Ensuring Jury Determination for ACCA “Occasions” Clause: Harmless-Error Review After Erlinger

Introduction

The Sixth Circuit’s decision in United States v. Jermaine Kimbrough (No. 23-5529), issued May 21, 2025, revisits a critical question under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1): whether prior violent-felony convictions were committed on “occasions different from one another.” The Supreme Court’s decision in Erlinger v. United States, 602 U.S. 821 (2024), held that a jury, not a judge, must determine that “occasions” question. The Sixth Circuit here reviews whether the district court’s failure to submit that question to a jury was harmless error.

Parties:

Plaintiff-Appellee: United States of America
Defendant-Appellant: Jermaine Kimbrough

Key issues:

Did the district court err by making the ACCA “occasions” determination?
If so, was that error harmless beyond a reasonable doubt?
Are there independent sentencing defects requiring vacatur and remand?
Does the Double Jeopardy Clause bar ACCA enhancements post-Erlinger?

Summary of the Judgment

Jermaine Kimbrough pleaded guilty in 2022 to:

Conspiracy to commit carjacking (18 U.S.C. § 371),
Carjacking (18 U.S.C. § 2119(1)),
Using and brandishing a firearm in relation to a crime of violence (18 U.S.C. § 924(c)), and
Being a felon in possession of a firearm (18 U.S.C. § 922(g)(1)).

At sentencing, the district court applied the ACCA enhancement—finding three prior violent‐felony convictions “on occasions different from one another”—and imposed a 148-month sentence on Counts 1, 2, and 4 (to run concurrently) plus 84 months consecutive on Count 3. On appeal, the Sixth Circuit held that:

The district court erred under Erlinger by having a judge, not a jury, decide that two 2016 aggravated‐burglary convictions were on different occasions;
That error was not harmless beyond a reasonable doubt; the government failed to prove that any rational jury would necessarily conclude the two burglaries were separate occasions;
The 148-month concurrent sentence on Counts 1 and 2 exceeded Count 1’s 60-month statutory maximum;
Accordingly, the sentences on Counts 1, 2, and 4 are vacated and remanded for resentencing;
The Double Jeopardy challenge to ACCA enhancements was preserved, but its merits are left to the district court on remand.

Analysis

Precedents Cited

Wooden v. United States, 142 S. Ct. 1063 (2022)
- Held that “occasions” under ACCA is a multi-factored inquiry—timing, geographic proximity, character of offenses.
- Illustrated that ten related burglaries over one evening constitute a single occasion.
Erlinger v. United States, 602 U.S. 821 (2024)
- Held that the “occasions” determination is a fact that must be decided by a jury, not a judge.
- Established that failure to submit “occasions” to the jury is error.
United States v. Campbell, 122 F.4th 624 (6th Cir. 2024)
- Held that Erlinger error is subject to harmless‐error review, not reversible per se.
- Outlined that the government bears the burden to prove harmlessness beyond a reasonable doubt.
United States v. Cogdill, 130 F.4th 523 (6th Cir. 2025)
- Applied harmless‐error review to “occasions” in a methamphetamine case four years apart.
- Illustrates factual sensitivity of Wooden’s timing and location factors.
United States v. Robinson, 133 F.4th 712 (6th Cir. 2025)
- Found Erlinger error harmless where predicate offenses were different drugs and three years apart.

Legal Reasoning

The court’s reasoning proceeds in three steps:

Erlinger Error: Under Erlinger, a jury must find that prior violent felonies were committed on separate “occasions,” but the district court here made that finding itself. This is legal error.
Harmless‐Error Analysis: Under Campbell, the government must prove harmlessness beyond a reasonable doubt by showing that no reasonable jury could conclude the two 2016 burglaries were the same occasion. Applying Wooden’s factors:

Timing: Burglaries were reported nine days apart—but the record does not definitively show the dates of commission, leaving room for a jury to conclude they were part of a single spree.
Proximity: 2.3 miles apart—relatively close, supporting a single‐occasion finding.
Character/Relationship: Same modus operandi, same stolen vehicle, single accomplice statement implicating multiple break-ins—consistent with one criminal episode.

The government could not prove beyond a reasonable doubt that a jury would rule otherwise.

Independent Sentencing Defects:
- The 148-month concurrent sentence on Count 1 (conspiracy to commit carjacking) exceeded its 60-month statutory maximum.
- Because ACCA’s jury error infected the Guidelines calculation for Counts 1 and 2, the court cannot say with certainty it would have imposed the same concurrent 148-month sentence absent the error.
Thus, vacatur and remand of Counts 1, 2, and 4 are required.

Impact

This opinion underscores several important points for federal sentencing practice:

Any ACCA “occasions” determination must be submitted to a jury, or the error risks reversal unless the government establishes harmlessness beyond a reasonable doubt.
Harmless‐error review will turn on the particular combination of timing, location, and factual interrelationship of predicate offenses—encouraging thorough fact‐development at sentencing.
Sentencers must guard against inadvertently exceeding statutory maxima on grouped counts when applying enhancements.
Double Jeopardy challenges to ACCA enhancements, though preserved here, will be examined closely on remand, reflecting ongoing debate about whether § 924(e) constitutes a distinct offense or a penalty enhancement.

Complex Concepts Simplified

ACCA “occasions different from one another”: This phrase means that to qualify for the 15-year mandatory minimum, the defendant’s three prior violent-felony convictions must be separate “episodes.” Wooden teaches that episodes are assessed by looking at:
Harmless‐Error Review: When a constitutional error occurs (Erlinger error here), an appellate court asks: “Did the error actually affect the outcome?” If the government can prove “beyond a reasonable doubt” that any fair jury would have reached the same verdict on “occasions,” the sentence stands despite the procedural mistake.
Grouping Under the Guidelines: Sentencing Guidelines permit related counts to be grouped for one guideline range. Count Four (felon-in-possession) drove the range for the grouped counts. Applying ACCA artificially elevated the range above statutory and Guidelines maxima, creating multiple sentencing defects.

Conclusion

The Sixth Circuit’s ruling in United States v. Kimbrough reaffirms that ACCA’s “occasions” determination is a constitutional jury question under Erlinger. Because the government failed to prove harmlessness beyond a reasonable doubt—and because statutory maxima were exceeded—the court vacated and remanded the sentences on Counts 1, 2, and 4 for resentencing. This decision will guide district courts to submit “occasions” questions to juries, to develop fact records on timing, location, and similarity of prior offenses, and to vigilantly ensure statutory compliance in complex sentencing calculations.