a) Supreme Court Authorities

• Erlinger v. United States (2024) – declared the “different occasions” inquiry an element for jury determination.
• Apprendi v. New Jersey (2000) & Alleyne v. United States (2013) – foundational cases requiring jury findings on any fact increasing statutory range.
• Neder v. United States (1999), Washington v. Recuenco (2006) – established that omission of an element from the jury can be reviewed for harmless error.
• Shepard v. United States (2005) & Mathis v. United States (2016) – defined permissible use of judicial records to identify prior convictions’ elements.
• Chapman v. California (1967) – created the “harmless beyond a reasonable doubt” standard for constitutional errors.
• Blockburger v. United States (1932), Brown v. Ohio (1977) – set out lesser-included-offense test, central to double-jeopardy claims.
• Burks v. United States (1978), Lockhart v. Nelson (1988) – addressed when retrial is barred after reversal.

b) Sixth Circuit Authorities

• United States v. Campbell, 122 F.4th 624 (2024) – first circuit case declaring Erlinger errors harmless-error eligible.
• United States v. Cogdill (2025) & Kimbrough (2025) – applied harmless review but found errors harmful given ambiguous records; used as contrasts.
• United States v. Bell (2022) – double-jeopardy ruling in plea context; Thomas relied on it but court distinguished it.

a) Structural vs. Harmless Error

Thomas argued the Erlinger violation was structural (automatic reversal). The panel was bound by Campbell, which analogized to Neder and Recuenco and held most omitted-element errors are amenable to harmless review unless they pervade the trial’s framework. No intervening Supreme Court authority overruled Campbell; therefore the panel applied Chapman.

b) Harmless-Error Application

To prove harmlessness, the Government had to show that any reasonable jury would have found three separate occasions beyond a reasonable doubt. The court looked only at “relevant and reliable” material: dates, locations, offense elements, and victim information in certified judgments and indictments – all incorporated into the PSR and uncontested. The decade-long spacing (2000, 2007, 2010) and differing victims/venues made the inquiry “straightforward and intuitive” under Wooden.

c) Use of Shepard Documents

Although Erlinger warned Shepard documents are “prone to error,” it did not bar their use on appellate harmless review. The panel adopted Campbell’s approach: such records remain permissible where (1) the defendant never disputed their accuracy and (2) only elemental facts (date, statutory offense) are relied on, not narrative details. Judge Cole’s concurrence urged caution, emphasizing that routine reliance could undercut Erlinger’s rationale.

d) Double Jeopardy

Thomas claimed applying the ACCA enhancement after an unenhanced jury verdict constituted a second prosecution for a greater offense. The panel disagreed, reasoning:

• § 922(g)(1) (felon-in-possession) is a lesser-included offense of the ACCA-enhanced § 924(e)(1), but harmless-error review does not entail a “second prosecution.”
• No new jury is empaneled; the appellate court merely affirms the existing sentence.
• Bell concerned a rejected Rule 11(c)(1)(C) plea – a factual situation not present here.

Judge Nalbandian’s concurrence went further: even when an Erlinger error is harmful, a retrial on the ACCA element would not raise double-jeopardy issues because the government never had a chance to prove that element under the prior law.

• Circuit Guidance – Confirms Campbell as controlling; panels must conduct harmless-error analysis in every pending ACCA case raising Erlinger.
• Sentencing Litigation – Defendants will need to factually contest PSR descriptions or underlying certificates to defeat harmlessness; purely legal arguments will seldom suffice.
• Prosecutorial Strategy – U.S. Attorneys in the Sixth Circuit must now charge “different occasions” in the indictment and be prepared to prove it to a jury; failure will risk reversal without a harmless-error safety net in future cases where defendants object at trial.
• Double Jeopardy Doctrine – The concurring opinions signal future debate over whether empaneling a new jury after a harmful Erlinger error is constitutionally permissible; district courts may see renewed motions to dismiss ACCA counts on that ground.
• National Split Potential – Other circuits have not uniformly adopted harmless review for Erlinger errors; the issue could return to the Supreme Court.

Armed Career Criminal Act (ACCA)
A federal statute imposing a 15-year mandatory minimum (and up to life) when a felon-in-possession has three prior “violent felony” or “serious drug” convictions committed on different occasions.

Different Occasions Test
After Wooden, courts look at timing, location, victim, and purpose to decide if prior crimes were “separate episodes.” Example: three robberies ten minutes apart in one store aisle = one occasion; robberies years apart in different towns = separate occasions.

Structural vs. Harmless Error
Structural error = automatically reversible (e.g., biased judge). Harmless error = court asks whether the result would have been the same beyond a reasonable doubt. The Sixth Circuit treats omitted ACCA-occasion findings as harmless-error eligible.

Shepard Documents
Limited set of judicially noticeable records (charging document, plea colloquy transcript, jury instructions, verdict) that may be examined to identify the statutory element of a prior conviction – but not underlying conduct. Erlinger allows cautious consultation of these records on appeal.

Double Jeopardy & Lesser-Included Offenses
The Constitution forbids a second prosecution for the same offense. If crime A’s elements are wholly contained in crime B, A is the lesser-included. After Erlinger, § 922(g) is lesser, § 924(e) greater. However, reviewing a harmless error or ordering a limited resentencing is not a “second prosecution.”