Express Bench-Trial Waiver and Invited-Error Bar in ACCA Different-Occasions Litigation After Erlinger

I. Introduction

In United States v. Daniel DeWayne Conner (11th Cir. 2026-06-24) (unpublished, per curiam), the Eleventh Circuit affirmed Daniel Conner’s conviction and 180-month sentence for possessing a firearm as a convicted felon. The appeal raised three principal issues:

  1. whether the district court abused its discretion by denying Conner’s motion to withdraw his guilty plea;
  2. whether the court abused its discretion by denying his motion to dismiss the indictment based on an Appointments Clause challenge to the U.S. Attorney’s appointment; and
  3. whether, after a bench trial, the court correctly found that Conner’s prior drug convictions were committed on “occasions different from one another” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

The case is notable for how it operationalizes two post-Erlinger practical constraints on ACCA litigation: (1) a defendant may waive the jury right on the ACCA different-occasions question by express agreement to a bench determination; and (2) the invited-error doctrine can foreclose appellate review of claims that the court relied on improper materials when the defendant affirmatively assented to their admission.

II. Summary of the Opinion

The Eleventh Circuit affirmed on all issues:

  • Guilty-plea withdrawal: No abuse of discretion. The Rule 11 colloquy was thorough, and Conner was informed of the consequences of his plea, including the ACCA-enhanced exposure and the agreed bench-trial procedure.
  • Indictment dismissal: No abuse of discretion. Under United States v. Brown, a knowing and voluntary guilty plea waives non-jurisdictional defects, and under United States v. Suescun an Appointments Clause defect in a U.S. Attorney’s appointment is non-jurisdictional.
  • ACCA different-occasions finding: No error. Conner waived a jury determination via an express bench-trial waiver; he also invited any evidentiary error regarding a prior written factual statement. On the merits, consistent with Wooden v. United States, the week-plus separation between drug sales supported counting them as separate occasions.

III. Analysis

A. Precedents Cited and Their Role

1. Standards of review and procedural framing

  • United States v. Rowe (abuse of discretion for plea-withdrawal denials): The court used Rowe to anchor deference to district court management of plea withdrawals, limiting reversal to clear misjudgments.
  • United States v. Gomez Rivera (abuse of discretion for indictment-dismissal denials): This reinforced that the appellate lens is procedural and deferential, especially where the asserted defect is waived or non-jurisdictional.
  • United States v. Pirela Pirela and United States v. Rivers (clear-error fact review; de novo ACCA interpretation): These cases supplied the bifurcated review model: facts (what happened) versus law (what ACCA requires).
  • United States v. Hawkins (plain error for unpreserved evidentiary arguments): The court noted the ordinary fallback standard but did not apply it because invited error applied.
  • United States v. Daniels (invited error bars even plain-error review): The key procedural lever—once Conner expressly consented to admission of a document, appellate review was foreclosed.
  • United States v. Thayer (invited error when defendant says “no objection” after court inquiry): Thayer served as a close factual analogue reinforcing that express non-objection can constitute invitation of error.

2. Guilty plea validity and withdrawal

  • United States v. Buckles (totality-of-circumstances; “fair and just reason”): The court used Buckles as the governing framework for evaluating whether Conner offered a legally cognizable reason to withdraw.
  • United States v. Symington (Rule 11 “core concerns”): Symington provided the three-part checklist—no coercion, understanding of charges, and understanding of consequences—which the panel found satisfied.

3. Guilty-plea waiver and “non-jurisdictional” defects

  • United States v. Brown (guilty plea waives prior non-jurisdictional defects, including indictment defects): This case did the heavy lifting: because Conner’s plea was knowing and voluntary, his later indictment challenge generally could not proceed.
  • United States v. Suescun (Appointments Clause defect in U.S. Attorney appointment is non-jurisdictional): Suescun directly defeated Conner’s theory that the alleged appointment problem voided the prosecution or the court’s adjudicatory power.

4. ACCA different-occasions doctrine and factfinding mechanics

  • Wooden v. United States (multi-factor different-occasions inquiry; time/place can be decisive): The court relied on Wooden to justify treating temporal separation—week-plus gaps—as dispositive even where transactions shared participants or location.
  • Shepard v. United States (defining “Shepard documents”): Shepard supplied the taxonomy of permissible judicial records referenced in the opinion’s discussion of ACCA-related factfinding materials.
  • Erlinger v. United States (different-occasions determination must be made by unanimous jury beyond a reasonable doubt; Shepard documents not for judge-found dates/locations): Erlinger set the constitutional baseline: because different-occasions findings can raise statutory ranges, they implicate the jury-trial right. This case’s significance lies in the panel’s emphasis that Erlinger rights are waivable with proper consent.
  • United States v. Diaz (bench-trial waiver requires “express, intelligent consent,” government consent, and court approval): Diaz provided the doctrinal pathway to uphold Conner’s bench adjudication of ACCA facts despite Erlinger.
  • United States v. Malol and United States v. Street (harmless-error principles in sentencing/evidentiary context): These cases supported the court’s alternative holding that any error in admitting a prior factual statement was harmless because the same information appeared in a presentence investigation report introduced by Conner.

B. Legal Reasoning

1. Why the plea-withdrawal motion failed

Conner’s theory was that his plea was not knowing and voluntary because he was not warned that he would be unable to withdraw his plea if dissatisfied with how the later bench trial on ACCA issues was conducted. The panel rejected this on the record:

  • The district court conducted a “thorough Rule 11 colloquy,” confirming voluntariness and comprehension of charges and consequences (tracking United States v. Symington).
  • Conner was informed that with ACCA he faced “15 years to life,” and the bench-trial provision was read aloud and discussed.
  • The panel also made a factual-application point: the district court did not, in fact, curtail Conner’s ability to present evidence or argument—he filed multiple briefs, submitted nine exhibits, all were admitted, and he argued at length.

Under United States v. Buckles, the totality of circumstances did not amount to a “fair and just reason” to withdraw.

2. Why the indictment-dismissal motion was waived and non-jurisdictional

Conner claimed the indictment was “void” because the U.S. Attorney was allegedly not properly appointed under the Appointments Clause. The panel resolved this in two linked steps:

  1. Waiver by plea: Under United States v. Brown, a knowing and voluntary guilty plea waives prior non-jurisdictional defects, including many indictment challenges.
  2. Non-jurisdictional nature of the claim: Under United States v. Suescun, even an Appointments Clause problem with the U.S. Attorney does not undermine prosecutorial power or the district court’s power to adjudicate the case (i.e., it is not jurisdictional).

Putting those together, the motion was barred by the plea waiver, and denial was within discretion.

3. Why the ACCA different-occasions finding was affirmed after a bench trial

Conner raised two main objections: (i) reliance on indictment/judgment/plea materials to establish offense dates; and (ii) an overly time-focused occasions analysis. The panel’s reasoning proceeded as follows:

  • Bench trial was permissible despite Erlinger: Although Erlinger v. United States recognizes a jury right for the different-occasions determination, the panel held Conner expressly waived that right in his plea agreement, the government consented, and the court approved the waiver—satisfying United States v. Diaz.
  • Invited error foreclosed evidentiary attack: To the extent Conner challenged admission of a written statement of facts from his prior case, he affirmatively consented to its admission when the district court inquired. Under United States v. Daniels (and United States v. Thayer), invited error bars appellate review even under plain-error standards.
  • Harmless-error backstop: Any evidentiary error was also harmless because Conner introduced a presentence investigation report containing the same dates (citing United States v. Malol and United States v. Street).
  • Time can be decisive under Wooden: On the merits, the four methamphetamine sales occurred on August 22, August 30, September 6, and September 14. The panel emphasized Wooden v. United States’s instruction that time or place can “decisively differentiate occasions,” and that offenses “a day or more apart” are “nearly always” treated as separate. Week-plus gaps and intervening conduct (making/buying more meth) supported separate-occasion treatment.

C. Impact

Although unpublished, the decision offers a practical roadmap for post-Erlinger v. United States ACCA litigation in the Eleventh Circuit:

  • Waiver remains powerful: Defendants can waive the jury right on different-occasions determinations by an express plea agreement providing for a bench trial, so long as the waiver is intelligent and voluntary and the court and government consent (United States v. Diaz).
  • Invited error is outcome-determinative: If defense counsel (or the defendant) expressly assents to admission of a record used to establish different-occasions facts, appellate review may be categorically unavailable (United States v. Daniels), shifting attention to making a clear record of objections.
  • Wooden still allows a “single factor” case: Even where offenses share participants and a common investigative context (e.g., controlled buys), substantial temporal separation can independently justify separate occasions.
  • Guilty pleas foreclose structural side-attacks: The combination of United States v. Brown and United States v. Suescun continues to narrow the utility of Appointments Clause-based challenges once a guilty plea is entered.

IV. Complex Concepts Simplified

  • Rule 11 colloquy: The judge’s in-court checklist to ensure a guilty plea is voluntary and informed—covering rights surrendered and sentencing exposure.
  • Motion to withdraw guilty plea (“fair and just reason”): After pleading guilty but before sentencing, a defendant must show a legitimate reason—mere regret or dissatisfaction with later proceedings generally is not enough.
  • Jurisdictional vs. non-jurisdictional defects: “Jurisdictional” problems go to the court’s power to hear a case; “non-jurisdictional” problems are procedural/structural defects that are often waived by a guilty plea. Here, the Appointments Clause challenge was treated as non-jurisdictional (United States v. Suescun).
  • ACCA “different occasions” requirement: ACCA’s 15-year minimum applies only if the defendant has three qualifying convictions committed on different occasions—meaning separate criminal episodes, not one continuous event.
  • “Shepard documents”: A limited set of judicial records (like plea agreements and plea colloquies) used in certain sentencing inquiries (Shepard v. United States).
  • Erlinger jury right (and waiver): If the different-occasions finding increases statutory exposure, it ordinarily must be made by a unanimous jury beyond a reasonable doubt (Erlinger v. United States), but that right can be waived for a bench trial if properly done (United States v. Diaz).
  • Invited error: If a party affirmatively agrees to a trial court action (like admitting evidence), that party generally cannot complain about it on appeal—even under plain-error review (United States v. Daniels).
  • Harmless error: Even if the court made a mistake, the conviction/sentence stands if the same result was inevitable because the key fact was established by other unchallenged evidence.

V. Conclusion

The Eleventh Circuit’s decision in United States v. Daniel DeWayne Conner underscores three durable lessons. First, a carefully conducted Rule 11 proceeding makes plea-withdrawal claims difficult to sustain absent concrete prejudice. Second, a knowing and voluntary guilty plea sharply limits later procedural attacks on the prosecution, including Appointments Clause challenges treated as non-jurisdictional under United States v. Suescun and waived under United States v. Brown. Third, in the post-Erlinger v. United States landscape, defendants may still validly opt into a bench determination of ACCA different-occasions facts—and must preserve evidentiary objections, because express assent can trigger the invited-error bar.

Note: The opinion is labeled “NOT FOR PUBLICATION,” which generally limits precedential force, but its reasoning may still be persuasive in similar procedural postures.