Harmless Beyond a Reasonable Doubt: Eleventh Circuit Permits Sua Sponte Harmless-Error Review of Erlinger “Different Occasions” Violations

Introduction

In United States v. Samuel Storey (11th Cir. Oct. 8, 2025) (per curiam) (non-precedential), the Eleventh Circuit affirmed a felon-in-possession conviction and an Armed Career Criminal Act (ACCA) sentence despite concededly erroneous “different occasions” factfinding under Erlinger v. United States, 602 U.S. 821 (2024). The case is notable for two reasons. First, it reinforces, post–Bruen and Rahimi, the continued viability of 18 U.S.C. § 922(g)(1) against Commerce Clause and Second Amendment challenges. Second—and most significantly for ACCA practice—it clarifies that appellate courts in this Circuit may deem an Erlinger error harmless beyond a reasonable doubt sua sponte where the record makes the separateness of prior convictions “patently obvious,” even if the government does not argue harmlessness.

The defendant, Samuel Storey, pleaded guilty to violating § 922(g)(1) and received a 204-month sentence under ACCA. On appeal he raised four issues:

• The felon-in-possession statute exceeds Congress’s Commerce Clause authority.
• Section 922(g)(1) is unconstitutional under the Second Amendment after New York State Rifle & Pistol Ass’n v. Bruen and United States v. Rahimi.
• The district court committed an Erlinger error by itself deciding that his prior convictions were committed on “different occasions.”
• His prior Florida cocaine convictions under Fla. Stat. § 893.13(1)(a) are too broad to qualify as ACCA “serious drug offenses.”

The panel (Judges Rosenbaum, Luck, and Abudu) affirmed across the board.

Summary of the Opinion

• Commerce Clause: The challenge to § 922(g)(1) is foreclosed by binding Eleventh Circuit precedent holding the statute constitutional under the Commerce Clause. The prior-panel-precedent rule controls.
• Second Amendment: Applying plain-error review (the challenge was not preserved), the court held no plain error exists because neither Bruen nor Rahimi invalidates § 922(g)(1), and Eleventh Circuit precedent (Rozier) continues to uphold § 922(g)(1).
• Erlinger error: Although the district court erred by finding “different occasions” itself, the error is not structural and was harmless beyond a reasonable doubt. Relying on Rivers, the court held it could review the whole record and, citing Graham and Campbell, exercise sua sponte harmless-error review because the proper resolution was “beyond any doubt.” The years-long gaps between Storey’s predicate offenses made the “different occasions” finding inevitable under Wooden.
• Serious drug offenses: Florida § 893.13(1)(a) cocaine convictions categorically qualify as “serious drug offenses” under ACCA, consistent with Eleventh Circuit precedent (Travis Smith, Xavier Smith, Laines) and the Supreme Court’s timing rule in Brown v. United States (matching schedules at the time of the state offense).

Detailed Analysis

I. Commerce Clause Challenge to § 922(g)(1)

Storey argued that mere intrastate possession of a firearm exceeds Congress’s power. He relied on United States v. Lopez, 514 U.S. 549 (1995), and United States v. Morrison, 529 U.S. 598 (2000).

Precedents Cited and Their Role

• United States v. McAllister, 77 F.3d 387 (11th Cir. 1996), United States v. Scott, 263 F.3d 1270 (11th Cir. 2001), United States v. Wright, 607 F.3d 708 (11th Cir. 2010), and United States v. Longoria, 874 F.3d 1278 (11th Cir. 2017): These binding decisions uphold § 922(g) as a constitutional exercise of Commerce Clause power, emphasizing the statute’s jurisdictional hook—connection to interstate commerce via the firearm’s travel.
• In re Lambrix, 776 F.3d 789 (11th Cir. 2015); United States v. Archer, 531 F.3d 1347 (11th Cir. 2008); United States v. Gillis, 938 F.3d 1181 (11th Cir. 2019): Collectively articulate the prior-panel-precedent rule—later panels are bound unless a Supreme Court or en banc decision abrogates the earlier holding.

Legal Reasoning

Applying the prior-panel-precedent rule, the court held that Lopez and Morrison did not displace Eleventh Circuit precedents upholding § 922(g)(1). No intervening Supreme Court decision has invalidated § 922(g)(1). The argument remains foreclosed.

Impact

Commerce Clause challenges to § 922(g)(1) remain nonstarters in the Eleventh Circuit absent Supreme Court or en banc intervention. Defendants seeking to preserve the issue must realistically aim at Supreme Court review.

II. Second Amendment Challenge After Bruen and Rahimi

Storey advanced an unpreserved Second Amendment attack in light of New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 602 U.S. 680 (2024). The court applied plain-error review.

Precedents Cited and Their Role

• United States v. Rozier, 598 F.3d 768 (11th Cir. 2010): Upholds § 922(g)(1) as a constitutional restriction consistent with Heller’s historical tradition of disarming felons.
• United States v. Dubois, 139 F.4th 887 (11th Cir. 2025): Confirms that Rozier remains binding after Bruen.
• United States v. Boone, 97 F.4th 1331 (11th Cir. 2024); United States v. Innocent, 977 F.3d 1077 (11th Cir. 2020): Define “plain error”—it must be obvious under controlling precedent.

Legal Reasoning

Under plain-error review, Storey needed controlling authority clearly establishing § 922(g)(1)’s unconstitutionality. He had none. Neither Bruen nor Rahimi declares § 922(g)(1) invalid, and Rozier remains binding. Without clear contrary authority, there is no “plain” error.

Impact

In this Circuit, felon-in-possession remains constitutional post–Bruen and Rahimi, particularly on plain-error review. Defendants must either preserve the challenge below or show binding precedent squarely holding § 922(g)(1) unconstitutional—which does not presently exist.

III. Erlinger “Different Occasions” and Sua Sponte Harmless-Error Review

The crux of the case concerns Erlinger v. United States, which requires that the “different occasions” determination under ACCA be found by a jury beyond a reasonable doubt or admitted by the defendant. The district court, pre-Erlinger, made the finding itself, and both parties agreed on appeal that this was error warranting resentencing.

Precedents Cited and Their Role

• Erlinger v. United States, 602 U.S. 821 (2024): Judicial factfinding of “different occasions” violates the Fifth and Sixth Amendments; a jury must find it beyond a reasonable doubt unless admitted.
• United States v. Rivers, 134 F.4th 1292 (11th Cir. 2025): Erlinger error is not structural; subject to harmless-error review. Appellate courts may consult the “whole record” for harmlessness analysis.
• Rose v. Clark, 478 U.S. 570 (1986): Constitutional errors may be harmless when the court can say, beyond a reasonable doubt, the outcome would be the same.
• United States v. Graham, 123 F.4th 1197 (11th Cir. 2024), and United States v. Campbell, 26 F.4th 860 (11th Cir. 2022) (en banc): Permit sua sponte resolution of unraised issues in extraordinary circumstances—e.g., when the proper resolution is beyond any doubt.
• Wooden v. United States, 595 U.S. 360 (2022): Defines “occasion” in ACCA, instructing courts to consider time, location, and character; offenses a day or more apart are nearly always distinct.
• United States v. Edwards, 142 F.4th 1270 (11th Cir. 2025): Confirms use of the whole record in plain-error or harmlessness analysis concerning Erlinger.

Legal Reasoning

The panel agreed the district court committed an Erlinger error by making the “different occasions” finding. However, relying on Rivers, the panel held the error was not structural and therefore subject to harmless-error review. Although the government did not argue harmlessness (and both parties asked for remand), the panel invoked its discretion under Graham and Campbell to consider harmlessness sua sponte because the proper resolution was “beyond any doubt.”

Turning to the merits of harmlessness, the court looked at the “whole record,” including Shepard-approved materials, to assess whether a rational jury would find beyond a reasonable doubt that Storey’s prior offenses occurred on different occasions. The charging and conviction dates showed the offenses were years apart:

• Sale of cocaine charged October 7, 1998; convicted June 22, 1999.
• Sale of cocaine arrested January 3, 2000; convicted September 8, 2000.
• Possession of cocaine with intent arrested March 28, 2005; convicted October 28, 2005.

Under Wooden, offenses separated by a day or more are nearly always distinct occasions. Here, the years-long separations “decisively differentiate” the occasions. The court therefore concluded, beyond a reasonable doubt, that a jury would find “different occasions,” making the error harmless.

Impact

• Sua sponte harmlessness in obvious cases: Even when the government does not brief harmlessness—and both parties seek remand—the Eleventh Circuit may affirm sua sponte if the separateness of occasions is “patently obvious.” This materially affects post-Erlinger litigation strategy.
• Record-building matters: Defendants challenging ACCA enhancements after Erlinger should develop reasons why any “different occasions” finding is not harmless (e.g., temporal or spatial proximity; interwoven conduct) and be prepared to distinguish Wooden.
• Scope of review: The court may consult the “whole record,” including Shepard documents, to decide harmlessness—even though the district court could not rely on those documents to make the initial “different occasions” finding post-Erlinger.
• Practical bottom line: Where the prior offenses are separated by days, months, or years, expect affirmance despite an Erlinger error; close “same night/same location” cases remain litigable.

IV. ACCA “Serious Drug Offense” and Florida § 893.13(1)(a)

Storey argued that Florida’s cocaine definition was broader than the federal schedules because Florida covered “stereoisomers” of cocaine, while the federal schedule listed “optical and geometric isomers,” rendering his state convictions non-qualifying under ACCA.

Precedents Cited and Their Role

• Brown v. United States, 602 U.S. 101 (2024): A state drug conviction is an ACCA predicate if the state and federal drug schedules matched when the state offense was committed.
• United States v. Laines, 69 F.4th 1221 (11th Cir. 2023): Rejects the same Florida overbreadth argument and confirms that convictions under § 893.13(1) qualify as ACCA serious drug offenses under Eleventh Circuit precedent.
• United States v. Travis Smith, 775 F.3d 1262 (11th Cir. 2014); United States v. Xavier Smith, 983 F.3d 1213 (11th Cir. 2020): Establish the categorical qualification of § 893.13(1) convictions as ACCA predicates.
• United States v. Jackson, 55 F.4th 846 (11th Cir. 2022): Describes the categorical approach for ACCA predicate analysis—compare elements and scope, not facts.

Legal Reasoning

The panel applied the categorical approach and compared Florida’s definition—covering “cocaine or ecgonine, including any of their stereoisomers”—with the federal schedules in effect when Storey offended. Under Brown, timing matters: the state offense must be measured against the federal schedule as of the state offense date. The court followed its earlier holdings in Travis Smith, Xavier Smith, and Laines that § 893.13(1) cocaine offenses qualify as ACCA predicates, rejecting the stereoisomer-based overbreadth argument. It further noted that nothing in Chamu v. U.S. Attorney General, 23 F.4th 1325 (11th Cir. 2022), abrogates that line of cases.

Impact

For ACCA purposes in the Eleventh Circuit, Florida § 893.13(1)(a) cocaine convictions continue to count as “serious drug offenses,” foreclosing the common “isomer mismatch” argument. After Brown, the timing rule provides an additional anchor point: defense arguments must show an actual mismatch at the time of the state offense.

Complex Concepts Simplified

• ACCA and “different occasions”: The Armed Career Criminal Act imposes a 15-year minimum for felons-in-possession with three qualifying prior convictions committed on separate “occasions.” After Wooden, “occasion” is a common-sense, fact-sensitive inquiry focusing on time, place, and character of the offenses; day-or-more separations nearly always count as separate occasions.
• Erlinger error: Post-Erlinger, a judge may not find “different occasions” on a preponderance standard. The fact must be found by a jury beyond a reasonable doubt or admitted by the defendant. However, per Rivers, if the record makes the result inevitable, the error can be harmless.
• Harmless error vs. structural error: A structural error requires automatic reversal (e.g., total denial of counsel). Harmless error does not, if the appellate court is convinced beyond a reasonable doubt the outcome would be the same absent the error.
• Sua sponte review in “extraordinary circumstances”: Appellate courts typically decide issues the parties raise. Under Graham and Campbell, they may reach unbriefed issues where the correct outcome is “beyond any doubt,” such as obvious harmlessness.
• Plain error: On unpreserved claims, a defendant must show an error that is clear or obvious under controlling precedent and that affects substantial rights; even then, the court will correct it only if it seriously affects the fairness or integrity of the proceedings.
• Categorical approach: Courts compare the elements of the state offense to the federal generic definition. If the state statute criminalizes a broader swath of conduct, it is not a categorical match. Under Brown, the matching of drug schedules is assessed as of the time of the state offense.
• Shepard documents: Limited judicial records—charging documents, plea colloquies, verdict forms—used to determine what statutory elements or factual basis underlay a prior conviction. Although a court cannot rely on non-elemental facts to find “different occasions” post-Erlinger, appellate courts may review these materials to assess harmlessness.
• Isomers, stereoisomers, optical/geometric: “Stereoisomers” include optical (enantiomers) and geometric (cis/trans) isomers. Florida’s reference to “stereoisomers” arguably sweeps more broadly than federal schedules listing “optical and geometric isomers.” The Eleventh Circuit’s precedents nonetheless treat Florida cocaine convictions as ACCA predicates.
• Prior-panel-precedent rule: A later Eleventh Circuit panel must follow earlier panel decisions unless abrogated by the Supreme Court or the Eleventh Circuit sitting en banc.

Practical Implications and Broader Impact

• ACCA litigation post-Erlinger: Defense counsel should request jury determinations on “different occasions” and, if omitted, develop a record showing why harmlessness is not obvious (e.g., offenses close in time/place, intertwined conduct). Where priors are years apart, appeals are unlikely to yield resentencing.
• Government strategy: Although the court may find harmlessness sua sponte in clear cases, the safer practice remains to brief harmlessness. The opinion shows, however, that the absence of a government harmlessness argument will not prevent affirmance when separateness is undeniable.
• District court practice: Post-Erlinger, district courts should obtain jury findings or admissions regarding “different occasions.” Failing that risks reversible error in close cases—though not where separateness is indisputable.
• Second Amendment challenges: Within the Eleventh Circuit, § 922(g)(1) remains intact after Bruen and Rahimi. Unpreserved challenges face the added obstacle of plain-error review, which Storey could not overcome.
• Florida drug priors: Defendants with § 893.13(1) cocaine convictions are unlikely to avoid ACCA predicates via “isomer mismatch” arguments; Brown and circuit precedent reinforce the status quo.
• Nonprecedential but instructive: Although designated “Not for Publication,” the opinion synthesizes and applies binding authorities (Rivers, Wooden, Rozier, Laines, Brown) and signals how panels will dispose of obvious Erlinger errors going forward.

Conclusion

United States v. Storey reaffirms the Eleventh Circuit’s current landscape on four fronts:

• Commerce Clause and Second Amendment challenges to § 922(g)(1) remain unsuccessful, particularly on plain-error review and under the prior-panel-precedent rule.
• Erlinger “different occasions” errors are subject to harmless-error review, and where the record makes separateness beyond any doubt, the Eleventh Circuit may affirm sua sponte without a government harmlessness argument.
• Wooden’s common-sense approach means offenses years apart are uncontroversially separate occasions.
• Florida § 893.13(1)(a) cocaine convictions continue to be ACCA “serious drug offenses,” consistent with Eleventh Circuit precedent and Brown’s timing rule.

The opinion’s most consequential contribution is its confirmation that appellate courts can deem Erlinger violations harmless sua sponte in “patently obvious” cases. That doctrine will streamline ACCA appeals where separateness is clear from dates alone, while preserving robust jury-trial protections for closer, fact-intensive “occasion” disputes.