Erlinger v. United States: Supreme Court Rules on Jury Determination for Prior Offenses for ACCA Sentencing Purposes
Legal Sidebari
Erlinger v. United States: Supreme Court Rules
on Jury Determination for Prior Offenses for
ACCA Sentencing Purposes
July 2, 2024
Introduction
Near the end of its term, the Supreme Court in Erlinger v. United States held that the right to a jury trial,
complete with proof beyond a reasonable doubt found by a unanimous panel, attaches to the
determination of whether a string of offenses counts as one or multiple offenses for purposes of
sentencing under the Armed Career Criminal Act (ACCA). The decision, at odds with decisions in each of
the federal circuits with criminal jurisdiction, also calls into question the Court’s earlier holding in
Almendarez-Torres v. United States with respect to a sentencing court’s authority to find a prior conviction
without referring the question to the jury.
ACCA
The ACCA (18 U.S.C. § 924(e)), which the Court has interpreted over the course of dozens of cases,
provides that a defendant with three or more prior violent felony or serious drug offenses “committed on
occasions different from one another” who is convicted of unlawful possession of a firearm must be
sentenced to imprisonment for not less than 15 years. The statute defines a “violent felony” to include
burglary that is punishable by imprisonment for a term exceeding one year.
Background
The government charged Paul Erlinger with unlawful possession of a firearm and asserted that he should
be sentenced under the ACCA based on his prior burglaries of a pizza shop, two other restaurants, and a
sporting goods store, committed within days of each other. He argued unsuccessfully before the district
court that the string of burglaries should be treated as one continuous criminal episode—not three or more
offenses “committed on occasions different from one another” as required under the ACCA; and that the
bundle of facts surrounding the offenses that would determine the question should be decided by the jury.
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The United States Court of Appeals for the Seventh Circuit disagreed, although the government endorsed
Mr. Erlinger’s contention that the determination was fact-driven and accordingly should be left to the jury
based on the government’s reading of the Supreme Court’s decision in Wooden v. United States. The
government supported Mr. Erlinger’s petition for Supreme Court review, which necessitated appointment
of an amicus in opposition.
The question before the Supreme Court—whether the Fifth and Sixth Amendments require a jury to
determine, beyond a reasonable doubt, that prior offenses were committed on separate occasions for
ACCA purposes—entailed reconciliation of the Court’s precedents. In Almendarez-Torres v. United
States, the Court held that a defendant’s sentence might be enhanced based solely on a sentencing judge’s
finding of a prior conviction. Soon thereafter in Apprendi v. New Jersey, the Court explained that “any
fact (other than prior conviction) that increases the maximum penalty for a crime” must be proven to a
jury beyond a reasonable doubt. Although conceding it was “arguable” that Almendarez-Torres may have
been “incorrectly decided,” the Court in Apprendi left the earlier decision in place.
Erlinger Decision
In an opinion authored by Justice Gorsuch, the Court concluded that the Fifth and Sixth Amendments
demand that a jury decide beyond a reasonable doubt whether Erlinger’s prior offenses were committed
on separate occasions. The Chief Justice and Justices Thomas, Sotomayor, Kagan, and Barrett joined in
the opinion for the Court, but the Chief Justice and Justice Thomas filed concurrences. Justices
Kavanaugh and Alito agreed on a dissenting opinion, which Justice Jackson joined in part (in addition to
authoring her own dissenting opinion).
The majority opinion built on Apprendi, indicating that the case and another regarding factfinding that
increases a statutory minimum sentence were “nearly on all fours” with Erlinger’s given “the sentencing
court’s factual finding that Mr. Erlinger’s offenses occurred on at least three separate occasions had the
effect of increasing both the maximum and minimum sentences he faced.” The Court also rejected the
suggestion that the Almendarez-Torres decision, which the Erlinger majority described as “at best an
exceptional departure from historical practice,” undermined that position. The Chief Justice predicated his
concurrence on the view that the question of whether harmless error had occurred should be decided on
remand. Justice Thomas concurred with the observation that the Court’s work in Almendarez-Torres
should be revisited.
Justice Kavanaugh, joined by Justice Alito and in part by Justice Jackson, dissented because in his view,
“Almendarez-Torres resolves the question of whether a judge may decide if the defendant committed his
prior violent offenses on different occasions.” Justice Jackson premised her dissent on the belief that
Apprendi was “wrongly decided.”
Congressional Options
Congress’s options are limited to those the Constitution affords it. Congress is free to amend the
requirement in ACCA that the prior offenses must have been “committed on occasions different from one
another.” Congress also has discretion to set and amend the punishment for possession of a firearm by a
felon, regardless of prior offenses and within constitutional limits.
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Author Information
Charles Doyle
Senior Specialist in American Public Law
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