United States v. Butler

In United States v. Butler, 122 F.4th 584 (5th Cir. 2024), the Fifth Circuit affirmed the defendant’s 180-month sentence that had been enhanced under the Armed Career Criminal Act (“ACCA”).

In Erlinger v. United States, 602 U.S. 821 (2024), the Supreme Court held that under ACCA a jury, not a judge, must resolve the question of whether prior offenses were committed on “different occasions,” which overturned prior Fifth Circuit precedent that had allowed a sentencing judge to conduct that inquiry. The Court’s majority did not decide what standard of review should apply when the “different occasions” inquiry was not conducted by a jury, but two justices—Chief Justice Roberts in a concurrence and Justice Kavanaugh in a dissent—noted that most violations of the Sixth Amendment are generally subject to harmless-error review.

Relying on those opinions, the Fifth Circuit held that failure to submit the ACCA “different occasions” inquiry to a jury should be subject to harmless-error review. Here, the “lack of a jury determination” was harmless because “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.”