Erlinger Meets Plain Error: Eleventh Circuit Holds No Reversible ACCA “Occasions” Error Where Predicate Convictions Are Years Apart

Introduction

In United States v. James Bryant, the Eleventh Circuit confronted the post-Erlinger landscape for the first time in a case returning on remand from the Supreme Court. The central question was whether the district court’s failure to submit the Armed Career Criminal Act’s “occasions” determination to a jury—now required by Erlinger v. United States, 602 U.S. 821 (2024)—warrants reversal under plain-error review when the defendant did not object below and the prior convictions are separated by years. The panel also revisited four additional issues: subject-matter jurisdiction in light of Rehaif v. United States, the validity of Bryant’s guilty plea under Rule 11 and Rehaif, the constitutionality of 18 U.S.C. § 922(g) under the Commerce Clause, and whether Florida aggravated assault qualifies as an ACCA “violent felony” after Borden v. United States.

The court affirmed. Its opinion is an early, practical blueprint for how lower courts will triage Erlinger-based challenges on plain-error review: where the record shows prior offenses that are clearly “different occasions” (here, in 1988, 1993, and 1999), a defendant cannot show prejudice and thus cannot obtain relief. The opinion at the same time reaffirms existing Eleventh Circuit law on jurisdiction after Rehaif, the Rule 11/Rehaif standard under Greer, the constitutionality of § 922(g), and the status of Florida aggravated assault as an ACCA predicate after Somers and Gary.

Case Background

James Bryant pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). The presentence investigation report (PSR) identified four prior convictions as ACCA predicates, and stated they were “committed on different occasions”:

1988 Aggravated battery (Florida)
1993 Principal to aggravated assault (Florida)
1999 Possession with intent to distribute cocaine base, January 8 (federal)
1999 Possession with intent to distribute cocaine base, January 15 (federal)

At sentencing, Bryant withdrew or forfeited earlier PSR objections and affirmatively stated he had no objections to the PSR’s facts, including the “different occasions” assertion. The district court “applied the ACCA,” found a guidelines floor of 180 months, and imposed a sentence of 120 months’ imprisonment and five years of supervised release. The Eleventh Circuit initially affirmed; the Supreme Court vacated that judgment in light of Erlinger and remanded. On remand, the Eleventh Circuit again affirmed.

Summary of the Opinion

The Eleventh Circuit held:

ACCA “occasions” after Erlinger (plain error): Even assuming an Erlinger error occurred because a jury did not find beyond a reasonable doubt that Bryant’s predicates were committed on different occasions, Bryant cannot show prejudice under plain-error review. His qualifying offenses were separated by years (1988, 1993, 1999). No reasonable jury could find otherwise, so there is no reasonable probability of a different outcome.
Subject-matter jurisdiction: Failure to allege the Rehaif knowledge-of-status element or to charge § 924(a) does not deprive the district court of jurisdiction. The indictment was not jurisdictionally defective.
Rule 11/Rehaif plea error (plain error): Although the court did not advise Bryant at the plea that the government had to prove he knew of his felon status, Bryant did not show a reasonable probability he would have refused to plead guilty. He had served a 160-month sentence and never claimed ignorance of his status.
Constitutionality of § 922(g): Section 922(g) remains a valid exercise of Congress’s Commerce Clause power; challenges invoking Lopez and Morrison fail under circuit precedent.
Florida aggravated assault as a “violent felony”: After Borden, an offense that can be committed recklessly cannot be a violent felony. But under Florida law, assault (and aggravated assault) cannot be committed recklessly; thus Florida aggravated assault categorically qualifies as a violent felony for ACCA purposes.

Analysis

Precedents Cited and Their Influence

Erlinger v. United States, 602 U.S. 821 (2024): The Supreme Court held that the Fifth and Sixth Amendments require a jury, rather than a judge, to find beyond a reasonable doubt that qualifying ACCA offenses were “committed on occasions different from one another.” This ruling moved the “occasions” finding out of the judge-found sentencing facts category (previously handled under Shepard/ACCA case law) and into the Apprendi jury-fact domain. The Eleventh Circuit’s task on remand was to apply this new constitutional requirement through the lens of plain-error review because Bryant did not preserve an Erlinger-based objection.
Wooden v. United States, 595 U.S. 360 (2022): Wooden supplied the analytical framework for “occasions”—considering time, location, character, and purpose—and observed that offenses “a day or more apart” are nearly always separate occasions. The panel used Wooden’s temporal guidance to reason that offenses years apart would be found separate by any reasonable jury.
Plain-Error Line (Greer v. United States, 593 U.S. 503 (2021); Puckett v. United States, 556 U.S. 129 (2009); United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005); United States v. Lejarde-Rada, 319 F.3d 1288 (11th Cir. 2003); United States v. Arias-Izquierdo, 449 F.3d 1168 (11th Cir. 2006)): These cases define the plain-error framework: (1) error; (2) plainness; (3) effect on substantial rights (prejudice, i.e., reasonable probability of a different result); and (4) effect on the fairness, integrity, or public reputation of judicial proceedings. Here, the panel essentially assumed prongs one and two (in light of Erlinger) and resolved the case at prong three, concluding no prejudice because the record foreclosed a different result.
Rehaif v. United States, 588 U.S. 225 (2019); Greer v. United States, 593 U.S. 503 (2021); United States v. Bates, 960 F.3d 1278 (11th Cir. 2020); United States v. McLellan, 958 F.3d 1110 (11th Cir. 2020); United States v. Moore, 954 F.3d 1322 (11th Cir. 2020); United States v. Dudley, 5 F.4th 1249 (11th Cir. 2021): Rehaif added a knowledge-of-status element to § 922(g). Greer set the plain-error standard for unpreserved Rehaif claims: a defendant must show a reasonable probability that he would have gone to trial had he been properly advised. Moore held that omission of the Rehaif element from an indictment does not strip jurisdiction. Dudley confirms that courts review the whole record to assess prejudice in plea cases. The panel used these authorities to reject Bryant’s jurisdictional argument and his Rule 11 claim.
Commerce Clause Cases (United States v. Wright, 607 F.3d 708 (11th Cir. 2010); United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000)): Lopez and Morrison struck down statutes lacking a sufficient nexus to interstate commerce. Wright, however, upheld § 922(g), which contains an express jurisdictional element (“in or affecting commerce”) that cabins the statute to constitutionally permissible applications. The panel relied on Wright and the court’s prior-precedent rule (United States v. Vega-Castillo, 540 F.3d 1235 (11th Cir. 2008)) to dispose of the constitutional challenge.
Violent Felony Line (Borden v. United States, 593 U.S. 420 (2021); United States v. Gary, 74 F.4th 1332 (11th Cir. 2023) (per curiam); Somers v. United States, 355 So. 3d 887 (Fla. 2022)): Borden held that offenses committed with a mens rea of recklessness do not satisfy the ACCA elements clause. After the Florida Supreme Court clarified in Somers that Florida assault cannot be committed recklessly, the Eleventh Circuit held in Gary that Florida aggravated assault categorically qualifies as a “violent felony.” The panel applied Gary to reject Bryant’s contrary argument.
Standards and Structural Rules (United States v. Morales, 987 F.3d 966 (11th Cir. 2021); United States v. Jones, 743 F.3d 826 (11th Cir. 2014); United States v. Dominguez Benitez, 542 U.S. 74 (2004)): Morales confirms de novo review of jurisdiction; Jones addresses plain-error review of ACCA predicate determinations; Dominguez Benitez sets the prejudice standard for unpreserved Rule 11 claims (reasonable probability the defendant would not have pled).

Legal Reasoning

1) Erlinger/ACCA “occasions” on plain-error review. Under Erlinger, it is constitutional error for a judge to find the “occasions” fact, which must now be found by a jury beyond a reasonable doubt. Because Bryant did not preserve an Erlinger-type objection, the court applied plain-error review. Assuming error and plainness, the court focused on prejudice: could Bryant show a reasonable probability that a properly instructed jury would have found his predicates were not committed on different occasions? Relying on Wooden’s temporal factor (and its observation that “a day or more apart” is usually dispositive), the panel held the answer is no. Bryant’s predicates occurred in 1988, 1993, and 1999—years apart. Even if the two January 1999 drug counts were deemed a single occasion, the 1988 and 1993 violent felonies make three. On this record, no reasonable jury could conclude that he lacked three qualifying convictions on different occasions, so there is no reasonable probability of a different result. That dooms prong three of plain-error analysis and ends the inquiry.

2) Subject-matter jurisdiction after Rehaif. Bryant argued the indictment’s failure to allege the Rehaif knowledge-of-status element deprived the court of jurisdiction. The panel rejected this argument based on Moore, which holds that such omissions may implicate sufficiency but do not strip jurisdiction. The indictment tracked the statutory language and alleged time and place, which suffices for jurisdictional purposes. Additionally, § 924(a) need not be separately charged for a § 922(g) prosecution.

3) Rule 11/Rehaif plea error. The district court did not advise Bryant at the plea that the government had to prove he knew he was a felon. Under Greer and Dominguez Benitez, Bryant must show a reasonable probability he would not have pled guilty had he been so advised. He did not make that showing. The record showed he previously served a 160-month sentence and never claimed ignorance of his felon status. The Supreme Court in Greer admonished that felons ordinarily know they are felons; the Eleventh Circuit followed that reasoning, found no prejudice, and therefore no grounds to undo the plea.

4) Constitutionality of § 922(g). Invoking Lopez and Morrison, Bryant argued § 922(g) exceeds Congress’s commerce power. The panel adhered to Wright, which squarely upholds § 922(g) because of its express “in or affecting commerce” jurisdictional element. Under the prior-precedent rule, the panel was bound to follow Wright until overruled by the Supreme Court or the en banc court. The constitutional challenge therefore failed, at least under plain-error review.

5) Florida aggravated assault as a “violent felony.” Bryant invoked Borden to argue that Florida aggravated assault can be committed recklessly and thus fails the ACCA elements clause. But the Florida Supreme Court in Somers clarified that Florida assault requires an intentional threat, not recklessness. The Eleventh Circuit’s published decision in Gary thus held Florida aggravated assault categorically qualifies as a violent felony. Bound by Gary, the panel rejected Bryant’s argument.

Impact and Forward-Looking Implications

Post-Erlinger litigation filtering: This decision illustrates how Erlinger claims will fare when raised for the first time on appeal. If the record shows predicates that are obviously separate in time—especially years apart—defendants will struggle to show prejudice under prong three of plain-error review. By contrast, defendants whose predicates are close in time, place, and purpose (e.g., the same night or continuous spree) are more likely to secure remands for jury determinations.
Trial practice adjustments: Prosecutors should now:
- Allege the “different occasions” fact in indictments (or informations).
- Seek special jury instructions and verdict forms requiring a unanimous, beyond-a-reasonable-doubt finding on “different occasions.”
- Be prepared to present admissible evidence (including certified judgments and permissible documents) tailored to the Wooden factors.
Defense counsel should:
- Timely object to judicial factfinding on “occasions.”
- Contest the occasions issue at trial or seek a plea stipulation that avoids an ACCA exposure when appropriate.
- Preserve objections to PSR assertions about offense dates and “different occasions”—silence will invite plain-error review.
PSR admissions and forfeiture: Although Erlinger elevates the occasions fact to a jury issue, this case shows that non-objection to PSR facts can still be consequential. On appeal, courts will mine the unchallenged record to evaluate whether any reasonable jury would find separate occasions beyond a reasonable doubt. Defendants who do not object below will be bound to a demanding prejudice showing.
Florida offenses after Borden: After Somers and Gary, Florida aggravated assault remains a solid ACCA predicate under the elements clause—an important signal for practitioners evaluating eligibility and exposure in Florida-based ACCA cases.
Rehaif challenges remain uphill on appeal: Consistent with Greer, defendants must show that the Rehaif error likely affected their decision to plead guilty. Lengthy prior sentences and other record evidence of knowledge-of-status will generally defeat prejudice arguments.
Commerce Clause challenges to § 922(g): The Eleventh Circuit continues to treat § 922(g) as constitutionally sound, given its jurisdictional element and binding circuit precedent.
Unpublished but instructive: Although designated “Do Not Publish,” the opinion is a clear, early articulation of how the Eleventh Circuit will handle Erlinger-based plain-error claims and will be persuasive in similar remand cases.

Complex Concepts Simplified

ACCA (18 U.S.C. § 924(e)): Enhances penalties for § 922(g) offenders who have at least three prior convictions for violent felonies or serious drug offenses, committed on different occasions. It raises the statutory minimum to 15 years and increases the maximum.
“Occasions” (ACCA): Whether prior offenses were committed on different occasions depends on factors like time, place, character, and purpose (Wooden). Offenses separated by a day or more are usually separate; years apart are virtually certain to be separate.
Erlinger rule: A jury, not a judge, must unanimously find beyond a reasonable doubt that ACCA predicates occurred on different occasions.
Plain-error review: When an issue was not raised below, an appellant must show (1) error; (2) that is plain; (3) that affected substantial rights (a reasonable probability of a different outcome); and (4) that the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Rehaif knowledge-of-status: The government must prove the defendant knew he belonged to the prohibited status (e.g., knew he was a felon) when he possessed the firearm. Unpreserved plea-colloquy errors under Rehaif fail absent a showing that the defendant likely would not have pled guilty if properly advised.
Jurisdictional element: A clause in a statute that ties the offense to interstate commerce (e.g., the firearm traveled in or affected commerce), bringing it within Congress's Commerce Clause power.
Violent felony (ACCA elements clause): A felony that has as an element the use, attempted use, or threatened use of physical force against the person of another. After Borden, offenses that can be committed with a mens rea of recklessness do not qualify. Florida aggravated assault qualifies because Florida assault requires an intentional threat.
Prior-precedent rule: Eleventh Circuit panels are bound by prior published circuit decisions unless and until overturned by the Supreme Court or the en banc circuit.

Conclusion

United States v. Bryant is a significant early application of Erlinger in the Eleventh Circuit. It confirms that although Erlinger constitutionalizes the ACCA “occasions” finding, defendants who did not object below face a steep prejudice hurdle under plain-error review—especially when the record reflects predicate offenses separated by years. The opinion also reinforces established circuit law that Rehaif omissions do not defeat jurisdiction, that unpreserved Rehaif/Rule 11 errors rarely warrant relief in the absence of record-based prejudice, that § 922(g) remains constitutional under the Commerce Clause, and that Florida aggravated assault categorically qualifies as a violent felony post-Borden and Somers.

The practical takeaway is twofold. For the government, Erlinger requires charging and proving “different occasions” to a jury going forward, preferably with special verdicts. For the defense, preservation is paramount: object to PSR facts and demand a jury determination on occasions. On appeal, where the dates are spread across years—as in Bryant—Erlinger will often prove to be a paper tiger under plain-error review. Even as an unpublished decision, Bryant offers a clear roadmap for litigants navigating the new Erlinger regime in ACCA cases.