Full Opinion (html_with_citations)

Case: 23-60594       Document: 76-1      Page: 1     Date Filed: 12/09/2024




        United States Court of Appeals
             for the Fifth Circuit
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                No. 23-60594
                                                                         FILED
                                                                  December 9, 2024
United States of America,                                           Lyle W. Cayce
                                                                         Clerk
                                                          Plaintiff—Appellee,

                                    versus

Betty Butler,

                                                      Defendant—Appellant.


               Appeal from the United States District Court
                 for the Southern District of Mississippi
                         USDC No. 3:22-CR-62-1


Before Elrod, Chief Judge, and Higginbotham and Southwick,
Circuit Judges.
Jennifer Walker Elrod, Chief Judge:
       Appellant Betty Butler pleaded guilty to a single-count superseding
indictment that charged her with unlawfully possessing a gun after being
convicted of a felony, stemming from the execution of a DEA search warrant
at her home. At sentencing, and under our then-existing precedent, the
district court conducted a factual inquiry into Butler’s prior convictions and
determined that Butler had at least three convictions for prior serious drug
offenses that were committed on different occasions, which enhanced
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Butler’s sentence to a statutory minimum of 180 months in prison under the
Armed Career Criminal Act (“ACCA”).
        Later, the Supreme Court decided Erlinger v. United States,
602 U.S. 821
 (2024), which held that the Fifth and Sixth Amendments require a jury—
not a judge—to resolve the ACCA’s “different occasions” inquiry
unanimously and beyond a reasonable doubt.
Id. at 835
.
        Butler now appeals her sentence and argues that it should be
overturned on the grounds that Erlinger has overturned our prior case law
and that a jury should have made the determination of whether her prior
offenses occurred on different occasions. The government does not disagree
that Erlinger requires a jury determination for the “different occasions”
inquiry but argues that the lack of a jury determination in this case is harmless
error and does not warrant overturning Butler’s conviction. We agree with
the government.
        While we acknowledge that Erlinger vacated our prior precedent
authorizing the sentencing judge to conduct the ACCA “different
occasions” inquiry,1 any rational jury would have found beyond a reasonable
doubt that Butler committed her previous serious drug offenses on different
occasions based on the entire record. See United States v. Matthews,
312 F.3d 652, 665
 (5th Cir. 2002); see also Neder v. United States,
527 U.S. 1
, 18–19
(1999). Therefore, we AFFIRM Butler’s sentence and the district court’s
final judgment.




        1
          See, e.g., United States v. Valencia,
66 F.4th 1032
, 1032–33 (5th Cir. 2023), cert.
granted, judgment vacated,
144 S. Ct. 2710
 (2024).




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                                No. 23-60594


                                      I
                                     A
       In December 2021, a little over a year after Butler was released from
post-release supervision for a previous drug offense incarceration, DEA and
Homeland Security agents executed a search warrant on her home. The
DEA had been investigating a potential drug trafficking organization since
2019, and during surveillance operations in late 2021, Butler’s home was
observed as a place used to store suspected drug currency. While executing
the search warrant, federal agents recovered a firearm and a small amount of
marijuana from Butler’s bedroom nightstand. Butler admitted to possessing
the firearm.
                                     B
       In June 2022, Butler was indicted and charged with being a felon in
possession of a firearm, in violation of
18 U.S.C. § 922
(g)(1). The
government then brought a superseding indictment, alleging that Butler
qualified for sentencing enhancement under § 924(e)(1), the Armed Career
Criminal Act, because she had at least three previous convictions for serious
drug offenses committed on different occasions from one another. Butler
pleaded guilty to the superseding indictment. However, she did not admit
that her prior felony convictions qualified her as an armed career criminal
under § 924(e)(1).
      Following her guilty plea, Butler moved for a jury determination as to
whether the underlying offenses for the predicate convictions for her alleged
armed career criminal status were committed on “separate occasions.”
Butler also filed written objections to the presentence report’s conclusion
that she qualified as an armed career criminal and was therefore subject to
the ACCA’s enhanced sentence.




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       At sentencing, the district court acknowledged Butler’s objections to
the presentence report and heard her motion for a jury determination of her
armed career criminal status. Specifically, Butler argued that the Sixth
Amendment required a jury finding beyond a reasonable doubt that her prior
felony drug offenses occurred on separate occasions. Although the
government agreed that a jury determination was appropriate, it noted that
our precedent at the time did not require a jury to make such a finding.
       Correctly relying upon our prevailing precedent that authorized a
district court to conduct the ACCA’s “different occasions” inquiry, and the
Shepard2 documents attached to the presentence report, the district court
found that Butler had committed four serious drug offenses on different
occasions from one another. In particular, the district court found that at
least three of Butler’s offenses occurred in different years, and it believed
that any rational juror would have concluded the same given the facts. The
district court adopted the entirety of the presentence report as its findings of
fact and sentenced Butler to an enhanced statutory minimum sentence of 180
months in prison under the ACCA, followed by four years of supervised
release. Butler timely appealed.
                                         II
       Butler now appeals her conviction on the ground that the district
court’s failure to allow a jury to determine the facts surrounding her prior
convictions for purposes of the ACCA sentencing enhancement was a
violation of her constitutional rights under Erlinger. Erlinger’s applicability
to Butler’s case is a question of law reviewed de novo. See United States v.




       2
          The district court reviewed the charging documents and judgments as to the
relevant convictions.




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Roussel,
705 F.3d 184, 201
 (5th Cir. 2013); see also Matthews,
312 F.3d at 661
;
United States v. Stone,
306 F.3d 241, 243
 (5th Cir. 2002).
         Under
18 U.S.C. § 922
(g)(1), it is unlawful for a felon to possess a
firearm. At the time of Butler’s offense, the statutory maximum sentence for
a violation of § 922(g)(1) was 10 years’ imprisonment, or 120 months. See
18 U.S.C. § 924
(a)(2) (2018 ed.).3 Pursuant to the ACCA, a defendant
convicted under § 922(g)(1) is subject to an enhanced punishment if she has
three or more prior convictions for violent felonies or serious drug offenses
“committed on occasions different from one another.” Id. § 924(e)(1). Such
a defendant’s sentencing range is increased to a mandatory minimum of 15
years’ imprisonment and a maximum of life imprisonment. Id.
         A multi-factored inquiry must therefore be made into whether a
defendant’s underlying offenses for her previous predicate convictions—
violent felonies or serious drug offenses—occurred on a single occasion or
separate occasions for purposes of the ACCA enhancement. See Wooden v.
United States,
595 U.S. 360
, 369 (2022). Until recently, we had long held that
the sentencing judge was authorized to make this factual inquiry into a
defendant’s past convictions. See, e.g., United States v. White,
465 F.3d 250, 254
 (5th Cir. 2006); United States v. Davis,
487 F.3d 282
, 287–88 (5th Cir.
2007).
         In June 2024, the Supreme Court decided Erlinger v. United States,
and subsequently vacated the judgments in a trio of cases, which had all re-


         3
          In June 2022, less than three weeks after Butler was indicted, Congress passed
the Bipartisan Safer Communities Act, which increased the maximum penalty for a
violation of § 922(g)(1) from 10 years to 15 years’ imprisonment and moved the statutory
maximum provision to § 924(a)(8). See Bipartisan Safer Communities Act,
Pub. L. No. 117-159, § 12004
(c),
136 Stat. 1313
, 1329 (2022); see also
18 U.S.C. § 924
(a)(8). Section
924(a)(8)’s 15-year statutory maximum would not have applied to Butler, however,
because she was indicted before the statutory amendment.




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                                      No. 23-60594


affirmed our holdings in White and Davis that the sentencing judge could
make the “different occasions” inquiry under the ACCA and remanded
them to our court.4 Erlinger held that the Fifth and Sixth Amendments
require a jury—not a judge—to resolve the ACCA’s “different occasions”
inquiry unanimously and beyond a reasonable doubt.
602 U.S. at 835
. And
Butler’s case falls squarely under the Erlinger precedent. The district court
made the factual findings as to whether Butler’s prior serious drug offenses
occurred on different occasions, instead of a jury, as required by the
Constitution. As such, we hold that Erlinger applies and that the district
court erred in usurping the jury’s role.
        We must now turn to whether the district court’s constitutional error
requires vacatur of Butler’s sentence and a remand for resentencing. The
government does not disagree that Butler should have been afforded a jury
determination of the “different occasions” inquiry but argues that a
harmless-error analysis nonetheless applies. Butler argues that the district
court’s conduct constitutes plain error and falls within the limited class of
constitutional errors that require automatic reversal. We agree with the
government.
        Erlinger reinforces certain constitutional guardrails afforded to a
defendant subject to the sentencing enhancement under the ACCA, but the
Court did not address what standard of review should apply when those
guardrails are crossed. Both Chief Justice Roberts in his concurrence and
Justice Kavanaugh in his dissent emphasize that most constitutional errors,



        4
          See Valencia,
66 F.4th at 1032
. cert. granted, judgment vacated,
144 S. Ct. 2710
;
United States v. Washington, No. 22-10574,
2023 WL 5275013
 (5th Cir. Aug. 16, 2023), cert.
granted, judgment vacated,
144 S. Ct. 2711
 (2024); United States v. Kerstetter,
82 F.4th 437
(5th Cir. 2023), cert. granted, judgment vacated, No. 23-7478,
2024 WL 4426463
 (U.S. Oct.
7, 2024).




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including violations of the Sixth Amendment, are generally subject to
harmless-error review. Erlinger,
602 U.S. at 850
 (Roberts, C.J., concurring);
id.
 at 859–61 (Kavanaugh, J., dissenting) (first citing Washington v. Recuenco,
548 U.S. 212, 218
 (2006); and then citing Neder, 527 U.S. at 18–19). And
Justice Kavanaugh would have held that the constitutional error was
harmless. Id. at 861 (Kavanaugh, J., dissenting). However, the Court’s
majority opinion was silent on this issue, and it remanded having only
decided that a jury must resolve the “ACCA’s occasions inquiry
unanimously and beyond a reasonable doubt . . . [and] no more than that.”
Id. at 835 (majority opinion).

        Errors that “infringe upon the jury’s factfinding role” are generally
“subject to harmless-error analysis.” Neder,
527 U.S. at 18
. This analysis is
also applicable when there is a “[f]ailure to submit a sentencing factor to the
jury.” Recuenco,
548 U.S. at 222
. Moreover, as the majority opinion makes
clear, Erlinger is underpinned by the principles of Apprendi v. New Jersey,
530 U.S. 466
 (2000) and Alleyne v. United States,
570 U.S. 99
 (2013).5 So under
Erlinger, Butler has essentially established Apprendi and Alleyne error,
because the district court’s factual finding that her serious drug offenses
occurred on different occasions “had the effect of increasing both the
maximum and minimum sentences [she] faced.” Erlinger,
602 U.S. at 835
(emphasis in original). And we have long held that Apprendi errors are
subject to a harmless-error analysis. See United States v. Virgen-Moreno,
265 F.3d 276, 297
 (5th Cir. 2001); see also United States v. Aguirre-Rivera,
8 F.4th 405, 412
 (5th Cir. 2021) (applying harmless-error review when the district




        5
         Erlinger,
602 U.S. at 835
 (“Really, this case is as nearly on all fours with Apprendi
and Alleyne as any we might imagine.”).




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                                      No. 23-60594


court relied on an incorrect mandatory minimum sentence, which was based
on facts not found by a jury).
        “An otherwise valid conviction will not be set aside if the reviewing
court may confidently say, on the whole record, that the constitutional error
was harmless beyond a reasonable doubt.” Matthews,
312 F.3d at 665
(quoting Delaware v. Van Arsdall,
475 U.S. 673, 681
 (1986)). In this context,
Butler’s sentence should be affirmed if, “[a]fter a careful review of the whole
record . . . any rational petit jury, when presented with a proper jury
instruction, would have found beyond a reasonable doubt” that her prior
serious drug offenses occurred on different occasions.
Id.
        Here, the record is straightforward. The parties do not dispute that
Butler was convicted of four serious drug offenses—as defined under the
ACCA—before her conviction under § 922(g)(1). Moreover, the record
clearly reflects that Butler’s four serious drug offenses were committed on
different occasions from one another.
        Butler’s first predicate conviction arises out of her guilty plea for
working with Percy Butler on July 26, 1995, to sell cocaine to Barry Lowery.
Butler’s next predicate conviction is related to a separate sale of cocaine seven
months after the July 26, 1995 sale. Butler pleaded guilty to working with
Robby Vaughn on February 29, 1996, to sell cocaine to Marshand Crisler.6
Butler’s third predicate conviction is based on a May 21, 1996 violation of
21 U.S.C. § 841
(a)(1), for which Butler pleaded guilty to possession of crack
cocaine base with intent to distribute. Nearly a decade later, Butler’s final
predicate conviction is based on a May 11, 2005 violation of Mississippi law,


        6
         While Butler’s first two predicate convictions for selling cocaine were entered on
the same day, April 11, 1997, the ACCA’s “occasions” inquiry looks at when the
underlying offenses were committed, not when the subsequent convictions were entered.
See
18 U.S.C. § 924
(e)(1).




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for which Butler pleaded guilty to possessing more than a kilogram of
marijuana with intent to distribute.
          At sentencing, the district court relied on the presentence report and
Shepard documents, which included judgments and indictments for the state
convictions and a judgment for the federal conviction. And while Butler
objected to several paragraphs of the presentence report related to her status
under the ACCA, she made no objection to the factual bases of her
underlying convictions.
          Based on the record, which we have reviewed de novo, several things
become clear: Butler’s previous convictions span a range of months to several
years between offenses; Butler’s offenses involved different parties—
whether co-defendants or buyers; and three out of four of Butler’s
convictions involved different forms of illegal substances, i.e., powder
cocaine, crack cocaine, and marijuana. As such, any rational jury would have
found beyond a reasonable doubt that Butler’s serious drug offenses occurred
on different occasions. See Wooden, 595 U.S. at 369–70; Matthews,
312 F.3d at 665
.
                                        III
          In sum, we hold that the district court committed constitutional error
when it failed to allow a jury to determine whether Butler’s prior serious drug
offenses occurred on different occasions for ACCA purposes. However, that
error was harmless. Accordingly, we AFFIRM Butler’s sentence and the
district court’s final judgment.




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