77 F.4th 617
7th Cir.2023Background
- Paul Erlinger pleaded guilty to being a felon in possession of a firearm; district court imposed a 15‑year mandatory minimum under the Armed Career Criminal Act (ACCA).
- Erlinger initially had several prior convictions listed; later appellate decisions (Glispie and De La Torre) eliminated some prior predicates, prompting resentencing.
- At resentencing the government produced three 1991 Dubois County Indiana burglary informations (different businesses, different dates: Apr. 4, Apr. 8, Apr. 11) and corresponding pleas to support ACCA’s three‑predicate requirement.
- Erlinger argued (1) Indiana burglary is broader than federal “generic burglary” and thus not an ACCA predicate, and (2) the three burglaries were not separate occasions and, in any event, the Sixth Amendment requires a jury to decide that fact.
- The district court found the Indiana burglaries qualified as generic burglary and that they occurred on separate occasions, sentenced Erlinger to 15 years, and this Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Indiana burglary qualifies as ACCA "generic burglary" | Indiana burglary matches the generic definition after Stitt and prior Seventh Circuit precedent (Perry, Foster) controls. | Indiana statute is broader (can include boats, cars, tents) and therefore falls outside the generic burglary definition. | Indiana burglary is a generic burglary for ACCA purposes; Stitt does not render Indiana statute overbroad here. |
| Whether a court (vs. jury) may find prior offenses were "committed on occasions different from one another," and whether Erlinger’s burglaries were separate occasions | The judge may decide the separate‑occasions question by a preponderance of the evidence; the charging documents (different dates/locations) establish separate occasions. | Wooden’s analysis undermines judge‑only findings; the Sixth Amendment requires a jury to resolve the separate‑occasions factual question. | Wooden did not resolve the jury question; Seventh Circuit precedent allowing judge findings (preponderance standard) remains binding; applying Wooden’s multi‑factor test to the different dates/locations, the burglaries were on separate occasions. |
Key Cases Cited
- Taylor v. United States, 495 U.S. 575 (1990) (defines "generic burglary" for ACCA)
- Stitt v. United States, 139 S. Ct. 399 (2018) (clarified generic burglary to include structures/vehicles adapted for overnight accommodation)
- United States v. Perry, 862 F.3d 620 (7th Cir. 2017) (holds Indiana burglary qualifies as generic burglary)
- United States v. Foster, 877 F.3d 343 (7th Cir. 2017) (rejects argument that Indiana’s "dwelling" language makes burglary overbroad)
- Wooden v. United States, 142 S. Ct. 1063 (2022) (articulates multi‑factor test—timing, proximity, character—whether multiple crimes are a single occasion)
- United States v. Elliott, 703 F.3d 378 (7th Cir. 2012) (permits sentencing judge to find separate occasions for ACCA)
- United States v. Hatley, 61 F.4th 536 (7th Cir. 2023) (reaffirms circuit precedent that judges may decide separate‑occasions findings)
- Kirkland v. United States, 687 F.3d 878 (7th Cir. 2012) (applies preponderance standard for proving prior convictions at sentencing)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (constitutional rule on jury findings for facts increasing sentences; cited by parties)
- United States v. Glispie, 978 F.3d 502 (7th Cir. 2020) (held Illinois residential burglary is not an ACCA violent felony)
- United States v. De La Torre, 940 F.3d 938 (7th Cir. 2019) (held certain Indiana drug convictions not ACCA serious drug offenses)
- United States v. Cardenas, 217 F.3d 491 (7th Cir. 2000) (example treating temporally separated drug sales as separate episodes)
- United States v. Godinez, 998 F.2d 471 (7th Cir. 1993) (example treating crimes against different victims, places, and times as separate occasions)