Erlinger Claims Are Waivable: Eleventh Circuit Enforces Appeal Waiver and Upholds Georgia Marijuana PWID as an ACCA “Serious Drug Offense”

Erlinger Claims Are Waivable: Eleventh Circuit Enforces Appeal Waiver and Upholds Georgia Marijuana PWID as an ACCA “Serious Drug Offense”

Introduction

In United States v. Orlando Paradise (No. 23-10342, Oct. 30, 2025), a non-published, per curiam decision from the Eleventh Circuit, the panel (Judges Jordan, Luck, and Wilson) addressed two post-Erlinger issues arising from a felon-in-possession (18 U.S.C. §§ 922(g)(1), 924(e)) sentencing:

  • Whether the district court’s “different occasions” determination under the Armed Career Criminal Act (ACCA) violated Erlinger v. United States, 602 U.S. 821 (2024), and—critically—whether that claim was barred by the defendant’s appeal waiver; and
  • Whether Georgia convictions for possession of marijuana with intent to distribute (PWID) qualify as ACCA “serious drug offenses” (SDOs) notwithstanding alleged breadth in Georgia’s definition of marijuana.

Paradise pleaded guilty to § 922(g)(1); the district court found three Georgia PWID-marijuana predicates and imposed the ACCA’s 180-month minimum. Paradise’s plea agreement contained a broad appeal waiver that expressly preserved only one issue: whether his prior Georgia marijuana PWID convictions qualify as ACCA SDOs. On appeal, he argued an Erlinger error (first raised on appeal) and asserted that Georgia’s marijuana definition was categorically broader than federal law at the time of his state convictions (2012, 2014, 2017).

Summary of the Opinion

  • Appeal Waiver Controls the Erlinger Issue: The court dismissed the Erlinger-based challenge as barred by Paradise’s knowing and voluntary appeal waiver. Erlinger errors, akin to Apprendi/Alleyne errors, are not jurisdictional and are subject to waiver. The “sentence above the statutory maximum” exception does not rescue an Erlinger claim where the higher penalty depends on additional factfinding; such claims remain waivable.
  • Alternative Holding—No Plain Error: Even if not waived, the Erlinger claim fails under plain error review. The three prior drug convictions occurred in 2012, 2014, and 2017—separated by years—so any properly instructed jury would necessarily find they occurred on different occasions. No effect on substantial rights.
  • Georgia Marijuana PWID Is an ACCA Serious Drug Offense: Applying the categorical approach and Brown v. United States (2024), the court held Georgia’s marijuana definition was not categorically broader than federal law at the relevant times. The species argument (Georgia references all “genus Cannabis” while federal uses “Cannabis sativa L.”) is foreclosed by binding precedent interpreting the federal definition to encompass all cannabis species. The “completely defoliated mature stalks” carveout in Georgia does not create a mismatch with the federal “mature stalks” exclusion because neither law exempts leaves; no realistic probability of overbroad application was shown. Result: the ACCA enhancement stands.
  • Disposition: Appeal dismissed in part (Erlinger) and affirmed in part (ACCAs SDO challenge).

Analysis

Precedents Cited and Their Roles

  • Erlinger v. United States, 602 U.S. 821 (2024): Requires that ACCA’s “different occasions” fact either be admitted or found by a jury beyond a reasonable doubt. The court acknowledged an Erlinger error occurred here because the judge, not a jury, made the “occasions” finding.
  • United States v. Rivers, 134 F.4th 1292 (11th Cir. 2025): Frames Erlinger as squarely in the Apprendi/Alleyne line—errors in judicial factfinding that increase penalties are trial rights and not jurisdictional defects.
  • Apprendi v. New Jersey, 530 U.S. 466 (2000); Alleyne v. United States, 570 U.S. 99 (2013): Jury must find beyond a reasonable doubt any fact (other than prior conviction) that raises the statutory maximum/minimum.
  • Appeal Waiver Jurisprudence:
    • United States v. Read, 118 F.4th 1317 (11th Cir. 2024): Appeal waivers are enforced per their plain terms; interpreted like contracts.
    • United States v. Rubbo, 396 F.3d 1330 (11th Cir. 2005) and United States v. Grinard-Henry, 399 F.3d 1294 (11th Cir. 2005): Apprendi/Booker-type claims can be waived.
    • United States v. Bushert, 997 F.2d 1343 (11th Cir. 1993): Notes limited exceptions; the panel explains the “statutory maximum” exception does not save claims where the maximum depends on the waived factfinding issue.
    • McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001): Apprendi-type errors are not jurisdictional.
  • Plain Error Standards:
    • United States v. Wright, 607 F.3d 708 (11th Cir. 2010); United States v. McKinley, 732 F.3d 1291 (11th Cir. 2013): Unpreserved constitutional claims are reviewed for plain error.
    • United States v. Monroe, 353 F.3d 1346 (11th Cir. 2003); United States v. Madden, 733 F.3d 1314 (11th Cir. 2013): Four-part plain-error framework.
    • Greer v. United States, 593 U.S. 503 (2021): At step three, the defendant bears the burden to show a reasonable probability of a different outcome absent the error.
    • United States v. Iriele, 977 F.3d 1155 (11th Cir. 2020): Clarifies the defendant’s burden at step three.
    • United States v. Edwards, 142 F.4th 1270 (11th Cir. 2025): Plain-error review applied to post-Erlinger “different occasions” determinations.
  • “Different Occasions” Substantive Law:
    • Wooden v. United States, 595 U.S. 360 (2022): “Occasion” means an event or episode; temporal or spatial separation often decisively reflects different occasions.
    • United States v. Penn, 63 F.4th 1305 (11th Cir. 2023): Sales thirty days apart are different occasions.
  • Serious Drug Offense—Categorical Approach:
    • United States v. White, 837 F.3d 1225 (11th Cir. 2016); United States v. Conage, 976 F.3d 1244 (11th Cir. 2020): De novo review; categorical approach.
    • Brown v. United States, 602 U.S. 101 (2024): For ACCA drug predicates, compare state and federal drug schedules at the time the state offense was committed.
    • Quarles v. United States, 587 U.S. 645 (2019): “Substantial correspondence” inquiry in categorical analyses.
    • Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) and Chamu v. U.S. Att’y Gen., 23 F.4th 1325 (11th Cir. 2022): “Realistic probability” test—no reliance on legal imagination.
    • Ramos v. U.S. Att’y Gen., 709 F.3d 1066 (11th Cir. 2013); Bourtzakis v. U.S. Att’y Gen., 940 F.3d 616 (11th Cir. 2019): Text can itself establish realistic probability if it compels overbreadth; otherwise, show cases.
    • United States v. Jackson, 55 F.4th 846 (11th Cir. 2022): State law cannot be categorically broader than ACCA’s SDO definition.
  • Marijuana Definition—Species and “Stalks”:
    • United States v. Gaines, 489 F.2d 690 (5th Cir. 1974); United States v. Maskeny, 609 F.2d 183 (5th Cir. 1980): Federal “Cannabis sativa L.” is interpreted to include all cannabis species. These former Fifth Circuit cases bind the Eleventh Circuit. (See Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981)).
    • United States v. Sanapaw, 366 F.3d 492 (7th Cir. 2004): Same reasoning; avoids absurd species distinctions.
    • United States v. Osburn, 955 F.2d 1500, 1503 n.3 (11th Cir. 1992): Marijuana leaves contain significant THC; neither federal nor state law exempts leaves.
    • C.W. v. Department of Human Services, 836 S.E.2d 836 (Ga. Ct. App. 2019): Under Georgia law, a drug is a “controlled substance” only if it appears on both the Georgia and federal schedules; supports parity between the systems.

Legal Reasoning

A. Appeal Waiver Bars Erlinger Claims

The plea agreement contained a broad waiver—“to the maximum extent permitted by federal law”—with a single carved-out issue: whether Georgia PWID-marijuana qualified as an ACCA SDO. It did not reserve an Erlinger/different-occasions challenge. Because Paradise conceded the waiver was knowing and voluntary, the panel enforced it according to its ordinary meaning.

The court rejected two efforts to escape the waiver:

  • Jurisdictional characterization: Relying on McCoy and Rivers, the panel held that Erlinger errors, like Apprendi errors, are procedural, not jurisdictional. They arise at sentencing and, at most, affect the permissible penalty; they do not void the conviction or divest jurisdiction.
  • “Statutory maximum” exception: Citing Bushert’s footnote and the Eleventh Circuit’s Apprendi-waiver cases (Rubbo, Grinard-Henry), the panel explained that claims dependent on additional factfinding (e.g., different-occasions) are still subject to waiver. Treating them as non-waivable would render appeal waivers “nearly meaningless.”

B. No Plain Error Even If Considered

Although the court dismissed on waiver, it made an alternative merits holding under plain-error review because the Erlinger issue was raised for the first time on appeal. Steps one and two were satisfied (there was an Erlinger error, and it is now “plain”). The dispute focused on step three—effect on substantial rights.

Under Wooden and Penn, temporal separation alone often resolves “different occasions.” Here, the three predicates occurred in 2012, 2014, and 2017—years apart. On this record, there is no reasonable probability a jury would find a single “occasion.” Because Paradise could not show prejudice, the claim would fail at step three even if not waived.

C. Georgia PWID-Marijuana Is an ACCA “Serious Drug Offense”

The court applied the categorical approach, guided by Brown’s timing rule: state and federal schedules must be compared as they existed when the state offenses were committed. At the time of Paradise’s 2012, 2014, and 2017 Georgia PWID convictions, “marijuana” was a federally controlled substance and likewise controlled under Georgia law.

Paradise advanced two overbreadth theories:

  • Species mismatch: Georgia defines marijuana as “all parts of the plant of the genus Cannabis,” while federal law referenced “Cannabis sativa L.” Binding former Fifth Circuit decisions (Gaines, Maskeny) interpret the federal definition to encompass all cannabis species, a view echoed by the Seventh Circuit in Sanapaw. The panel held the linguistic difference immaterial.
  • “Completely defoliated mature stalks” vs “mature stalks” carveouts: Georgia excludes “completely defoliated mature stalks,” whereas federal law excludes “mature stalks.” The panel found no realistic probability that Georgia prosecuted conduct that federal law would not. Both regimes exclude stalks but not leaves; possession of a “mature stalk” with leaves (i.e., a foliated stalk) remains marijuana under both laws. No authority suggested federal law exempts leaves attached to stalks—a construction the court described as absurd because it would effectively legalize leaf possession so long as attached to a stalk.

The court reinforced congruence by noting Georgia’s statutory scheme: a “controlled substance” must appear on both Georgia and federal schedules (C.W.; Ga. Code Ann. § 16-13-21(4)), which undercuts claims that Georgia criminalized substances not federally controlled at the time.

Because Georgia PWID-marijuana categorically matches federal controlled-substance conduct at the relevant times, and because the maximum penalty elements of an ACCA “serious drug offense” were not disputed here, the panel held the prior convictions qualify as ACCA SDOs.

Impact

1. Post-Erlinger Litigation and Plea Waivers

This decision squarely places Erlinger “different occasions” challenges within the class of waivable Apprendi-type rights in the Eleventh Circuit. Defendants with broad appeal waivers that do not expressly reserve Erlinger issues will face dismissal on direct appeal. The opinion’s alternative ruling further limits relief under plain-error review where the record shows temporal or spatial separation that would compel a jury finding of multiple occasions.

Practical implications:

  • Plea negotiations: Defense counsel seeking to preserve Erlinger claims should negotiate explicit appeal (and collateral) waiver carveouts for “different occasions.”
  • At sentencing: If “occasions” is genuinely disputable, counsel should demand a jury determination or obtain an admission only after strategic consideration; preserve objections to avoid plain-error review.

2. ACCA Drug Predicates and Marijuana

The court’s categorical analysis confirms two recurring points:

  • Brown timing rule: The schedules must match at the time of the state offense. Post-2018 “hemp” exclusions and later definitional shifts are irrelevant to earlier state conduct.
  • No species gap and no “leaf-on-stalk” loophole: Federal “marijuana” covers all cannabis species; neither federal nor Georgia law exempts marijuana leaves simply because they are attached to stalks.

For older Georgia marijuana PWID convictions (pre-2018), overbreadth arguments premised on species nomenclature or stalk-carveout phrasing are unlikely to prevail in the Eleventh Circuit. This ruling thus stabilizes ACCA exposure for § 922(g) defendants with such priors.

3. Guidelines Note

The panel acknowledged, but did not reach, a separate Guidelines argument (whether Georgia marijuana PWID is a “controlled substance offense”) due to binding circuit precedent (Dubois). While the Guidelines landscape continues to evolve, this opinion resolves the ACCA analysis independently of the Guidelines classification.

Complex Concepts Simplified

  • ACCA (18 U.S.C. § 924(e)): Imposes a 15-year mandatory minimum on § 922(g) defendants with three prior qualifying “violent felonies” or “serious drug offenses,” provided those predicates were committed on different occasions.
  • “Different occasions”: Each predicate must arise from a distinct criminal episode. Offenses a day or more apart are ordinarily different occasions; time and place are key factors.
  • Erlinger error: A judge, not a jury, found the “different occasions” fact. After Erlinger, that fact must be admitted by the defendant or found by a jury beyond a reasonable doubt.
  • Appeal waiver: A plea agreement term where the defendant relinquishes the right to appeal except for specified carveouts. It is enforced like a contract if knowingly and voluntarily made, and it covers Apprendi/Erlinger-type claims unless expressly reserved.
  • Plain error review: Applies when an argument was not raised below. The defendant must show (1) error, (2) that is plain, (3) that affected substantial rights (a reasonable probability of a different outcome), and even then, (4) the court has discretion to correct only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
  • “Serious drug offense” (ACCA): A state offense involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance, for which the state prescribes a maximum term of 10 years or more; evaluated categorically.
  • Categorical approach: Compares the statutory elements of the prior offense to the federal definition; if the state statute criminalizes a broader swath of conduct than the federal definition, it is not a categorical match. Courts avoid hypothetical overbreadth and require a “realistic probability” of the broader application.
  • Brown timing rule: For drug predicates, compare state and federal schedules as they existed when the defendant committed the prior state offense.

Conclusion

United States v. Paradise delivers two important messages for post-Erlinger sentencing litigation in the Eleventh Circuit. First, Erlinger “different occasions” claims are fully waivable via plea agreement appeal waivers; they are neither jurisdictional nor within the narrow “statutory maximum” exception to waiver where the higher penalty turns on facts subject to waiver. Even absent waiver, such claims will often falter on plain-error review when the dates and locations of prior offenses compel a jury finding of separate occasions.

Second, Georgia PWID-marijuana convictions from the pre-2018 era qualify categorically as ACCA “serious drug offenses.” The panel foreclosed species-based overbreadth arguments (federal law covers all cannabis species) and rejected stalk-carveout mismatches as illusory because leaves—the THC-bearing plant parts—are never exempted. Reinforced by Georgia’s dual-schedule structure and Brown’s timing rule, the decision provides a clear roadmap for assessing marijuana-based ACCA predicates in this circuit.

Although unpublished, the opinion synthesizes and applies binding Supreme Court and Eleventh Circuit authorities to two frequently litigated ACCA issues. Its practical upshot is clear: counsel must preserve and expressly reserve Erlinger issues in plea agreements where appropriate, and categorical challenges to Georgia marijuana PWID predicates must grapple with Brown’s timing rule and long-settled interpretations of “marijuana” under federal law.

Case Details

Year: 2025
Court: Court of Appeals for the Eleventh Circuit

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