Jury Determination and Harmless-Error Review for ACCA’s “Different Occasions” Element

Introduction

United States v. Trevor Boggs, decided April 30, 2025 by the Fourth Circuit, addressed whether the Armed Career Criminal Act’s (ACCA) requirement that predicate offenses be “committed on occasions different from one another” must be pleaded in the indictment and submitted to a jury, and if failure to do so requires reversal or can be treated as harmless error. This case arose from Boggs’s plea and sentencing under 18 U.S.C. §§ 922(g)(1), 924, and § 922(j), with an ACCA enhancement for having at least three prior convictions for “violent felonies” allegedly committed on separate occasions. The appeal focused on the Fifth and Sixth Amendment implications of not charging or submitting the “different occasions” element to a jury, in light of the Supreme Court’s recent Erlinger v. United States decision, and whether any error was harmless.

Summary of the Judgment

The district court accepted Boggs’s guilty plea after advising him that he faced a statutory maximum of 10 years unless found to be an “armed career criminal,” in which case the minimum became 15 years and the maximum life. At sentencing the court applied ACCA based on Boggs’s twelve North Carolina breaking-and-entering convictions occurring in April 2012, July 2012, and February 2018—three distinct temporal clusters. Boggs objected on constitutional grounds, arguing his indictment did not allege the “different occasions” element and he was not informed of his right to a jury finding on that element. The district court overruled the objection under circuit precedent and imposed 180 months’ imprisonment. On appeal, the Fourth Circuit—following its contemporaneous decision in United States v. Brown—held that the failure to allege or submit the “different occasions” element was constitutional error under Apprendi and Erlinger but was subject to harmless-error review. Because the record showed beyond a reasonable doubt that no rational jury would disagree that Boggs’s predicate crimes spanned at least three occasions, the error was harmless and the ACCA sentence was affirmed.

Analysis

Precedents Cited

Apprendi v. New Jersey, 530 U.S. 466 (2000) – Established that any fact increasing the penalty above the statutory maximum must be alleged in an indictment and submitted to a jury beyond a reasonable doubt.
United States v. Thompson, 421 F.3d 278 (4th Cir. 2005) – Held that sentencing courts determine ACCA predicate elements, including “different occasions,” without a jury finding.
Wooden v. United States, 595 U.S. 360 (2022) – Interpreted the ordinary meaning of “occasion” in ACCA and distinguished single-occasion offenses from temporally separate crimes.
Erlinger v. United States, 602 U.S. 821 (2024) – Recognized that the “different occasions” requirement is an element of ACCA that must be found by a jury unanimously and beyond a reasonable doubt.
United States v. Brown, No. 21-4253 (4th Cir. Apr. 29, 2025) – Held post-Erlinger that omission of the “different occasions” element is constitutional error but subject to harmless-error review under Rule 52(a).

Legal Reasoning

1. Constitutional Error Under Apprendi and Erlinger: Boggs argued, and the Fourth Circuit agreed, that under Apprendi a sentencing-enhancement element not pleaded to a jury is unconstitutional. Erlinger extended Apprendi’s jury-trial guarantee to ACCA’s “different occasions” requirement, making it a substantive element.

2. Harmless-Error Standard: Rather than treat the omission as per se reversible, the Fourth Circuit followed its Brown decision and held that constitutional errors of this type are subject to harmless-error review. The government bears the burden of showing beyond a reasonable doubt that the omitted element, if properly charged and submitted, would nonetheless have been conceded or proven unanimously by a jury.

3. Application to Boggs’s Case: The record revealed no dispute that Boggs’s 12 prior breaking-and-entering offenses fell into three distinct clusters: April 2012, July 2012, and February 2018. No reasonable jury would find fewer than three occasions. And Boggs never challenged the dates or sought to withdraw his plea. Under these circumstances, the court concluded beyond a reasonable doubt that the jury would have agreed, making the error harmless.

Impact

This decision clarifies that:

ACCA’s “different occasions” element must be pleaded and submitted to a jury under Sixth Amendment principles as confirmed by Erlinger.
Failure to do so constitutes structural error in the indictment and plea colloquy but is subject to the harmless-error rule when the record clearly compels the result.
District courts can continue following existing sentencing procedures, while counsel should preserve jury-trial objections on ACCA elements.
Future defendants will need to show a reasonable possibility that a properly instructed jury might have found otherwise to secure relief.

Complex Concepts Simplified

ACCA Enhancement: A federal law that increases the minimum sentence to 15 years for felons in possession of a firearm if they have three prior convictions for violent felonies or serious drug offenses on separate occasions.

“Different Occasions” Element: The temporal requirement that predicate offenses occur at distinct times, not as part of the same continuous incident. After Erlinger, this is a jury-found element.

Harmless-Error Review: A doctrine under Federal Rule of Criminal Procedure 52(a) allowing courts to leave convictions or sentences intact despite constitutional errors, provided the error did not affect substantial rights.

Conclusion

United States v. Boggs reaffirms the requirement that ACCA’s “different occasions” element be charged and submitted to a jury, as mandated by Apprendi and Erlinger, but also establishes that omission of that element can be harmlessly overlooked when the evidence is indisputable. This balancing ensures respect for defendants’ jury-trial rights while permitting efficient resolution of sentencing issues when no rational jury could reach a different result. Defense counsel and prosecutors must now ensure indictments and plea colloquies encompass all ACCA elements, even as courts apply a rigorous harmless-error standard to any procedural lapses.