Conceding ACCA Applicability at Sentencing “Invites” Predicate-Classification Error; Post-Erlinger Plain-Error Relief Requires Showing a Real Chance a Jury Would Find a Single Occasion

Introduction

United States v. Reginald Smith, Jr. (11th Cir. Aug. 28, 2026) addresses two recurrent post-2022 federal criminal litigation fronts: (1) constitutional challenges to the felon-in-possession statute, 18 U.S.C. § 922(g)(1), and (2) the mechanics of imposing the Armed Career Criminal Act (ACCA) enhancement, 18 U.S.C. § 924(e), particularly after Erlinger v. United States (2024) required jury resolution (or guilty-plea admission) of ACCA’s “different occasions” element.

The defendant, Reginald Herman Smith, Jr., a previously convicted Florida cocaine felon, was arrested in Florida while holding a loaded shotgun; ammunition and MDMA were also found. He pleaded guilty to felon-in-possession and simple drug possession. The central sentencing dispute was whether his three Florida cocaine convictions—two sales in 1993 and a trafficking conviction in 2001—qualified as ACCA “serious drug offense[s],” triggering a 15-year mandatory minimum.

On appeal, Smith challenged (i) the constitutionality of § 922(g)(1) under the Second Amendment and Commerce Clause, (ii) ACCA predicate classification (including a state/federal “cocaine” definitional mismatch theory focused on isomers), (iii) the absence of a jury finding on “different occasions” under Erlinger, and (iv) an asserted Sentencing Guidelines error.

Summary of the Opinion

  • Conviction affirmed: § 922(g)(1) survives both Second Amendment and Commerce Clause attacks under binding Eleventh Circuit precedent and the statute’s jurisdictional element.
  • ACCA sentence affirmed:
    • Predicate classification challenge barred: Smith invited any error by conceding at sentencing that ACCA applied under existing Eleventh Circuit law, notwithstanding his stated desire to “preserve” issues.
    • Erlinger error found but no relief: The district court plainly erred by applying ACCA without a jury finding (or guilty-plea admission) on “different occasions,” but the error did not affect substantial rights because the offenses occurred on July 14, 1993; July 20, 1993; and July 15, 2001—separated by nearly a week and then by years.
    • Guidelines issue harmless: Any misclassification of a prior drug offense as a “controlled substance offense” under the Guidelines was harmless because ACCA drove the operative offense level and the statutory minimum.

Analysis

Precedents Cited

1) Second Amendment framework for § 922(g)(1)

  • United States v. Rozier, 598 F.3d 768 (11th Cir. 2010): The foundational Eleventh Circuit holding that felons are “disqualified from the exercise of Second Amendment rights,” relying on District of Columbia v. Heller, 554 U.S. 570 (2008). Rozier remains the circuit’s controlling baseline.
  • New York State Rifle & Pistol Ass'n v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 602 U.S. 680 (2024): Smith’s argument implicitly relied on the Supreme Court’s modern “history-and-tradition” methodology. The panel did not re-litigate Bruen/Rahimi’s merits; instead, it followed circuit precedent on whether those cases displaced Rozier.
  • United States v. Dubois (Dubois II), 139 F.4th 887 (11th Cir. 2025): The decisive bridge case: it reaffirmed Rozier and held Bruen and Rahimi did not abrogate the constitutionality of § 922(g)(1) in this circuit. Dubois II compelled rejection of Smith’s Second Amendment challenge (particularly under plain-error review).
  • United States v. Edwards, 142 F.4th 1270 (11th Cir. 2025): Cited for plain-error framing and, in the Commerce Clause context, for § 922(g)’s jurisdictional element and “minimal nexus” standard.

2) Commerce Clause “minimal nexus” for § 922(g)(1)

  • United States v. Edwards, 142 F.4th 1270 (11th Cir. 2025): The panel relied on Edwards for the propositions that (a) § 922(g) is facially valid because it contains an express jurisdictional element, and (b) an out-of-state manufacture showing that the firearm traveled in interstate commerce satisfies the “minimal nexus” as applied.

3) ACCA “serious drug offense” classification and the categorical approach

  • Shular v. United States, 589 U.S. 154 (2020): Supplies the governing interpretive method: the categorical approach looks to the state offense’s elements and asks whether the state offense “involv[es]” the conduct described in ACCA’s serious-drug-offense definition.
  • Brown v. United States, 602 U.S. 101 (2024): Quoted for the “match” requirement—whether the state’s definition of the drug matches the federal definition—and for the general categorical-comparison concept. The panel also used Brown to reject Smith’s argument that Brown newly “established” the overbreadth rule; it treated that rule as long understood.
  • United States v. Jackson (Jackson I), 36 F.4th 1294 (11th Cir.), superseded by 55 F.4th 846 (2022) (Jackson II), aff'd sub nom. Brown v. United States, 602 U.S. 101 (2024): Jackson I temporarily supported drug-definition mismatch claims (ioflupane). But it was superseded.
  • United States v. Jackson (Jackson II), 55 F.4th 846 (11th Cir. 2022): Critical for timing: the state/federal drug-definition comparison uses definitions in effect when the defendant was convicted of the predicate drug crime. That timing rule undercut Smith because ioflupane was included in both Florida and federal schedules at his relevant conviction times.
  • United States v. Conage (Conage I), 976 F.3d 1244 (11th Cir. 2020); Conage v. United States (Conage II), 346 So. 3d 594 (Fla. 2022); United States v. Conage (Conage III), 50 F.4th 81 (11th Cir. 2022): These decisions resolved whether Florida cocaine trafficking qualifies as an ACCA predicate. Conage III held that Florida cocaine trafficking is an ACCA predicate, removing a principal argument Smith had previously raised.
  • United States v. McCobb, No. 20-12263, 2024 WL 4512220 (11th Cir. Oct. 17, 2024): Mentioned because Smith tried to preserve an isomer-based overbreadth theory (stereoisomers). The opinion notes McCobb did not resolve the stereoisomer question.

4) Invited error doctrine as a bar to appellate sentencing claims

  • United States v. Love, 449 F.3d 1154 (11th Cir. 2006) (quoting United States v. Ross, 131 F.3d 970 (11th Cir. 1997)): States the invited-error rule: a party cannot challenge a ruling it invited.
  • United States v. Innocent, 977 F.3d 1077 (11th Cir. 2020): The template for this case. Innocent held that conceding ACCA qualification under then-existing law—while signaling displeasure—invited any error and barred reversal. Smith’s sentencing colloquy mirrored Innocent.
  • In re Carbon Dioxide Indus. Antitrust Litig., 229 F.3d 1321 (11th Cir. 2000): Used to reinforce the common-sense principle that a litigant should not tell the court a legal proposition is correct and then attack it as error.
  • United States v. Miller, 157 F.4th 1365 (11th Cir. 2025): Invoked by Smith as “intervening precedent.” The panel rejected the premise that Miller (or Brown) created a new rule that would undo invited error.

5) Erlinger, plain error, and the “different occasions” element

  • Erlinger v. United States, 602 U.S. 821 (2024): The governing constitutional rule: ACCA’s “committed on occasions different from one another” must be found by a unanimous jury beyond a reasonable doubt or admitted in a guilty plea. The panel held the district court plainly erred because neither occurred.
  • Henderson v. United States, 568 U.S. 266 (2013): Enabled the panel’s conclusion that the error was “plain” at the time of appeal even though Erlinger was decided after sentencing.
  • United States v. Nash, 438 F.3d 1302 (11th Cir. 2006): Provided the Eleventh Circuit’s four-part plain-error framework.
  • Wooden v. United States, 595 U.S. 360 (2022): Supplies the substantive “different occasions” inquiry (timing, proximity, character/relationship), while emphasizing that time or place alone can be decisive. The panel leaned heavily on Wooden’s suggestion that a day-or-more separation “nearly always” means separate occasions.
  • United States v. Penn, 63 F.4th 1305 (11th Cir. 2023): Used to illustrate that even an hour-apart drug-sale hypothetical would be “a close[] case,” underscoring how implausible Smith’s week-apart argument was on prejudice.
  • Greer v. United States, 593 U.S. 503 (2021): Authorized use of the “entire record,” including a PSI, when evaluating whether an error affected substantial rights.
  • United States v. Braun, 801 F.3d 1301 (11th Cir. 2015) (quoting Shepard v. United States, 544 U.S. 13 (2005)): Cited in defining “Shepard documents,” relevant to Smith’s argument about the provenance of offense-date information in the PSI.
  • Unpublished district court matters (United States v. Pennington; United States v. Willis) were discussed and found unhelpful given the limited record detail.

6) Guidelines and harmless error

  • United States v. Amedeo, 370 F.3d 1305 (11th Cir. 2004): De novo review standard for Guidelines interpretation and application.
  • United States v. Perkins, 787 F.3d 1329 (11th Cir. 2015): Harmless Guidelines error does not warrant reversal.
  • United States v. Bankston, 945 F.3d 1316 (11th Cir. 2019): Preservation disputes can trigger plain-error review for Guidelines claims (the panel found it unnecessary to resolve because harmlessness controlled).
  • United States v. Chirino-Alvarez, 615 F.3d 1344 (11th Cir. 2010): When a correct statutory mandatory minimum exceeds the Guidelines range, Guidelines calculation errors are typically harmless—applied here by analogy because ACCA drove the outcome.

Legal Reasoning

1) Second Amendment and Commerce Clause challenges fail under controlling precedent and plain-error review

Because Smith did not raise these constitutional challenges in the district court, the panel applied plain-error review. Under United States v. Dubois (Dubois II) and United States v. Rozier, § 922(g)(1) remains constitutional in the Eleventh Circuit after New York State Rifle & Pistol Ass'n v. Bruen and United States v. Rahimi. On the Commerce Clause, the panel relied on § 922(g)’s jurisdictional element and the fact that the shotgun was manufactured outside Florida, satisfying the “minimal nexus” standard articulated in United States v. Edwards.

2) ACCA predicate-classification claim is blocked by invited error

The opinion’s most practically significant holding concerns how sentencing colloquies can foreclose appellate arguments. Smith attempted to “maintain” objections about Florida cocaine overbreadth (including a stereoisomer theory) while also telling the court that, under existing Eleventh Circuit law, the ACCA designation and calculations were correct.

The panel treated those concessions as dispositive. Citing United States v. Innocent and the invited-error principle in United States v. Love, it held that Smith “invited” the ACCA classification and therefore could not obtain reversal by claiming the district court erred in applying ACCA under current precedent. The court drew a sharp distinction between:

  • Permissible appellate posture: “We should overturn existing precedent that makes ACCA apply.”
  • Impermissible posture after concession: “Under current precedent, ACCA does not apply,” when the defendant told the district court it did.

The panel also rejected Smith’s argument that United States v. Miller and Brown v. United States were intervening decisions that negated invited error, reasoning that the overbreadth/mismatch principle was already explicit in United States v. Jackson (Jackson II).

3) Erlinger plain error found—but no prejudice given offense dates

The panel acknowledged that Erlinger v. United States makes it constitutional error for a judge to apply ACCA absent a jury determination (or guilty-plea admission) that predicate offenses occurred on different occasions. It further clarified an important corollary: even if a defendant did not object to the PSI’s “different occasions” narrative, that non-objection is not one of Erlinger’s two permitted pathways (jury finding or guilty-plea admission) and thus does not cure the constitutional defect.

Still, under plain-error review, Smith also had to show a reasonable probability that a jury would have found fewer than three occasions. Applying Wooden v. United States and United States v. Penn, the panel found no such probability because the two 1993 sales were nearly a week apart and the third offense was years later. It also relied on Greer v. United States to consider the full record, including the PSI, when assessing prejudice.

4) Guidelines dispute is harmless once ACCA controls the sentence

Smith’s final argument targeted whether his Florida trafficking conviction qualified as a “controlled substance offense” for purposes of U.S.S.G. § 2K2.1(a) and § 4B1.2(b). The panel held that even if there were an error, it was harmless because Smith’s armed-career-criminal status required application of U.S.S.G. § 4B1.4 (minimum offense level 33) and because the ACCA mandatory minimum controlled the bottom-line sentence.

Impact

  1. Sentencing concessions can forfeit (via invited error) ACCA predicate-classification arguments: The opinion reinforces that a defendant cannot “preserve” an issue in the abstract while simultaneously affirmatively agreeing that the enhancement applies under current law. Defense counsel must choose careful language: acknowledging controlling precedent while still disputing its application to the client’s case can be perilous if it crosses into “the calculations are correct” territory.
  2. Post-Erlinger litigation in the Eleventh Circuit will often turn on the prejudice prong: The decision signals that where predicate offenses are separated by multiple days (let alone years), defendants will struggle to prove that the Erlinger error affected substantial rights. In practical terms, Erlinger claims will be most consequential in tight temporal/proximity scenarios (same day, same location, continuous conduct, limited record clarity).
  3. PSIs remain influential at the plain-error stage: By relying on Greer v. United States, the panel confirms that defendants may face an uphill battle disputing record facts (like offense dates) on appeal when they did not build a contrary record below.
  4. § 922(g)(1) constitutional challenges remain largely foreclosed in-circuit: By applying United States v. Dubois (Dubois II) and United States v. Rozier, the panel underscores that—absent Supreme Court action— Second Amendment attacks on § 922(g)(1) are unlikely to succeed in the Eleventh Circuit, especially under plain-error review.

Complex Concepts Simplified

ACCA (Armed Career Criminal Act)
A federal sentencing statute that raises the penalty for § 922(g) felon-in-possession offenses to a 15-year mandatory minimum if the defendant has three qualifying prior convictions (including “serious drug offense[s]”) committed on different occasions.
“Serious drug offense” (ACCA)
A prior state drug crime qualifies if it involves manufacturing, distributing, or possessing with intent to distribute a federally controlled substance and carries a sufficiently high maximum penalty. Courts typically evaluate it using the categorical approach.
Categorical approach
A method that compares legal elements, not the defendant’s actual conduct. If the state statute covers more substances or conduct than the federal definition, the conviction may not qualify as an ACCA predicate.
Plain-error review
A stricter appellate standard applied when the defendant failed to object in the district court. The defendant must show: (1) error, (2) error is plain, (3) it affected substantial rights (usually outcome-determinative prejudice), and (4) it seriously affects the fairness or integrity of proceedings.
Invited error
A doctrine preventing a party from appealing an error that the party affirmatively caused or conceded—here, by telling the court ACCA applied under existing law.
Erlinger “different occasions” requirement
After Erlinger v. United States, the Constitution requires that the “different occasions” fact be decided by a jury beyond a reasonable doubt (or admitted in a guilty plea). Judicial factfinding at sentencing is not enough.
Shepard documents
A limited set of reliable judicial records (like indictments, plea colloquies, plea agreements) that courts may consult for certain sentencing inquiries. They are named after Shepard v. United States.

Conclusion

United States v. Reginald Smith, Jr. affirms a felon-in-possession conviction and an ACCA-enhanced sentence while delivering two instructive messages for future cases: first, defendants who affirmatively concede ACCA applicability at sentencing risk triggering the invited-error bar against later challenging predicate classification; second, although Erlinger errors may now be “plain,” defendants on plain-error review will often lose unless they can show a realistic probability that a jury would find their predicates occurred on the same occasion— an especially difficult showing when offenses are separated by days or more. In the broader landscape, the opinion consolidates the Eleventh Circuit’s post-Bruen posture on § 922(g)(1) and illustrates how post-Erlinger relief will frequently hinge not on whether the district court erred, but on whether the error mattered.