Unpreserved ACCA “Separate Occasions” Jury-Right Claims After Erlinger Are Reviewed for Plain Error, and Relief Requires Showing a Reasonable Probability of Fewer Than Three Occasions

I. Introduction

Case: United States v. Daniel Nathaniel McCall (11th Cir. June 22, 2026) (per curiam, not for publication), on remand from the Supreme Court.
Parties: United States (Plaintiff-Appellee) vs. Daniel Nathaniel McCall (Defendant-Appellant).
Statutes: 18 U.S.C. §§ 922(g)(1) and 924(e) (Armed Career Criminal Act (“ACCA”)).

McCall pleaded guilty to felon-in-possession and received ACCA’s 15-year mandatory minimum after the district court found he had at least three qualifying prior convictions committed on “occasions different from one another.” McCall’s appeal originally raised five issues, including whether the government proved two 1991 Florida drug convictions occurred on different occasions.

After the Eleventh Circuit affirmed, the Supreme Court vacated and remanded “for further consideration in light of Erlinger v. United States, 602 U.S. 821 (2024),” which held that the Fifth and Sixth Amendments require a jury—rather than a judge—to decide the ACCA “separate occasions” fact. The remand narrowed the Eleventh Circuit’s task to determining whether Erlinger altered the outcome on McCall’s “separate occasions” argument and, if so, what standard of review applied.

II. Summary of the Opinion

  • The panel reinstated its earlier decision on McCall’s other appellate issues, concluding Erlinger had “no bearing” on them.
  • As to ACCA’s “separate occasions” finding, the panel held:
    1. Plain-error review applied because McCall did not raise a jury-trial objection in the district court.
    2. Erlinger errors are not structural (so they do not mandate automatic reversal).
    3. Although the district court (pre-Erlinger) erred by making the “separate occasions” finding itself, McCall failed to show the error affected his substantial rights because, even counting the two 1991 convictions as a single occasion, his 1996 and 1998 predicates occurred years apart and would still yield at least three qualifying occasions.
  • The Eleventh Circuit therefore affirmed McCall’s sentence.

III. Analysis

A. Precedents Cited

1. Erlinger v. United States, 602 U.S. 821 (2024)

Erlinger supplied the constitutional rule driving the remand: ACCA’s “occasions different from one another” determination is a fact that must be found by a jury (or admitted by the defendant) before the mandatory minimum applies. In McCall, that rule established that the district court’s judicial factfinding on separate occasions was error—but did not resolve whether McCall could obtain relief on appeal given preservation and harmlessness-type constraints under plain-error review.

2. United States v. Penn, 63 F. 4th 1305 (11th Cir. 2023)

Penn performed two key functions:

  • Preservation boundary: The panel relied on Penn to distinguish a factual objection (“these offenses happened on the same occasion”) from a constitutional allocation-of-authority objection (“a jury must decide occasions”). McCall’s objection that the government did not prove separateness did not preserve an Erlinger-type jury-right claim.
  • Predicate qualification support: The panel cited Penn for the proposition that convictions under Florida Statutes § 893.13(1)(a) qualify as serious drug offenses—reinforcing that McCall’s 1998 conviction counted as an ACCA predicate.

3. United States v. Duldulao, 87 F.4th 1239 (11th Cir. 2023)

Duldulao provided the procedural principle governing remand briefing: even when intervening precedent allows a new appellate argument, unraised district-court issues remain subject to plain-error review. This prevented McCall from leveraging the remand to obtain de novo review of his newly articulated Erlinger jury-right claim.

4. United States v. Rivers, 134 F.4th 1292 (11th Cir. 2025)

Rivers foreclosed McCall’s attempt to avoid plain-error limits by labeling Erlinger violations “structural.” By holding Erlinger errors are not structural, Rivers made clear defendants must satisfy ordinary appellate prejudice requirements (including the “substantial rights” prong) to obtain reversal.

5. United States v. Steiger, 99 F.4th 1316 (11th Cir. 2024) (en banc) and United States v. Caldwell, 81 F.4th 1160 (11th Cir. 2023)

These decisions supplied the Eleventh Circuit’s governing articulation of the four-part plain-error framework—particularly the requirement that the error affect a “substantial right.” McCall used this framework as the battleground: even assuming error and plainness after Erlinger, he still had to demonstrate prejudice.

6. United States v. Edwards, 142 F.4th 1270 (11th Cir. 2025)

Edwards provided the case-specific prejudice test for Erlinger errors under plain-error review: the defendant must show a reasonable probability that a jury would have found fewer than three qualifying occasions. The panel treated this as the decisive hurdle and held McCall could not clear it.

7. Somers v. United States, 66 F.4th 890 (11th Cir. 2023)

Somers established that Florida aggravated assault categorically qualifies as an ACCA “violent felony” under the elements clause. This mattered to prejudice: even if McCall’s two 1991 drug convictions collapsed into one occasion, the 1996 aggravated assault conviction remained a qualifying predicate on a separate occasion.

8. Wooden v. United States, 595 U.S. 360 (2022)

Wooden set the substantive lens for “occasions different from one another” and supplied a common-sense benchmark: offenses committed “a day or more apart” or at “significant distance” are “nearly always” separate occasions. The panel used Wooden to underscore that convictions occurring years apart are overwhelmingly separable, making it implausible that a jury would find otherwise.

9. United States v. Rodriguez, 398 F.3d 1291 (11th Cir. 2005)

Rodriguez supplied an important burden-allocation principle for the third prong of plain error: when the effect of the error is uncertain or could cut either way, the defendant loses because the defendant bears the burden to show prejudice. The panel invoked this directly to reject McCall’s claim that uncertainty about decades-old offense dates should yield relief.

10. Shepard v. United States, 544 U.S. 1 3 (2005)

Although not central to the remand issue, Shepard appeared in the recitation of McCall’s original appellate arguments regarding what materials a sentencing court may consult to characterize prior convictions. Its presence highlights that the case originally involved a broader ACCA litigation package, even though the remand focused narrowly on who decides the “separate occasions” fact.

B. Legal Reasoning

1. Issue narrowing on remand

The panel first limited the remand’s scope: Erlinger affects only the “separate occasions” determination, not McCall’s other challenges (indictment, plea colloquy, qualification of certain predicates, and violent-felony status). Accordingly, it reinstated its earlier conclusions on those issues.

2. Preservation and standard of review

The core procedural move was classifying McCall’s district-court objection as purely evidentiary/substantive (“government failed to prove separateness”), not constitutional (“jury must decide separateness”). Under United States v. Penn and United States v. Duldulao, that meant the Erlinger jury-right theory was raised for the first time on appeal and thus governed by plain-error review.

3. No automatic reversal

McCall attempted to bypass plain-error prejudice by arguing the error was “structural.” Citing United States v. Rivers, the panel rejected that characterization, keeping the case within the ordinary plain-error framework.

4. Plain-error application and the dispositive prejudice inquiry

The panel effectively assumed that, post-Erlinger, the district court’s judge-found “separate occasions” determination was error and that the error was plain. The outcome turned on the third prong: whether the error affected McCall’s substantial rights.

Using United States v. Edwards, the panel asked whether there was a reasonable probability that a jury would have found fewer than three predicate crimes occurred on fewer than three occasions. It answered no because:

  • Even treating the two 1991 cocaine-sale convictions as one occasion, McCall still had the 1996 aggravated assault predicate (Somers v. United States) and the 1998 drug predicate (United States v. Penn).
  • The temporal separation—years—fits Wooden v. United States’s “nearly always separate” guidance.
  • McCall’s “we can’t know what a jury would do” argument fails under United States v. Rodriguez, because uncertainty does not satisfy the defendant’s burden on the substantial-rights prong.

C. Impact

1. Reinforcing a two-step framework for post-Erlinger ACCA appeals

This decision illustrates a practical template likely to recur in the Eleventh Circuit: (i) determine preservation (often yielding plain-error review where defendants did not specifically demand jury factfinding), and (ii) resolve prejudice by looking to the number and separateness of other predicates that are plainly different in time and character.

2. Preservation lessons for sentencing litigation

The opinion underscores that defendants must distinctly assert the allocation-of-factfinding objection (jury vs. judge) to obtain favorable standards of review. A generic objection that the government failed to prove separateness may preserve a Wooden-type substantive dispute, but not an Erlinger-type constitutional jury-right claim.

3. Limiting the remedial reach of Erlinger on plain-error review

Even where an Erlinger violation occurred, relief will often be unavailable if the record shows at least three qualifying predicates that are unmistakably separated by days, months, or years. The case therefore signals that Erlinger will most strongly benefit defendants in “close” scenarios (e.g., clustered offenses, ambiguous timing, or where collapsing occasions reduces predicates below three), not those with widely separated convictions.

IV. Complex Concepts Simplified

  • ACCA (18 U.S.C. § 924(e)): A federal sentencing enhancement that raises the minimum sentence to 15 years for certain felon-in-possession defendants who have three prior “violent felony” or “serious drug offense” convictions committed on different occasions.
  • “Occasions different from one another”: A requirement that the prior crimes be separate episodes, not part of a single continuous event. Under Wooden v. United States, time and place matter; crimes a day or more apart are usually separate.
  • Erlinger rule (jury right): The Constitution requires a jury, not a judge, to decide whether prior convictions occurred on separate occasions (unless admitted).
  • Plain-error review: A demanding appellate standard used when an issue was not properly raised below. The defendant must show (among other things) that the error likely mattered to the outcome (affected “substantial rights”).
  • Structural error: A rare category of error that triggers automatic reversal. The Eleventh Circuit (via United States v. Rivers) treats Erlinger errors as non-structural, so prejudice must be shown.
  • Rodriguez burden principle: If the appellate court can’t tell whether the error mattered, the defendant loses under plain-error review because the defendant bears the burden to show prejudice.

V. Conclusion

On remand, the Eleventh Circuit applied Erlinger v. United States but affirmed McCall’s ACCA sentence because he did not preserve a jury-right objection and could not show plain-error prejudice. The decision’s central takeaway is procedural and remedial: post-Erlinger, unpreserved “separate occasions” jury-right claims will be reviewed for plain error, Erlinger violations are not structural, and defendants must show a reasonable probability that a jury would find fewer than three qualifying occasions—an especially difficult showing when predicates are separated by years.