UNITED STATES OF AMERICA, Plаintiff—Appellee, versus BETTY BUTLER, Defendant—Appellant.
No. 23-60594
United States Court of Appeals for the Fifth Circuit
December 9, 2024
FILED December 9, 2024 Lyle W. Cayce Clerk
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 аnd determined that Butler had at least three convictions for prior serious drug offenses that were committed on different occasions, which enhanced
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 reсord. 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.
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 Hоmeland 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 plaсe 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
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.
Correctly relying upon our prevailing precedent that authorized a district court to conduct the ACCA‘s “different occasions” inquiry, and the Shepard documents attached to the presentence report,2 thе 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 thаt 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 hеr 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. 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).
A multi-factored inquiry must therefore be made into whether a defendant‘s underlying оffenses 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 rеcently, 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-
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. Wе 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,
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, becausе 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
“An оtherwise 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]ftеr 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
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
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 faсtual 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 reasonаble 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.