United States of America v. Michael Jerome Davis

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-4621
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL JEROME DAVIS,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at
Greenville. Timothy M. Cain, Chief District Judge. (6:17-cr-00924-TMC-1)
Submitted: October 31, 2025 Decided: December 9, 2025
Before NIEMEYER, HEYTENS, and BERNER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ON BRIEF: Ray Coit Yarborough, Jr., LAW OFFICE OF RAY COIT YARBOROUGH,
JR., Florence, South Carolina, for Appellant. Maxwell B. Cauthen, III, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Greenville, South
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael Jerome Davis appeals his conviction and the 180-month sentence imposed
following his guilty plea to possession of a firearm and ammunition by a convicted felon,
in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2). On appeal, Davis’s counsel has filed a
brief pursuant to Anders v. California, 386 U.S. 738 (1967), asserting that there are no
meritorious grounds for appeal but questioning whether the failure to charge the “different
occasions” element of the Armed Career Criminal Act (ACCA) in the indictment and to
inform Davis of his right to have a jury unanimously determine that element prejudiced
Davis in light of the decisions in Erlinger v. United States, 602 U.S. 821 (2024) and United
States v Brown, 136 F. 4th 87 (4th Cir. 2025). Although notified of his right to file a
supplemental pro se brief, Davis has not done so. The Government has moved to dismiss
this appeal based on the appeal waiver in Davis’s plea agreement. For the reasons that
follow, we deny the Government’s motion and affirm.
“We review an appellate waiver de novo to determine whether the waiver is
enforceable” and “will enforce the waiver if it is valid and if the issue being appealed falls
within the scope of the waiver.” United States v. Boutcher, 998 F.3d 603, 608 (4th Cir.
2021) (internal quotation marks omitted). An appellate waiver is valid if the defendant
enters it “knowingly and intelligently, a determination that we make by considering the
totality of the circumstances.” Id. “Generally though, if a district court questions a
defendant regarding the waiver of appellate rights during the Rule 11 colloquy and the
record indicates that the defendant understood the full significance of the waiver, the
waiver is valid.” McCoy, 895 F.3d at 362 (internal quotation marks omitted). Our review

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of the record confirms that Davis knowingly and intelligently waived his right to appeal
his conviction and sentence, excepting claims of ineffective assistance of counsel,
prosecutorial misconduct, and future changes in the law that affect his sentence.
In its motion to dismiss, the Government broadly argues that Davis’s argument falls
within the scope of the appeal waiver. In reply to the Government’s motion to dismiss,
Anders counsel argues that the ACCA claim falls outside the scope of the appeal waiver
because Erlinger was decided after Davis’s conviction and sentence and therefore was a
future change in the law that affected his sentence. This court enforces an appeal waiver
against a defendant “only if that provision is clearly and unambiguously applicable to the
issues raised by the defendant on appeal.” United States v. Weon, 722 F.3d 583, 588 (4th
Cir. 2013). Thus, “[g]iven the heightened standard that [this court applies] to the
interpretation of an appeal waiver provision entered into by a criminal defendant,” id., we
conclude it is not clear and unambiguous whether the appeal waiver provision excepting
future changes in the law applies to Anders counsel’s Erlinger arguments. We therefore
do not construe the waiver provision as barring Davis’s appeal. Accordingly, we deny the
Government’s motion to dismiss.
Regarding Davis’s Erlinger arguments, generally, we review a defendant’s sentence
“under a deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 41
(2007). However, when “determining whether a district court properly applied the
advisory [Sentencing] Guidelines, including application of any sentencing enhancements,
we review the district court’s legal conclusions de novo and its factual findings for clear
error.” United States v. Morehouse, 34 F.4th 381, 387 (4th Cir. 2022) (cleaned up). The

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ACCA enhancement applies if a defendant convicted of a § 922(g)(1) offense “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 probation officer
identified four prior predicate convictions: pointing and presenting a firearm and
possession with intent to distribute methamphetamine in March 2010 (two counts),
manufacturing methamphetamine in September 2010, and first-degree assault and battery
in March 2012.
In the indictment, the Government did not allege that the prior convictions were for
offenses committed on occasions different from one another. Additionally, in applying the
ACCA enhancement, the district court determined that the predicate offenses were
committed on different occasions without informing Davis that he had the right to have
this element decided by a jury beyond a reasonable doubt. Based on Erlinger—which
issued after Davis’s sentencing—both of these omissions were error.
In Erlinger, the Supreme Court held that the facts relating to the different occasions
question “must be resolved by a unanimous jury beyond a reasonable doubt (or freely
admitted in a guilty plea).” 602 U.S. at 834. Thus, a district court errs by deciding the
different occasions issue at sentencing. Id. at 838-39. Such errors, however, are subject to
harmless error review. Brown, 136 F.4th at 92-96. Where, as here, the defendant was
convicted after pleading guilty, the Government establishes that an Erlinger error is
harmless by “show[ing] beyond a reasonable doubt that if [the defendant’s] indictment had
alleged the different occasions element of ACCA and if [the defendant] had been correctly
advised at his plea hearing that he was entitled to have a jury resolve that issue unanimously

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and beyond a reasonable doubt,” the defendant “would have nonetheless waived that right
and admitted as part of his guilty plea that his prior offenses were committed on different
occasions.” Id. at 97 (citation modified).
In concluding that the Erlinger error in Brown was harmless, we noted that “Brown
chose to plead guilty to the firearm-possession offense after having been twice informed
that ACCA’s mandatory minimum of 15 years and its maximum of life would apply if the
judge found its requirements satisfied.” Id. at 98. And though Brown raised the different
occasions issue at sentencing, he did not seek to withdraw his guilty plea. Id. Moreover,
Brown did not contest the accuracy of his presentence report (PSR), even though the facts
alleged therein provided the basis for the district court’s different occasions finding. Id.
Davis’s case is analogous to Brown. First, at the plea hearing, Davis was
informed—and indicated that he understood—that he could be subject to the ACCA’s
enhanced penalties. Second, Davis did not challenge the ACCA enhancement at
sentencing, and he never sought to withdraw his plea. And third, Davis did not dispute the
accuracy of the PSR as it related to the ACCA enhancement.
Finally, in Brown, we recognized an inverse relationship between the strength of the
evidence supporting the ACCA enhancement and the likelihood that a defendant would
forgo the benefits of pleading guilty for the opportunity to have a jury decide the different
occasions issue. 136 F.4th at 99. There, the evidence supporting Brown’s ACCA
enhancement was exceptionally strong. Id. at 98. Thus, “given that the possibility of a
favorable verdict on the ‘different occasions’ issue would have been so exceedingly remote

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as to be practically irrelevant, we [could not] fathom that Brown would have traded the
benefit of pleading guilty for such long odds.” Id. at 99.
So too here. “[T]he word ‘occasion’ in ACCA should be given its ‘ordinary
meaning’—that is, ‘essentially an episode or event.’” Id. (quoting Wooden v. United
States, 595 U.S. 360, 366 (2022)). Davis’s prior offenses took place months apart, in
March 2010, September 2010, and March 2012, and he stipulated to committing ACCA-
qualifying offenses. In our view, this evidence leaves “no doubt that [Davis] would have
pleaded guilty if the indictment had alleged that he committed his prior [violent felonies]
on three different occasions and if he had been informed that he was entitled to have a jury
find that fact beyond a reasonable doubt.” Id. We therefore conclude that the Erlinger
error in this case is harmless.
In accordance with Anders, we have reviewed the entire record in this case and have
found no meritorious grounds for appeal. We therefore affirm the district court’s judgment.
This court requires that counsel inform Davis, in writing, of the right to petition the
Supreme Court of the United States for further review. If Davis requests that a petition be
filed, but counsel believes that such a petition would be frivolous, then counsel may move
in this court for leave to withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Davis.
We dispense with oral argument because the facts and legal contentions are
adequately presented in the materials before this court and argument would not aid the
decisional process.
AFFIRMED

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