Erlinger Error Subject to Harmless Error Analysis

US v. Brown: In 2019, Brown sold a firearm to an undercover officer, for which he was charged with being a felon in possession of a firearm. In compliance with applicable law, the indictment did not set identify three prior offenses committed on “occasions” separate from one another. After Brown’s plea, the probation officer recommended he be sentenced under the Armed Career Criminal Act because he did, in fact, have three prior convictions that he committed on occasions separate from one another. Brown’s objection that such a sentence violated the Fifth and Sixth Amendments was overruled and he was sentenced to 180 months in prison.

The Fourth Circuit affirmed Brown’s sentence, concluding it was bound by prior precedent (even though, by that point, even the Government agreed such precedent was incompatible with Apprendi). The Supreme Court then decided Erlinger v. United States, in which it held that the separate occasions information must be charged in the indictment and found beyond a reasonable doubt by a jury. Brown’s case was remanded to the Fourth Circuit.

At issue this time for the Fourth Circuit was whether the Erlinger error in this case was subject to harmless error analysis and, if so, whether the error was harmless in this case. The court adopted the Government’s position that Erlinger error is a species of Apprendi error which courts have long recognized is not “structural,” and thus subject to harmless error analysis. Applying harmless error, the court noted that the real issue is not whether a jury would have found ACCA would apply, but whether Brown would have pleaded not guilty and gone to trial if the indictment had been sufficient and he had been informed of the jury requirement during his guilty plea colloquy. The court concluded he would not have, relying partly on a conclusion that “absolutely no one” would conclude that the two robberies at issue – two months apart with separate victims – occurred on the same occasion.