Whether a district court's failure to charge and have a jury find the 'occasions different' fact under the Armed Career Criminal Act constitutes structural error or is subject to harmless error review when a defendant has pleaded guilty

No question identified. : 1. Mr. Graham pleaded guilty to the simple offense of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At the time of his offense, that crime carried a maximum penalty of 10 years’ imprisonment. 18 U.S.C. § 924(a)(2) (2021). But the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), establishes a 15-year mandatory minimum sentence for individuals with “three previous convictions” for “a violent felony or a serious drug offense,” each committed “on occasions different from one another.” 18 U.S.C. § 924(e)(1). In Wooden v. United States, 595 U.S. 360 (2022), this Court established a multi-factored, fact-laden test for determining whether prior offenses count as a single occasion or instead different ones. 2. At his sentencing hearing, held on June 28, 2023, Mr. Graham objected to the application of the ACCA based on the district court’s factfinding that he previously committed three ACCA predicate offenses on different occasions. He argued that under the combined reasoning of Wooden and Apprendi v. New Jersey, 530 U.S. 466 (2000), the occasions-different fact must be charged in the indictment and found by a jury beyond a reasonable doubt (or admitted by him as part of his guilty plea). Because none of that occurred in his case, the district court could not sentence him for the greater ACCA offense, but only for the simple § 922(g) offense to which he pled guilty. 3. The district court disagreed, considering itself bound by precedent to decide the occasions-different fact for itself, by a preponderance of evidence. Concluding that Mr. Graham committed his prior offenses on different occasions, the district court sentenced him to 192 months’ imprisonment, within the advisory guideline range corresponding to the enhanced statutory range for the greater ACCA offense. 4, While Mr. Graham’s case was on appeal, this Court decided Erlinger v. United States, 602 U.S. 821 (2024), in which it held that the ACCA’s occasionsdifferent fact must be charged in the indictment and proven to a jury beyond a reasonable doubt (or admitted by a defendant as part of his guilty plea). Erlinger thereby established the true relationship between the simple § 922(g) offense and the greater ACCA offense, and also that the district court erred in Mr. Graham’s case. 5. In an unpublished decision, the Sixth Circuit affirmed. By this time, it was bound by new circuit precedent at every turn. It rejected Mr. Graham’s argument that the Erlinger error was structural. (App. at 3-4.) See United States v. Campbell, 122 F.4th 624, 630-31 (6th Cir. 2024). Applying the standard it has adopted for harmless-error review in Erlinger appeals involving guilty pleas, which focuses on a hypothetical jury and hypothetical evidence, the panel determined that the error was harmless because it could “conclude beyond a reasonable doubt that the jury would have found the defendant’s offenses occurred on different occasions.” United States v. Durham, 151 F.4th 821, 825 (6th Cir. 2025) (per curiam). It also rejected, again relying on circuit precedent, Mr. Graham’s argument that it could not rely on Shepard documents described in the Presentence Report to find the error harmless, but was instead limited to the record of the plea proceeding. The panel held that the Erlinger error in Mr. Graham’s case was harmless and affirmed the ACCA sentence. (App. at 6-7.) 6. The lower court also rejected Mr. Graham’s separate double-jeopardy challenge to the district court’s imposition of the ACCA punishment, even though had been charged with and pled guilty (with the government’s consent) only to the simple § 922(g) offense. (App. at 8-9.) For this, the court relied on its precedential decision in United States v. Thomas, 37 F.4th 1190, 1194, 1198 (6th Cir. 2022). 7. Good cause supports granting an extension of time. In the time since the lower court issued its judgment, undersigned counsel has been responsible for a large number of