NOT RECOMMENDED FOR PUBLICATION File Name: 25a0144n.06
No. 22-6131
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 13, 2025 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF TENNESSEE MARK WILLIAM SAIN, ) Defendant-Appellant. ) OPINION ) )
Before: CLAY, WHITE, and NALBANDIAN, Circuit Judges.
PER CURIAM. Defendant Mark Sain was sentenced to 180 months in prison after
pleading guilty to being a felon in possession of a firearm and ammunition, in violation of 18
U.S.C. § 922(g)(1). The sentence was enhanced based on the district court’s finding that
Defendant was an Armed Career Criminal under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (“ACCA”). Defendant now appeals his sentence enhancement. For the reasons set forth
below, we AFFIRM Defendant’s sentence.
I. BACKGROUND
In November 2021, Defendant was pulled over by a sheriff’s deputy for speeding while
traveling through Franklin County, Tennessee. While speaking with Defendant, the deputy noticed
a handgun placed in between Defendant’s right leg and the vehicle’s center console. The deputy
retrieved the gun and discovered that it was loaded. Five months later, Defendant was charged in
the Eastern District of Tennessee with two counts of being a felon in possession of a firearm and No. 22-6131, United States v. Sain
ammunition, both in violation of 18 U.S.C. § 922(g)(1). Such violations typically carry a ten-year
maximum sentence. 18 U.S.C. § 924(a)(2). Defendant ultimately entered into a plea agreement
in which he pled guilty to one of the counts.
Prior to sentencing, the Eastern District of Tennessee’s Probation Office prepared a
presentence report detailing its sentencing recommendation. Under the ACCA, an individual who
violates § 922(g)(1) can be deemed an Armed Career Criminal if he “has three previous
convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions
different from one another.” 18 U.S.C. § 924(e)(1). The ACCA mandates a fifteen-year minimum
sentence for Armed Career Criminals. Id. In coming to its recommendation, the presentence
report recommended that Defendant be sentenced as an Armed Career Criminal due to his prior
convictions in state court for robbery and five burglaries, each of which was committed on
“different occasions.”
Defendant objected to the ACCA designation, arguing that under the Fifth and Sixth
Amendments, the different-occasions inquiry must be charged in an indictment and submitted to
a jury. The district court did not find these arguments persuasive, stating that this Circuit’s then-
existing precedent rejected Defendant’s positions. Accordingly, the court found that Defendant
was an Armed Career Criminal with a Sentencing Guidelines range of 180 to 210 months of
imprisonment, and ultimately imposed a 180-month sentence.
II. DISCUSSION
A. Standard of Review
“We review findings of fact made at sentencing under the clear-error standard.” United
States v. West, 962 F.3d 183, 187 (6th Cir. 2020). This requires “a reviewing court [to] ask whether
on the entire evidence it is left with the definite and firm conviction that a mistake has been
-2- No. 22-6131, United States v. Sain
committed.” United States v. Orlando, 363 F.3d 596, 603 (6th Cir. 2004) (internal quotation marks
omitted).
B. Analysis
The Supreme Court’s decision in Erlinger v. United States is central to the issue in this
case. 602 U.S. 821 (2024). Erlinger requires the ACCA’s different-occasions inquiry be
conducted by a jury, otherwise the district judge violates a defendant’s Fifth and Sixth Amendment
rights. Id. at 834–35.
It is undisputed that the district court in this case committed an Erlinger error. Yet the
government argues that the error was harmless. Defendant, by contrast, argues that we should
view the error as structural, warranting an automatic reversal. This Circuit’s recent holding in
United States v. Campbell directly answers this question; we must undertake harmlessness reviews
with respect to Erlinger errors. 122 F.4th 624, 630–31 (6th Cir. 2024). That inquiry requires that
we “ask whether the government has made it clear beyond a reasonable doubt that the outcome
would not have been different without the” Erlinger error. Id. at 630 (internal quotation marks
omitted). To answer this question, we are required to look at a wide range of material, including
Shepard documents and presentence reports,1 and to determine whether this “record evidence
shows beyond a reasonable doubt that a jury’s failure to consider the different-occasions question
had no effect on [Defendant’s] sentence.” Id. at 632–33.
To show that predicate offenses occurred on separate occasions, courts look to a variety of
factors, including: (1) timing, such that “offenses separated by substantial gaps in time or
1 Shepard documents include “(1) the terms of the charging document, (2) the terms of a plea agreement, (3) a transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or (4) some comparable judicial record of this information.” United States v. Sosa, 448 F. App’x 605, 608 (6th Cir. 2012) (citing Shepard v. United States, 544 U.S. 13, 26 (2005)). -3- No. 22-6131, United States v. Sain
significant intervening events” are considered separate occasions; (2) proximity, such that crimes
that take place “further away” are less likely to be “components of the same criminal event”; and
(3) “character and relationship of the offenses,” such that events that are “similar or intertwined”
are less likely to be separate occasions. Wooden v. United States, 595 U.S. 360, 369 (2022).
Under these factors, Defendant’s prior convictions for robbery and five burglaries
undoubtedly occurred on separate occasions. With respect to timing, at the sentencing hearing the
district court explicitly asked Defendant’s counsel if the offenses “occurred years apart,” to which
counsel responded, “[w]e don’t dispute that those predicates occurred many years apart.”
Sentencing Hr’g Tr., R. 43, Page ID #312–13. The presentence report also notes that the offenses
occurred in 1990, 1997, 2004, and 2015. As to proximity, the presentence report outlines that each
of the offenses occurred in very different locations, ranging from a food pantry in Bedford County,
Tennessee, to a Sears store in Coffee County, Tennessee. Finally, with respect to the character
and relationship of the offenses, there is nothing in the record that demonstrates that these offenses
had any connection to each other.
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NOT RECOMMENDED FOR PUBLICATION File Name: 25a0144n.06
No. 22-6131
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED Mar 13, 2025 KELLY L. STEPHENS, Clerk ) UNITED STATES OF AMERICA, ) Plaintiff-Appellee, ) ON APPEAL FROM THE ) UNITED STATES DISTRICT v. ) COURT FOR THE EASTERN ) DISTRICT OF TENNESSEE MARK WILLIAM SAIN, ) Defendant-Appellant. ) OPINION ) )
Before: CLAY, WHITE, and NALBANDIAN, Circuit Judges.
PER CURIAM. Defendant Mark Sain was sentenced to 180 months in prison after
pleading guilty to being a felon in possession of a firearm and ammunition, in violation of 18
U.S.C. § 922(g)(1). The sentence was enhanced based on the district court’s finding that
Defendant was an Armed Career Criminal under the Armed Career Criminal Act, 18 U.S.C.
§ 924(e) (“ACCA”). Defendant now appeals his sentence enhancement. For the reasons set forth
below, we AFFIRM Defendant’s sentence.
I. BACKGROUND
In November 2021, Defendant was pulled over by a sheriff’s deputy for speeding while
traveling through Franklin County, Tennessee. While speaking with Defendant, the deputy noticed
a handgun placed in between Defendant’s right leg and the vehicle’s center console. The deputy
retrieved the gun and discovered that it was loaded. Five months later, Defendant was charged in
the Eastern District of Tennessee with two counts of being a felon in possession of a firearm and No. 22-6131, United States v. Sain
ammunition, both in violation of 18 U.S.C. § 922(g)(1). Such violations typically carry a ten-year
maximum sentence. 18 U.S.C. § 924(a)(2). Defendant ultimately entered into a plea agreement
in which he pled guilty to one of the counts.
Prior to sentencing, the Eastern District of Tennessee’s Probation Office prepared a
presentence report detailing its sentencing recommendation. Under the ACCA, an individual who
violates § 922(g)(1) can be deemed an Armed Career Criminal if he “has three previous
convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions
different from one another.” 18 U.S.C. § 924(e)(1). The ACCA mandates a fifteen-year minimum
sentence for Armed Career Criminals. Id. In coming to its recommendation, the presentence
report recommended that Defendant be sentenced as an Armed Career Criminal due to his prior
convictions in state court for robbery and five burglaries, each of which was committed on
“different occasions.”
Defendant objected to the ACCA designation, arguing that under the Fifth and Sixth
Amendments, the different-occasions inquiry must be charged in an indictment and submitted to
a jury. The district court did not find these arguments persuasive, stating that this Circuit’s then-
existing precedent rejected Defendant’s positions. Accordingly, the court found that Defendant
was an Armed Career Criminal with a Sentencing Guidelines range of 180 to 210 months of
imprisonment, and ultimately imposed a 180-month sentence.
II. DISCUSSION
A. Standard of Review
“We review findings of fact made at sentencing under the clear-error standard.” United
States v. West, 962 F.3d 183, 187 (6th Cir. 2020). This requires “a reviewing court [to] ask whether
on the entire evidence it is left with the definite and firm conviction that a mistake has been
-2- No. 22-6131, United States v. Sain
committed.” United States v. Orlando, 363 F.3d 596, 603 (6th Cir. 2004) (internal quotation marks
omitted).
B. Analysis
The Supreme Court’s decision in Erlinger v. United States is central to the issue in this
case. 602 U.S. 821 (2024). Erlinger requires the ACCA’s different-occasions inquiry be
conducted by a jury, otherwise the district judge violates a defendant’s Fifth and Sixth Amendment
rights. Id. at 834–35.
It is undisputed that the district court in this case committed an Erlinger error. Yet the
government argues that the error was harmless. Defendant, by contrast, argues that we should
view the error as structural, warranting an automatic reversal. This Circuit’s recent holding in
United States v. Campbell directly answers this question; we must undertake harmlessness reviews
with respect to Erlinger errors. 122 F.4th 624, 630–31 (6th Cir. 2024). That inquiry requires that
we “ask whether the government has made it clear beyond a reasonable doubt that the outcome
would not have been different without the” Erlinger error. Id. at 630 (internal quotation marks
omitted). To answer this question, we are required to look at a wide range of material, including
Shepard documents and presentence reports,1 and to determine whether this “record evidence
shows beyond a reasonable doubt that a jury’s failure to consider the different-occasions question
had no effect on [Defendant’s] sentence.” Id. at 632–33.
To show that predicate offenses occurred on separate occasions, courts look to a variety of
factors, including: (1) timing, such that “offenses separated by substantial gaps in time or
1 Shepard documents include “(1) the terms of the charging document, (2) the terms of a plea agreement, (3) a transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or (4) some comparable judicial record of this information.” United States v. Sosa, 448 F. App’x 605, 608 (6th Cir. 2012) (citing Shepard v. United States, 544 U.S. 13, 26 (2005)). -3- No. 22-6131, United States v. Sain
significant intervening events” are considered separate occasions; (2) proximity, such that crimes
that take place “further away” are less likely to be “components of the same criminal event”; and
(3) “character and relationship of the offenses,” such that events that are “similar or intertwined”
are less likely to be separate occasions. Wooden v. United States, 595 U.S. 360, 369 (2022).
Under these factors, Defendant’s prior convictions for robbery and five burglaries
undoubtedly occurred on separate occasions. With respect to timing, at the sentencing hearing the
district court explicitly asked Defendant’s counsel if the offenses “occurred years apart,” to which
counsel responded, “[w]e don’t dispute that those predicates occurred many years apart.”
Sentencing Hr’g Tr., R. 43, Page ID #312–13. The presentence report also notes that the offenses
occurred in 1990, 1997, 2004, and 2015. As to proximity, the presentence report outlines that each
of the offenses occurred in very different locations, ranging from a food pantry in Bedford County,
Tennessee, to a Sears store in Coffee County, Tennessee. Finally, with respect to the character
and relationship of the offenses, there is nothing in the record that demonstrates that these offenses
had any connection to each other. It is thus apparent beyond a reasonable doubt that the failure to
submit the different-occasions inquiry to a jury had no effect on Defendant’s sentence. The district
court’s error was therefore harmless.
Defendant also argues that double jeopardy applies to his enhanced sentence. He states
that jeopardy attached when the district court accepted Defendant’s plea agreement and that the
government “can neither try him for the enhanced ACCA offense, nor punish him as if he had pled
to it.” Appellant Reply Br., ECF No. 39, 29. Defendant did not raise this argument with the district
court, nor did he raise it in his initial brief before this Court; instead, he brings this argument for
the first time in his reply. There appears to be no reason why Defendant could not have made this
argument earlier. This argument is not based on any legal changes stemming from Erlinger, nor
-4- No. 22-6131, United States v. Sain
does it rely on any other recent developments. As this Circuit has repeatedly stated, “[a]n appellant
waives an issue when he fails to present it in his initial briefs before this court.” Marks v. Newcourt
Credit Grp., Inc., 342 F.3d 444, 462 (6th Cir. 2003). Defendant has not, therefore, preserved this
issue for appeal.
III. CONCLUSION
For the reasons set forth above, this Court AFFIRMS Defendant’s sentence.
-5-