. Id. “Unless the least culpable conduct prohibited under the state law qualifies as a predicate controlled substance offense, the defendant’s state conviction cannot be the basis of an enhancement under the guidelines, regardless of the actual conduct

underlying the conviction.” Id. (cleaned up).

Under Dubois, a “‘controlled substance’ under section

4B2.1(b)’s definition of ‘controlled substance offense’ is, for prior

state offenses, a drug regulated by state law at the time of the conviction, even if it is not federally regulated, and even if it is no longer

regulated by the state at the time of federal sentencing.” Id. at 1300

(emphasis added).

At the time of Voltz’s 2001 Alabama marijuana conviction,

Alabama law defined “marihuana” as “[a]ll parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin

extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its

seeds or resin.” Ala. Code § 20-2-2(15) (2001). Alabama law did not

contain any exemptions for hemp. Id.

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Here, as an initial matter, because Voltz would have received the ACCA’s statutory minimum sentence of 180 months’

imprisonment regardless of whether he had two prior controlled

substance offenses, any error the district court made in finding that

Voltz had two prior controlled substance offenses would ultimately be harmless. See Brown, 805 F.3d at 1328. In any event,

Voltz’s hemp-overbreadth argument is foreclosed by intervening

precedent in Dubois. At the time of Voltz’s 2001 conviction, Alabama law regulated all parts of the cannabis plant, including hemp.

Thus, the district court did not err in finding that Voltz’s 2001 conviction was a “controlled substance offense.”

III.

Unless a constitutional error amounts to a “structural error,”

we review preserved constitutional errors using a harmless error

standard. United States v. Roy, 855 F.3d 1133, 1142 (11th Cir. 2017).

We only consider a preserved constitutional error to be

“structural” in the rare case that the error involves “a structural defect affecting the framework within the trial proceeds, rather than

simply an error in the trial process itself.” United States v. Nealy, 232

F.3d 825, 829 n.4 (11th Cir. 2000) (quotation marks omitted). Structural error “affect[s] the entire conduct of the [proceeding] from

beginning to end” and is a “highly exceptional” category of constitutional error subject to automatic reversal on appeal. Greer v.

United States, 593 U.S. 503, 513 (2021) (quotation marks omitted).

Examples of these “rare instances” include “extreme deprivations

of constitutional rights, such as denial of counsel, denial of self

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representation at trial, and denial of a public trial.” Nealy, 232 F.3d

at 829 n.4.

“[D]iscrete defects in the criminal process,” on the other

hand, “such as the omission of a single element from jury instructions . . . are not structural because they do not necessarily render

a criminal trial fundamentally unfair or an unreliable vehicle for

determining guilt or innocence.” Greer, 593 U.S. at 513 (quotation

marks and emphasis omitted). These “discrete defects,” id., include

district court errors that “infringe upon the jury’s factfinding role,”

Neder v. United States, 527 U.S. 1, 18 (1999). For example, a “[f]ailure

to submit a sentencing factor to the jury . . . is not structural error,”

and is instead subject to harmless error review. Washington v.

Recuenco, 548 U.S. 212, 221–22 (2006). So too for the “failure to

submit the issue of drug quantity to the jury.” Nealy, 232 F.3d at

829. We will not reverse a sentence for such errors if “the record

does not contain evidence that could rationally lead [a jury] to a

contrary finding.” Id. at 830. If, however, the defendant has “raised

evidence sufficient to support a contrary finding,” then the error is

not harmless. Neder, 527 U.S. at 19.

In Apprendi v. New Jersey, the Supreme Court held that,

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

the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury[] and proved beyond a reasonable

doubt.” 530 U.S. 466, 490 (2000). In Nealy, we held that Apprendi errors are not structural, and are instead subject to harmless error

review. 232 F.3d at 829.

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In Erlinger v. United States, the Supreme Court held that judicial factfinding by a preponderance of evidence that a defendant

has three ACCA predicate convictions committed on different occasions violates the Fifth Amendment’s guarantee of due process

of law and the Sixth Amendment’s guarantee to a jury trial. 144 S.

Ct. 1840, 1851–52 (2024). The Court held that this finding must be

either made by a jury beyond a reasonable doubt or freely admitted

by the defendant in a guilty plea. See id. In explaining its reasoning,

the Court noted that its decision was “on all fours with Apprendi . . .

as any we might imagine.” Id. at 1852. The Court emphasized that

the ACCA’s different-occasions inquiry can be “intensely factual”

and noted that while judges may use Shepard documents—that is,

documents like “judicial records, plea agreements, and colloquies

between a judge and the defendant”—for the limited function of

“determining the fact of a prior conviction and the then-existing

elements of that offense,” judges may not use Shepard documents

to determine whether the “past offenses differed enough in time,

location, character, and purpose to have transpired on different occasions.” Id. at 1847, 1854–55; see also Shepard v. United States, 544

U.S. 13, 21–21, 26 (2005). The Court explained that “no particular

lapse of time or distance between offenses automatically separates

a single occasion from distinct ones.” Erlinger, 144 S. Ct. at 1855.

The Court also noted that “in many cases the occasions inquiry will

be ‘straightforward,’” such as when “a defendant’s past offenses

[are] different enough and separated by enough time and space,”

though the Court stressed that this finding must still be made by a

jury rather than a judge. Id. at 1856.

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In Wooden v. United States, the Supreme Court described the

factors that juries must consider under the ACCA’s different-occasions inquiry. 595 U.S. 360, 369 (2022). The Court explained that

while “offenses committed close in time, in an uninterrupted

course of conduct, will often count as part of one occasion,” this is

not so for “offenses separated by substantial gaps in time or significant intervening events.” Id. The Court further stressed that

“[p]roximity of location is also important; the further away crimes

take place, the less likely they are components of the same criminal

event.” Id. The Court also noted that “the character and relationship of the offenses may make a difference: [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.

Here, Voltz is correct that the district court erred in determining, via judicial factfinding, that Voltz had three ACCA predicate convictions committed on different occasions. Under Erlinger,

this was a question of fact that needed to be sent to a jury (or that

Voltz needed to freely admit in his guilty plea). See 144 S. Ct. at

1851–52. The district court, therefore, erred in determining by a

preponderance of the evidence, and by judicial factfinding, that

Voltz’s qualifying ACCA offenses were “separate and distinct.”

And Voltz properly preserved this constitutional error.

The district court’s Erlinger error was not structural, however, because it did not affect the entire proceeding or render the

criminal process fundamentally unfair. See Greer, 593 U.S. at 513.

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Instead, it was a “discrete defect[] in the criminal process” analogous to the omission of a single element from a jury instruction and

is therefore subject to harmless error review. See Greer, 593 U.S. at

513 (quotation marks omitted). What’s more, the Supreme Court

in Erlinger stated that its opinion was “on all fours with Apprendi . . .

as any we might imagine,” 144 S. Ct. at 1852, and we review Apprendi errors under a harmless error standard, see Nealy, 232 F.3d at

829. See also Erlinger, 144 S. Ct. at 1860 (Roberts, C.J., concurring)

(“[A]s Justice Kavanaugh explains, violations of [the right to have a

jury determine whether predicate offenses were committed on different occasions] are subject to harmless error review.”); id. at

1866–67 (Kavanaugh, J., dissenting) (explaining that the Supreme

Court “has long ruled that most constitutional errors, including

Sixth Amendment errors, can be harmless” and applying the harmless error standard to Erlinger’s facts (internal quotation omitted)).

We are, in short, persuaded that the harmless error standard applies to an Erlinger error.

Here, we conclude that the district court’s Erlinger error was

harmless because none of the evidence in the record could rationally support a finding that Voltz’s ACCA predicate offenses were

not committed on different occasions. See Nealy, 232 F.3d at 830.

Voltz has never contested that his three ACCA predicate offenses

were separated by years; no evidence in the record indicates that

the offenses shared a common scheme or purpose; and the district

court’s reliance on Shepard documents—though Erlinger cautions

against it—did not affect the harmlessness of the error itself given

the lack of record support for a contrary finding. Thus, the district

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court committed harmless error in determining, via judicial factfinding at sentencing, that Voltz committed three predicate ACCA

offenses on different occasions.

AFFIRMED.