Jury Determination Required for Separate-Occasions Predicate Offenses Under ACCA

Introduction

United States v. Kerstetter is a Fifth Circuit decision issued on April 10, 2025, on remand from the Supreme Court of the United States. Dylan Gregory Kerstetter, a felon, pleaded guilty to possession of a firearm under 18 U.S.C. § 922(g)(1). At sentencing, the district court applied the Armed Career Criminal Act (“ACCA”), imposing a 15-year mandatory minimum because Kerstetter had three prior qualifying convictions “committed on occasions different from one another.” Kerstetter argued that due process and the Sixth Amendment required those predicate-occasion facts to be charged in the indictment and proven to a jury. The Fifth Circuit originally rejected his challenge; the Supreme Court vacated and remanded for reconsideration in light of Erlinger v. United States (2024), which held that separate-occasions predicates implicate Apprendi and must be jury-found. On remand, the Fifth Circuit again affirmed, holding the error harmless and reaffirming that Kerstetter’s prior convictions qualify under the ACCA.

Summary of the Judgment

1. The court acknowledged that, under Erlinger, sentencing under the ACCA without jury findings on whether predicates occurred on separate occasions constitutes clear Apprendi error. 2. It assumed arguendo that Kerstetter preserved the objection but found the error harmless beyond a reasonable doubt: any rational jury, given the timeline and nature of his four prior offenses (1993 cocaine delivery; 2008 burglary; 2008 burglary; 2012 drug delivery), would have concluded they were distinct occasions. 3. On the threshold ACCA-predicate question, the court re‐affirmed its earlier rulings (now law of the circuit) that Texas burglary under Penal Code § 30.02(a) is generic burglary and Texas Health & Safety Code § 481.112(a) qualifies as a “serious drug offense.” 4. The panel denied Kerstetter’s request to reopen the record under Castillo-Rivera, refused to apply Taylor or Brown (2024) as overruling realistic-probability analysis, and held that binding circuit precedent remained controlling. The judgment was affirmed.

Analysis

Precedents Cited

Apprendi v. New Jersey (530 U.S. 466, 2000): Holds that any fact (other than prior convictions) increasing the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.
Erlinger v. United States (602 U.S. 821, 2024): Clarified that ACCA’s “separate occasions” requirement is an Apprendi fact for jury determination.
United States v. Butler (122 F.4th 584, 5th Cir. 2024): Found harmless error where a judge, rather than a jury, made the separate-occasions finding under ACCA.
United States v. Matthews (312 F.3d 652, 5th Cir. 2002): Adopted harmless-error standard for constitutional sentencing errors.
United States v. Robinson (367 F.3d 278, 5th Cir. 2004): Held Apprendi errors in sentencing subject to harmless-error review.
Wooden v. United States (595 U.S. 360, 2022): Described the multi-factored, intuitive inquiry into whether crimes occurred on separate occasions.
Brown v. Bryan County (219 F.3d 450, 5th Cir. 2000): Explains that a vacated panel opinion is no longer law of the case.
United States v. Wallace (964 F.3d 386, 5th Cir. 2020): Held Texas burglary under § 30.02(a) is generic burglary for ACCA.
United States v. Clark (49 F.4th 889, 5th Cir. 2022): Held Texas drug delivery under § 481.112(a) is a “serious drug offense.”
Gonzales v. Duenas-Alvarez (549 U.S. 183, 2007): Established the realistic-probability test for state statutes that appear broader than generic definitions.
United States v. Taylor (596 U.S. 845, 2022): Distinguished Duenas-Alvarez in a purely federal-statute comparison, did not overrule the realistic-probability test.
Brown v. United States (602 U.S. 101, 2024): Held a state drug schedule match must be assessed as of the date of the state conviction, but did not disturb circuit precedent on realistic-probability.

Legal Reasoning

• Apprendi and Erlinger: The panel recognized that the requirement that ACCA predicates occur on different occasions is a sentencing fact increasing the mandatory minimum from 10 to 15 years. Under Apprendi and Erlinger, that fact must be charged or admitted or submitted to a jury.

• Harmless Error Analysis: The court applied the “harmless beyond a reasonable doubt” standard. It surveyed Kerstetter’s four prior convictions, noting the distinct dates (1993, January 2008, April 2008, and June 2012), different victims and offense types, and concluded no rational jury could doubt they were separate occasions.

• Predicate-Conviction Analysis: On de novo review, the panel reaffirmed that Texas burglary (§ 30.02(a)) matches generic burglary under Taylor v. United States (federalism concerns justify realistic-probability in state-federal comparisons) and that Texas drug delivery (§ 481.112(a)) meets the “serious drug offense” definition per Clark and Vickers.

• Scope of Remand: The court held that the Supreme Court’s remand in Kerstetter v. United States, 145 S. Ct. 121 (2024), was limited to Erlinger. Its prior ACCA-predicate rulings were no longer law of the case (Brown v. Bryan County) but remained binding on the merits until reversed by higher authority. The court denied Kerstetter’s effort to reopen the record to apply Duenas-Alvarez’s realistic-probability test to hypothetical state-court applications.

Impact

Reaffirms that any fact triggering a higher mandatory minimum under ACCA—such as separate-occasions predicates—must be jury-found, underscoring the reach of Apprendi post-Erlinger.
Illustrates the narrow circumstances under which a court will deem such Apprendi errors harmless based on compelling record evidence.
Confirms that Fifth Circuit precedent holding Texas burglary and drug statutes qualify under ACCA remains binding absent a clear Supreme Court overruling.
Limits the use of post-conviction record-supplementation for showing “realistic probability” of broader state-court interpretation, emphasizing panel-precedent stability.
Guides practitioners on preserving Apprendi objections at district court to avoid plain-error review and potential remand for jury sentencing.

Complex Concepts Simplified

Armed Career Criminal Act (ACCA): Federal law that raises the minimum sentence for a felon in possession of a firearm to 15 years if the defendant has three prior violent‐felony or serious‐drug‐offense convictions “committed on occasions different from one another.”
Apprendi Error: A Sixth Amendment violation occurs if a fact (other than a prior conviction) that increases the prescribed statutory penalty is not submitted to a jury and proved beyond a reasonable doubt.
Harmless Error Review: Even if a constitutional error occurred, it will not warrant reversal if the appellate court decides, “beyond a reasonable doubt,” that the error did not affect the defendant’s substantial rights or the outcome.
Realistic-Probability Test: A method from Duenas-Alvarez to determine if a state statute that appears broader than a generic definition is likely applied in that broader manner by state courts.
Law of the Case vs. Panel Precedent: A vacated opinion ceases to be law of the case; however, unless explicitly overruled, circuit precedents remain binding on subsequent panels.

Conclusion

United States v. Kerstetter reaffirms that the Sixth Amendment and Apprendi principles extend to ACCA’s separate-occasions requirement: predicate-occasion facts must be jury-found or admitted. It also demonstrates the rigorous harmless-error standard that will uphold most ACCA enhancements when the record makes distinct offenses indisputable. Finally, the decision underscores the binding force of circuit precedent on predicate definitions and circumscribes post-conviction record supplementation for demonstrating broader state-court interpretations—a key guidepost for defense attorneys and lower courts navigating ACCA challenges.