When “Different Occasions” Becomes a Jury Question: Seventh Circuit Embraces Erlinger and Vacates ACCA Sentence in United States v. Santana

Introduction

The Seventh Circuit’s decision in United States v. Evelio Santana, No. 23-2695 (7th Cir. 2025) marks the Court’s first published application of the Supreme Court’s landmark ruling in Erlinger v. United States, 602 U.S. 821 (2024). At stake was whether the “different occasions” element of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), must be decided by a unanimous jury beyond a reasonable doubt or—consistent with pre-Erlinger circuit precedent—by a judge under a preponderance standard.

Defendant–appellant Evelio Santana, having pleaded guilty to being a felon in possession of a firearm, faced an ACCA enhancement based on three Indiana convictions: a burglary (2000) and two gas-station robberies committed minutes apart in 2001. The district judge found, by a preponderance, that the robberies were committed on “occasions different from one another,” triggering ACCA’s 15-year mandatory minimum. On appeal—filed before Erlinger but decided after it—Santana argued that the judge’s fact-finding violated the Sixth Amendment under the new Supreme Court precedent.

The Seventh Circuit agreed, vacating the sentence and remanding for a jury determination. In doing so, it clarified how plain-error review applies to newly announced jury-trial rights and foreshadowed significant procedural shifts in ACCA litigation nationwide.

Summary of the Judgment

Error Identified: Under Erlinger, only a unanimous jury, beyond reasonable doubt, may decide whether prior felonies occurred on different occasions for ACCA purposes. A judge’s preponderance finding is error.
Plain & Prejudicial: Even though the error was not objected to contemporaneously, it was “plain” in light of Erlinger. The enhancement raised Santana’s exposure from a 10-year maximum to a 15-year minimum, thereby affecting substantial rights.
Fairness and Integrity: Given a realistic possibility that a reasonable jury could harbor doubt about the separateness of the two robberies, leaving the error uncorrected would undermine the judicial process.
Disposition: Sentence vacated; case remanded for resentencing with a jury determination (and possible double-jeopardy issues left open for the district court).
Concurring Opinion (Kirsch, J.): Agreed on result but urged re-examination of the Seventh Circuit’s approach to the third and fourth prongs of plain-error review, aligning them with Supreme Court precedent (Olano, Greer).

Analysis

1. Precedents Cited and Their Influence

Erlinger v. United States, 602 U.S. 821 (2024) – The fulcrum of the appeal. Held that “different occasions” is a fact for the jury, not the judge, and must be proven beyond a reasonable doubt.
Wooden v. United States, 595 U.S. 360 (2022) – Clarified the meaning of “occasions different from one another,” providing a multi-factor test (time, place, character, relationship) that a jury must now apply post-Erlinger.
Apprendi v. New Jersey, 530 U.S. 466 (2000) & Blakely v. Washington, 542 U.S. 296 (2004) – Earlier cases anchoring the Sixth Amendment principle that any fact increasing a sentence beyond the statutory maximum must be jury-found beyond a reasonable doubt.
Pre-Erlinger Seventh Circuit decisions (Elliott 2012; Richardson 2023) – Permitted judges to decide “different occasions” by a preponderance. These decisions were effectively overruled.
United States v. Maez, 960 F.3d 949 (7th Cir. 2020) – Framework for deciding whether plain error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Johnson v. United States, 520 U.S. 461 (1997) and Olano v. United States, 507 U.S. 725 (1993) – Guideposts on plain-error review; central to Judge Kirsch’s concurrence questioning circuit methodology.

2. The Court’s Legal Reasoning

No Valid Waiver. Although defense counsel told the district court that existing precedent allowed the judge to decide, the right to jury trial is personal to the defendant and can be waived only knowingly, intelligently, and personally. Santana never waived it.
Plain-Error Framework Applied.
- Error – Judge, not jury, found different occasions; standard of proof incorrect.
- Plainness – Once Erlinger was issued, the error became “plain” under existing law.
- Substantial Rights – Raising exposure from 10-year max to 15-year mandatory minimum is quintessential prejudice.
- Fairness & Integrity – Given ambiguities (four-mile distance, ten-minute gap, same perpetrators, same modus operandi), a reasonable jury could doubt the separateness of the robberies.
Concurring Critique. Judge Kirsch agreed with outcome but argued that the court conflates harmless-error analysis with the fourth prong of plain error and urged realignment with Supreme Court precedent—signaling potential doctrinal refinement in future cases.

3. Likely Impact

Retroactive Ripples. Defendants within the statute of limitations for collateral review (direct appeal or § 2255 motions) whose ACCA sentences were enhanced by judicial findings may seek relief.
Trial Practice Changes. Prosecutors must now plead and prove “different occasions” to juries. Expect more bifurcated proceedings, stipulations, or plea-agreement waivers tailored to the new rule.
Resource Allocation. Jury determinations on prior convictions may increase trial length and require more detailed evidence (police reports, certified records, witness testimony) previously unnecessary at sentencing.
Strategic Plea Negotiations. Defense counsel can leverage the uncertainty of jury determinations to negotiate non-ACCA plea deals or lower exposure.
Doctrinal Clarification on Plain Error. The concurrence invites a future en banc or Supreme Court review of how circuits apply the third and fourth prongs—potentially reshaping appellate standards nationwide.

Complex Concepts Simplified

Armed Career Criminal Act (ACCA): Federal law imposing a 15-year minimum sentence on felons in possession of firearms who have three prior violent-felony or serious-drug-offense convictions committed on different occasions.
“Different Occasions” Test: After Wooden, courts look to time, place, character, and relationship of prior crimes. Post-Erlinger, a jury must decide.
Plain-Error Review (Fed. R. Crim. P. 52(b)):
1. There was an error;
2. It is “plain” (clear/obvious under current law);
3. It affects substantial rights (usually prejudicial);
4. It seriously affects the fairness, integrity, or public reputation of judicial proceedings.
If all met, an appellate court may, but need not, correct the error.
Harmless Error vs. Plain Error: Harmless error applies when the defendant preserved the issue; the government must prove lack of prejudice. Plain error applies when unpreserved; the defendant bears the burden.
Waiver vs. Forfeiture: Waiver is an intentional relinquishment of a known right; forfeiture is a failure to timely assert a right. Only forfeited errors qualify for plain-error review.
Mandatory Minimum vs. Statutory Maximum: A mandatory minimum is the least the judge can impose; a statutory maximum is the most. ACCA replaces a 10-year max with a 15-year minimum.

Conclusion

United States v. Santana cements the practical reach of Erlinger in the Seventh Circuit, transforming “different occasions” from a sentencing-phase formality into a full-blown jury issue. The decision underscores four overarching lessons:

The Sixth Amendment’s jury-trial guarantee applies with equal force to recidivist enhancements that increase either a statutory maximum or impose a mandatory minimum.
Even absent a contemporaneous objection, defendants can secure relief when new Supreme Court precedent renders prior judicial fact-finding plainly erroneous and prejudicial.
Future ACCA prosecutions must adapt—pleadings, evidence, jury instructions, and plea agreements must accommodate the heightened burden.
Appellate courts may soon revisit their methodology for plain-error review, as highlighted by Judge Kirsch’s concurrence, signaling further refinement in error-correction doctrine.

In sum, Santana not only vacates one man’s sentence but also recalibrates the balance of power between judge and jury in ACCA cases, heralding a new era of heightened procedural safeguards in federal sentencing.