In Erlinger v. United States, No. 23-370 (June 21, 2024), the Supreme Court held that the Fifth and Sixth Amendments require a unanimous jury to make the determination beyond a reasonable doubt that a defendant’s past offenses were committed on separate occasions for ACCA purposes.
Justice Gorsuch authored the 6 to 3 opinion, joined by Chief Justice Roberts and Justices Thomas, Sotomayor, Kagan, and Barrett, with Roberts and Thomas filing separate concurring opinions. Justice Kavanaugh dissented, joined by Justices Alito and, in part, by Justice Jackson, who also filed a separate dissent.
The majority framed and addressed the issue this way:
This case concerns the Armed Career Criminal Act (ACCA) and the Fifth and Sixth Amendments. ACCA imposes lengthy mandatory prison terms on certain defendants who have previously committed three violent felonies or serious drug offenses on separate occasions. The question we face is whether a judge may decide that a defendant’s past offenses were committed on separate occasions under a preponderance-of-the-evidence standard, or whether the Fifth and Sixth Amendments require a unanimous jury to make that determination beyond a reasonable doubt.
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Commendably, the government concedes before us, as it did before the court of appeals, what all this means for Mr. Erlinger’s case and others like it. Under §922(g), Mr. Erlinger faced between 0 and 10 years in prison. §924(a)(2) (2012 ed.). To trigger ACCA and expose him to longer prison terms, the government had to prove that his past included three convictions for “violent felon[ies]” or “serious drug offense[s]” that were “committed on occasions different from one another.” §924(e)(1). And under Wooden, deciding whether those past offenses occurred on three or more different occasions is a fact-laden task. Were the crimes “committed close in time”? 595 U. S., at 369. How about the “[p]roximity” of their “location[s]”? Ibid. Were the offenses “similar or intertwined” in purpose and character? Ibid. All these questions, Wooden observed, “may be relevant” to determining whether the offenses were committed on one occasion or separate ones—and all require facts to be found before ACCA’s more punitive mandatory minimum sentence may be lawfully deployed. Ibid.
As the government recognizes, there is no doubt what the Constitution requires in these circumstances: Virtually “any fact” that “‘increase[s] the prescribed range of penalties to which a criminal defendant is exposed’” must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea). Apprendi, 530 U. S., at 490; see Brief for United States 9. Judges may not assume the jury’s factfinding function for themselves, let alone purport to perform it using a mere preponderance-of-the-evidence standard. To hold otherwise might not portend a revival of the vice-admiralty courts the framers so feared. See Part II–A, supra. But all the same, it would intrude on a power the Fifth and Sixth Amendments reserve to the American people.
Chief Justice Roberts concurring opinion expressed his view that violations of violations of the right to a jury determination of ACCA's different occassions clause are subject to harmless error review. Justice Thomas' concurring opinion maintains his long held view that the Almendarez-Torres exception to Apprendi should be overruled. Justice Kavanaugh's dissent argues that the Court's precedents establish that a judge may make the different-occasions determination.