United States v. Manger Blackmon

• Court: Court of Appeals for the Fourth Circuit
• Decided: March 5, 2026
• Docket: 22-4576
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4576

UNITED STATES OF AMERICA,

Plaintiff – Appellee,

v.

MANGER TOBIAS BLACKMON,

Defendant – Appellant.

Appeal from the United States District Court for the Middle District of North Carolina at Greensboro. Thomas D. Schroeder, District Judge. (1:22−cr−00039−TDS−1)

Argued: February 12, 2026 Decided: March 5, 2026

Before DIAZ, Chief Judge, and WILKINSON and HEYTENS, Circuit Judges.

Affirmed by unpublished opinion. Judge Wilkinson wrote the opinion, in which Chief Judge Diaz and Judge Heytens joined.

ARGUED: Tiffany T. McGregor, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Julie Carol Niemeier, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON BRIEF: Eric D. Placke, Interim Federal Public Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Clifton T. Barrett, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greensboro, North Carolina, for Appellee. USCA4 Appeal: 22-4576 Doc: 45 Filed: 03/05/2026 Pg: 2 of 11

Unpublished opinions are not binding precedent in this circuit.

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WILKINSON, Circuit Judge:

Manger Blackmon has been convicted of dozens of crimes. Among them are three

violent felonies: a common law robbery from 2003, an assault by strangulation from 2008,

and a breaking and entering with intent to injure an occupant from 2015. The district court

judge, after finding Blackmon committed these offenses on different occasions, deemed

him an “armed career criminal.” Doing so triggered a mandatory minimum sentence of

fifteen years’ imprisonment. See 18 U.S.C. § 924(e)(1).

The Supreme Court has since held that defendants are entitled to have a jury resolve

this occasions inquiry. Erlinger v. United States, 144 S. Ct. 1840, 1852 (2024). On appeal,

Blackmon claims he might not have pled guilty had he known about this right. But any jury

would have readily agreed with the district court’s straightforward analysis, and Blackmon

never withdrew his plea or challenged the facts underlying his convictions despite knowing

that both set the stage for his enhanced sentence. Seeing no reason to depart from analogous

cases holding this type of error to be harmless, we affirm.

I.

In 2021, police arrested Blackmon for violating the conditions of his pretrial release

in a state proceeding. During the arrest, they found two bullets on his person and two loaded

handguns nearby. Those items were problems due to Blackmon’s extensive criminal

history, particularly regarding acts of violence.

Three such offenses bear mention: First, in 2003, Blackmon broke into the home of

S.H., punched her in the face, and stole some of her property. He also stole property from

J.H. That all led to his conviction for (among other crimes) common law robbery, a felony.

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Second, in 2008, Blackmon squeezed J.H. around the neck, restricting her ability to

breathe. That led to his conviction for felony assault by strangulation. Third, in 2015,

Blackmon struck M.R. in the forehead with a door as he broke into her home. That led to

his conviction for felony breaking and entering with intent to injure an occupant.

Returning to his 2021 arrest, Blackmon was charged as a felon in possession of a

firearm and ammunition. See 18 U.S.C. § 922(g)(1). The indictment added that Blackmon

had three prior convictions for violent felonies or serious drug crimes, each committed on

a separate occasion. See id. § 924(e)(1). The latter, if true, rendered him an armed career

criminal subject to a mandatory minimum sentence of fifteen years in prison. Id.

Blackmon pled guilty to being a felon in possession. During his plea hearing, the

district court told Blackmon that it would determine at sentencing whether he qualified as

an armed career criminal. Blackmon then confirmed that he understood the statutory

sentencing range applicable if he did so qualify, as well as if he did not. The district court

also verified that Blackmon understood and discussed with counsel his written plea

agreement, which explained how his conviction created the possibility of a fifteen-year

minimum sentence.

The resulting presentence report labeled Blackmon an armed career criminal. To do

so, it reasoned that the three previous offenses above qualified as violent felonies

committed on different occasions. Following this designation, the report calculated a

Sentencing Guidelines range of 180 to 188 months, which reflected a three-level reduction

for Blackmon’s acceptance of responsibility. See U.S. Sent’g Guidelines Manual § 3E1.1

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(U.S. Sent’g Comm’n 2021). Without that reduction, his Guidelines range likely would

have been 210 to 262 months. See id. ch. 5, pt. A.

At sentencing, the district court adopted this presentence report without change and

treated all its contents as findings of fact. Immediately afterward, the government explained

its recent policy of conceding that juries, not judges, should assess whether predicate

offenses occur on different occasions. At the same time, the government clarified that then-

valid Fourth Circuit law authorized judges to make the determination themselves.

Blackmon, for his part, made no objection to the presentence report. Rather, when

asked about the government’s qualm above, he stated he “would leave [the issue] up to the

[c]ourt” but reserved his right to appeal it. J.A. 52.

The district court thus decided the matter itself, agreeing with the presentence report

that Blackmon committed three violent felonies on different occasions. It accordingly

sentenced him to fifteen years in prison.

Blackmon appealed. This court held his case in abeyance pending another panel’s

decision about the constitutionality of judges answering the occasions inquiry. See United

States v. Brown, 67 F.4th 200 (4th Cir. 2023), vacated, 144 S. Ct. 2712 (2024). And after

the Supreme Court specified that there is a right to a jury on this score, see Erlinger, 144

S. Ct. at 1852, the other panel, on remand, held that we review judge-made occasions

findings for harmless error, see United States v. Brown, 136 F.4th 87, 96 (4th Cir. 2025).

This court then lifted the abeyance on Blackmon’s appeal.

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II.

The Armed Career Criminal Act (“ACCA”) sets a fifteen-year sentencing floor for

possession of a firearm or ammunition as a felon with three prior convictions for certain

crimes “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).

Blackmon’s appeal hinges on the district court’s application of this “occasions clause.”

A.

The Supreme Court has twice of late clarified how to approach this clause. First, in

Wooden v. United States, 142 S. Ct. 1063 (2022), it relied on the ordinary meaning of

“occasion” to conclude that the occasions clause demands a “multi-factored” analysis into

the timing, proximity of location, and character and relationship of the defendant’s

predicate offenses. Id. at 1069–71. Second, in Erlinger v. United States, 144 S. Ct. 1840, it

determined that the Fifth and Sixth Amendments require a jury—not a judge—to resolve

the occasions inquiry “unanimously and beyond a reasonable doubt.” Id. at 1852.

After this latter decision, our court held in United States v. Brown, 136 F.4th 87,

that “Erlinger error[s]” are reviewed for harmlessness. Id. at 96. That is, when such an

error “does not affect substantial rights,” we “disregard[]” it. Fed. R. Crim. P. 52(a). For a

defendant who never went to trial, like Blackmon, we affirm if the government proves that

the error made no difference; in other words, it must show beyond a reasonable doubt that

the defendant, had he been advised of his jury right, “would have nonetheless waived that

right and admitted as part of his guilty plea that his prior offenses were committed on

different occasions.” Brown, 136 F.4th at 97. The government has easily met this burden

here.

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B.

Consider first the strength of the evidence supporting the ACCA enhancement—the

heart of our harmless-error review in the Erlinger context. See id. at 98. Blackmon’s “case

is certainly one of the straightforward ones.” Id. at 99. Just look at when he committed his

predicate crimes: 2003, 2008, and 2015. As the Supreme Court wrote in Wooden, predicate

offenses “have nearly always” been treated “as occurring on separate occasions if a person

committed them a day or more apart.” Wooden, 142 S. Ct. at 1071. The yearslong gaps

here come nowhere near what the Justices envisioned as close calls. See, e.g., id. at 1080

(Gorsuch, J., concurring in the judgment) (“Imagine a defendant who sells drugs to the

same undercover police officer twice at the same street corner one hour apart. Do the sales

take place on the same occasion or different ones?”). This easy observation just about ends

the Wooden inquiry. “In many cases, a single factor—especially of time . . . —can

decisively differentiate occasions.” Id. at 1071 (majority opinion).

To eliminate any semblance of a doubt, the government has also proven Blackmon’s

predicate offenses lacked a “common scheme or purpose.” Id. One crime, the felonious

breaking and entering, involved a different victim. The victims in the other two likely

differed as well; though both featured J.H., Blackmon’s robbery conviction seems to derive

solely from his interactions with S.H. because common law robbery requires theft “from

the person of another, or in his presence, against his will, by violence or putting him in

fear.” State v. Stewart, 122 S.E.2d 355, 356 (N.C. 1961) (per curiam). And Blackmon’s

acts against J.H. had entirely distinct purposes regardless. Whereas he wanted her property

(and that of S.H.) in one instance, he sought to strangle her in the other.

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Taking everything together, “[a]bsolutely no one would say” that, on one occasion,

Blackmon robbed one or two women and, on the same occasion more than five years later,

he strangled one of those women. Brown, 136 F.4th at 99. And “[a]bsolutely no one would

say” that either of these offenses occurred on the same occasion as when Blackmon, nearly

seven years after the strangulation, injured an entirely different woman while breaking into

her home. Id.

These ready inferences all but dictate the result of our harmlessness review. Recall

that by pleading guilty, Blackmon received a three-level reduction for acceptance of

responsibility. Had Blackmon instead insisted on a trial, he probably would have forgone

this reduction yet assuredly still been deemed, by a jury, an armed career criminal. The rub

is that Blackmon only stood to benefit from accepting his fate, as it reduced the bounds of

his Guidelines range to the tune of several years. “[G]iven that the possibility of a favorable

verdict on the ‘different occasions’ issue would have been so exceedingly remote as to be

practically irrelevant, we cannot fathom that” Blackmon “would have traded the benefit of

pleading guilty for such long odds.” Id.

Blackmon nevertheless posits that, even if he declined a plea and then lost on the

occasions issue, the district court might have still granted him a downward variance to

fifteen years. That would have rendered his decision to go to trial costless, making it the

objectively optimal strategy. However, Blackmon has given no plausible justification as to

why the district court would make such a variance. See Gall v. United States, 552 U.S. 38,

50 (2007). This remote possibility of a deviation from the Guidelines would not have

persuaded him ex ante to roll the dice on the district court’s sympathy.

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C.

The other signs of harmlessness in the Erlinger error setting only bolster our

conclusion. For starters, Blackmon knew about the possibility of an ACCA enhancement.

The fifteen-year minimum was explained at length in his plea agreement, which Blackmon

attested to reading and discussing with counsel, and at his plea hearing. Moreover,

Blackmon verified that he understood how the district court’s occasions determination

affected his statutory sentencing range. Just like the defendant in Brown, then, Blackmon

“chose to plead guilty . . . after having been twice informed that ACCA’s mandatory

minimum of 15 years . . . would apply if the judge found its requirements satisfied.”

Brown, 136 F.4th at 98.

Blackmon also did not seek to withdraw his plea. Indeed, he did not do so even

when the government advised the district court that a jury should answer the occasions

question. Such an unusual maneuver could have clued Blackmon in to the prospects of the

constitutional argument that soon thereafter prevailed in Erlinger. This too renders his case

akin to Brown, where “[e]ven after [the defendant] raised the [Erlinger] issue before the

district court, he did not seek to withdraw his plea.” Id.

Finally, Blackmon never challenged the accuracy of his presentence report. Though

he debates whether the information in his report can justify an ACCA enhancement, its

factual truth—including when and how his violent felonies occurred—has never been in

question. Once again, this aligns his position with that of the defendant in Brown, who “did

not object to the qualifying data supporting th[e] conclusion” in the presentence report “that

ACCA’s requirements were indeed satisfied by [the defendant’s] criminal history.” Id.

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D.

At bottom, Blackmon’s case is on all fours with Brown. This precedent thus

forecloses his remaining arguments. For instance, while Blackmon criticizes the

government for failing to furnish additional information beyond the contents of the

presentence report, the panel in Brown relied just as much on the presentence report of the

defendant before it. Id. at 91, 98. And for good reason; as just explained, the factual

contents of the report went wholly unchallenged there. So too here.

The same goes for Blackmon’s speculation that the government might not have been

able to find enough evidence admissible before a jury about each predicate offense. This

far-fetched possibility existed equally in Brown; indeed, it exists in every case involving

an Erlinger error after a guilty plea. And Blackmon cannot plausibly claim his convictions

present special evidentiary hurdles due to their age. Even the date of the oldest predicate

offense—February 26, 2003—is well within the range of what courts have confronted

when holding other Erlinger errors harmless. See, e.g., United States v. Butler, 122 F.4th

584, 590 (5th Cir. 2024) (finding harmless error for predicates that occurred in 1995, 1996,

and 2005); United States v. Campbell, 122 F.4th 624, 627, 632 (6th Cir. 2024) (finding

harmless error for predicates that occurred, at the latest, in 1993).

Also unavailing is Blackmon’s observation that a jury in the Northern District of

Georgia once found a defendant did not commit three offenses on separate occasions, even

though they occurred over nine years’ time. See Phase Two Verdict at 1, United States v.

Pennington, No. 19-CR-455 (N.D. Ga. Sep. 20, 2022), ECF No. 173. Wooden’s occasions

analysis is inherently case-specific, and no “properly instructed” jury would ever find that

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the facts here indicate fewer than three occasions. Brown, 136 F.4th at 99. Indeed, this

court has already deemed harmless plenty of Erlinger errors where the predicate offenses

spanned much shorter periods—even when the defendant has cited that very jury verdict.

See, e.g., United States v. McNeil, No. 22-4308, 2025 WL 1767990, at *1 (4th Cir. June

26, 2025) (per curiam) (finding harmless error given predicate offenses separated by at

least three days each, despite the defendant discussing the same Georgian jury verdict in

his reply brief).

III.

Try as he might, Blackmon cannot escape the grasp of Brown. As was true of the

defendant there, the benefits of Blackmon’s guilty plea far outweighed the costs; all he

forfeited was the right to have a jury hear an open-and-shut argument about why he is an

armed career criminal. And as was true of the defendant there, Blackmon neither withdrew

his plea nor disputed the accuracy of his presentence report after being advised of ACCA’s

ramifications. Treating like cases alike, “we have little difficulty concluding that the

Erlinger error” here—that is, “the failure to inform” Blackmon “of his right to have [the

occasions] element found by a jury—was indeed harmless.” Brown, 136 F.4th at 97–98.

AFFIRMED