Background
Daniel Nathaniel McCall was convicted of possessing a firearm as a convicted felon and sentenced to a fifteen-year mandatory minimum under the Armed Career Criminal Act. The sentencing was based on three prior convictions for violent felonies or serious drug offenses committed on different occasions. McCall appealed, arguing that the district court erred by finding the prior offenses occurred on separate occasions without a jury determination, a right established in Erlinger v. United States.
The court’s reasoning
The court explained that plain-error review applies because McCall did not argue below that a jury must make the separate-occasions finding. The court noted that Erlinger errors are not structural errors requiring automatic reversal. To succeed under plain-error review, McCall needed to show a reasonable probability that a jury would have concluded he committed fewer than three qualifying offenses. The court found that even if the two 1991 drug offenses were counted as one, McCall still had a 1996 aggravated assault conviction and a 1998 possession conviction, totaling three qualifying offenses. The court concluded that McCall could not meet his burden because the uncertainty of what a jury would have found meant he could not prove the error affected his substantial rights.
What it means going forward
Defendants challenging sentencing enhancements under the Armed Career Criminal Act based on Erlinger must preserve the jury-trial objection in the district court to avoid plain-error review. If the objection is not preserved, the defendant bears the burden of proving that a jury would have found fewer than three qualifying prior convictions.