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6TH CIRCUIT HOLDS ERLINGER ERROR IS NOT HARMLESS

Kevin Cogdill was found guilty of an 18 USC § 922(g)(1) violation for possessing a gun after three prior drug felony offenses. The district court, over Kevin’s objection, determined that he committed his three prior drug offenses “on occasions different from one another,” subjecting him to an enhanced sentence of at least 15 years under the Armed Career Criminal Act.

Kevin appealed on the grounds that an 18 USC § 924(e) conviction – the ACCA statute – requires that a jury had to find that his priors had occurred on “occasions different from one another.” After the Supreme Court held in United States v. Erlinger that the “occasions different” standard in the statute was a jury question, Kevin’s case was remanded to the 6th Circuit.

Last week, the 6th agreed that the error was not harmless and remanded Kevin for resentencing.

The Circuit reviewed the record, finding that two of the priors related to selling — or possessing with intent to sell — methamphetamine. No one arrested Kevin between the June offense and the September offense, and he ultimately was convicted of both offenses on the same date. For all the record shows, “it is certainly possible…” that the drugs for these two offenses came from the same source. Kevin might have obtained a large quantity of methamphetamine, sold some of that stash in June, and then “was busted” for possessing with intent to sell the rest in September. Without any other information about how these crimes took place, it is reasonable to think that these crimes may have been ‘similar or intertwined’ and ‘share[d] a common scheme or purpose.’”

The decision is noteworthy because of the expansive view of “occasions different” the court suggests. There was a time when occasions were thought to be different whenever a defendant had an opportunity to reflect on his conduct before the next drug sale or burglary. Back then, one night’s indiscretion was enough to make one an armed career criminal if caught with a gun 20 years later.

The appellate court’s holding suggests that the ACCA may become what it was intended to be, a means of immobilizing the worst of the worst rather than a bludgeon to be used on small-time dopers and footpads.

United States v. Cogdill, Case No. 22-5603, 2025 U.S.App. LEXIS 4902 (6th Cir. March 3, 2025)

– Thomas L. Root