Harmless-Error Treatment of Erlinger “Occasions” Jury-Right Violations After Guilty Pleas Where ACCA Predicates Are Plainly Separate

Introduction

In United States v. Manger Tobias Blackmon (4th Cir. Mar. 5, 2026) (unpublished), the Fourth Circuit affirmed a 15-year mandatory-minimum sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), imposed after Blackmon pleaded guilty to being a felon in possession of a firearm and ammunition under 18 U.S.C. § 922(g)(1).

The enhancement turned on whether Blackmon had three prior qualifying convictions “committed on occasions different from one another.” The district court made that “occasions” finding itself, as was then permitted under circuit precedent. After Blackmon’s sentencing, the Supreme Court held that the Fifth and Sixth Amendments require a jury to decide the “occasions” question beyond a reasonable doubt. Erlinger v. United States, 144 S. Ct. 1840, 1852 (2024).

The key appellate issue was not whether Blackmon had the jury right recognized in Erlinger, but whether the failure to have a jury decide (and the failure to advise him accordingly at the plea stage) required reversal—particularly given that Blackmon’s three predicate offenses occurred in 2003, 2008, and 2015.

Summary of the Opinion

The Fourth Circuit held that the district court’s judge-made ACCA “occasions” determination constituted an “Erlinger error,” but the error was harmless under the Fourth Circuit’s post-Erlinger framework. Relying heavily on United States v. Brown, 136 F.4th 87 (4th Cir. 2025), the court concluded beyond a reasonable doubt that:

  • Any properly instructed jury would have found the three predicates occurred on different occasions; and
  • Blackmon would not rationally have rejected his guilty plea (including acceptance-of-responsibility benefits) to chase an exceedingly remote chance of defeating the ACCA enhancement.

It therefore affirmed the 15-year sentence.

Analysis

Precedents Cited

1) Erlinger v. United States, 144 S. Ct. 1840 (2024)

Erlinger supplies the constitutional rule animating the appeal: the “occasions inquiry” is a factfinding task that must be resolved by a jury “unanimously and beyond a reasonable doubt.” The Blackmon panel treats the absence of a jury finding as an “Erlinger error,” but emphasizes that Erlinger does not itself answer the remedial question (automatic reversal vs. harmless-error review). That remedial question is supplied by circuit law, principally Brown.

2) Wooden v. United States, 142 S. Ct. 1063 (2022)

Wooden provides the substantive interpretive framework for “occasions different from one another.” The panel quotes Wooden for a “multi-factored” approach—timing, location proximity, and the character/relationship of offenses—while also stressing Wooden’s practical guidance: timing alone will often be decisive, and offenses separated by “a day or more” have “nearly always” been treated as separate occasions. Blackmon’s predicates, separated by years, are characterized as far from any “close call” envisioned in Wooden.

3) United States v. Brown, 136 F.4th 87 (4th Cir. 2025)

Brown is the opinion’s controlling template. It establishes (as the panel summarizes) that “Erlinger error[s]” are reviewed for harmlessness, and in the guilty-plea posture the government must prove beyond a reasonable doubt that the defendant “would have nonetheless waived that right and admitted as part of his guilty plea that his prior offenses were committed on different occasions.” The Blackmon panel repeatedly states the case is “on all fours with Brown,” using it both as a doctrinal framework (standard of review and burden) and as a factual comparator (plea knowledge, no plea-withdrawal, no PSR factual dispute, and overwhelming separateness evidence).

The procedural lineage is also noted: United States v. Brown, 67 F.4th 200 (4th Cir. 2023), vacated, 144 S. Ct. 2712 (2024), reflects how pre-Erlinger approaches were unsettled and then reset by Supreme Court intervention.

4) State v. Stewart, 122 S.E.2d 355 (N.C. 1961) (per curiam)

This state-law citation is used to explain why Blackmon’s 2003 common law robbery conviction likely rested on conduct toward S.H. (the victim of the theft/robbery element), even if J.H. was referenced elsewhere in the narrative. The panel uses this to further weaken any suggestion that the 2003 robbery and 2008 strangulation were meaningfully intertwined as part of one “occasion.”

5) Gall v. United States, 552 U.S. 38 (2007)

Gall is invoked to reject speculation that the district court might have varied downward to the 15-year minimum even if Blackmon went to trial and lost the occasions issue. The panel frames the suggested variance as lacking “plausible justification” under sentencing principles, reinforcing its conclusion that Blackmon had no realistic incentive to forgo the plea’s benefits.

6) Persuasive harmless-error analogs from other circuits

  • United States v. Butler, 122 F.4th 584 (5th Cir. 2024)
  • United States v. Campbell, 122 F.4th 624 (6th Cir. 2024)

These cases support the panel’s point that the age of predicate convictions does not, by itself, undermine harmless-error conclusions. They function as comparative authority: courts have deemed similar errors harmless even when predicates are older than Blackmon’s.

7) The “outlier jury verdict” and Fourth Circuit’s response

  • United States v. Pennington, No. 19-CR-455 (N.D. Ga. Sep. 20, 2022), ECF No. 173
  • United States v. McNeil, No. 22-4308, 2025 WL 1767990 (4th Cir. June 26, 2025) (per curiam)

Blackmon cited Pennington to argue that even temporally separated crimes might be found to be a single occasion. The panel rejects the analogy as “inherently case-specific” under Wooden and notes that the Fourth Circuit has already found harmless error in cases with much shorter separations—even when defendants invoked the same Georgia verdict—citing McNeil.

Legal Reasoning

1) The governing rule: harmless-error review of “Erlinger errors” after guilty pleas

Applying Fed. R. Crim. P. 52(a), the panel treats the absence of a jury “occasions” determination as a trial-type constitutional error that can be disregarded if it “does not affect substantial rights.” In the guilty-plea setting, the panel adopts Brown’s specific formulation: the government must show beyond a reasonable doubt that the defendant would have waived the jury right and admitted the “different occasions” element anyway.

2) Why the evidence made the “occasions” question open-and-shut

The panel’s central factual point is chronological: the predicates occurred in 2003, 2008, and 2015. Under Wooden, time can be “decisive,” and crimes a “day or more apart” are “nearly always” separate occasions. Years-long gaps, the panel reasons, essentially foreclose any plausible single-occasion theory.

The panel then adds Wooden’s relational considerations to remove any lingering doubt: the offenses involved different victims (certainly in 2015, and likely in 2003 versus 2008), different conduct, and different purposes (property-taking versus strangulation versus home invasion/assault).

3) Why Blackmon would not have changed his plea decision

The opinion treats plea incentives as a practical lens for harmlessness: Blackmon received a three-level acceptance-of-responsibility reduction, which lowered his Guidelines range materially. Going to trial would likely have sacrificed that benefit yet still resulted in a jury finding three separate occasions. The court thus characterizes the alternative strategy as trading a concrete sentencing benefit for “long odds.”

4) Confirmation from the record: informed plea, no withdrawal, and no PSR factual dispute

Beyond the strength of the occasions evidence, the panel stresses three record-based indicators:

  • Notice/understanding: Blackmon was told at the plea hearing and in the plea agreement about the ACCA exposure and the 15-year minimum.
  • No plea withdrawal: even after the government flagged its policy view that juries should decide “occasions,” Blackmon did not move to withdraw his plea.
  • No factual challenge: Blackmon did not object to the PSR’s underlying facts (dates and conduct), even if he disputed their legal sufficiency.

These factors mirror Brown and support the conclusion that the absence of a jury finding did not affect Blackmon’s decisionmaking or outcome.

Impact

Although unpublished and “not binding precedent,” the opinion is significant in three practical ways within ACCA litigation:

  • Operationalizing Erlinger in plea cases: it reinforces that post-Erlinger reversals are unlikely where predicate dates are widely separated and the PSR’s “occasions” facts are uncontested.
  • Strengthening Brown’s template: it signals that defendants seeking relief for Erlinger errors must confront not just the jury-right violation, but the record’s plea incentives and the “no reasonable jury could find otherwise” nature of the separateness proof.
  • Litigation focus going forward: the opinion implicitly encourages defendants to (a) timely contest PSR “occasions” facts, and (b) develop a concrete, non-speculative argument about why a plea would have been rejected absent the error—especially in closer-in-time predicate clusters.

Complex Concepts Simplified

ACCA (Armed Career Criminal Act)
A federal sentencing statute that imposes a 15-year mandatory minimum on certain felon-in-possession defendants who have three prior qualifying convictions.
“Occasions different from one another” (the ACCA occasions clause)
A requirement that the three predicate crimes were committed on separate events—not as part of the same criminal episode. After Wooden, courts look at time, place, and how connected the crimes were.
Erlinger right
The constitutional entitlement to have a jury, not a judge, decide the ACCA “occasions” fact beyond a reasonable doubt.
Harmless error (Rule 52(a))
Even if a legal mistake occurred, an appellate court will affirm if the government shows the mistake did not matter to the outcome (here, beyond a reasonable doubt in the guilty-plea context described by Brown).
Acceptance of responsibility (U.S.S.G. § 3E1.1)
A Guidelines reduction often given when a defendant pleads guilty and clearly accepts responsibility, typically lowering the advisory sentencing range.

Conclusion

United States v. Manger Tobias Blackmon applies the Supreme Court’s jury-right rule in Erlinger v. United States through the Fourth Circuit’s remedial framework in United States v. Brown. Where ACCA predicates are separated by years, lack any meaningful common scheme, and the defendant (despite being informed of ACCA exposure) neither withdraws the plea nor disputes the PSR’s operative facts, the Fourth Circuit will treat the absence of a jury “occasions” finding as harmless beyond a reasonable doubt.