“Jury, Not Judge” – The Sixth Circuit’s First Full Application of Erlinger to the ACCA “Different-Occasions” Question

Introduction

The Sixth Circuit’s decision in United States v. Timothy John Lewis, No. 23-6068 (6th Cir. July 2, 2025) marks the appellate court’s first substantive engagement with the Supreme Court’s watershed ruling in Erlinger v. United States, 602 U.S. 821 (2024). The appellate panel—Judges Moore, Thapar and Davis (opinion by Davis, J.)—confronted three principal issues:

Whether a traffic stop predicated on an observed seat-belt violation was supported by probable cause;
Whether excluding a defense investigator’s testimony concerning a 911 “run sheet” violated the Rules of Evidence; and
Whether the district court, rather than a jury, could determine that three 2006 burglary convictions occurred on occasions “different from one another” for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

The panel unanimously upheld Lewis’s conviction and all pre-trial evidentiary rulings, but—invoking Erlinger—vacated the 200-month sentence and remanded for a jury determination on the ACCA “different-occasions” issue. Judge Thapar concurred, stressing the necessity of applying harmless-error (rather than plain-error) review because Lewis had preserved the Sixth- and Fifth-Amendment objection below.

Summary of the Judgment

Conviction affirmed. The stop was lawful; the firearm and related evidence were admissible; exclusion of extrinsic impeachment evidence was within the court’s discretion.
Sentence vacated. Application of the ACCA enhancement, predicated on the trial judge’s own “different-occasions” finding, contravened Erlinger. The error was either (a) not harmless (Davis, J.) or (b) harmful under harmless-error review (Thapar, J.).
Case remanded. A jury must now decide—under the multifactor test articulated in Wooden v. United States, 595 U.S. 360 (2022)—whether at least two of Lewis’s three 2006 burglaries were committed on separate “occasions.”

Analysis

a. Precedents Cited

Erlinger v. United States, 602 U.S. 821 (2024) – Jury must decide “different-occasions” facts beyond a reasonable doubt.
Wooden v. United States, 595 U.S. 360 (2022) – Defined “occasion” by a holistic, multi-factor inquiry (time, place, character, relationship).
Apprendi v. New Jersey, 530 U.S. 466 (2000) – Any fact that increases the statutory maximum must be found by a jury.
Katz v. United States, 389 U.S. 347 (1967); Whren v. United States, 517 U.S. 806 (1996) – Warrant requirement and traffic-stop probable-cause rules.
United States v. Campbell, 122 F.4th 624 (6th Cir. 2024) & United States v. Cogdill, 130 F.4th 523 (6th Cir. 2025) – Sixth Circuit’s post-Erlinger harmless-error framework.
United States v. Phillips, 888 F.2d 38 (6th Cir. 1989) – Extrinsic evidence to show witness bias may be excluded if only “remotely relevant.”
Plain-error / harmless-error authority: United States v. Vonner, 516 F.3d 382 (6th Cir. 2008) (en banc); United States v. Olano, 507 U.S. 725 (1993).

b. Legal Reasoning

Fourth-Amendment analysis. Officer Cundiff’s unobstructed observation that the middle passenger lacked a shoulder strap satisfied probable cause under Kentucky’s seat-belt statute, squarely within Whren/Bell doctrine that any observed traffic infraction justifies a stop.
Evidentiary ruling on impeachment. The trial court excluded the investigator’s testimony as (i) inadmissible extrinsic character evidence under Rules 404 & 405 and (ii) marginally relevant under Rule 401. On appeal, the panel applied abuse-of-discretion review and found the exclusion appropriate given ample cross-examination of the witness whose bias was at issue.
ACCA enhancement.
- The district court—following then-binding Sixth-Circuit precedent—found, as a matter of law, that Lewis’s June 12, 13, and 14 burglaries constituted separate “occasions.”
- Erlinger, decided while Lewis’s appeal was pending, held that the Fifth and Sixth Amendments require a jury determination beyond a reasonable doubt.
- Standard of review debate. The panel ultimately treated the error as harmful (not harmless) whether analyzed under harmless-error or plain-error standards, because:
    • Timing: crimes only one day apart;
    • Location: within a fourteen-mile radius;
    • Character: same co-conspirator and indictment;
  collectively create a reasonable probability that a jury could see the burglaries as a single “spree.”

c. Impact of the Judgment

First binding Sixth-Circuit blueprint for remand procedure post-Erlinger. District judges must empanel juries (or conduct special verdict proceedings) when § 924(e) “different-occasions” facts are disputed.
Guidance on review standards. Although the majority left the standard open, Judge Thapar’s concurrence persuasively clarifies that harmless-error review governs when the defendant objected below—an important signal to litigants filing ACCA appeals.
Strategic implications for prosecutors. The government now bears the burden of compiling detailed Shepard-approved evidence (charging documents, plea transcripts, certified dockets) capable of convincing juries—not simply judges—of temporal and spatial separation.
Ripple effects beyond ACCA. The Sixth Circuit’s reasoning foreshadows jury-fact-finding expansion in other multi-count recidivist frameworks (e.g., § 841(b)(1)(A) prior convictions, § 924(c) “unit of prosecution” disputes).
Sentencing stakes. Lewis’s guidelines, absent the ACCA, drop from a 15-year mandatory minimum (and an effective 188-235-month guideline range) to roughly 37-46 months—an illustration the panel cites in finding “fairness and integrity” concerns satisfied.

Complex Concepts Simplified

ACCA (Armed Career Criminal Act): Federal statute imposing a 15-year minimum on felon-in-possession defendants with three prior “violent felony” or “serious drug offense” convictions, provided they were committed on different “occasions.”
Different-Occasions Inquiry: Whether prior crimes are so separated in time, place, and character that they count as distinct criminal episodes instead of a single spree. Under Erlinger, a jury must decide.
Harmless vs. Plain Error: Harmless Error: Applies when the defendant objected. Government must prove beyond a reasonable doubt the error did not affect the outcome.
Plain Error: Applies absent an objection. Defendant must show the error was clear, affected substantial rights, and seriously affected the proceeding’s fairness.
Shepard Documents: Court-approved records (indictments, plea colloquies, jury instructions) used to establish the nature of prior convictions without violating the jury-fact-finding rule.

Conclusion

United States v. Lewis does not merely apply Erlinger; it operationalizes it. By vacating a 200-month ACCA sentence and demanding a jury verdict on temporal separation, the Sixth Circuit underscores that the Constitution’s jury guarantee extends deep into sentencing fact-finding whenever statutory minimums are in play. Going forward, prosecutors must marshal and present evidence of separate criminal episodes to juries; defense counsel must be ready to contest proximity, timing, and relational factors; and district courts must recalibrate their sentencing procedures to respect the post-Erlinger landscape.

The decision also fortifies existing precedent on routine traffic stops and evidentiary discretion, reminding trial courts that constitutional and evidentiary rulings will be upheld when grounded in clear factual findings and correct rule application. Yet the headline legacy of Lewis is unmistakable: The jury box, not the judge’s bench, is the constitutional arena for deciding whether prior crimes are “occasions different from one another” under ACCA.