Technical-Reviewer DNA Testimony Is Not “Plainly” Barred by the Confrontation Clause; ACCA Different-Occasions Errors Require Prejudice

Introduction

In United States v. Samuel Lee Jones (11th Cir. May 4, 2026) (unpublished), the Eleventh Circuit affirmed Samuel Jones’s conviction for being a felon in possession of a firearm and ammunition, 18 U.S.C. § 922(g)(1), and his 180-month Armed Career Criminal Act (“ACCA”) sentence, 18 U.S.C. § 924(e)(1).

The appeal raised five issues: (1) whether “surrogate” DNA testimony by a technical reviewer violated the Confrontation Clause; (2) whether the evidence was sufficient to prove possession; (3) whether § 922(g) exceeds Congress’s Commerce Clause power; (4) whether the jury was effectively directed to find the ACCA “different occasions” element; and (5) whether the district court improperly relied at sentencing on ACCA predicate offenses not found by the jury.

The panel’s most practically important holdings are procedural: under plain-error review, (i) admitting a DNA technical reviewer who “fine-toothed comb” reviewed and concurred in the primary analyst’s work was not “plain” error in light of Bullcoming and Smith, and (ii) even where the sentencing court cited a different set of ACCA predicates than those submitted to the jury, relief still requires a showing of prejudice—a reasonable probability of a lower sentence.

Summary of the Opinion

  • Confrontation Clause (DNA): No plain error in allowing Daniel Aguilar (technical reviewer) to testify about DNA results prepared by Jerome Remm (primary analyst), because Supreme Court precedent did not make the alleged error “obvious” where the testifying expert had a case-specific reviewing role.
  • Sufficiency: Circumstantial evidence (flight, waistband “appendix carry” movements, observed object falling, metallic sound, gun/holster recovered at Jones’s feet) plus DNA likelihood ratios supported the jury’s possession finding.
  • Commerce Clause: Existing Eleventh Circuit precedent foreclosed facial and as-applied challenges to § 922(g).
  • ACCA “different occasions” jury instructions/argument: No plain error where the prosecutor emphasized “different dates” and the jury was instructed to decide different occasions; Wooden recognizes timing can be decisive.
  • ACCA predicates at sentencing: The district court erred by relying on ACCA predicates different from those found by the jury, but the error did not affect substantial rights because the jury-found predicates still supported the same ACCA enhancement and guidelines range.

Analysis

Precedents Cited

1. Confrontation Clause framework and forensic “surrogate” testimony

  • Crawford v. Washington, 541 U.S. 36 (2004): Supplies the baseline rule that testimonial hearsay is inadmissible absent unavailability and a prior opportunity to cross-examine. The panel used Crawford to frame Jones’s claim as one about testimonial statements embedded in forensic reporting.
  • Bullcoming v. New Mexico, 564 U.S. 647 (2011): Held that testimony by an analyst who neither performed nor observed the relevant test generally cannot substitute for the testing analyst. The opinion relied heavily on Justice Sotomayor’s “controlling concurring opinion” to emphasize what Bullcoming did not decide—whether a “supervisor, reviewer, or someone else with a personal, albeit limited, connection to the scientific test” may testify.
  • Smith v. Arizona, 602 U.S. 779 (2024): Clarified that the State cannot evade confrontation by presenting a witness who merely repackages another analyst’s conclusions as an “independent opinion,” particularly where the witness has no meaningful connection to the testing. The Eleventh Circuit distinguished Smith on the facts because Aguilar was the technical reviewer, double-checked the results, and “collaborated” with Remm.
  • United States v. Cenephat, 115 F.4th 1359 (11th Cir. 2024): Provided the Eleventh Circuit’s “plainness” benchmark— an error is “plain” only if directly resolved by Supreme Court or Eleventh Circuit precedent. This was decisive: even assuming error, the panel held it was not “plain” because neither Bullcoming nor Smith squarely controlled the technical-reviewer scenario.

2. Standards of review and “plain error” doctrine

  • United States v. Maradiaga, 987 F.3d 1315 (11th Cir. 2021): Used for (i) de novo review of sufficiency claims and (ii) articulation of plain-error requirements (error, plain, affects substantial rights).
  • United States v. Brown, 125 F.4th 1043 (11th Cir. 2025): Reinforced the Eleventh Circuit’s articulation of what makes an error “plain” (obvious or controlled by precedent).
  • United States v. Edwards, 142 F.4th 1270 (11th Cir.), cert. denied, 146 S. Ct. 903 (2025): Played a dual role: (i) foreclosed the § 922(g) Commerce Clause challenge; and (ii) supplied the “substantial rights” prejudice standard for sentencing plain error—requiring a reasonable probability of a lighter sentence.

3. Possession proof (actual vs. constructive) and circumstantial evidence

  • United States v. Perez, 661 F.3d 568 (11th Cir. 2011): Stated that possession may be proved by direct or circumstantial evidence and may be actual or constructive.
  • United States v. Vereen, 920 F.3d 1300 (11th Cir. 2019): Provided definitions of actual possession (physical possession or personal dominion) and constructive possession (ownership, dominion, or control over the firearm or the premises).
  • United States v. Graham, 123 F.4th 1197 (11th Cir. 2024): Emphasized the government need not exclude every reasonable hypothesis of innocence.
  • Castle v. Sangamo Weston, Inc., 837 F.2d 1550 (11th Cir. 1988), and United States v. Goodwin, 765 F.3d 1306 (11th Cir. 2014): Reinforced the appellate deference to the jury on weight-of-the-evidence and reasonable inferences.

4. Commerce Clause validity of § 922(g)

  • United States v. Edwards, 142 F.4th 1270 (11th Cir.), cert. denied, 146 S. Ct. 903 (2025): Treated as controlling circuit authority that § 922(g) is facially constitutional and that an as-applied challenge fails where the firearm was manufactured out of state (minimal interstate commerce nexus).

5. ACCA “different occasions” after Wooden and Erlinger

  • Wooden v. United States, 595 U.S. 360 (2022): Established that “occasions different from one another” is a “multi-factored” inquiry (timing, proximity, relationship), while also acknowledging that timing or place alone can sometimes be “decisive.”
  • Erlinger v. United States, 602 U.S. 821 (2024): Held that because the “different occasions” determination increases punishment exposure, it must be decided by a unanimous jury beyond a reasonable doubt.

Legal Reasoning

A. Why the technical-reviewer DNA testimony was not “plain” Confrontation Clause error

The panel’s reasoning turned less on a definitive Confrontation Clause ruling and more on the demanding nature of plain-error review. Jones did not object at trial, so he had to show not only constitutional error, but error that was plain—obvious under controlling precedent.

The opinion accepted that Bullcoming v. New Mexico and Smith v. Arizona restrict “surrogate” testimony, but it emphasized a doctrinal gap: those cases do not expressly resolve whether a technical reviewer—someone who actually reviewed, verified, and concurred with the underlying analysis—may testify about the results and the basis for concurrence. Because Aguilar was not a stranger to the testing (he “fine-toothed comb” reviewed Remm’s work and concurred), the court held the supposed error was not settled enough to be “plain” under United States v. Cenephat.

In effect, the decision creates a practical litigation lesson within the Eleventh Circuit: absent a timely objection that develops the record and preserves the issue, appellate relief on “surrogate DNA expert” theories will be difficult where the witness served as a case-specific reviewer rather than a mere conduit.

B. Why the evidence was sufficient to show possession

Applying United States v. Perez and United States v. Vereen, the panel treated the case as a classic circumstantial-proof firearm possession prosecution. It highlighted: (i) officers’ testimony that Jones repeatedly reached for his waistband in an “appendix carry” manner during flight; (ii) a detective’s testimony that an object fell from Jones’s waistband during a collision; (iii) officers’ testimony that they heard the distinctive metallic sound of a gun hitting concrete; (iv) recovery of the gun and an “appendix carry” holster near Jones’s feet; and (v) DNA mixture statistics strongly favoring Jones as a contributor.

The defense attempted to recharacterize the case as speculative: no one saw him holding the gun, the area was dark/high-crime, and DNA transfer was possible (including via officer gloves). The panel treated those points as attacks on weight and credibility— matters for the jury under Castle v. Sangamo Weston, Inc. and United States v. Goodwin—and reiterated via United States v. Graham that the government need not eliminate every innocent explanation.

C. Why the Commerce Clause challenge failed

The court disposed of Jones’s § 922(g) constitutional argument by straightforward adherence to circuit precedent: United States v. Edwards forecloses facial challenges and as-applied challenges where the firearm was manufactured out of state and therefore traveled in interstate commerce. The parties stipulated to the interstate-commerce element, sealing the result.

D. Why “different dates” rhetoric did not become a directed verdict under ACCA

Jones argued that, after Wooden v. United States and Erlinger v. United States, the prosecution’s invitation to find ACCA different occasions based on “three different dates” improperly reduced the inquiry to a clerical count and effectively directed the verdict. The panel rejected that framing under plain-error review.

Two features mattered. First, Wooden itself states that a single factor, “especially of time or place,” can be “decisive.” Second, the proceedings did not mechanically treat dates as dispositive: because two offenses were on the same date, the district court—“with Jones’s consent”—instructed the jury those two “only count as one” for the different-occasions question. That instruction signaled a genuine occasions inquiry rather than a rote “count the convictions” approach.

E. Why the sentencing predicate mismatch was error but not reversible on plain error

The panel agreed the district court erred by enhancing the sentence based on “three prior serious drug offenses” in the presentence investigation report even though “only two” of those drug offenses had been presented to the jury in the ACCA phase. Citing Erlinger v. United States, it reiterated that the “different occasions” fact must be found by a unanimous jury beyond a reasonable doubt.

But under United States v. Edwards, Jones still had to show the error affected substantial rights—i.e., a reasonable probability of a lighter sentence. He could not, because the jury had already found three qualifying convictions (from the trial stipulation) committed on different occasions, and Jones did not dispute that those jury-found convictions qualify as ACCA predicates. As a result, the ACCA enhancement—and thus the 180-month mandatory minimum—would have applied anyway.

Impact

  • Forensic testimony practice (Eleventh Circuit, plain-error posture): The decision signals that when a testifying forensic witness served as a technical reviewer who checked and concurred with the primary analyst’s work, Confrontation Clause objections are unlikely to succeed on appeal absent preservation, because Supreme Court precedent has not “plainly” resolved the reviewer scenario.
  • ACCA litigation after Erlinger: The opinion underscores that Erlinger creates an enforceable jury-finding requirement for “different occasions,” but also that appellate relief can turn on prejudice. Even a clear procedural misstep at sentencing may be deemed harmless on plain-error review if the jury-found predicates independently sustain the ACCA enhancement.
  • Trial strategy: The case incentivizes (i) timely Confrontation Clause objections to define what precisely the reviewer did and did not do, and (ii) careful stipulation drafting in ACCA phases, because stipulations can both streamline proof and constrain later appellate arguments.
  • Commerce Clause challenges to § 922(g): The opinion confirms that such challenges remain nonstarters in the Eleventh Circuit where the firearm traveled in interstate commerce.

Complex Concepts Simplified

Confrontation Clause / “testimonial hearsay”
The Sixth Amendment generally requires that if the government uses a testimonial out-of-court statement against a defendant, the defendant must have a chance to cross-examine the person who made it. Forensic lab reports can trigger this rule when they function like formal accusations.
“Surrogate” expert testimony
A “surrogate” is a witness who did not perform the lab work but testifies about the results. Bullcoming and Smith limit this when the witness is essentially a stand-in. This case distinguishes a surrogate from a technical reviewer who actually reviewed, verified, and concurred in the work.
Plain-error review
If a defendant did not object in the trial court, an appellate court will reverse only for errors that are clear under existing precedent and that likely changed the outcome.
Actual vs. constructive possession
Actual possession means physically having the gun. Constructive possession can be proved by showing the person had control over the gun or the area where it was kept, even without it in hand.
DNA mixture statistics (“times more probable”)
The “37 million times” and “68 trillion times” figures are likelihood ratios—how much more consistent the DNA profile is with the defendant being a contributor than with the defendant not being a contributor. They are not the same thing as “the probability of guilt.”
ACCA “different occasions”
ACCA applies only if three predicate crimes were committed on separate “occasions.” After Wooden, courts look at timing, location, and how related the crimes were; after Erlinger, a jury must decide that fact beyond a reasonable doubt.

Conclusion

United States v. Samuel Lee Jones affirms a felon-in-possession conviction and ACCA sentence while clarifying, in practice, how post-Smith forensic confrontation claims and post-Erlinger ACCA procedures fare under plain-error review. The panel declined to find “plain” Confrontation Clause error where the DNA witness was a technical reviewer with case-specific involvement, upheld a possession conviction based on robust circumstantial evidence plus DNA statistics, reaffirmed the Eleventh Circuit’s rejection of Commerce Clause attacks on § 922(g), and treated ACCA procedural missteps as reversible only upon a showing of prejudice.

The broader significance is procedural discipline: defendants must preserve Confrontation Clause and ACCA objections at trial, and appellate courts will closely separate (i) whether an error occurred from (ii) whether the error is “plain” and outcome-determinative.