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A district court properly imposed an enhanced sentence on a man convicted of being a felon in possession of a firearm because his three prior burglary convictions in Indiana qualified him for the enhancement, the 7th Circuit Court of Appeals ruled Thursday.
In 2018, Paul Erlinger was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He pleaded guilty and was given an enhanced sentence of 15 years under the Armed Career Criminal Act.
The enhancement was given based on Erlinger’s 1991 burglary conviction in Illinois, a 1991 burglary conviction in Pike County, Indiana, and two 2003 convictions for dealing methamphetamine, also in Pike County.
However, the district court later vacated Erlinger’s sentence because the 7th Circuit ruled that Illinois residential burglary is not a violent felony under the ACCA. That left Erlinger with only one qualifying conviction instead of three, which is what is required by the ACCA.
At the resentencing hearing, the government argued that Erlinger still qualified for an ACCA enhancement because he had other 1991 burglary convictions in Dubois County.
Erlinger objected and argued that the Dubois County burglaries were not committed on separate occasions. He also argued that the Indiana definition of burglary is broader than the federal definition, so the ACCA wasn’t triggered.
The district court overruled Erlinger’s objections and found that he previously committed three burglaries on three separate occasions. It then imposed another ACCA-enhanced sentence of 15 years.
Erlinger’s first argument on appeal was that his prior Indiana burglary offenses shouldn’t have been used to enhance his sentence under the ACCA because the state’s definition of burglary is broader than the federal statute.
Disagreeing, Judge Candace Jackson-Akiwumi wrote, “The Indiana statute does not include the language the Supreme Court deems overly broad, and Erlinger has not cited any Indiana cases that interpret the statute in this manner. We therefore see no basis to hold that the Indiana burglary statute no longer qualifies for the enhanced sentence mandated by ACCA.”
Erlinger’s second argument on appeal was that the three Dubois County burglaries were not committed on separate occasions, and that the Sixth Amendment requires a jury to decide that question. Those burglaries were committed on April 4, 8 and 11, 1991.
The appellate court cited Wooden v. United States, 142 S.Ct. 1063 (2022), where a man had 10 prior convictions of burglary for each storage unit he entered by breaking through the interior drywall between the units in a single facility on the same evening. The Supreme Court reversed his sentence, finding a defendant can commit multiple sequential crimes as part of a single occasion.
“With the Wooden criteria in mind, we agree with the district court’s conclusion that Erlinger’s Dubois County burglaries were committed on different occasions,” Jackson-Akiwumi wrote.
Finally, as to the jury question, the 7th Circuit noted, “… Wooden explicitly did not address whether the ‘separate occasions’ determination must be made by a jury rather than a judge … .
“The government was not required to prove to a jury beyond a reasonable doubt that Erlinger committed the Indiana burglaries on separate occasions,” the court concluded. “The government could prove its position to the sentencing judge, and the applicable standard is preponderance of the evidence.”
The case is United States of America v. Paul Erlinger, 22-1926.
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