United States v. Isaac Harvin

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 24, 2024
• Docket: 20-14497
• Status: Unpublished

Opinion

USCA11 Case: 20-14497 Document: 76-1 Date Filed: 10/24/2024 Page: 1 of 6

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 20-14497 Non-Argument Calendar ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ISAAC D. HARVIN,

Defendant-Appellant.

Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 2:19-cr-00075-JLB-NPM-1 ____________________ USCA11 Case: 20-14497 Document: 76-1 Date Filed: 10/24/2024 Page: 2 of 6

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Before JORDAN, LUCK, and LAGOA, Circuit Judges. PER CURIAM: Isaac Harvin, proceeding through counsel, appeals his con- viction and sentence for possession of a firearm and ammunition by a felon. Harvin has moved for summary reversal in light of the Supreme Court’s decision in Erlinger v. United States, 144 S. Ct. 1840 (2024), arguing that the district court reversibly erred in applying a sentencing enhancement under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), because a jury did not determine whether the predicate offenses for the enhancement occurred on different occasions. The government does not oppose Harvin’s motion. Summary disposition is appropriate either where time is of the essence, such as “situations where important public policy is- sues are involved or those where rights delayed are rights denied,” or where “the position of one of the parties is clearly right as a mat- ter of law so that there can be no substantial question as to the out- come of the case, or where, as is more frequently the case, the ap- peal is frivolous.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1161–62 (5th Cir. 1969). We review a preserved constitutional challenge to a sen- tence de novo. United States v. Nealy, 232 F.3d 824, 829 (11th Cir. 2000). The ACCA increases the penalty for a conviction for being a felon in possession of firearm, in violation of 18 U.S.C. § 922(g), USCA11 Case: 20-14497 Document: 76-1 Date Filed: 10/24/2024 Page: 3 of 6

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from a maximum sentence of 120 months’ imprisonment to a man- datory-minimum sentence of 180 months’ imprisonment when the defendant has 3 or more qualifying convictions for offenses com- mitted on different occasions. See 18 U.S.C. § 924(e)(1). In Erlinger, the Supreme Court held that the Fifth and Sixth Amendments require that any fact used to increase the range of penalties to which a criminal defendant is exposed, including whether a defendant’s past offenses were committed on separate occasions for ACCA purposes, must be either freely admitted by the defendant in a guilty plea or resolved by a jury beyond a rea- sonable doubt. 144 S. Ct. at 1851–52. It expressly stated that “[j]udges may not assume the jury’s factfinding function for them- selves, let alone purport to perform it using a mere preponderance- of-the-evidence standard.” Id. at 1851. The Court recognized that, to determine what legal elements attached to a defendant’s prior offenses, the district court may need to “consult Shepard docu- ments,” such as “judicial records, plea agreements, and colloquies between a judge and the defendant,” to determine the jurisdiction and the date of those prior offenses. Id. at 1854–55. “In cases of constitutional error where the issue has been properly preserved, the government has the burden of proving that the error was harmless beyond a reasonable doubt.” United States v. Perez, 86 F.4th 1311, 1320 (11th Cir. 2023). However, “[s]truc- tural errors are structural defects . . . [that] defy analysis by harm- less-error standards,” and, thus, “structural errors require auto- matic reversal.” United States v. Troya, 733 F.3d 1125, 1134 (11th USCA11 Case: 20-14497 Document: 76-1 Date Filed: 10/24/2024 Page: 4 of 6

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Cir. 2013). No decision of the Supreme Court or this Court has addressed whether an Erlinger error is structural or properly ana- lyzed under a harmless-error standard. 1 The ACCA does not create a separate offense, but merely provides for sentencing enhancements. United States v. Ruo, 943 F.2d 1274, 1275 (11th Cir. 1991). Here, we grant Harvin’s motion for summary reversal. There can be no substantial question as to whether Harvin’s judg- ment should be vacated and his case remanded for resentencing because his ACCA-enhanced sentence was imposed in violation of Erlinger. See Groendyke Transp., Inc., 406 F.2d at 1161–62; Erlinger 144 S. Ct. at 1851–52. Furthermore, time is of the essence in Harvin’s appeal because he already has served almost 60 months’ imprisonment, more than the upper bound of the unenhanced guideline range of imprisonment of 37 to 46 months. See Groendyke Transp., Inc., 406 F.2d at 1161–62. An Erlinger error occurred in Harvin’s sentencing because a jury did not find a beyond a reasonable doubt that Harvin’s ACCA predicate offenses were committed on different occasions and Harvin did not admit to either the separate “on or about” offense dates alleged in charging documents for each of his prior offenses or to the elements of a § 924(e) violation. See Erlinger 144 S. Ct. at 1851–52. The “different occasions” requirement of the ACCA was not alleged in the indictment or the notice of penalties, and

1 We need not answer this question here, as we explain below. USCA11 Case: 20-14497 Document: 76-1 Date Filed: 10/24/2024 Page: 5 of 6

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Harvin did not admit that he committed his prior offenses on dif- ferent occasions or that he met the requirements for an ACCA- enhanced sentence at the change-of-plea hearing. While Harvin pleaded guilty to an indictment that alleged a violation of § 924(e), this statute merely provides for sentencing enhancements and does not define a separate offense of conviction. See Ruo, 943 F.2d at 1275. Harvin explicitly reserved the right to challenge his desig- nation as an armed career criminal at sentencing when entering his plea, and, at the sentencing hearing, the court made clear that it applied a preponderance-of-the-evidence standard to judicially find that Harvin’s offenses took place on different occasions. This was a square violation of Erlinger’s holding that the Fifth and Sixth Amendments require either an admission or a jury finding beyond a reasonable doubt that ACCA-predicate offenses were committed on separate occasions and that judicial factfinding under a prepon- derance-of-the-evidence standard is unacceptable. See Erlinger 144 S. Ct. at 1851–52. While the Supreme Court and this Court have not made clear whether an Erlinger error is structural, that issue does not pre- clude summary reversal in the instant appeal because, even if the error is not structural, the government cannot reasonably claim that the Erlinger error was harmless beyond a reasonable doubt. See Troya, 733 F.3d at 1134; Perez, 86 F.4th at 1320. Harvin fully pre- served the Erlinger issue for de novo review and had only three prior convictions that could potentially qualify as predicate offenses for the ACCA enhancements, all of which were alleged to have USCA11 Case: 20-14497 Document: 76-1 Date Filed: 10/24/2024 Page: 6 of 6

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occurred “on or about” dates close in time, according to charging documents. Because the “on or about” dates of Harvin’s prior convic- tions are so similar, the charging documents do not establish be- yond a reasonable doubt that all three offenses were temporally distinct. And, if two of Harvin’s three convictions were collapsed into a single offense, he could no longer qualify as an armed career criminal. See 18 U.S.C. § 924(e)(1). Thus, if the Erlinger error is structural, Harvin is entitled to summary reversal on that basis, and, if the error is not structural, he is still entitled to summary re- versal because the government cannot reasonably claim that the Erlinger error was harmless beyond a reasonable doubt when the charging documents do not clearly establish that his predicate of- fenses occurred on different occasions. See Troya, 733 F.3d at 1134; Perez, 86 F.4th at 1320. Accordingly, because Harvin’s position is clearly correct as a matter of law, summary reversal is warranted. REVERSED.