Objective Harmless-Error Review of ACCA “Different Occasions” Post‑Erlinger: Unrebutted PSRs and Months‑Long Gaps Sustain Enhancements — United States v. Ballinger (6th Cir. 2025)

Introduction

United States v. Ballinger addresses a recurring and consequential question arising in the wake of the Supreme Court’s decision in Erlinger v. United States (2024): when a district court—before Erlinger—found the Armed Career Criminal Act’s (ACCA) “different occasions” element at sentencing without a jury, under what circumstances can an appellate court affirm the sentence as harmless error? The Sixth Circuit answers with a robust, objective harmless-error framework that allows reliance on unrebutted Presentence Report (PSR) facts and recognizes that substantial temporal separation between predicate offenses can be “almost dispositive” in proving that they occurred on “occasions different from one another.”

Cody Ballinger pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). The district court imposed the ACCA’s mandatory minimum of 180 months, based on multiple Tennessee burglary convictions. After Erlinger, Ballinger argued two principal appellate errors: (1) the failure to submit the “different occasions” element to a jury is structural error requiring automatic reversal; and (2) even if subject to harmless-error review, the government could not meet that standard here, particularly because Erlinger (he contended) undermined reliance on Shepard documents and because some juries have viewed temporally separated crimes as a single occasion.

The Sixth Circuit (Bush, J.) rejects both arguments. It holds that Erlinger errors are not structural; that harmless-error review asks an objective question about what a reasonable jury would necessarily find beyond a reasonable doubt; that unrebutted PSR facts remain an acceptable evidentiary basis on appeal; and that months- or years-long gaps and distinct victims more than suffice to establish “different occasions.” The court also declines a newly raised double jeopardy challenge under plain-error review.

Summary of the Opinion

Erlinger errors are not structural in the Sixth Circuit; they are subject to harmless-error review. The court relies on United States v. Campbell (2024) and United States v. Thomas (2025).
Harmless-error standard: the error is harmless only if the appellate court concludes beyond a reasonable doubt that a reasonable jury would have found that the predicate offenses occurred on different occasions.
Use of documents: Shepard documents, including PSR information, may be considered in harmless-error review absent a specific, case-targeted reason to doubt their reliability (Thomas). Ballinger offered no such reason.
Objective test: Harmless-error review is an objective, reasonable-jury inquiry (Neder), not a survey of what other juries have done in other cases; prior acquittals elsewhere do not control.
Application under Wooden: Substantial time gaps (2010, January 2016, and October 2016) and different victims make these burglaries separate “occasions” as a matter no reasonable jury could dispute. Time and place factors are often dispositive; here, time alone is nearly so.
Double jeopardy: A late-raised claim, premised on United States v. Bell (2022), fails under plain-error review; Thomas clarifies Bell’s “unique factual circumstance” does not apply in this harmless-error setting.
Holding: The Sixth Circuit affirms the ACCA-enhanced 180-month sentence.

Analysis

Precedents Cited and Their Influence

Erlinger v. United States, 602 U.S. 821 (2024): Erlinger held that ACCA’s “different occasions” element must be submitted to a jury and proven beyond a reasonable doubt. Before Erlinger, Sixth Circuit law (e.g., Williams) allowed judicial fact-finding at sentencing. Ballinger’s sentencing occurred pre‑Erlinger; thus, the district court’s approach was erroneous under current law. The key appellate question became whether that error was harmless.
Wooden v. United States, 595 U.S. 360 (2022): Wooden provides the multi-factor framework for the “occasions” inquiry: timing, proximity of location, and the character and relationship of the offenses. It emphasizes that time and place will often prove dispositive and notes that offenses committed a day or more apart are “nearly always” separate occasions. Ballinger’s months- and years-long gaps fit squarely within Wooden’s core guidance.
United States v. Campbell, 122 F.4th 624 (6th Cir. 2024): Campbell held that Erlinger errors are not structural and are subject to harmless-error review. Ballinger’s structural-error argument is foreclosed by Campbell.
United States v. Thomas, 142 F.4th 412 (6th Cir. 2025): Thomas confirms two critical points: (1) Erlinger errors are not structural; (2) Shepard documents—including PSR facts—remain usable on appeal for harmless-error review, unless the defendant offers a specific reason to doubt their reliability. Thomas also rejects using real-world jury outcomes to defeat harmlessness, reinforcing the objective Neder standard.
United States v. Durham, —F.4th—, 2025 WL 2355998 (6th Cir. Aug. 14, 2025): Durham, a per curiam decision, applies harmless-error review post‑Erlinger and treats months-long separations and geographic distance as powerful indicators of different occasions. It endorses a practical “time and space” lens and even uses relatable analogies (e.g., opening day vs. season’s end) to show that regularly recurring, similar acts do not collapse distinct criminal “occasions” into one.
United States v. Kimbrough, 138 F.4th 473 (6th Cir. 2025): Kimbrough identifies scenarios where the record’s timing is uncertain or temporally tight (e.g., single-digit day counts), which can preclude a harmlessness finding. Ballinger is readily distinguishable given his extended time gaps.
United States v. Cogdill, 130 F.4th 523 (6th Cir. 2025): Cogdill is the notable Sixth Circuit case declining harmlessness despite a few months between offenses, driven by record uncertainty. Ballinger’s record is clear, and his gaps are substantially longer.
Neder v. United States, 527 U.S. 1 (1999): Neder supplies the objective standard for harmless-error review: could the evidence rationally lead a reasonable jury to a contrary finding on the omitted element? Ballinger’s insistence on other juries’ verdicts runs afoul of Neder’s objective test.
United States v. Geerken, 506 F.3d 461 (6th Cir. 2007): Geerken authorizes reliance on PSR facts at sentencing when the defendant fails to rebut them. Thomas and Ballinger adapt this principle to the harmless-error appellate context: unrebutted PSR facts can carry the day.
Debity v. Monroe Cnty. Bd. of Educ., 134 F.4th 389 (6th Cir. 2025); Barnes v. Owens‑Corning Fiberglas Corp., 201 F.3d 815 (6th Cir. 2000): These cases supply an analogy concerning review for the manifest weight of the evidence. The court explains that the mere existence of a jury verdict in another case does not define what a reasonable jury could find here.
United States v. Kerley, 838 F.2d 932 (7th Cir. 1988): Cited to reinforce the objective nature of jury-focused inquiries on review.
Other circuits harmonizing the harmlessness approach:
- United States v. Brown, 136 F.4th 87 (4th Cir. 2025)
- United States v. Robinson, 2025 WL 1576122 (11th Cir. June 4, 2025)
- United States v. Xavior‑Smith, 136 F.4th 1136 (8th Cir. 2025)
- United States v. Saunders, 2024 WL 4533359 (2d Cir. Oct. 21, 2024)
- United States v. Butler, 122 F.4th 584 (5th Cir. 2024)
- United States v. Browning, 2025 WL 1823952 (4th Cir. July 2, 2025) (using PSR‑listed victims to show unconnected offenses)
These decisions collectively support treating months-separated predicate crimes as occurring on different occasions for harmless-error purposes.
United States v. Bell, 37 F.4th 1190 (6th Cir. 2022); United States v. Johns, 65 F.4th 891 (6th Cir. 2023); United States v. Day, 737 F. App’x 728 (6th Cir. 2018); United States v. Ehle, 640 F.3d 689 (6th Cir. 2011): Cited in the double jeopardy and plain-error analysis. Thomas limits Bell to a “unique factual circumstance,” and Ballinger’s late‑raised double jeopardy claim fails the plain-error standard.

Legal Reasoning

1) Not structural; harmless-error applies. The Sixth Circuit reaffirms that an Erlinger violation—failing to submit the “different occasions” element to the jury—is not structural. Instead, consistent with Campbell and Thomas, the court applies harmless-error review. This aligns Erlinger with the broader Apprendi line: most fact‑finding omissions affecting statutory enhancements are amenable to harmless-error analysis rather than automatic reversal.

2) The harmless-error standard is demanding but objective. The court asks whether it can conclude beyond a reasonable doubt that a reasonable jury would have found the predicate offenses occurred on different occasions. Neder supplies the governing test: the inquiry focuses on whether the evidence could rationally permit a contrary finding on the omitted element, not on whether some jury somewhere has ever reached a contrary bottom line. The court explicitly rejects the use of other juries’ verdicts as evidence that harmlessness cannot be established.

3) Continued use of Shepard/PSR facts in harmless-error review. Taking guidance from Thomas, the court confirms that appellate courts can still rely on Shepard documents (including PSR facts) for harmless-error analysis, provided the defendant offers no concrete reason to doubt their reliability. Here, Ballinger didn’t challenge the PSR’s dates, locations, or victim identities with any specific evidence or targeted critique; he simply made a generalized attack on the reliability of Shepard documents as a category. Under Geerken and Thomas, that is insufficient to preclude reliance on the PSR.

4) Applying Wooden’s multi-factor test to Ballinger’s record. Wooden instructs courts to consider timing, location, and the character/relationship of the offenses, with time and place often dispositive. Ballinger’s record shows: - A burglary in 2010; - A burglary on January 4, 2016; and - A burglary on October 17, 2016; all in the same county but separated by roughly five and then nine-plus months (and the first separated by over five years from the 2016 conduct).

The court emphasizes that months-long separations are highly persuasive—nearly dispositive—indicators of different occasions. It contrasts cases like Kimbrough and Cogdill, where tight or uncertain timing defeated harmlessness, with Durham and other circuit authority finding harmlessness when months separate crimes. That analysis is amplified by the PSR’s identification of nine different victims, undercutting any “single spree” or unified “occasion” theory. Even Ballinger’s own grouping of the 2016 burglaries (January, July, and October clusters) supports multiple occasions under Wooden.

5) Double jeopardy fails under plain error. Ballinger’s late-raised double jeopardy theory, relying on Bell, founders because Thomas clarifies that Bell’s holding was rooted in a “unique factual circumstance” not present here. At a minimum, any error is not “plain and obvious,” so the claim fails under the four-part plain-error test (Johns). The panel therefore need not disturb the judgment on that ground.

Impact

For sentencing and appellate practice. Ballinger situates the Sixth Circuit firmly in the emerging post‑Erlinger consensus: while different-occasions questions now belong to juries prospectively, appellate courts may affirm pre‑Erlinger sentences where the record—especially an unrebutted PSR—makes it beyond a reasonable doubt that a reasonable jury would find different occasions. Time gaps of months or years, particularly combined with distinct victims and non-overlapping incidents, will often suffice.

On the evidentiary record. The opinion incentivizes prosecutors to ensure that Shepard materials and PSRs clearly capture dates, locations, and victims of prior offenses. Defendants, by contrast, are effectively warned that generic reliability attacks will not undercut harmless-error review; specific, case-directed challenges to PSR accuracy are needed to impede reliance on those documents.

On the scope of harmlessness. Ballinger reinforces an objective approach that resists de facto “per se” harmlessness while recognizing that, in practice, substantial temporal separation may be outcome-determinative. The decision also rejects efforts to rely on anecdotal jury behavior in other cases to defeat harmlessness.

On double jeopardy arguments. Ballinger, following Thomas, constrains the reach of Bell in the ACCA/Erlinger context and signals that late-preserved double jeopardy theories face steep plain-error hurdles when the underlying error has independently been deemed harmless.

Unresolved remedy questions. Because the panel finds harmless error, it does not reach remedy issues that can arise when Erlinger errors are harmful (e.g., whether to empanel a jury on remand for the different-occasions element or resentence without the ACCA enhancement). Those questions remain to be clarified in cases where harmful error is found.

Complex Concepts Simplified

ACCA (18 U.S.C. § 924(e)): Imposes a 15-year mandatory minimum for certain firearm offenders who have at least three prior convictions for “violent felonies” or “serious drug offenses,” committed on “occasions different from one another.” Burglary is an enumerated “violent felony” under ACCA.
“Different occasions”: Under Wooden, courts consider timing, location, and the character/relationship of the offenses. Substantial gaps in time or distance typically indicate separate occasions; multiple offenses committed in one continuous episode (e.g., several storage units broken into in a single night at one facility) may be a single occasion.
Erlinger rule: The “different occasions” element must be found by a jury beyond a reasonable doubt. Judges may not decide it at sentencing as a sentencing factor.
Structural error vs. harmless error: Structural errors require automatic reversal (e.g., lack of counsel). Trial-type errors can be reviewed for harmlessness: the conviction or sentence stands if the error did not affect the outcome beyond a reasonable doubt (or under the applicable harmless standard).
Harmless-error standard here: The appellate court asks whether it can say, beyond a reasonable doubt, that a reasonable jury would have found the different-occasions element satisfied. It is an objective inquiry.
Shepard documents: Limited, case-specific judicial records (e.g., charging instruments, plea colloquies, jury instructions, verdict forms) used to determine the nature of prior convictions. Post‑Erlinger, they cannot be used by judges to make new fact-findings at sentencing on the occasions element; but on appeal, courts can consider them (and PSR facts) to decide whether any omission was harmless, absent a specific reliability challenge.
PSR (Presentence Report): A report prepared by probation that summarizes the defendant’s background and criminal history. If a defendant does not specifically object to a PSR’s factual statements, courts may rely on those facts.
Plain error: A standard of review for issues not properly raised in the district court. The appellant must show an obvious error that affected substantial rights and seriously impugned the fairness, integrity, or public reputation of judicial proceedings.

Conclusion

United States v. Ballinger makes three central contributions to ACCA jurisprudence post‑Erlinger within the Sixth Circuit. First, it cements that Erlinger errors are not structural and are subject to rigorous, objective harmless-error review. Second, it clarifies that appellate courts may rely on unrebutted PSR facts and Shepard materials when deciding harmlessness, notwithstanding Erlinger’s jury mandate for future fact-finding. Third, it underscores that substantial temporal gaps—especially combined with distinct victims—will virtually always satisfy the “different occasions” element under Wooden.

By rejecting generalized attacks on Shepard documents, insisting on an objective reasonable-jury lens (not anecdotal jury outcomes), and cabining double jeopardy arguments at the plain-error stage, Ballinger strengthens a pragmatic, administrable post‑Erlinger framework. The opinion’s practical message is clear: unless defendants specifically—and credibly—undermine the PSR’s chronology or links among predicate offenses, months- or years-separated crimes will continue to sustain ACCA enhancements on harmless-error review.