Petition for Writ of Certiorari — Cody Ballinger, Petitioner v. United States
Supreme Court briefMay 11, 2026
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No. ________
__________________________________________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
__________________________________________________________________________
CODY BALLINGER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
__________________________________________________________________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit
__________________________________________________________________________
PETITION FOR WRIT OF CERTIORARI
__________________________________________________________________________
JENNIFER NILES COFFIN
Appellate Chief
Federal Defender Services
of Eastern Tennessee, Inc.
605 Chestnut St., Suite 1310
Chattanooga, TN 37450
(423) 756-4349
QUESTIONS PRESENTED
In Neder v. United States, 527 U.S. 1 (1999), the Court held that the failure to
submit to the jury an essential element of the offense charged is not structural error,
but rather subject to harmless-error review. In conducting that review, appellate
judges examine the trial record and decide either that the government has shown
beyond a reasonable doubt that the jury verdict would have been the same absent the
error or that “the record contains evidence that could rationally lead to a contrary
finding with respect to the omitted element.” Id. at 19. Justice Scalia dissented,
arguing that when “we judges” decide that the defendant “is unquestionably guilty,”
the defendant has been deprived of his fundamental right to a jury trial on every
element. Id. at 31–32 (Scalia, J., dissenting in part, joined by Souter & Ginsburg, JJ.)
The questions presented here are:
I.
Should the Court overrule Neder v. United States, 527 U.S. 1 (1999), as
inconsistent with the bedrock Fifth and Sixth Amendment principles underlying
Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny?
II.
If Neder survives, what is the proper test for harmless-error review
following a guilty plea where the government failed to charge and prove to a jury a
fact necessary to the punishment, in violation of the Fifth and Sixth Amendments?
ii
PARTIES TO THE PROCEEDINGS
A list of all parties to the proceeding in the court whose judgment is the subject
of this petition is provided below:
United States of America
Cody Ballinger
RELATED CASES
(1) United States v. Ballinger, 1:22-cr-00025 (E.D. Tenn. June 21, 2023).
(2) United States v. Ballinger, No. 23-5579 (6th Cir. Sept. 16, 2025).
iii
TABLE OF CONTENTS
QUESTION PRESENTED ............................................................................................. ii
PARTIES TO THE PROCEEDINGS ............................................................................iii
RELATED CASES .........................................................................................................iii
TABLE OF AUTHORITIES .......................................................................................... vi
OPINIONS BELOW ....................................................................................................... 1
JURISDICTION ............................................................................................................. 2
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ........................ 2
STATEMENT OF THE CASE ....................................................................................... 3
REASONS FOR GRANTING THE PETITION ............................................................ 9
I. The Court should overrule Neder. .......................................................................... 11
A. Neder’s approach was dubious at the outset. .................................................. 12
B. Apprendi and its progeny confirm that allowing appellate judges to find the
facts necessary to determine guilt of an uncharged offense or to impose a
sentence enhancement violates the Fifth and Sixth Amendments. .............. 15
II. The lower courts are divided about the proper approach to harmless-error
review following a guilty plea where the government failed to charge and prove
to a jury a fact necessary to the punishment. ....................................................... 19
A. The lower courts are divided about the proper approach. .............................. 19
B. The Sixth Circuit is wrong. .............................................................................. 24
1. The Sixth Circuit is wrong to focus on hypothetically admissible evidence
hypothetically presented to a hypothetical jury for preserved errors. ..... 25
2. The Sixth Circuit is wrong to consider any information in the entire
record, regardless of its admissibility, when evaluating a preserved
constitutional error relating to an omitted element. ................................. 27
iv
III. This case presents an ideal vehicle to resolve these extremely important
questions. .............................................................................................................. 35
CONCLUSION ............................................................................................................. 38
APPENDIX
Sixth Circuit Order Affirming the District Court’s Judgment,
United States v. Ballinger, No. 23-5579 (6th Cir. Sept. 16, 2025) ......................... 1a
Sixth Circuit Order Denying Rehearing En Banc
United States v. Ballinger, No. 23-5579 (6th Cir. Sept. 16, 2025) ......................... 7a
District Court Judgment,
United States v. Ballinger, No. 1:22-cr-00025 (E.D. Tenn. June 21, 2023) .......... 8a
v
TABLE OF AUTHORITIES
CASES
Alleyne v. United States,
570 U.S. 99 (2013).................................................................................................... 15
Apprendi v. New Jersey,
530 U.S. 466 (2000).............................................................................................. ii, 14
Blakely v. Washington,
542 U.S. 296 (2004)............................................................................................ 14, 15
Chapman v. California,
386 U.S. 18 (1967)................................................................................................ 7, 13
Cunningham v. California,
549 U.S. 270 (2007).................................................................................................. 14
Delaware v. Van Arsdall,
475 U.S. 673 (1986)............................................................................................ 19, 20
Erlinger v. United States,
602 U.S. 821 (2024)................................................ 3, 7, 11, 14, 18, 27, 28, 31, 34, 36
Freeze v. State,
827 N.E.2d 600 (Ind. Ct. App. 2005) ....................................................................... 17
Greer v. United States,
593 U.S. 503 (2021).................................................... 8, 22, 25, 26, 27, 28, 30, 31, 34
Hill v. Lockhart,
474 U.S. 52 (1985).................................................................................................... 29
Jeffries v. State,
640 S.W.2d 854 (Tenn. Crim. App. 1979) ................................................................. 5
Lee v. United States,
582 U.S. 357 (2017)...................................................................................... 10, 29, 36
Medina v. People,
163 P.3d 1136 (Colo. 2007) ...................................................................................... 17
Neder v. United States,
527 U.S. 1 (1999)............................................................ ii, 3, 7, 11, 12, 13, 17, 21, 32
Ring v. Arizona,
536 U.S. 584 (2002).................................................................................................. 14
Rose v. Clark,
478 U.S. 570 (1986).................................................................................................. 27
Shepard v. United States,
544 U.S. 13 (2005)...................................................................................................... 8
Southern Union Co. v. United States,
567 U.S. 343 (2012).................................................................................................. 15
State v. Schmeal,
466 P.3d 490 (Kan. Ct. App. 2020).......................................................................... 17
State v. Vickers,
985 S.W.2d 1 (Tenn. Crim. App. 1997) ..................................................................... 5
vi
Sullivan v. Louisiana,
508 U.S. 275 (1993)............................................................................................ 16, 30
United States v. Beasley,
163 F.4th 403 (7th Cir. 2025) .................................................................................. 18
United States v. Benard,
680 F.3d 1206 (10th Cir. 2012) ............................................................................... 24
United States v. Booker,
543 U.S. 220 (2005).................................................................................................. 14
United States v. Bowling,
135 F.4th 1125 (8th Cir. 2025) ........................................................ 18, 21, 22, 23, 33
United States v. Bradley,
No. 23-5440, 2025 WL 2658388 (6th Cir. Apr. 17, 2025) ....................................... 35
United States v. Brown,
136 F.4th 87 (4th Cir. 2025) ............................................................ 18, 22, 26, 27, 28
United States v. Butler,
122 F.4th 584 (5th Cir. 2024) ................................................................ 18, 21, 22, 23
United States v. Campbell,
122 F.4th 624 (6th Cir. 2024) ...................................... 7, 8, 11, 18, 21, 22, 28, 31, 32
United States v. Cogdill,
130 F.4th 523 (6th Cir. 2025) ............................................................................ 16, 32
United States v. Dominguez Benitez,
542 U.S. 74 (2004)........................................................................................ 24, 26, 27
United States v. Durham,
151 F.4th 821 (6th Cir. 2025) .............................................................................. 8, 34
United States v. Dyer,
54 F.4th 155 (3d Cir. 2022) ............................................................................... 23, 24
United States v. Hansel,
No. 8:23-cr-6-MSS-AEP (M.D. Fla. Oct. 26, 2023) ........................................... 35, 36
United States v. Haymond,
588 U.S. 634 (2019).................................................................................................. 15
United States v. Johnson,
114 F.4th 913 (7th Cir. 2024) ............................................................................ 21, 22
United States v. Legins,
34 F.4th 304 (4th Cir. 2022) .............................................................................. 15, 18
United States v. Kimbrough,
138 F.4th 473 (6th Cir. 2025) .................................................................................. 33
United States v. Loines,
165 F.4th 475 (6th Cir. 2026) ............................................................................ 27, 37
United States v. Molina-Gómez,
781 F.3d 13 (1st Cir. 2015) ...................................................................................... 23
United States v. Olano,
507 U.S. 725 (1993)...................................................................................... 22, 26, 30
vii
United States v. Rivers,
134 F.4th 1292 (11th Cir. 2025) .................................................................. 18, 21, 22
United States v. Saunders,
No. 23-6735-cr, 2024 WL 4533359 (2d Cir. Oct. 21, 2024) .................................... 21
United States v. Sosa,
448 F. App’x 605 (6th Cir. 2012) ............................................................................... 8
United States v. Stowell,
82 F.4th 607 (8th Cir. 2023) (en banc) .................................................................... 33
United States v. Thomas,
142 F.4th 412 (6th Cir. 2025) ...................................................................... 16, 32, 33
United States v. Triana,
468 F.3d 308 (6th Cir. 2006) ..................................................................................... 7
Washington v. Recuenco,
548 U.S. 212 (2006)........................................................................................ 7, 11, 21
Wooden v. United States,
595 U.S. 360 (2022).............................................................................................. 6, 33
Yates v. Evatt,
500 U.S. 391 (1991)............................................................................................ 20, 30
CONSTITUTIONAL AND STATUTORY PROVISIONS
U.S. Const. amend. V ........................................................... ii, 2, 3, 4, 10, 15, 27, 30, 31
U.S. Const. amend. VI .................................... ii, 2, 3, 4, 7, 10, 14, 15, 16, 17, 27, 30, 31
18 U.S.C. § 922(g) ............................................................................... ii, 2, 3, 5, 6, 26, 35
18 U.S.C. § 924(a)(2) (2021) ....................................................................................... 2, 6
18 U.S.C. § 924(a)(8) ....................................................................................................... 6
18 U.S.C. § 924(e) ....................................................................................................... 3, 5
21 U.S.C. § 841(b) ......................................................................................................... 37
28 U.S.C. § 1254(1) ......................................................................................................... 2
Bipartisan Safer Communities Act,
Pub. L. No. 117-159, div. A, tit. II, § 12004(c), 136 Stat. 1313 (June 25, 2022) ..... 6
Tenn. Code Ann. § 40-13-207 ......................................................................................... 5
OTHER AUTHORITIES
U.S. Sentencing Commission,
Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal
Justice System (2018) .............................................................................................. 36
U.S. Sentencing Commission,
Quick Facts — Felon in Possession of a Firearm (2022) ........................................ 37
viii
No. ________
__________________________________________________________________________
IN THE
SUPREME COURT OF THE UNITED STATES
__________________________________________________________________________
CODY BALLINGER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
__________________________________________________________________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit
__________________________________________________________________________
PETITION FOR WRIT OF CERTIORARI
__________________________________________________________________________
Petitioner Cody Ballinger respectfully petitions this Court for a writ of
certiorari to review the judgment of the United States Court of Appeals for the Sixth
Circuit.
OPINIONS BELOW
The published decision and judgment of the United States Court of Appeals
for the Sixth Circuit affirming the district court’s judgment appears at pages 1a to
6a of the appendix to this petition and is available at 155 F.4th 671. The order
denying rehearing en banc appears on page 7a of the appendix. The judgment of the
district court appears at pages 8a to 14a of the appendix.
JURISDICTION
This Court has jurisdiction under 28 U.S.C. § 1254(1). The court of appeals’
order affirming the conviction and sentence was entered on September 16, 2025, Pet.
App. 1a., and the order denying a petition for rehearing was entered on December 16,
2025, Pet. App. 7a. On March 9, 2026, this Court granted an application (No. 25A975)
to extend time for filing this petition to May 15, 2026.
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.
2
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
Overview. The Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”)
requires a sentence of at least 15 years to life for any person who violates 18 U.S.C.
§ 922(g)(1) and who has previously committed at least three ACCA-qualifying
predicate offenses “on occasions different from one another.” Lower courts had long
held that this occasions-different requirement need not be alleged in the indictment
or proved to a jury beyond a reasonable doubt but is instead a fact the district judge
may find at sentencing by a preponderance of the evidence. But in Erlinger v. United
States, 602 U.S. 821 (2024), this Court held that this approach violates the Fifth and
Sixth Amendments.
Relying on this Court’s decision in Neder v. United States, 527 U.S. 1 (1999),
the courts of appeals have held that Erlinger error is not structural. In conducting
their harmless-error review, appellate judges examine information in the entire
record—including presentence reports and Shepard documents, regardless of their
admissibility at trial—to decide for themselves that the defendant committed three
ACCA predicates on different occasions so is subject to the ACCA’s enhanced penalty.
Their approach confirms what Justice Scalia recognized from the outset: Neder
3
permits unconstitutional factfinding by appellate judges. The time has come to
correct Neder’s error. Appellate judges may not, consistent with the Fifth and Sixth
Amendments, find for themselves the facts necessary to establish an uncharged
element never submitted to the jury or admitted by the defendant. Neder should be
overruled.1
If instead Neder remains good law, an important question remains about the
proper test in guilty plea cases for evaluating whether the government has shown
beyond a reasonable doubt that a preserved claim of constitutional error is harmless.
Does the reviewing court ask what a hypothetical jury would have done had the error
not occurred, as the Fifth, Sixth, Seventh, Eighth, and Eleventh Circuits hold? Or
must it ask instead whether the error affected the defendant’s decision to plead
guilty, as the Fourth Circuit holds? And either way, may the court consider
information outside the record of the plea proceeding, such as state court records
relating to the prior convictions that may or may not be admissible at trial or
information contained in the presentence report, with no requirement that the
government establish its admissibility?
This Court should grant certiorari to answer these questions of crucial
importance. Absent this Court’s guidance, varying approaches will result in disparate
outcomes. These issues will persist until this Court definitively resolves them. Only
this Court can establish a uniform national rule. Mr. Ballinger’s case presents an
ideal vehicle.
1 This question is also presented in Storey v. United States, No. 25-7216 (pending).
4
Proceedings below.
1.
In 2023, Cody Ballinger pleaded guilty in the Eastern District of
Tennessee to a one-count indictment charging him with being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1). (Indictment, R. 1.) At the plea
proceeding, he admitted nothing but the elements of the § 922(g) offense as charged.
(Revised Presentence Report [“PSR”] ¶¶ 1, 3, R. 49; Factual Basis, R. 35; Change of
Plea Tr. at 5-6, 11, R. 58.)
2.
At sentencing, over Mr. Ballinger’s persistent objection, the district
court followed then-binding circuit precedent and found him to be an Armed Career
Criminal under 18 U.S.C. § 924(e) (“ACCA”) based on its factual determination, by a
preponderance of the evidence, that he had previously been convicted of at least three
“violent felonies” (Tennessee burglaries) committed on occasions different from one
another. (Def.’s PSR Objection, R. 47; Sent’g Tr. at 2-4, 5-6, 8-9, R. 59.) The court
relied on information in the PSR, apparently derived from Shepard documents or
possibly other unknown documents, which set forth differing “on or about” offense
dates for the burglaries,2 identified the type of structure unlawfully entered for some
2 Under Tennessee law, the offense date is not an element. Tenn. Code Ann. § 40-13-
207. When an indictment alleges that a crime occurred “on or about” a specific date,
the proof at trial can show that the crime in fact occurred on a different date months
or even a year away from the alleged date. The only requirement is that the date
alleged in the indictment and the date revealed by the evidence at trial both occurred
prior to the filing of the indictment. State v. Vickers, 985 S.W.2d 1, 9 (Tenn. Crim.
App. 1997) (conviction upheld were indictment alleged a taking “on or about April 18,
1990,” but evidence at trial showed taking occurred in August 1990, because “[i]t is
immaterial whether the taking occurred in April or August, both dates being prior to
the filing of the indictment”); Jeffries v. State, 640 S.W.2d 854, 856 (Tenn. Crim. App.
1979) (conviction upheld where indictment alleged crime occurred “on the 12th day
5
(e.g., garage, outbuilding, carport, workshop, chicken house), and identified different
victims by name. (PSR ¶¶ 35, 36.)3 For all but one of the burglaries, Mr. Ballinger
was convicted and sentenced on the same day. (PSR ¶¶ 29, 35, 36.)
Mr. Ballinger pointedly did not admit that the PSR’s descriptions of the prior
offenses established that they were committed on different occasions, which under
Wooden v. United States, 595 U.S. 360 (2022), is governed by a multi-factored, factladen test assessing the offenses’ character, purpose, and relationship to one another.
(Sent’g Tr. at 4, 5, R. 59.) He maintained that before the ACCA penalty may be
imposed, the government must charge the occasion-different fact and submit it to a
jury for a finding beyond a reasonable doubt. (Id. at 2-4.) Because that had not
occurred, he insisted, the ACCA penalty could not be imposed based on the judge’s
factfinding under Wooden.
3.
The ACCA designation increased the statutory penalty range from zero
to ten years for the ordinary violation of § 922(g)(1), 18 U.S.C. § 924(a)(2) (2021),4 to
fifteen years to life under the ACCA. (PSR ¶ 99.) It also tripled the effective guideline
range from 63 to 78 months (PSR Addendum, R. 48) to 180 to 210 months, as required
of February 1978,” but evidence established that it occurred on February 12, 1977,
because “the error of substituting ‘1978’ for ‘1977’ is inconsequential” to the
conviction).
3 There was no information in the PSR about the locations of the burglaries or their
relative distance from one another.
4 In the Bipartisan Safer Communities Act, Congress increased the maximum penalty
for violations of § 922(g) occurring after its effective date to “not more than 15 years”
of imprisonment.” See Pub. L. No. 117-159, § 12004(c), 136 Stat. 1313, 1329 (June 25,
2022), codified at 18 U.S.C. § 924(a)(8).
6
by the aggravated ACCA penalty range. (PSR ¶ 63.) The district court sentenced Mr.
Ballinger to the ACCA minimum sentence of 180 months, to be followed by five years
of supervised release. (Judgment, R. 53.)
4.
Mr. Ballinger appealed. While Mr. Ballinger’s appeal was pending, the
Supreme Court decided Erlinger v. United States, 602 U.S. 821 (2024), holding that
the ACCA’s occasions-different fact must be charged in the indictment and proven to
the jury beyond a reasonable doubt—just as Mr. Ballinger had argued. He argued on
appeal that the error was structural, or if instead harmless-error review applied, the
government could not show that the error in his case was harmless beyond a
reasonable doubt. He pointed to United States v. Triana, 468 F.3d 308 (6th Cir. 2006),
in which the Sixth Circuit, applying the harmless-error standard in Chapman v.
California, 386 U.S. 18, 24 (1967), determined that a preserved claim of Sixth
Amendment error was not harmless when the sentence was based on the judicial
factfinding at issue. He further argued that the reviewing court could not find the
error harmless based on information inadmissible under the rules of evidence, and
that any non-elemental information in the Shepard documents was likely
inadmissible hearsay.
5.
In a published decision, the Sixth Circuit affirmed. Pet. App. 1a–6a.
Relying on United States v. Campbell, 122 F.4th 624 (6th Cir. 2024), the lower court
reiterated its earlier holding that Erlinger error is not structural. Pet. App. 2a.
Campbell, in turn, relied on Neder v. United States, 527 U.S. 1 (1999), and
Washington v. Recuenco, 548 U.S. 212 (2006), reasoning that the error of omitting the
7
occasions-different element from the indictment and guilty plea is “part and parcel
with the [traditional omitted-element] errors in Apprendi and Alleyne,” so “likewise
ask[s] whether the error at issue in [the defendant’s] case was harmless.” Id. at 630–
31.
In assessing harmlessness, the lower court applied the test it has applied in
several guilty-plea cases involving Erlinger error, beginning with Campbell, and
which focuses on a hypothetical jury: “Errors are harmless only ‘if the court can
conclude beyond a reasonable doubt that the jury would have found the defendant's
offenses occurred on different occasions.’” Pet. App. 2a (quoting United States v.
Durham, 151 F.4th 821, 825, 830 (6th Cir. 2025) (per curiam)); see Campbell, 122
F.4th at 630. In conducting this review, the reviewing judges examine the entire
record in the case, including information outside the record of the plea proceedings,
such as Shepard documents and presentence reports,5 to determine whether this
“record evidence shows beyond a reasonable doubt that a jury’s failure to consider the
different-occasions question had no effect on [the defendant’s] sentence.” 122 F.4th at
632–33 (citing Greer v. United States, 593 U.S. 503, 510–11 (2021) (addressing a
similar but unpreserved error); see also Durham, 151 F.4th at 825, 830.
5 Shepard documents include “(1) the terms of the charging document, (2) the terms
of a plea agreement, (3) a transcript of colloquy between judge and defendant in which
the factual basis for the plea was confirmed by the defendant, or (4) some comparable
judicial record of this information.” United States v. Sosa, 448 F. App’x 605, 608 (6th
Cir. 2012) (citing Shepard v. United States, 544 U.S. 13, 26 (2005)).
8
6.
Governed by this test, the appellate judges below examined non-
elemental information recited in the PSR (again, derived from unknown sources and
of unknown admissibility at trial), including the “on or about” offense dates and
names of victims. Pet. App. 2a. Despite that Mr. Ballinger explicitly pointed to
Tennessee law confirming the non-elemental variability of the “on or about” offense
dates, the court said that “Ballinger has provided no reason to doubt the dates and
locations of his previous offenses laid out in the PSR. . . .[T]he district court was
entitled to rely on the PSR to inform itself of the basic facts relating to his predicate
crimes.” Pet. App. 2a. After evaluating the information in the record, the appellate
judges found that Mr. Ballinger “burglarized nine different people who have no
apparent connection to one another,” and that there was “a large gap in time between
offenses.” Pet. App. 4a-5a. As a result, they concluded that “no reasonable jury could
conclude” that he did not commit three ACCA predicates on different occasions. Pet.
App. 5a.
7.
Mr. Ballinger sought rehearing on the proper focus of harmless-error
review in guilty plea cases, in light of differing views and emerging questions in the
Sixth Circuit and others about the propriety of the hypothetical-jury test in guilty
plea cases. The petition was denied.
REASONS FOR GRANTING THE PETITION
In the quarter century since Neder was decided, this Court’s repeated,
insistent, and broad-ranging application of Apprendi’s rule proves that Neder was
wrongly decided. Today, appellate judges rely on Neder to scour the entire record and
9
find for themselves a fact the government failed to charge or to submit to the jury,
deeming these errors harmless beyond a reasonable doubt. In doing so, they repeat
the original deprivation of defendants’ Fifth and Sixth Amendment rights. Because
their approach is no different from when a trial judge unconstitutionally directs a
guilty verdict based on his own view of the evidence and the defendant’s culpability,
the Court should correct course and overrule Neder.
If Neder survives, this Court’s intervention is needed to resolve the question
whether the harmless-error standard in the case of a guilty plea focuses on a
hypothetical jury or instead on the defendant’s decision to plead guilty, and either
way, to set forth the scope of the record for review. Lower courts are divided on the
proper mode of analysis for harmless-error review in the case of a guilty plea where
the constitutional error is the failure to charge and prove to a jury a fact necessary to
the conviction or punishment. If the proper focus is on the hypothetical outcome of a
hypothetical jury trial based on hypothetically admitted evidence, then reviewing
judges repeat and compound the original constitutional error Erlinger forbids—by
which the judge, rather than a jury, found the facts that increased the statutory
penalty range. If instead the proper focus is on the defendant’s decisionmaking at the
plea juncture, then reviewing courts should focus on the defendant’s right to choose
whether to risk trial while knowing the government’s true burden. Cf. Lee v. United
States, 582 U.S. 357, 367–68 (2017). Either way, this Court’s review is needed to set
forth the scope of the record for review.
10
I.
The Court should overrule Neder.
This case presents an important question following the Court’s recent Erlinger
decision: Whether to overrule Neder v. United States, 527 U.S. 1 (1999), which the
courts of appeals have uniformly relied on to hold that the failure to charge and prove
to a unanimous jury an element, including the ACCA’s occasions-different element,
is subject to harmless-error review.
The Sixth Circuit rejected Mr. Ballinger’s argument that Erlinger error is
structural and applied harmless-error review based on its decision in United States
v. Campbell, 122 F.4th 624 (6th Cir. 2024) (holding that Erlinger error is subject to
harmless-error review). Campbell, in turn, relied on this Court’s decisions in Neder
and Washington v. Recuenco, 548 U.S. 212 (2006). Campbell, 122 F.4th at 630–31.
Neder held that jury instructions that omit an element are not structural error but
rather subject to harmless-error review. Neder, 527 U.S. at 8–9. Recuenco relied
conclusively on Neder to hold that the same rule applies to the failure to prove a
sentencing factor to a jury. Recuenco, 548 U.S. at 18–22.
In its Erlinger briefing in this Court, the government argued for harmlesserror review, likewise relying on Neder and Recuenco. See U.S. Br. at 27–28, U.S.
Reply Br. at 14, Erlinger, 602 U.S at 821. But Erlinger cited neither decision, and
only three justices endorsed harmless-error review. See Erlinger, 602 U.S. at 849–50
(Roberts, J., concurring); id. at 859–61 (Kavanaugh, J., joined by Alito, J., dissenting).
Mr. Ballinger urges the Court to grant certiorari to reconsider Neder.6
6 And, correspondingly, Recuenco.
11
A.
Neder’s approach was dubious at the outset.
In Neder, the defendant was charged with tax fraud based on allegations of
false statements of income on his tax returns (among other fraud charges) and went
to trial on the offenses as charged. Neder, 527 U.S. at 6. The indictment also used
language regarding the materiality of the false statements, but under then-extant
law, the trial court omitted the materiality element of tax fraud from the jury
instructions. Id. The jury found the defendant guilty, and on appeal, the Eleventh
Circuit said the omission of the materiality element was error but applied harmlesserror review and found the error harmless because the question of materiality “was
not in dispute” so did not contribute to the verdict. Id. at 6-7. This Court affirmed,
holding that the instructional error of omitting the materiality element was subject
to harmless-error review and further that the error in that case was harmless. Id. at
12-13, 17, 19-20. “In this situation, where a reviewing court concludes beyond a
reasonable doubt that the omitted element was uncontested and supported by
overwhelming evidence, such that the jury verdict would have been the same absent
the error, the erroneous instruction is properly found to be harmless.” Id. at 17.
This approach, the Court explained, appropriately balances “society’s interest
in punishing the guilty” against the need to “safeguard[] the jury guarantee.” Id. at
18, 19 (internal quotation marks omitted). Regarding the latter, the Court explained
that harmless-error review “will often require that a reviewing court conduct a
thorough examination of the record.” Id. at 19. For example, if the defendant
“contested the omitted element and raised evidence sufficient to support a contrary
12
finding[,] [the reviewing court] should not find the error harmless.” Id. According to
the Court, this factual inquiry by appellate judges is not equivalent to a second jury,
but rather “‘serve[s] a very useful purpose insofar as [it] block[s] setting aside
convictions for small errors or defects that have little, if any, likelihood of having
changed the result of the trial.’” Id. at 19 (quoting Chapman, 386 U.S. at 22).
The decision was criticized from the start as allowing unconstitutional judicial
factfinding in the guise of harmless-error review. As Justice Scalia explained in his
dissent:
The Court . . . acknowledges that the right to trial by jury
was denied in the present case, since one of the elements
was not—despite the defendant’s protestation—submitted
to be passed upon by the jury. But even so, the Court lets
the defendant’s sentence stand, because we judges can tell
that he is unquestionably guilty.
Even if we allowed (as we do not) other structural errors in
criminal trials to be pronounced “harmless” by judges . . .
it is obvious that we could not allow judges to validate this
one. The constitutionally required step that was omitted
here is distinctive, in that the basis for it is precisely that,
absent voluntary waiver of the jury right, the Constitution
does not trust judges to make determinations of criminal
guilt.
Neder, 527 U.S. at 31–32 (Scalia, J., dissenting in part, joined by Souter & Ginsburg,
JJ.). Neder effectively allows appellate judges to speculate about what the jury would
find about the omitted element if they had been asked and, based on the judges’
reading of the record, essentially direct a verdict of guilt. Yet ordinarily a judge
cannot direct a verdict of guilt “no matter the defendant’s culpability” and “no matter
how overwhelming the unfavorable evidence.” Id. at 33–34 (Scalia, J., dissenting in
13
part, joined by Souter & Ginsburg, JJ.). Justice Scalia further observed that “[t]he
Court’s decision today is the only instance I know of (or could conceive of) in which
the remedy for a constitutional violation by a trial judge (making the determination
of criminal guilt reserved to the jury) is a repetition of the same constitutional
violation by the appellate court (making the determination of criminal guilt reserved
to the jury).” Id. at 32. In Justice Scalia’s view, the Court’s rule in Neder amounted
to “depriving a criminal defendant of the right to have the jury determine his guilt of
the crime charged—which necessarily means his commission of every element of the
crime charged,” which “can never be harmless.” Id. at 30 (Scalia, J., dissenting in
part, joined by Souter & Ginsburg, JJ.).
Shortly after Neder came Apprendi v. New Jersey, 530 U.S. 466 (2000), a
landmark decision marking a new era when it comes to judicial factfinding. The Court
held that under the Sixth Amendment, any fact that increases a defendant’s statutory
penalty must be proven to a unanimous jury beyond a reasonable doubt. Id. at 468.
In other words, a judge may not make the factfinding necessary to increase the
otherwise applicable penalty. The Court has since repeatedly reaffirmed this
constitutional bedrock principle, striking down “a variety of other recent sentencing
innovations” that permitted criminal penalties based on judicial factfinding, most
recently the ACCA’s occasions-different factfinding. Erlinger, 602 U.S. at 833; see
Ring v. Arizona, 536 U.S. 584 (2002) (death penalty); Blakely v. Washington, 542 U.S.
296 (2004) (mandatory state sentencing guidelines); Cunningham v. California, 549
U.S. 270 (2007) (same); United States v. Booker, 543 U.S. 220 (2005) (mandatory
14
federal sentencing guidelines); Southern Union Co. v. United States, 567 U.S. 343
(2012) (criminal fines); Alleyne v. United States, 570 U.S. 99 (2013) (increased federal
statutory minimum); United States v. Haymond, 588 U.S. 634 (2019) (minimum
revocation penalty for certain supervised release violations).
Just five years after Neder, Justice Scalia was now writing for the majority in
Blakely. There, he wrote that “[w]hen a judge inflicts punishment that the jury’s
verdict alone does not allow, the jury has not found all the facts which the law makes
essential to the punishment and the judge exceeds his proper authority.” Blakely, 542
U.S. at 304 (internal quotation marks and citation omitted). Justice Scalia’s opinion
in Blakely echoes and proves correct his insistence in Neder that punishments
inflicted based on judicial factfinding offend the Constitution’s fundamental
structure. Id. at 306 (“Apprendi carries out [the Framers’] design by ensuring that
the judge’s authority to sentence derives wholly from the jury’s verdict. . . . As
Apprendi held, every defendant has the right to insist that the prosecutor prove to a
jury all facts legally essential to the punishment.”).
B.
Apprendi and its progeny confirm that allowing appellate
judges to find the facts necessary to determine guilt of an
uncharged offense or to impose a sentence enhancement
violates the Fifth and Sixth Amendments.
Apprendi and its progeny confirm that Neder was wrongly decided. Neder is
impossible to reconcile with Fifth and Sixth Amendment principles dictating those
bedrock decisions. As Judge Richardson, joined by Judge Diaz and Judge Floyd wrote,
“there is something deeply unsatisfying” about applying harmless-error review to
Apprendi-type errors. United States v. Legins, 34 F.4th 304, 323 (4th Cir. 2022). “It
15
is bizarre that a deprivation of the jury right, which reflects a distrust of judges to
adjudicate criminal guilt, can be set aside as harmless when we judges find the result
sufficiently clear.” Id. Or as Judge Clay more recently wrote in a case applying
harmless-error review to the type of Erlinger error at issue in this case, “the very act
of the judge, and not the jury, deciding this question is what violates the Sixth
Amendment jury trial right,” and “to hypothesize a guilty verdict that was never in
fact rendered—no matter how inescapable the findings to support that verdict might
be—would violate the jury-trial guarantee.” United States v. Cogdill, 130 F.4th 523,
539 (6th Cir. 2025) (Clay, J., dissenting) (quoting Sullivan v. Louisiana, 508 U.S. 275,
279 (1993)). Judge Clay further explained that “though Recuenco postdates Apprendi
and Alleyne, it is difficult to square its reliance on Neder with the Supreme Court’s
evolution in its thinking on sentencing jurisprudence, particularly in cases like
Erlinger.” Id. at 537 n.2.
Two more judges on the Sixth Circuit have expressed similar concerns. Judge
Cole noted that he shares the concern laid out in Judge Clay’s Cogdill dissent that
Campbell’s resort to harmless-error review “contravenes the Supreme Court’s holding
in Erlinger.” United States v. Thomas, 142 F.4th 412, 423 (6th Cir. 2025) (Cole, J.,
concurring). In the same case, Judge Nalbandian explained that “harmless-error
review can sometimes be in tension with the Sixth Amendment injury itself: if the
Sixth Amendment is designed to protect a defendant’s right to have a jury of his peers
resolve the facts of his case, how is three judges resolving the case a permissible
remedy?” Id. at 430 n.1 (Nalbandian, J., concurring). As support for that position,
16
Judge Nalbandian cited Justice Scalia’s partial dissent in Neder. Id. (quoting Neder,
527 U.S. at 30 (Scalia, J., dissenting in part)).
State court judges, too, have long observed the irreconcilable tension between
Neder and “the seismic shift in the Supreme Court’s Sixth Amendment jurisprudence
since 1999” when it comes to unconstitutional judicial factfinding, with at least one
predicting Neder would be short lived and others finding reasons not to apply it.
Freeze v. State, 827 N.E.2d 600, 605–06 (Ind. Ct. App. 2005); see also, e.g., Medina v.
People, 163 P.3d 1136, 1141 (Colo. 2007) (holding that Neder review of judge-found
increased sentence inapplicable where greater offense was neither charged nor
submitted to jury, instead holding the error structural); State v. Schmeal, 466 P.3d
490 (Kan. Ct. App. 2020) (Atchison, J., concurring in part and dissenting in part)
(arguing that applying Neder goes “at least one giant step over the line between
reasoned judicial analysis and ungirded speculation akin to impermissibly directing
a verdict in a criminal case” when “there was no real-life jury trial, no real-life
evidence, and no real-life defenses presented to the jury”).
These judges are correct. If harmless error review allows appellate judges to
rummage through non-elemental and potentially inadmissible information in
Shepard documents and presentence reports to decide for themselves that the
defendant committed an uncharged, aggravated crime—as they have freely done in
this and other cases involving Erlinger error (see Part II.B.2, infra)—then Neder was
wrongly decided.
17
This Court’s intervention is needed. The courts of appeals have uniformly
relied on Neder and Recuenco to hold that Erlinger errors are amenable to harmlesserror review. See United States v. Beasley, 163 F.4th 403, 406–09 (7th Cir. 2025);
United States v. Brown, 136 F.4th 87, 93–95 (4th Cir. 2025); United States v. Butler,
122 F.4th 584, 589 (5th Cir. 2024); United States v. Campbell, 122 F.4th 624, 630–31
(6th Cir. 2024); United States v. Bowling, 135 F.4th 1125, 1126 (8th Cir. 2025); United
States v. Rivers, 134 F.4th 1292, 1305–06 (11th Cir. 2025).
The problem is not limited to Erlinger errors. Absent action by this Court,
Neder will continue to give the courts of appeals permission to sit not as a court of
review but as a finder of guilt in the first instance, evaluating information never
admitted at a trial (and possibly inadmissible at trial) and convicting defendants of
crimes and aggravated penalties that the government never charged and a jury of the
defendant’s peers never found beyond a reasonable doubt. See Legins, 34 F.4th at 324
(expressing concern that this practice “diminishes the jury’s historic” role but stating
that it was “bound by” Neder and Recuenco to apply harmless error review to the
omission of “all elements, including sentencing factors” (internal quotation marks
omitted)).
In recent years, this Court has “overruled several decisions inconsistent with”
the “principles Apprendi and Alleyne discussed.” Erlinger, 602 U.S. at 833–34. Neder
should make one more.
18
II.
The lower courts are divided about the proper approach to harmlesserror review following a guilty plea where the government failed to
charge and prove to a jury a fact necessary to the punishment.
If Neder survives and appellate judges may constitutionally engage in
harmless-error review of Apprendi error, this Court should clarify the scope of that
review. The Court has not yet addressed the proper mode of analysis for harmlesserror review in guilty plea cases involving an omitted element where there was no
jury and no verdict obtained. The lower courts are now divided in these cases.
A.
The lower courts are divided about the proper approach.
In Neder and Recuenco, this Court’s explication of the harmless-error standard
where the constitutional error was an omitted element (or its functional equivalent)
occurred in trial cases where harmlessness was evaluated in light of all the evidence
presented at trial. These cases built on this Court’s decision in Delaware v. Van
Arsdall, 475 U.S. 673 (1986). There, the Court applied harmless-error review to a
violation of the defendant’s right to confrontation at trial. Id. at 674. The Court
explained that the point of harmless-error review is to consider whether an error
(even a constitutional one) was nonetheless “‘harmless’ in terms of [its] effect on the
factfinding process at trial.” Id. at 681. To make this assessment, it held, reviewing
courts must look to the “whole record,” which meant the evidence admitted at trial.
Id. at 681, 684. It described the factors relevant to harmless-error analysis as “the
importance of the witness’ testimony in the prosecution’s case, whether the testimony
was cumulative, the presence or absence of evidence corroborating or contradicting
the testimony of the witness on material points, the extent of cross-examination
19
otherwise permitted, and, of course, the overall strength of the prosecution’s case.”
Ibid.
Similarly, in Yates v. Evatt, 500 U.S. 391, 405 (1991), the Court reaffirmed that
the “entire record” referenced in harmless-error cases means the entire trial record.
Id.
at
405–07.
Addressing
erroneous
jury
instructions
that
applied
an
unconstitutional presumption, the Court explained that harmless-error review
requires determining whether the error “did not contribute to the verdict,” which
requires assessing its significance “in relation to everything else the jury considered”
at trial. Id. at 403. Importantly, the Court explained that it is permissible to review
the “entire record,” because we assume “jurors, as reasonable persons, would have
considered the entire trial record.” Id. at 406 (emphasis added). However, when that
assumption is undermined, appellate courts must narrow their review to a subset of
trial evidence. Id. (“it is crucial to ascertain from the trial court’s instructions that
the jurors, as reasonable persons, would have considered the entire trial
record, before looking to that record to assess the significance of the erroneous
presumption”).
The lower courts are now deeply divided about the proper approach to harmless
error review in guilty plea cases. The Fifth, Sixth, Seventh, Eighth, and Eleventh
Circuits focus on a hypothetical jury. In varying formulations, they hold that the
reviewing court asks whether the government has shown beyond a reasonable doubt
that a properly instructed jury’s failure to consider the different-occasions question
had no effect on the defendant’s sentence. United States v. Butler, 122 F.4th 584, 589
20
(5th Cir. 2024) (“Butler’s sentence should be affirmed if, after careful review of the
whole record . . . any rational petit jury, when presented with a proper jury
instruction, would have found beyond a reasonable doubt that her prior serious drug
offenses occurred on different occasions.”) (cleaned up); United States v. Campbell,
122 F.4th 624, 632 (6th Cir. 2024) (concluding that “the record evidence shows beyond
a reasonable doubt that a jury's failure to consider the different-occasions question
had no effect on Campbell’s sentence”); United States v. Johnson, 114 F.4th 913, 917
(7th Cir. 2024) (“[I]t is not clear beyond a reasonable doubt that a properly instructed
jury would have found that Mr. Johnson’s January 22, 2009 robberies were
committed on different occasions.”); United States v. Bowling, 135 F.4th 1125, 1127
(8th Cir. 2025) (“The record here shows that no reasonable jury could have found that
Bowling sustained fewer than three convictions for violent felonies that were
committed on occasions different from one another.”); United States v. Rivers, 134
F.4th 1292, 1306 (11th Cir. 2025) (“The government bears the burden of showing
beyond a reasonable doubt that a rational jury would have found that the defendant’s
prior drug offenses all were ‘committed on occasions different from one another.’”).7
These courts rely on Neder v. United States, 527 U.S. 1 (1999), and Washington
v. Recuenco, 548 U.S. 212 (2006), reasoning that those cases require the conclusion
that “errors that ‘infringe upon the jury’s factfinding role’ are ‘subject to harmless-
7 In an unpublished decision, the Second Circuit has taken the same approach. United
States v. Saunders, No. 23-6735-cr, 2024 WL 4533359, at *3 (2d Cir. Oct. 21, 2024)
(“We conclude that the district court’s error was harmless because the record makes
clear beyond a reasonable doubt that a rational jury would find that Saunders
committed the three prior violent offenses on separate occasions.”).
21
error analysis.’” Rivers, 134 F.4th at 1305. They deem the occasions-different omittedelement error as “part and parcel with the [traditional omitted-element] errors in
Apprendi and Alleyne,” so “likewise ask[s] whether the error at issue in [the
defendant’s] case was harmless.” Campbell, 122 F.4th at 630; see also Butler, 122
F.4th at 589; Johnson, 114 F.4th at 917; Bowling, 135 F.4th at 1126.
The Fourth Circuit, in contrast, focuses on the defendant’s decision to plead
guilty. In that circuit, the government must show that, “‘if the District Court had
correctly advised him of the [missing] element of the offense,’” so that he understood
the government’s burden at trial on the occasions-different element, “it is clear
beyond a reasonable doubt that ‘he would not have pled guilty.’” United States v.
Brown, 136 F.4th 87, 97 (4th Cir. 2025) (quoting Greer, 593 U.S. at 508 (emphasis in
Brown), and citing Olano, 507 U.S. at 734).
Though these courts differ on the proper test, in reviewing Erlinger error they
uniformly deem themselves free to consider information outside the record of the plea
proceeding. They do so without regard to whether the information would be
admissible at trial and consider such non-elemental information such as dates and
locations contained in Shepard documents or recited in presentence reports—or, as
here, information about the distance between offenses apparently gleaned on its own
from an online map of some sort. Campbell, 122 F.4th at 633; Butler, 122 F.4th at
589; Johnson, 114 F.4th at 917; Bowling, 135 F.4th at 1127; Rivers, 134 F.4th at 1306.
In Campbell, for example, the Sixth Circuit focused on evidence it believed would
have been submitted to a jury, had there been a trial on the occasions-different
22
element, but also expressly noted that “consideration of the entire record is not
limited to admissible evidence.” 122 F.4th 633. In Bowling, over the objections of one
of the judges, the Eighth Circuit considered offense dates set forth in the presentence
report. 135 F.4th at 1127.
This freewheeling approach to evaluating the harmlessness of an Erlinger
error in guilty plea cases stands in notable contrast to the lower courts’ more careful
approach in other contexts where the defendant pleaded guilty and the constitutional
error related to the evidence a jury would consider. For example, when the question
is whether the defendant would have pled guilty had certain challenged evidence
been properly suppressed, the harmless error standard is universally described as
“whether the government has proved beyond a reasonable doubt that the erroneously
denied suppression motion did not contribute to the defendant’s decision to plead
guilty.” United States v. Dyer, 54 F.4th 155, 160 (3d Cir. 2022) (cleaned up) (collecting
cases). Within this framework, the scope of review differs, but even the broadest scope
focuses on the remaining admissible evidence and the impact of the improperly
admitted evidence on the sentence imposed.
The First Circuit holds that even if the reviewing court believes it is “highly
unlikely” that the improperly admitted evidence would have affected the defendant’s
decision to plead guilty, given “the remaining admissible evidence” against him, “a
court has no right to decide for a defendant that his decision [to plead guilty] would
have been the same had the evidence the court considers harmless not been present.”
United States v. Molina-Gómez, 781 F.3d 13, 25 (1st Cir. 2015); see also United States
23
v. Benard, 680 F.3d 1206, 1213, 1214 (10th Cir. 2012) (“[A]n appellate court will
rarely, if ever, be able to determine whether an erroneous denial of a motion to
suppress contributed to the defendant’s decision [to plead guilty], unless at the time
of the plea he states or reveals his reason for pleading guilty.” (internal quotation
marks omitted)).
While then-Judge Gorsuch disagreed with that court’s “no-right-to-decide”
approach, his proposed alternative of an objective assessment still focused on the
remaining admissible evidence at trial and the impact of the error on the sentence
the defendant faced. Id. at 1216 (Gorsuch, J., concurring in part and dissenting in
part) (citing United States v. Dominguez Benitez, 542 U.S. 74, 81 (2004)). He
suggested that when the record contains ample admissible evidence to support a
guilty verdict, the defendant might need to offer a reason, “rational or even
irrational,” why the improper admission of the evidence was “at all relevant to him
in making his plea decision.” Id. at 1217.
The Third Circuit more recently rejected the approaches of the First and Tenth
Circuits and adopted then-Judge Gorsuch’s objective approach. Dyer, 54 F.4th at 162.
Crucially, however, the court still confines itself to an objective evaluation of
remaining admissible evidence. Id.
B.
The Sixth Circuit is wrong.
The Sixth Circuit is wrong in two ways. It is wrong to focus on a hypothetical
jury and it is wrong to evaluate a preserved error the same way it evaluates an
unpreserved error.
24
1.
The Sixth Circuit is wrong to focus on hypothetically admissible
evidence hypothetically presented to a hypothetical jury for
preserved errors.
In Greer v. United States, 593 U.S. 503 (2021), the Court explicitly applied
differing standards for plain-error review in a jury trial case versus a guilty plea
case. For the defendant who went to trial, his burden on review for plain error was
to “show that, but for the [] error in the jury instructions, there is a reasonable
probability that a jury would have acquitted him.” Id. at 510. For the defendant who
pleaded guilty, in contrast, his burden was to show that “but for the [] error during
the plea colloquy, there is a reasonable probability that he would have gone to trial
rather than plead guilty.” Id. For both, the focus of the inquiry was the actual
proceeding in which the error occurred (trial versus plea proceeding)—not a
hypothetical proceeding. And for both, it was the unpreserved nature of the error
that allowed consideration of information outside the record of the trial or plea
colloquy. Id. at 511. As the Court explained, it would be illogical to categorically
assume that had the government known of its burden, it would not have introduced
(or attempted to introduce) evidence of the omitted element at trial. Id. Rather, the
defendant could have preserved the error and offered reasons why any evidence
outside the record proceeding would have been irrelevant or unreliable at trial (i.e.,
inadmissible under the rules of evidence). Id.
Importantly, Justice Sotomayor took care to make clear that the test is
different for the defendant who preserved the error. In that case, the burden shifts
to the government to show beyond a reasonable doubt that the error is harmless. Id.
25
at 518 (Sotomayor, J., concurring). In a trial case, this means the government must
show beyond a reasonable doubt that the jury would have found the omitted element,
and further that the harmless-error review is limited to the evidence at trial. Id.
(Sotomayor, J., concurring) (“[I]f the Government fails to carry its burden, over the
defendant’s objection, appellate courts cannot correct that shortcoming by looking to
incriminating evidence the Government never submitted to the jury.”) While Justice
Sotomayor did not expressly articulate the harmless-error test for the defendant who
pleaded guilty, this same logic dictates that the government must prove beyond a
reasonable doubt that the defendant would still have pleaded guilty had he been
charged with the omitted element and been advised of the government’s burden to
prove it. Cf. United States v. Dominguez Benitez, 542 U.S. 74, 83 (2004).
Unlike the Sixth Circuit, the Fourth Circuit correctly tracks this logic. It held
that in the case of Erlinger error where the defendant pleaded guilty to the
underlying § 922(g)(1) offense, “the harmless-error burden is different, requiring that
the government show that, ‘if the District Court had correctly advised him of the
[missing] element of the offense,’ it is clear beyond a reasonable doubt that ‘he would
not have pled guilty.’” United States v. Brown, 136 F.4th 87, 97 (4th Cir. 2025)
(quoting Greer, 593 U.S. at 508 (emphasis in Brown), and citing United States v.
Olano, 507 U.S. 725, 734 (1993)). Accordingly, the Fourth Circuit focused on whether
the defendant would have waived his right to an occasions-different trial had his
indictment alleged the occasions-different element, and “had he been correctly
advised at his plea hearing that he ‘was entitled to have a jury resolve [that issue]
26
unanimously and beyond a reasonable doubt.” Brown, 136 F.4th at 97 (quoting
Erlinger, 602 U.S. at 835).8
2.
The Sixth Circuit is wrong to consider any information in the
entire record, regardless of its admissibility, when evaluating a
preserved constitutional error relating to an omitted element.
In Erlinger, the Court emphasized that “[j]udges may not assume the jury’s
factfinding function for themselves, let alone purport to perform it using a mere
preponderance-of-the-evidence standard.” 602 U.S. 821, 834 (2024). “To hold
otherwise,” “would intrude on a power the Fifth and Sixth Amendments reserve to
the American people.” Id. at 835. This is true “regardless of how overwhelming the
evidence may seem to a judge.” Id. at 842 (quoting Rose v. Clark, 478 U.S. 570, 578
(1986) (cleaned up)). The Court was also clear that non-elemental facts in Shepard
documents—such as the date and location of the offense—are not reliable sources of
information and cannot, standing alone, form the basis of an “occasions different”
finding. Id. at 841–42 (explaining the “limited utility” of Shepard documents as they
are “prone to error,” which is “especially grave when it comes to facts . . . on which
8 More recently, the Sixth Circuit has acknowledged that it has perhaps gone the
wrong way. In United States v. Loines, 165 F.4th 475 (6th Cir. 2026), the court
suggested that the proper test in a similar omitted-element analysis “may well” be
whether the government has shown “beyond a reasonable doubt that [the] defendant
still would have pleaded guilty if the district court had ‘correctly’ explained that the
defendant had a jury-trial right for the facts that triggered the statutory
enhancement.” Id. at 483 (citing Greer, 593 U.S. at 508); see also United States v.
Bradley, No. 23-5440, 2025 WL 2658388, at *2 (6th Cir. Apr. 17, 2025), cert. denied,
No. 25-5654 (U.S. Oct. 20, 2025) (citing Greer, 593 U.S. at 508 (quoting in turn
Dominguez Benitez, 542 U.S. at 83)). The possibility of a future course-correction by
the Sixth Circuit, however, will not resolve the split that would remain.
27
adversarial testing was ‘unnecessary’ in the prior proceeding,” such as the “time or
location of his offense”).
The Sixth Circuit construes this Court’s admonition in Erlinger against using
Shepard documents to find the occasions-different element as merely “a reason why
Erlinger determined that the occasions inquiry must be submitted to a jury.”
Campbell, 122 F.4th at 632. In its view, “Erlinger did not preclude the use of Shepard
documents in reviewing an error for harmlessness.” Id. (citing Erlinger, 602 U.S. at
840–41). For the proposition that “harmless error review is based on an assessment
of all ‘relevant and reliable information’ in the ‘entire record,’” regardless of
admissibility, the court cited this Court’s decision in Greer. Id. at 632–33 (citing
Greer, 593 U.S. at 510–11).
The Fourth Circuit likewise considers information in the presentence report to
conclude for itself that the defendant would still have pleaded guilty, with that
determination influenced by the fact that the defendant did not object to the factual
“data” about the prior convictions in the presentence report and by its view of what a
jury would have found. Brown, 136 F.4th at 98. The court reasoned that “the
possibility of a favorable verdict on the ‘different occasions’ issue would have been so
exceedingly remote as to be practically irrelevant, we cannot fathom that Brown
would have traded the benefit of pleading guilty for such long odds.” Id. at 99
(concluding that “there is no doubt that Brown would have pleaded guilty if the
indictment had alleged that he committed his prior robberies on three different
28
occasions and if he had been informed that he was entitled to have a jury find that
fact beyond a reasonable doubt”).
This approach is also wrong. The proper mode of analysis in a guilty plea case
involving failure to charge and prove an essential element would more appropriately
track the approach to assessing prejudice due to erroneous advice of counsel at the
plea stage. That scenario is most like the one here: the error concerns erroneous
advice about the consequences of conviction after pleading guilty, and the question is
whether the defendant would have opted for trial had he known of those
consequences. In these circumstances, “[r]ather than asking how a hypothetical trial
would have played out absent the error,” the Court considers “whether there was an
adequate showing that the defendant, properly advised, would have opted to go to
trial.” Lee v. United States, 582 U.S. 357, 365, 367–68 (2017) (citing Hill v. Lockhart,
474 U.S. 52, 60 (1985)). This is because “[t]he decision whether to plead guilty also
involves assessing the respective consequences of a conviction after trial and by plea,”
where even the most improbable chance of success may not be reason enough to plead
guilty. Id. at 367 (“When those consequences are, from the defendant’s perspective,
similarly dire, even the smallest chance of success at trial may look attractive.”); id.
(“[A] defendant with no realistic defense to a charge carrying a 20-year sentence may
nevertheless choose trial, if the prosecution's plea offer is 18 years.”). When a court is
not asking what a hypothetical jury would have done but “instead asking what an
individual defendant would have done, the possibility of even a highly improbable
result may be pertinent to the extent it would have affected his decisionmaking.” Id.
29
at 368. Even a defendant whose “prospects of acquittal were grim” can show that an
error at the plea stage affected his decisionmaking. Id. at 365.9
These courts’ reliance on Greer is misplaced. Greer does not define the scope of
review for preserved claims of Fifth and Sixth Amendment errors related to an
aggravated penalty after a guilty plea to a lesser-included offense. Greer addressed
an unpreserved claim of Fifth Amendment error where the defendant pled guilty to
an offense that, as charged, was missing an essential element—subject to plain error
review. Greer itself acknowledged that “[c]onsistent with the text of Rules 51 and 52,
this Court’s precedents have long drawn a bright line between harmless-error and
plain-error review based on preservation.” Greer, 593 U.S. at 512 (citing United States
v. Olano, 507 U.S. 725, 731 (1993)). Unlike plain-error review, “[o]n harmless-error
review, defendants have not forfeited any of their rights, including their right to have
a jury decide whether there is reasonable doubt as to any element of the crime
charged.” Greer, 593 U.S. at 517 (Sotomayor, J., concurring). “For that reason, a
constitutional error is harmless only if there is no reasonable doubt about whether it
affected the jury’s actual verdict in the actual trial.” Id. (citing Sullivan v. Louisiana,
508 U.S. 275, 279 (1993), and Yates, 500 U.S. at 404–06).
Justice Sotomayor emphasized that it would be “patently unfair” for an
appellate court applying harmless-error review to look to “inculpatory evidence the
9 The difference here is that the burden would be on the government to show that the
error at the plea stage would not have affected the defendant’s decisionmaking. This
higher burden is appropriately commensurate with the fact that the defendant
asserted his constitutional rights and suffered severe consequences because he was
wrongly denied.
30
Government never put before the jury (like [a defendant’s] presentence report])” to
find that the jury would have found the defendant guilty. Id. at 517–18. Moreover,
because “defendants on harmless-error review [have not] forfeited their right to
require the Government to prove its case beyond a reasonable doubt,” reviewing
courts cannot “put [great] weight on a defendant’s failure to make an affirmative
case” demonstrating his own innocence. Id. at 518.
This logic applies with even greater force when the extra-trial evidence the
reviewing court used to find harmlessness consists of Shepard documents—the very
documents this Court expressly disavowed in Erlinger. 602 U.S. at 839–41. Indeed,
relying on Shepard documents to decide whether offenses were committed on
separate occasions is “exactly what the Fifth and Sixth Amendments forbid.” Id. at
840.
For this reason, not all judges agree that Erlinger error can be found harmless
based solely on Shepard documents (or on information in presentence reports
presumably derived from them). In her concurring opinion in Campbell, Judge Davis
explained that “[t]he Erlinger majority’s strong warning [against relying upon
Shepard documents to make factual determinations as to when and where a prior
offense occurred] speaks in contrast to the Greer majority’s invitation to review the
whole record.” Campbell, 122 F.4th at 637. She agreed that this Court’s plain-error
analysis in Greer, allowing consideration of information outside the record of the plea
proceeding, “does not extend to the distinct context of harmless-error review.” Id.
(quoting Greer, 593 U.S. at 515 (Sotomayor, J., concurring)). Indeed, Judge Davis
31
cautioned that “[u]se of the whole record could compound the effect of the initial
Erlinger error because of the grave reliability problems associated with the Shepard
documents often used during a judge-made different-occasions inquiry.” Id.
Similarly, Judge Clay explained in his dissenting opinion in Cogdill that even
if harmless-error review applies to Erlinger errors, that review cannot encompass
Shepard documents. Cogdill, 130 F.4th at 541 (“Erlinger prevents district courts from
reviewing Shepard documents—such as judicial records, plea agreements, and
colloquies between a judge and the defendant—in the context of the occasions
inquiry,” so “[a] three-judge panel of this Court cannot do what the Supreme Court
has forbidden district courts themselves from doing.”) He explained that allowing a
court of appeals to find non-elemental facts in Shepard documents would “yield the
bizarre result that ‘[t]he remedy for a constitutional violation by a trial judge (making
the determination of criminal guilt reserved to the jury) is a repetition of the same
constitutional violation by the appellate court (making the determination of criminal
guilt reserved to the jury).’” Id. (citing Neder, 527 U.S. at 32 (Scalia, J., dissenting in
part)).
Judge Cole shares these concerns. Thomas, 142 F.4th at 425. He notes that
characterizing Erlinger as containing “harsh words about Shepard documents”
“understates the Supreme Court’s skepticism of the use of Shepard documents to
conduct the different occasions analysis.” Id. Thus, he cautions, “[t]o proceed with
harmless error review without accounting for Erlinger’s cautions [about using
Shepard documents] risks reproducing the same infringements on a defendant’s
32
constitutional rights the Supreme Court sought to guard against.” Id. He further
noted that while “Erlinger discusses these concerns in the context of sentencing
judges, not appellate courts’ review for harmless error . . . [,] it is unlikely that the
Supreme Court views appellate judges as less immune than trial judges to the risks
presented by Shepard documents when conducting the wide-ranging factual inquiry
required to establish beyond a reasonable doubt that a defendant committed his
offenses on different occasions.” Id.; see also Kimbrough, 138 F.4th at 477
(“Thoughtful jurists, including members of this court, have questioned whether
Campbell contravenes the Supreme Court’s holding in Erlinger.” (internal quotation
marks omitted)).
Elsewhere, Judge Kelly in the Eighth Circuit recognizes that a “defendant’s
decision not to challenge certain facts contained in a presentence report says nothing
about whether evidence of those same facts would be admissible at a trial.” United
States v. Bowling, 135 F.4th 1125, 1127 (8th Cir. 2025) (Kelly, J., concurring). She
would not permit reliance on information in the presentence report, even if
uncontested, but instead would require the government “to explain what evidence it
would permissibly submit to a jury on the factors outlined in Wooden v. United States,
595 U.S. 360, 369 (2022).” Id. Without that proof, the court is left “‘[w]ith . . . no
confidence about what a jury might have found.’" Id. (quoting United States v.
Stowell, 82 F.4th 607, 613 (8th Cir. 2023) (en banc) (Erickson, J., dissenting)).
These judges’ concerns reflect the incoherence of allowing appellate judges to
rely on evidence of unknown admissibility outside the record of the plea proceeding
33
when conducting harmless-error review in omitted-element cases. More troubling,
appellate judges are relying on the same evidence this Court expressly found to be
unreliable in this very context, and in some cases viewing that evidence in the most
inculpatory manner possible. See, e.g., United States v. Durham, 151 F.4th 821, 837–
40 (6th Cir. 2025) (Moore, J., dissenting in part). Or, as in this case, they are engaging
in independent factfinding about the size of the gaps in time between prior offenses
when the record contains only non-elemental “on or about” dates that have never been
tested by admissible evidence in any forum. The judges even faulted Mr. Ballinger
for not casting doubt on the information in the PSR.
The result is that the burden of shouldering the cost of the constitutional errors
shifts from the government to the defendant, at pain of new judicial factfinding by
the appellate court, even though the defendant objected to the judicial factfinding at
every turn. All that matters is that the prosecutor, the sentencing judge, and at least
two appellate judges personally believe that the worst view of the facts that happen
to be available (but might have been irrelevant to the prior conviction itself) is so
overwhelming that they speak for themselves—and speak over the defendant’s right
to decide for himself whether to put the government to its burden at trial.
Not only did Erlinger reject this approach, 602 U.S. at 842, but it cannot be
squared with the Court’s suggestion in Greer about the proper approach. It suggested
there that when the defendant has preserved the error, evidence outside the record
of the plea proceeding must be relevant and admissible under the rules of evidence.
593 U.S. at 511. And there are valid questions about whether non-elemental
34
information contained in Shepard documents is admissible. See United States v.
Hansel, No. 8:23-cr-6-MSS-AEP (M.D. Fla. Oct. 26, 2023) (Doc. 50) (judgment of
acquittal entered on ACCA charge after finding Shepard documents inadmissible).
III.
This case presents an ideal vehicle to resolve these extremely
important questions.
This is an excellent vehicle to decide the questions presented. Mr. Ballinger’s
case perfectly illustrates the ACCA’s severity, as it tripled his guideline range from
63 to 78 months to 180 to 210 months. In a published decision, the lower court
addressed and rejected on the merits Mr. Ballinger’s argument that Erlinger error is
structural and about harmless error, relying on a published post-Erlinger decision in
which the court of appeals ultimately denied rehearing en banc after considering
these same arguments.
The questions presented are outcome determinative for Mr. Ballinger. If the
Court overrules Neder, or holds that the proper standard is whether the government
has proven beyond a reasonable doubt that Mr. Ballinger would still have pleaded
guilty, or holds that the reviewing court in a guilty plea case like this one may not
consider non-elemental information in Shepard documents or presentence reports, or
both, Mr. Ballinger is entitled to reversal and remand for resentencing for the
§ 922(g)(1) offense.
By any measure, a defendant charged under the ACCA and advised of the
government’s burden to prove the occasions-different element would not be irrational
to insist on a trial rather than plead guilty to the ACCA. As in this case, the ACCA
can drastically increase the guideline range by ten or more years. Its outsized impact
35
on sentencing is not unusual and is one reason the prospect of the ACCA’s mandatory
penalty has more influence on the decision to plead guilty or go to trial than any other
mandatory minimum. The trial rate for offenders subject to the ACCA is 13.5%—five
times the trial rate for all federal offenders. See U.S. Sent’g Comm’n, Mandatory
Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System 37
(2018) (showing trial rate for all federal offenders of 2.7% and trial rate for all subject
to any mandatory minimum of 5.2%). As this Court recognizes, even “a defendant
with no realistic defense to a charge carrying a 20-year sentence may nevertheless
choose trial, if the prosecution’s plea offer is 18 years.” Lee, 582 U.S. at 367. When
the choice is to plead guilty to an offense carrying a 15-year mandatory minimum or
go to trial and face the same 15-year minimum if he loses but a far lower guideline
range if he wins, a defendant’s choice to go to trial may be entirely rational.
A person properly charged and advised under the ACCA also would have
considered the possibility that the non-elemental information in the Shepard
documents would be deemed inadmissible at trial, as they have been in other cases.
E.g., United States v. Hansel, No. 8:23-cr-6-MSS-AEP (M.D. Fla. Oct. 26, 2023) (Doc.
50) (after finding Shepard documents inadmissible, entering judgment of acquittal
on the ACCA enhancement “because the Government was unable to provide
competent evidence of the same”); see also Erlinger, 602 U.S. at 894 (Jackson, J.,
dissenting) (outlining potential difficulties in amassing sufficient reliable evidence to
prove different occasions).
36
These issues are exceptionally important. In the year that Wooden was
decided, hundreds of federal defendants were sentenced under the ACCA. See, e.g.,
U.S. Sent’g Comm’n, Quick Facts – Felon in Possession of a Firearm 1 (2022) (showing
that 260 offenders were sentenced under the ACCA in fiscal year 2021). The effect of
the ACCA is generally severe. In fiscal year 2021, for example, the average sentence
imposed was 126 months longer than for those sentenced without the ACCA—over a
decade longer. Quick Facts at 2. In most if not all instances, a district judge found the
fact that the predicate offenses were committed on different occasions by examining
the record of the prior conviction and discerning non-elemental facts. In the time
between Wooden and Erlinger, those sentenced under the old regime had every
reason to appeal and to hold their appeals until Erlinger was decided. But in applying
harmless-error review, the courts of appeals have only replicated what Erlinger
forbids district courts from doing, thereby compounding the initial error.
Finally, these issues will not go away with the resolution of pipeline Erlinger
cases. Courts will continue to face in other contexts preserved claims about whether
a given fact must be pled and proven to a jury. E.g., Loines, 165 F.4th at 483–84
(considering fact required for enhanced punishment under 21 U.S.C. § 841(b)). This
Court should clarify whether and how to engage in harmless-error review in guilty
plea cases where the error is the failure to plead and prove to a jury a fact essential
to the punishment.
37
CONCLUSION
The petition for a writ of certiorari should be granted.
JENNIFER NILES COFFIN
Appellate Chief
Federal Defender Services
of Eastern Tennessee, Inc.
605 Chestnut St., Suite 1310
Chattanooga, TN 37450
(423) 756-4349
Counsel for Cody Ballinger
May 11, 2026
38
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.