Plain-Error Limits on Erlinger-Based ACCA Challenges and the Continued Validity of Felon Disarmament in the Eleventh Circuit: A Commentary on United States v. Murray

I. Introduction

This commentary examines the Eleventh Circuit’s unpublished per curiam decision in United States v. Frederick Murray, Jr., No. 22‑10843 (11th Cir. Nov. 21, 2025), affirming both a felon-in-possession conviction under 18 U.S.C. § 922(g)(1) and a 180‑month sentence imposed under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

The opinion sits at the intersection of two highly active areas of federal criminal law:

• The Second Amendment’s reach after New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022), and United States v. Rahimi, 602 U.S. 680 (2024), particularly as applied to felon disarmament statutes like § 922(g)(1); and
• The fallout from the Supreme Court’s decision in Erlinger v. United States, 602 U.S. 821 (2024), which requires that a jury—not a judge—determine whether a defendant’s prior convictions were “committed on occasions different from one another” for ACCA purposes, unless admitted in a plea.

Although the Murray opinion is marked “NOT FOR PUBLICATION” and is therefore not binding precedent under Eleventh Circuit rules, it is significant as a persuasive authority. It confirms the continued validity of § 922(g)(1) as applied to felons in this circuit post‑Bruen and Rahimi, and it demonstrates the “heavy burden” a defendant faces when raising an unpreserved Erlinger-type challenge on plain-error review, especially where the prior offenses are separated by substantial time and differ in character.

II. Factual and Procedural Background

A. Underlying Conduct and Guilty Plea

The underlying conduct was straightforward and serious. Murray:

• Pointed a pistol at his girlfriend;
• Threatened to kill her; and
• Was found by law enforcement next to three firearms.

Murray had multiple prior felony convictions. Because 18 U.S.C. § 922(g)(1) makes it a federal crime for a person previously convicted of a felony to possess a firearm, he was indicted under that provision and pleaded guilty.

B. The ACCA Enhancement

The Presentence Investigation Report (PSR) recommended an enhancement under ACCA, § 924(e). The key statutory consequences were:

• Without ACCA: a maximum sentence of 10 years for a § 922(g)(1) offense (18 U.S.C. § 924(a)(2) (2021)).
• With ACCA: a mandatory minimum of 15 years’ imprisonment (18 U.S.C. § 924(e)(1)).

ACCA applies to a defendant who:

“violates section 922(g) and has three previous convictions … for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” (18 U.S.C. § 924(e)(1))

Murray’s three qualifying “predicate” felonies, as identified in the PSR, were:

1. Robbery committed around May 11, 2007;
2. Possession of marijuana for other than personal use, around July 17, 2014; and
3. Assault with a firearm causing physical injury, around September 7, 2014.

The district court adopted the PSR’s conclusion that these three prior offenses were ACCA predicates and that they occurred on different occasions. It therefore imposed the ACCA mandatory minimum sentence of 180 months (15 years).

C. Objections and Appeal

Murray filed objections to the PSR, but crucially:

• He did not object that a jury—not the judge—was required to find that his ACCA predicates were committed on different occasions; and
• He did not raise a Second Amendment challenge to § 922(g)(1) in the district court.

After sentencing, he appealed, raising two primary arguments:

1. His conviction under § 922(g)(1) is unconstitutional as applied to him in light of Bruen and Rahimi.
2. His ACCA-enhanced sentence is invalid under Erlinger because the “different occasions” finding was made by the judge, not a jury, and he did not admit that fact.

D. Intervening Supreme Court Decision: Erlinger

While Murray’s appeal was pending, the Supreme Court issued Erlinger v. United States, 602 U.S. 821 (2024). As the Eleventh Circuit summarizes it:

“[Erlinger] established that a jury must determine whether a defendant’s prior felonies occurred on different occasions for an ACCA sentencing enhancement unless the defendant admitted that fact in a guilty plea.”

This ruling shifted authority over the “different occasions” determination from the judge to the jury (absent admission), in line with the broader Apprendi–Alleyne doctrine requiring juries to find facts that increase statutory penalties.

III. Summary of the Court’s Decision

The Eleventh Circuit affirmed both Murray’s conviction and his 180‑month sentence.

A. Second Amendment Challenge to § 922(g)(1)

The court rejected Murray’s argument that § 922(g)(1) is unconstitutional as applied to him under Bruen and Rahimi. Applying plain-error review (because the issue was not raised below), the panel held:

• Neither Bruen nor Rahimi directly holds § 922(g)(1) unconstitutional as applied to felons.
• Binding Eleventh Circuit precedent—United States v. Rozier, 598 F.3d 768 (11th Cir. 2010)—still holds that § 922(g)(1) does not violate the Second Amendment by disarming felons as a class.
• A more recent Eleventh Circuit decision, United States v. Dubois, 139 F.4th 887, 892–94 (11th Cir. 2024), confirmed that Rozier remains good law even after Bruen and Rahimi.

Because there was no contrary Supreme Court or Eleventh Circuit authority directly resolving the issue in Murray’s favor, the application of § 922(g)(1) to him was not “plain error,” and his conviction stood.

B. Erlinger, ACCA, and Plain-Error Review

On the ACCA issue, the panel accepted that:

• The district court committed error by making the “different occasions” finding itself; and
• Erlinger rendered that error “plain” by the time of appellate review.

Nonetheless, applying the plain-error standard, the panel held that Murray failed to show the error affected his substantial rights. Specifically:

• To show prejudice under plain-error review, Murray had to demonstrate a “reasonable probability” that a jury would have found that at least two of his ACCA predicate offenses occurred on the same occasion.
• He focused on his July 2014 marijuana offense and his September 2014 assault with a firearm, arguing a jury might find these occurred on the same “occasion.”
• The court, applying the Supreme Court’s framework from Wooden v. United States, 595 U.S. 360 (2022), concluded there was no reasonable probability that a jury would treat offenses occurring more than a month apart, and of different character, as the same occasion.

Because Murray could not establish that the Erlinger error affected his substantial rights, the panel did not reach the fourth plain-error prong (whether the error seriously affected the fairness, integrity, or public reputation of the proceedings). His 15‑year ACCA sentence was therefore affirmed.

IV. Precedents and Authorities Cited

A. Standards of Review and Plain Error

• United States v. Johnson, 981 F.3d 1171 (11th Cir. 2020) and United States v. Wright, 607 F.3d 708 (11th Cir. 2010):
  Cited for the proposition that constitutional challenges raised for the first time on appeal are reviewed for plain error.
• United States v. Edwards, 142 F.4th 1270 (11th Cir. 2025):
  Held that unpreserved Erlinger errors are reviewed under the plain-error standard. It also characterizes the defendant’s burden on the substantial-rights prong as “heavy.”
• United States v. Buchanan, 146 F.4th 1342 (11th Cir. 2025) and United States v. Malone, 51 F.4th 1311 (11th Cir. 2022):
  These decisions provide the basic four‑part plain-error framework:
  1. Error;
  2. That is plain;
  3. Affecting substantial rights; and
  4. Which may be corrected if it seriously affects the fairness, integrity, or public reputation of judicial proceedings.
• United States v. Reed, 941 F.3d 1018 (11th Cir. 2019), relying on United States v. Vonn, 535 U.S. 55 (2002), and United States v. Dominguez Benitez, 542 U.S. 74 (2004):
  Establish that, in plain-error review, the court considers “the whole record” when deciding whether the error affected substantial rights.
• United States v. Boone, 97 F.4th 1331 (11th Cir. 2024), quoting United States v. Innocent, 977 F.3d 1077 (11th Cir. 2020):
  Explains that an error is “plain” if the explicit language of a statute, rule, or binding precedent directly resolves the issue.
• United States v. Margarita Garcia, 906 F.3d 1255 (11th Cir. 2018):
  Quoted via Edwards for the proposition that the defendant’s burden under the substantial-rights prong is “heavy.”

B. Second Amendment and Felon Disarmament

• New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022):
  Transformed Second Amendment doctrine by requiring that modern firearms regulations be justified by the Nation’s historical tradition of firearm regulation, abandoning “means–end” scrutiny (like intermediate scrutiny).
• United States v. Rahimi, 602 U.S. 680 (2024):
  Upheld 18 U.S.C. § 922(g)(8), which prohibits possession of firearms by individuals subject to certain domestic-violence protective orders, under the Bruen historical-tradition test. It did not address § 922(g)(1) directly.
• United States v. Rozier, 598 F.3d 768 (11th Cir. 2010):
  Held that § 922(g)(1) does not violate the Second Amendment because felons as a class are outside the core right recognized in District of Columbia v. Heller, 554 U.S. 570 (2008).
• United States v. Dubois, 139 F.4th 887 (11th Cir. 2024):
  Explained that neither Bruen nor Rahimi directly invalidates § 922(g)(1) and expressly recognized that Rozier remains binding in the Eleventh Circuit.

C. ACCA’s “Different Occasions” Requirement

• Erlinger v. United States, 602 U.S. 821 (2024):
  Mandated jury determination (unless admitted) of whether ACCA predicates were committed on “occasions different from one another.” This is the central precedent giving rise to Murray’s sentencing challenge.
• Wooden v. United States, 595 U.S. 360 (2022):
  Interpreted the ACCA phrase “committed on occasions different from one another.” The Court instructed lower courts to consider factors such as:
  • Timing of the offenses;
  • Location of the offenses; and
  • The nature or character of the conduct.

  Critically, Wooden held that a single factor—especially time or place—can sometimes be decisive, and noted that courts “have nearly always” treated offenses committed a day or more apart as separate occasions.

• United States v. Penn, 63 F.4th 1305 (11th Cir. 2023):
  Cited for the proposition that two cocaine sales 30 days apart clearly occur on separate occasions. The opinion quotes Penn’s statement:

  “No reasonable person would say that [the defendant’s] two sales of cocaine, thirty days apart, occurred on the same occasion.”

  Murray’s panel uses this reasoning to dispose of the argument that a one‑month gap could plausibly be a “single occasion.”

D. Firearms and Drug Crimes as Related Conduct

• United States v. Troya, 733 F.3d 1125 (11th Cir. 2013), citing United States v. Hromada, 49 F.3d 685 (11th Cir. 1995):
  Recognize that firearms and drug trafficking often coexist, supporting certain inferences in other contexts (e.g., possession of a firearm in furtherance of drug trafficking). In Murray, these cases underscore that, although guns and drugs can be intertwined, the record here contained no evidence that Murray’s assault was related to his drug offense as part of a common scheme.

V. Legal Reasoning in Depth

A. Second Amendment Challenge to § 922(g)(1)

1. Plain-Error Framework

Because Murray did not raise a Second Amendment challenge below, the panel reviewed the issue for plain error rather than de novo. Under this standard, he had to show:

1. There was an error;
2. The error was “plain” (clear or obvious) at the time of appellate consideration;
3. The error affected his substantial rights (i.e., there is a reasonable probability of a different outcome absent the error); and
4. The error seriously affected the fairness, integrity, or public reputation of judicial proceedings.

The court’s analysis stopped at the second step—it held there was no “plain” error.

2. Why the Error Was Not “Plain”

Murray argued that, under Bruen and Rahimi, the felon-in-possession statute § 922(g)(1) was unconstitutional as applied to him. The panel responded by:

• Noting that neither Supreme Court decision directly addresses, much less invalidates, § 922(g)(1).
• Emphasizing that Eleventh Circuit precedent—Rozier—squarely holds that § 922(g)(1) is constitutional as applied to felons as a class.
• Citing Dubois for the conclusion that Rozier remains binding even after Bruen and Rahimi.

Under the Eleventh Circuit’s rule in Boone, an error is “plain” only if existing Supreme Court or Eleventh Circuit precedent directly resolves the issue in the defendant’s favor. Here, the governing circuit precedent—Rozier—is directly to the contrary, and no Supreme Court case has clearly displaced it as of the time of this decision.

Thus, even if one thought Bruen and Rahimi cast serious doubt on the validity of felon disarmament laws, district courts in the Eleventh Circuit are bound by Rozier, and appellate review for plain error cannot treat compliance with binding precedent as a “clear” or “obvious” error. The application of § 922(g)(1) to Murray was therefore not plain error, and his conviction was upheld.

B. The Erlinger Issue and ACCA’s “Different Occasions” Requirement

1. Nature of the Error

At the time of Murray’s sentencing, courts routinely allowed judges to decide whether prior ACCA predicates occurred on different occasions. Erlinger changed that practice, holding that this fact must be submitted to a jury (or admitted).

In Murray’s case:

• The judge made the different-occasions finding.
• Murray did not admit that his predicates occurred on different occasions as a distinct factual matter.
• Erlinger was decided while his appeal was pending, making the earlier sentencing approach erroneous under new Supreme Court law.

The parties did not dispute that:

• The district court’s method of making the different-occasions finding was error; and
• That error was “plain” in light of Erlinger by the time of appeal.

Thus, the focus shifted to the third plain-error prong—whether the error affected Murray’s substantial rights.

2. What Murray Had to Show: The “Reasonable Probability” Standard

Relying on Edwards and Supreme Court plain-error cases, the panel held that to establish prejudice Murray had to show:

A “reasonable probability” that, but for the error, a jury would have concluded that he committed at least two of his ACCA predicate offenses on the same occasion.

This formulation is crucial:

• Murray had exactly three predicate felonies. If any two of them occurred on the same occasion, he would be left with fewer than “three previous convictions … committed on occasions different from one another,” and ACCA would not apply.
• Therefore, he needed to create a reasonable probability that a jury would treat at least two of the three as a single occasion.

Murray chose to focus on the two 2014 offenses—marijuana possession and assault with a firearm—arguing that a jury could find they occurred on the same occasion.

3. Applying Wooden: Time, Place, and Character

The panel relied heavily on Wooden’s framework. The Supreme Court in Wooden instructed courts to consider:

• The temporal relationship between the offenses;
• The spatial relationship (same or different locations); and
• The character and interrelationship of the conduct (same scheme or distinct crimes).

It also emphasized that:

“[A] single factor—especially of time or place—can decisively differentiate occasions.”

Most importantly for Murray, Wooden acknowledged that:

“Courts … have nearly always treated offenses as occurring on separate occasions if a person committed them a day or more apart.”

4. Time: A Month Apart is Decisive

The two 2014 offenses took place:

• Marijuana offense: around July 17, 2014;
• Assault with a firearm: around September 7, 2014.

Murray conceded they were “around a month apart” but argued that the time gap is not dispositive.

The panel disagreed, citing Wooden and Penn:

• Wooden’s observation that offenses a day or more apart are nearly always treated as separate.
• Penn’s holding that two cocaine sales 30 days apart are unquestionably on different occasions (“No reasonable person would say” they occurred on the same occasion).

Given the more-than-a-month gap between Murray’s 2014 offenses, the panel held there is effectively no reasonable probability that a jury would conclude they occurred on the same occasion.

5. Character and Common Scheme: Dissimilar and Unrelated Crimes

Time alone might have sufficed under Wooden, but the panel also analyzed the character of the offenses and possible common scheme:

• The marijuana conviction involved possessing marijuana for other than personal use (i.e., a serious drug offense type conduct).
• The assault conviction involved physically injuring another person with a firearm (a violent felony).

These are fundamentally different types of conduct. While the court acknowledged that “guns and drug crimes can go together,” citing Troya and Hromada, it emphasized:

• Murray made no argument that the assault was related to the drug crime (e.g., collecting a drug debt, guarding a drug stash, or part of the same ongoing transaction).
• The record contained no evidence that the two events were part of a common scheme or plan.

This lack of factual linkage, coupled with dissimilar character and the substantial time gap, reinforced the conclusion that there is no reasonable probability a jury would have treated the 2014 offenses as a single occasion.

6. Result: No Effect on Substantial Rights

Because Murray failed to demonstrate a reasonable probability of a jury finding that at least two predicates occurred on the same occasion, he could not show that the Erlinger error affected his substantial rights. That failure was “fatal” to his claim under the plain‑error standard.

Accordingly:

• The court found plain error (error + plainness) but no prejudice.
• It therefore declined to vacate the ACCA-enhanced sentence.

VI. Simplifying the Key Legal Concepts

A. ACCA and Its “Different Occasions” Requirement

1. What ACCA Does

The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), dramatically increases the punishment for certain repeat offenders:

• It applies to defendants convicted under § 922(g) (including felon in possession), who have three prior convictions for:
  • “Violent felonies” (e.g., robbery, aggravated assault); or
  • “Serious drug offenses” (often involving trafficking, not mere possession).
• If ACCA applies, the defendant faces a mandatory minimum of 15 years, and potentially more, instead of the usual maximum of 10 years.

2. “Committed on Occasions Different from One Another”

Even if a defendant has three qualifying convictions, ACCA only applies if those offenses were committed on separate “occasions.” This prevents a single crime spree from being counted as three strikes.

Wooden clarified that “occasion” is a straightforward, everyday concept and suggested courts consider:

• Time: Offenses committed minutes apart may be one occasion; days apart usually are not.
• Place: Same location can suggest one occasion; vastly different locations suggest different occasions.
• Character & Relationship: Are the crimes part of one continuous course or distinct criminal episodes?

B. Plain-Error Review

1. When It Applies

Plain-error review is used when an issue was not properly raised in the district court. Instead of full de novo or harmless-error review, the appellant faces stricter conditions.

2. The Four Prongs

1. Error: The district court did something contrary to the law.
2. Plain: The error is clear/obvious under current law, usually because a statute or binding precedent directly controls.
3. Affecting substantial rights: The defendant must show a reasonable probability of a different outcome if the error had not occurred.
4. Fairness/integrity/public reputation: Even if the first three are met, the appellate court has discretion whether to correct the error.

In Murray, the court found prongs (1) and (2) satisfied for the Erlinger issue but held that prong (3) was not met.

C. As-Applied vs. Facial Constitutional Challenges

• A facial challenge claims a statute is unconstitutional in all (or almost all) its applications.
• An as-applied challenge concedes the statute may be valid in many cases but argues it is unconstitutional as applied to the particular defendant’s circumstances.

Murray brought an as-applied Second Amendment challenge to § 922(g)(1), arguing that in light of Bruen and Rahimi, it could not constitutionally disarm him. The Eleventh Circuit held that, at a minimum, such an as-applied invalidation is not “plainly” required by existing precedent.

VII. Broader Impact and Future Implications

A. Second Amendment Litigation Post-Bruen and Rahimi

Murray reinforces several important points for Second Amendment litigants in the Eleventh Circuit:

1. Rozier remains binding law. District courts and panels remain bound by Rozier’s holding that § 922(g)(1) is constitutional as applied to felons as a class, notwithstanding Bruen and Rahimi.
2. No “plain” constitutional error in applying § 922(g)(1) to felons. As long as neither the Supreme Court nor the Eleventh Circuit en banc has directly invalidated § 922(g)(1) as applied to felons, appellate panels will not find plain error where district courts follow it.
3. Strategic consideration: To advance novel Second Amendment theories (for example, as-applied challenges by nonviolent felons or those with very old convictions), defendants must raise these arguments in the district court to avoid the severe constraints of plain-error review.

B. Managing Erlinger Claims and ACCA Exposure

Murray illustrates how the Eleventh Circuit is likely to handle a wave of Erlinger-based challenges to ACCA sentences:

1. Unpreserved claims face a steep hill. The burden to show prejudice under plain-error review is “heavy.” Where dates and conduct strongly suggest separate occasions, courts are unlikely to find a reasonable probability of a different jury result.
2. Time gaps of a day or more are usually decisive. Relying on Wooden, the panel treats even relatively short temporal gaps (here, over a month) as essentially foreclosing a same-occasion argument.
3. Character differences matter. Distinct offense types (drug trafficking vs. violent assault) with no demonstrated factual relationship cut against any “single occasion” claim.
4. Defense counsel must build a record. Post‑Erlinger, if there is any plausible argument that prior convictions might be part of a single occasion, defense counsel must:
   • Raise the jury‑factfinding requirement at sentencing;
   • Develop evidence on the timing, location, and interrelationship of offenses; and
   • Request specific jury findings if the issue is tried.

C. The Role of Unpublished Opinions

Although marked “NOT FOR PUBLICATION,” Murray is still instructive:

• Under Eleventh Circuit rules, unpublished opinions are not binding precedent but may be cited as persuasive authority.
• Murray offers a concrete example of how panels will apply Wooden, Erlinger, and Edwards to reject Erlinger-based ACCA challenges where the prior offenses are temporally and substantively distinct.
• It also exemplifies how the circuit is stabilizing doctrine in the wake of rapidly evolving Supreme Court case law in criminal sentencing and the Second Amendment.

VIII. Conclusion

United States v. Murray is a succinct but legally rich illustration of how the Eleventh Circuit is navigating two turbulent domains: post‑Bruen Second Amendment challenges and post‑Erlinger ACCA sentencing disputes.

On the Second Amendment front, the decision confirms that, as of now, district courts in this circuit act consistently with binding precedent when they apply § 922(g)(1) to felons, and such applications do not constitute “plain error” even after Bruen and Rahimi.

On the sentencing side, Murray demonstrates the practical impact of Erlinger under plain-error review. The panel acknowledges the new constitutional requirement of jury factfinding for ACCA’s “different occasions” element but ultimately holds that where prior offenses are separated by more than a month and involve distinct criminal conduct, there is no reasonable probability that a jury would merge them into a single occasion. Consequently, the plain-error doctrine serves as a strong gatekeeper, preventing retroactive unwinding of many ACCA sentences.

For practitioners, Murray underscores the importance of:

• Preserving constitutional challenges in the district court;
• Developing a factual record concerning the temporal, spatial, and substantive relationship among prior offenses; and
• Recognizing that, in the Eleventh Circuit, felon-in-possession statutes and ACCA enhancements remain firmly enforceable within the contours defined by existing precedent.

In sum, while Murray is unpublished, it is a meaningful data point in the broader evolution of federal firearms and sentencing law, indicating that doctrinal shifts at the Supreme Court level will often be mediated—and sometimes constrained—by plain-error standards and existing circuit precedent.