by Anthony W. Accurso

The United States Court of Appeals for the Sixth Circuit held that the U.S. District Court for the Western District of Tennessee erred by applying an ACCA enhancement at sentencing because the District Court, not a jury, determined that the relevant offenses occurred on different “occasions.”

Background

In 2022, Jermaine Kimbrough pleaded guilty to four offenses stemming from criminal conduct in July 2021: Count 1 – conspiracy to commit carjacking, in violation of 18 U.S.C. § 371; Count 2 – carjacking, in violation of 18 U.S.C. § 2119(1); Count 3 – using, carrying, or brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c); and Count 4 – being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

The Presentence Report (“PSR”) recommended designating Kimbrough as an armed career criminal under the Armed Career Criminal Act (“ACCA”), based on three prior Tennessee convictions for aggravated burglary: one in 2012 and two in 2016. This designation applied to Count 4, increasing the statutory penalty range for that count from a maximum of 10 years to a mandatory minimum of 15 years under 18 U.S.C. § 924(e)(1). For sentencing purposes, Counts 1, 2, and 4 were grouped together. The ACCA enhancement elevated the sentencing Guidelines range for these grouped Counts from 84-105 months to 180-188 months. The District Court granted a downward departure, sentencing Kimbrough to 148 months on the grouped Counts, to be served concurrently, and an additional consecutive 84 months on Count 3, resulting in a total sentence of 232 months.

During sentencing, Kimbrough objected to the ACCA designation, arguing that, under Wooden v. United States, 595 U.S. 360 (2022), a jury, rather than the court, should determine whether his two 2016 aggravated burglary offenses were committed on separate “occasions,” a prerequisite for the ACCA enhancement. The District Court, relying on then-controlling Sixth Circuit precedent, overruled the objection and determined that the 2016 burglaries occurred on different occasions.

Kimbrough timely appealed. While his appeal was pending, the U.S. Supreme Court decided Erlinger v. United States, 602 U.S. 821 (2024), which resolved the “occasions” issue in Kimbrough’s favor, supporting his argument that a jury determination was required.

Analysis

The Court noted that following Erlinger, which held that a jury, not a judge, must determine whether prior offenses were committed on different occasions for ACCA purposes, the Sixth Circuit in United States v. Campbell, 122 F.4th 624 (6th Cir. 2024), clarified that an Erlinger error is not structural. Thus, the Government bears the burden on appeal to prove “beyond a reasonable doubt – through relevant and reliable information in the record – that, absent the error, any reasonable jury would have found that [Kimbrough] committed the prior offenses on different occasions.” Campbell.

The Court explained that to assess whether Kimbrough’s two 2016 aggravated burglaries occurred on separate occasions, a jury would apply the multi-factored test from Wooden: (1) timing of the offenses, (2) proximity of location, and (3) the character and relationship of the offenses. United States v. Cogdill, 130 F.4th 523 (6th Cir. 2025). 

First, the record lacks clarity on the exact timing of the two 2016 burglaries, the Court observed. Documents suggest one was reported on March 17, 2016, and the other on March 26, 2016, but the commission dates are uncertain. The Court noted that burglaries may not be immediately discovered or reported. United States v. Guenther, 470 F.3d 745 (8th Cir. 2006). Additionally, the Court stated that Erlinger and Cogdill clarify that even a gap of up to three months does not conclusively establish separate occasions.

Second, the two burglaries occurred in close proximity, approximately 2.3 miles apart, increasing the likelihood they were part of the same criminal event. Third, both offenses were aggravated burglaries, suggesting a shared modus operandi. The Court noted that Kimbrough’s accomplice told police, “Y’all have us for at least seven … I know,” indicating a possible common scheme. Additionally, Kimbrough pleaded guilty to both burglaries on the same date, with concurrent sentences, and the record showed no intervening arrests or significant events between the offenses. The Court stated that Kimbrough appeared to be “on a spree,” further supporting the possibility of a single criminal episode.

Based on these facts, the Court concluded that a reasonable jury could find that the 2016 burglaries were part of an “uninterrupted course of conduct” and thus one occasion under Wooden. The Government failed to prove beyond a reasonable doubt that a jury would find otherwise, rendering the Erlinger error not harmless. Additionally, the ACCA enhancement affected Kimbrough’s sentence on the grouped Counts 1, 2, and 4, increasing the Guidelines range from 84-105 months to 180-188 months.

The District Court sentenced Kimbrough to 148 months on those Counts, exceeding the statutory maximum of 60 months for Count 1 (conspiracy to commit carjacking) and 120 months for Count 4 without the ACCA enhancement. The sentencing transcripts and PSR provided no certainty that the trial court would have imposed 148 months absent the enhancement, necessitating resentencing, the Court determined.

Conclusion

Accordingly, the Court vacated Kimbrough’s sentence on Counts 1, 2, and 4 and remanded for resentencing consistent with its opinion. See: United States v. Kimbrough, 138 F.4th 473 (6th Cir. 2025).  

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