United States v. Starling: Tennessee § 39-17-417(c)(1) Cocaine Convictions Are ACCA “Serious Drug Offenses”; Untimely Erlinger Indictment/Occasions Challenge Gets Plain-Error Review

1. Introduction

In United States v. Joshua Starling (6th Cir. Aug. 3, 2026), the Sixth Circuit affirmed an ACCA-enhanced sentence for a defendant convicted after a bench trial of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1). Starling challenged (i) whether two Tennessee cocaine convictions qualify as ACCA “serious drug offense[s],” and (ii) whether—after Erlinger v. United States, 602 U.S. 821 (2024)—the government committed reversible error by not alleging ACCA’s “occasions different” requirement in the indictment.

The opinion resolves two recurring post-Erlinger questions: how to analyze Tennessee’s drug statute under ACCA’s categorical framework, and how preservation and plain-error principles constrain late-raised indictment/constructive-amendment arguments even where the government concedes error.

2. Summary of the Opinion

  • ACCA predicates: Starling’s Tennessee cocaine convictions qualify as ACCA “serious drug offense[s].” The court held Tenn. Code Ann. § 39-17-417 is divisible, including subsection (c)’s drug-and-quantity penalty provisions, and Starling’s Shepard documents show convictions under § 39-17-417(c)(1), which targets cocaine itself (not “cocaine and all isomers”).
  • Indictment/constructive amendment under Erlinger: Starling forfeited any constructive-amendment argument by failing to raise it when the “occasions different” proof was presented and the district court invited comment. As a result, only plain-error review applied, and Starling failed prong four because the “different occasions” evidence was overwhelming and he had longstanding notice that ACCA was in play.

3. Analysis

3.1. Precedents Cited

A. Categorical/modified categorical framework and divisibility

  • Taylor v. United States, 495 U.S. 575 (1990): Supplies the foundational “categorical approach,” requiring courts to compare statutory elements rather than underlying facts. The Starling court uses Taylor to frame the elements-based inquiry for state drug predicates.
  • Cartwright v. United States, 12 F.4th 572 (6th Cir. 2021): Restates that ACCA predicates qualify only when the offense elements “sufficiently match” the federal definition. The court uses Cartwright to articulate the “lesser-included subset” logic Starling invoked.
  • Descamps v. United States, 570 U.S. 254 (2013) and United States v. House, 872 F.3d 748 (6th Cir. 2017): Define when the modified categorical approach applies—only for divisible statutes listing alternative elements. Starling relies on these to justify consulting Shepard documents after finding § 39-17-417 divisible.
  • United States v. Goldston, 906 F.3d 390 (6th Cir. 2018): Central Sixth Circuit precedent. It already held § 39-17-417(a) divisible. Starling extends Goldston’s logic to subsection (c), concluding drug-and-quantity subparagraphs also define distinct crimes.
  • United States v. Schumaker, 83 F.4th 1031 (6th Cir. 2023): Cited for the limited purpose of Shepard documents—to identify which element/alternative formed the basis of conviction.
  • State v. Walker, 29 S.W.3d 885 (Tenn. Crim. App. 1999): Crucial state-law authority establishing that, under Tennessee law, the controlled substance and amount must be proven beyond a reasonable doubt. This supports the federal divisibility conclusion: if juries must find the drug/amount, those are elements, not mere means.
  • United States v. Doggart, 947 F.3d 879 (6th Cir. 2020), citing Johnson v. United States, 559 U.S. 133 (2010): Used by analogy to hold that penalty provisions keyed to specific element-findings can be divisible. Starling uses Doggart to justify treating Tennessee’s penalty subparagraphs as separate offenses for modified categorical analysis.
  • United States v. Jackson, No. 23-1508, 2025 WL 80372 (6th Cir. Jan. 13, 2025): Reinforces that the “exact substance” trafficked can be an element, supporting divisibility and use of Shepard documents.
  • United States v. Ruth, 966 F.3d 642 (7th Cir. 2020) and Cradler v. United States, 891 F.3d 659 (6th Cir. 2018): Ruth is distinguished because Illinois grouped multiple drugs under a single penalty provision, whereas Tennessee assigns different penalties by subparagraph. Cradler is used to show the Sixth Circuit’s divisibility principle: distinct elements plus distinct penalty schemes point toward divisibility.

B. Statutory interpretation (Tennessee “cocaine” vs. “cocaine and isomers”)

  • Loftin v. Langsdon, 813 S.W.2d 475 (Tenn. Ct. App. 1991) (citing United Canners, Inc. v. King, 696 S.W.2d 525 (Tenn. 1985) and Tidwell v. Collins, 522 S.W.2d 674 (Tenn. 1975)): Supplies the Tennessee canon against surplusage—courts must give meaning to every word and avoid rendering terms superfluous. Starling uses this to reject the defendant’s attempt to treat “cocaine” as implicitly meaning “cocaine plus all isomers,” because Tennessee separately listed “isomers.”
  • United States v. Myers, 56 F.4th 595 (8th Cir. 2022), United States v. Buckley, 146 F.4th 679 (8th Cir. 2025), and United States v. Ferguson, 163 F.4th 541 (8th Cir. 2026): The Sixth Circuit distinguishes Missouri-style statutes (broad “controlled substance” penalty language incorporating schedules) from Arkansas/Tennessee-style statutes that specify “cocaine” in the penalty provision and where schedules “list” rather than “define.” Buckley is treated as the persuasive comparator to Tennessee’s structure.
  • United States v. Minter, 80 F.4th 406 (2d Cir. 2023): Distinguished on similar grounds—New York’s statute incorporated schedules broadly rather than using Tennessee’s drug-specific penalty phrasing.
  • State v. Greene, No. 119, 1990 WL 192007 (Tenn. Crim. App. Dec. 5, 1990): Rejected as meaningful support because it addressed an older Tennessee schedule that did not list isomers.

C. “Realistic probability” and “plain overbreadth”

  • United States v. Cervenak, 135 F.4th 311 (6th Cir. 2025) (en banc): Provides the Sixth Circuit’s modern articulation of the “realistic probability” test and when it does not apply (when statutory overbreadth is “plain”). Starling uses Cervenak to hold that Tennessee’s overbreadth is not plain (indeed, “plain in the opposite direction”), and that Starling failed to show realistic probability of prosecutions involving rare positional isomers.

D. Erlinger, constructive amendment, preservation, and plain error

  • Erlinger v. United States, 602 U.S. 821 (2024): The post-trial decision that prompted Starling’s indictment theory. The panel reads Erlinger as requiring a jury (or valid bench finding after waiver) on the “occasions different” fact, but not necessarily an indictment allegation.
  • United States v. Ballinger, 155 F.4th 671 (6th Cir. 2025): Cited as an example of Sixth Circuit cases repeatedly addressing the “garden-variety” Erlinger jury-right argument.
  • United States v. Johnson, 79 F.4th 684 (6th Cir. 2023) and United States v. Gray, 692 F.3d 514 (6th Cir. 2012): Stand for forfeiture of perfunctory appellate arguments; used to deem Starling’s undeveloped jury-right argument forfeited.
  • United States v. Kuehne, 547 F.3d 667 (6th Cir. 2008): Noted for the usual rule: constructive-amendment claims are typically reviewed de novo (with harmless error), setting up why that did not apply here due to forfeiture below.
  • United States v. Bostic, 371 F.3d 865 (6th Cir. 2004), Ross v. Burns, 612 F.2d 271 (6th Cir. 1980), and Puckett v. United States, 556 U.S. 129 (2009): Provide the rationale and mechanics of the timely-objection requirement: courts must be given a chance to correct errors; parties cannot “sandbag.”
  • United States v. Belcher, 92 F.4th 643 (6th Cir. 2024): Supplies the plain-error framework invoked and also supports the “notice” rationale: even if there is constructive amendment, a record showing the defendant understood the government’s theory can defeat relief under prong four.
  • Johnson v. United States, 520 U.S. 461 (1997): Cited for the four-part plain-error standard.
  • United States v. Cotton, 535 U.S. 625 (2002): Key to the disposition. The panel uses Cotton to hold that overwhelming and uncontroverted evidence of the missing (or uncharged) fact defeats plain-error prong four in indictment-related contexts.
  • Wooden v. United States, 595 U.S. 360 (2022) and United States v. Campbell, 122 F.4th 624 (6th Cir. 2024): Used to show the “occasions” inquiry can be straightforward when offenses are separated by a day or more (or more dramatically, by years), reinforcing the “overwhelming” evidence conclusion.
  • United States v. Blair, 214 F.3d 690 (6th Cir. 2000): Discussed in the district court’s reasoning regarding Rule 12(b)(3)(B) timing for indictment defects; it frames why raising the issue post-trial was problematic.

3.2. Legal Reasoning

A. Why Tennessee § 39-17-417(c) is divisible (and why that matters)

The opinion’s first major move is structural: it treats Tenn. Code Ann. § 39-17-417 not merely as a conduct prohibition in subsection (a), but as a statute that also creates distinct crimes through subsection (c)’s drug-and-quantity subparagraphs. Relying on State v. Walker (drug/amount must be found beyond a reasonable doubt) and the analogy to United States v. Doggart, the court concludes that § 39-17-417(c)(1) and § 39-17-417(c)(2)(A) are different offenses, not alternative “means.”

That determination is dispositive because it permits use of Shepard documents to identify which subsection formed the basis of conviction. Starling’s Shepard documents showed Class B felony cocaine offenses involving ≥0.5 grams—i.e., § 39-17-417(c)(1).

B. Why § 39-17-417(c)(1) matches ACCA’s “serious drug offense” definition

Starling’s overbreadth theory depended on importing Tennessee schedule language (“cocaine and…isomers”) into the meaning of “cocaine” in § 39-17-417(c)(1). The panel rejects that importation as inconsistent with text and Tennessee interpretive canons: Tennessee’s schedule separately lists “cocaine” and “isomers,” so treating “cocaine” as silently including all isomers would create surplusage, contrary to Loftin v. Langsdon and its cited authorities.

The opinion also reasons from statutory drafting patterns: when Tennessee intends to include isomers in an offense provision, it says so explicitly elsewhere (e.g., § 39-17-417(i)(10)). The absence of similar language in § 39-17-417(c)(1) indicates that subsection targets cocaine itself. Thus, the elements of Starling’s convictions “categorically match” ACCA’s serious-drug-offense definition.

C. Backstop: the “realistic probability” point

Even if there were ambiguity, the panel adds a second, limiting rationale: Starling failed to show a “realistic probability” Tennessee prosecutes the purportedly extra conduct (rare positional isomers), as required by United States v. Cervenak when overbreadth is not plain. Because the court found Tennessee law “plain in the opposite direction,” Starling could not avoid the realistic-probability requirement.

D. Post-Erlinger indictment/constructive-amendment claim: forfeiture and plain-error prong four

On the ACCA “occasions different” issue, the panel separates two theories: (1) the jury-trial right to have the occasions fact found beyond a reasonable doubt, and (2) the indictment/constructive-amendment theory that the occasions element must be charged by a grand jury. Because Starling waived a jury and received a beyond-a-reasonable-doubt bench finding, the first theory had no traction (and was also underdeveloped on appeal under United States v. Johnson and United States v. Gray).

For the second theory, the court emphasizes preservation. Once the district court moved to the ACCA “phase” and invited defense comment, Starling’s failure to object triggered Rule 51(b) and resulted in plain-error review under Rule 52(b), consistent with United States v. Bostic, Ross v. Burns, and Puckett v. United States.

Applying plain error, the court—invoking United States v. Cotton—denied relief on prong four because: (1) the evidence of different occasions (offenses in 2003/2006/2011) was overwhelming and essentially uncontroverted, and (2) the record showed Starling had long-running notice that ACCA was in play (magistrate warning; defense filings acknowledging ACCA risk), a factor also supported by United States v. Belcher.

3.3. Impact

A. ACCA litigation involving Tennessee cocaine convictions

Starling’s most immediate doctrinal impact is its element-by-element treatment of Tenn. Code Ann. § 39-17-417(c): defense challenges premised on Tennessee’s schedule language about “isomers” are substantially narrowed where Shepard documents place the conviction in § 39-17-417(c)(1). By holding that § 39-17-417(c)(1) “punishes offenses involving cocaine itself,” the Sixth Circuit gives district courts a clear pathway: (1) find divisibility, (2) consult Shepard documents, and (3) treat § 39-17-417(c)(1) cocaine convictions as ACCA “serious drug offense[s].”

B. Divisibility analysis beyond Tennessee

The opinion’s careful distinction between statutes that (i) broadly penalize distribution of a “controlled substance” (thereby incorporating schedules by reference), and statutes that (ii) specify the drug in the penalty clause, will influence how parties frame overbreadth arguments across jurisdictions. It also narrows the persuasive value of decisions like United States v. Ruth, United States v. Minter, and United States v. Myers when a state’s statutory architecture more closely resembles the Arkansas/Tennessee model highlighted in United States v. Buckley.

C. Post-Erlinger procedure: preservation and remedies

Even assuming an Erlinger-adjacent indictment defect, Starling signals that appellate relief may be difficult without timely objection. The combination of (i) forfeiture leading to plain-error review and (ii) Cotton’s “overwhelming evidence” principle means many late-raised indictment/constructive-amendment claims will fail prong four—especially where the “occasions” evidence is separated by years and the defendant had notice that ACCA was on the table.

4. Complex Concepts Simplified

  • ACCA (Armed Career Criminal Act): A federal law that increases a § 922(g) sentence to a 15-year mandatory minimum if the defendant has three prior qualifying convictions, and they were committed on “occasions different from one another.”
  • Categorical approach: Courts compare the elements of the prior offense statute to the federal definition, without re-litigating what the defendant actually did.
  • Divisible statute & modified categorical approach: If a statute lists alternative elements creating multiple crimes, courts may look at a limited set of records (Shepard documents) to identify which crime the defendant was convicted of.
  • Shepard documents: A constrained record (e.g., charging document, judgment) used only to identify the statutory alternative of conviction.
  • “Realistic probability” test: When a defendant claims a statute covers more conduct than the federal definition, courts often require showing the state actually prosecutes the extra conduct—unless overbreadth is “plain.”
  • Constructive amendment: When the case effectively proceeds on a theory that changes what the grand jury charged.
  • Plain-error review (four prongs): If an issue wasn’t preserved, the defendant must show (1) error, (2) that is plain, (3) affecting substantial rights, and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings.

5. Conclusion

United States v. Starling cements two practical rules in Sixth Circuit ACCA practice. First, Tennessee’s Tenn. Code Ann. § 39-17-417(c) is divisible by drug and quantity, and convictions under § 39-17-417(c)(1) for ≥0.5 grams of “cocaine” categorically qualify as ACCA “serious drug offense[s]” notwithstanding schedule language referencing “isomers.” Second, post-Erlinger indictment/constructive-amendment theories must be timely raised; otherwise, under Cotton and Belcher, overwhelming “different occasions” evidence and clear ACCA notice will often defeat plain-error prong four and foreclose relief.