United States of America v. Jermaine Kimbrough

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0136p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JERMAINE KIMBROUGH,
Defendant-Appellant.
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No. 23-5529
Appeal from the United States District Court for the Western District of Tennessee at Memphis.
No. 2:22-cr-20206-1—Thomas L. Parker, District Judge.
Decided and Filed: May 21, 2025
Before: GILMAN, READLER, and BLOOMEKATZ, Circuit Judges.
_________________
COUNSEL
ON BRIEF: J. Everett Hoagland, FEDERAL PUBLIC DEFENDER’S OFFICE, Memphis,
Tennessee, for Appellant. Karen Hartridge, UNITED STATES ATTORNEY’S OFFICE,
Memphis, Tennessee, for Appellee.
GILMAN, J., delivered the opinion of the court in which BLOOMEKATZ, J., concurred.
READLER, J. (pp. 10–22), delivered a separate opinion concurring in part and dissenting in part.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Jermaine Kimbrough pleaded guilty in 2022 to
four criminal offenses that involved carjacking and firearms. At sentencing, the district court
determined that Kimbrough had committed three prior violent felonies “on occasions different
>

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from one another,” which made him subject to an enhanced sentence under the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).
The Supreme Court subsequently held in Erlinger v. United States, 602 U.S. 821, 835
(2024), that error occurs when a judge, instead of a jury, makes the “occasions” decision. We
review that decision to determine if the error was harmless. See United States v. Campbell, 122
F.4th 624, 629–31 (6th Cir. 2024). Because the error was not harmless in the present case, we
VACATE Kimbrough’s sentence on Counts One, Two, and Four and REMAND for further
proceedings consistent with this opinion.
I. BACKGROUND
Kimbrough pleaded guilty to the following offenses: (1) conspiracy to commit
carjacking (Count One), in violation of 18 U.S.C. § 371; (2) carjacking (Count Two), in violation
of 18 U.S.C. § 2119(1); (3) using, carrying, and brandishing a firearm during and in relation to a
crime of violence (Count Three), in violation of 18 U.S.C. § 924(c); and (4) being a felon in
possession of a firearm (Count Four), in violation of 18 U.S.C. § 922(g)(1). Kimbrough
committed all of these offenses in July 2021. The offense of being a felon in possession of a
firearm carried a maximum penalty of 10 years’ imprisonment at that time. 18 U.S.C.
§ 924(a)(2) (2018). But under the ACCA, a defendant convicted of a felon-in-possession offense
under 18 U.S.C. § 922(g) who “has three previous convictions . . . for a violent felony or a
serious drug offense, or both, committed on occasions different from one another,” is subject to a
minimum sentence of 15 years’ imprisonment. 18 U.S.C. § 924(e)(1). An ACCA designation
would therefore increase Kimbrough’s statutory penalty range for Count Four from a maximum
of 10 years to a minimum of 15 years.
The Presentence Report (PSR) recommended treating Kimbrough as an armed career
criminal under the ACCA. Kimbrough’s allegedly qualifying convictions were three Tennessee
convictions for aggravated burglary, one in 2012 and two in 2016. The two 2016 convictions are
the focus of this appeal.
During sentencing proceedings, Kimbrough objected to his designation as an armed
career criminal. He argued that, pursuant to Wooden v. United States, 595 U.S. 360 (2022), a

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jury should make the determination of whether his two 2016 aggravated-burglary offenses
occurred on the same “occasion.” Kimbrough further argued that the government would be
unable to establish that the occasions were different. Even so, the district court held that it,
instead of a jury, would make that determination based on then-controlling Sixth Circuit
precedent. The court subsequently ruled that the two 2016 burglaries took place on different
occasions, thereby overruling Kimbrough’s objection to the application of the ACCA
enhancement.
In the PSR, for Guidelines-calculation purposes, Counts One, Two, and Four were
grouped together. The district court also grouped these counts for sentencing purposes.
According to the PSR, the Guidelines range for this group of counts was 180–188 months of
imprisonment. The court then granted Kimbrough a downward sentencing departure on these
three counts to 148 months, to be served concurrently. An addendum to the PSR explained that,
without the ACCA enhancement, the Guidelines range for this group of counts would have been
84–105 months. Finally, the court sentenced Kimbrough to 84 months on Count Three, to be
served consecutively to the 148 months on the other three counts.
Kimbrough timely appealed his sentence. We held his appeal in abeyance pending the
Supreme Court’s decision in Erlinger. After the Erlinger decision was issued, the parties filed
supplemental briefing on the “occasions” issue.
II. ANALYSIS
A. Standard of review
The ACCA’s “occasions” clause asks whether the defendant “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). In Wooden, the Supreme Court explained
that the occasions inquiry is “multi-factored” in nature, and that “a range of circumstances may
be relevant to identifying episodes of criminal activity.” Wooden, 595 U.S. at 369. This court
has recognized that the relevant Wooden factors include:

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• Timing. Offenses committed close in time, in an uninterrupted course of
conduct, will often count as part of one occasion; not so offenses separated by
substantial gaps in time or significant intervening events.
• Proximity of location. The further away crimes take place, the less likely they
are components of the same criminal event.
• Character and relationship of the offenses. The more similar or intertwined
the conduct giving rise to the offenses—the more, for example, they share a
common scheme or purpose—the more apt they are to compose one occasion.
United States v. Cogdill, 130 F.4th 523, 528 (6th Cir. 2025) (cleaned up). Applying these
factors, Wooden held that the defendant in that case “burglarized ten storage units on a single
occasion.” 595 U.S. at 370. The ACCA sentencing enhancement for multiple occasions was
therefore determined to be inapplicable. Id. at 376.
Two years after Wooden, the Supreme Court decided Erlinger v. United States, 602 U.S.
821 (2024). The Court held that error occurred when the district judge, instead of a jury, decided
whether the defendant’s prior offenses (four burglaries of different establishments that the
defendant committed over a span of several days) were committed on different occasions for
ACCA purposes. Id. at 826, 835.
After Erlinger, this court held that such an error is not structural, meaning that we must
review the error to determine if it was harmless. See United States v. Campbell, 122 F.4th 624,
630–31 (6th Cir. 2024). Thoughtful jurists, including members of this court, have questioned
whether Campbell “contravenes the Supreme Court’s holding in Erlinger.” See Cogdill, 130
F.4th at 535 (Clay, J., dissenting); see also Campbell, 122 F.4th at 636–37 (Davis, J.,
concurring). But “Campbell is binding precedent and now controls.” Cogdill, 130 F.4th at 527
(majority opinion).
We must therefore make the case-specific determination of whether the Erlinger error
here was harmless. To establish that the error was harmless, the government must 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.” See id. at 528 (internal quotation marks omitted).

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B. Erlinger harmless-error analysis
Kimbrough does not dispute that his 2012 aggravated-burglary offense was committed on
a different occasion from his other prior offenses. Our focus is therefore on whether
Kimbrough’s two 2016 aggravated burglaries took place on different occasions. Under Wooden,
we must look at the timing, the proximity of location, and the character and relationship of these
offenses. See Wooden, 595 U.S. at 369.
Three of this court’s published cases have applied harmless-error review to the “separate
occasions” inquiry. See Campbell, 122 F.4th at 631–32; Cogdill, 130 F.4th at 529–30; and
United States v. Robinson, 133 F.4th 712, 723 (6th Cir. 2025). In Cogdill, the record indicated
that the defendant’s predicate drug-distribution offenses occurred “in the same county,” but did
not provide more information on their geographical proximity. Cogdill, 130 F.4th at 529. “For
all we know, Cogdill committed these methamphetamine offenses in the exact same place.” Id.
Nor did the record shed light on the “character and relationship of the offenses” beyond noting
that both predicates involved selling methamphetamine, and that the defendant was convicted of
both offenses on the same date. Id. The court noted that it was “certainly possible” that the
drugs involved in the two offenses “came from the same source.” Id. As to timing, the
defendant’s predicate offenses took place three months apart. Id. at 529–30. This court held that
a reasonable jury could conclude that the defendant’s predicate offenses occurred on the same
occasion for ACCA purposes. Id. at 530.
On the other hand, both Campbell and Robinson held that a district court’s Erlinger error
was harmless. In Campbell, which preceded Cogdill, the government presented “overwhelming
evidence” that the defendant’s prior drug offenses occurred almost eight hundred miles and, in
total, over six months apart. Campbell, 122 F.4th at 627, 632. Also, the record showed that the
predicate distribution offenses involved the sales of different drugs. Id. at 632. Based on those
facts, this court held that the government had proven beyond a reasonable doubt that a jury
would have found that the predicate drug offenses occurred on different occasions. Id.
Likewise, in Robinson, the “undisputed” proof showed that the defendant’s predicate drug
offenses involved different drugs and occurred nearly three years apart. 133 F.4th at 724. And

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Robinson had been punished and sentenced for the first drug offense before committing the
second one. This court accordingly held that the district court’s Erlinger error was harmless. Id.
Kimbrough’s case is closer to Cogdill than to Campbell and Robinson. A jury could
reasonably find that the two burglaries in 2016 were part of a single “criminal event.” See
Wooden, 595 U.S. at 369. The two burglaries took place within close proximity (roughly 2.3
miles) of each other. This close proximity increases the likelihood that the burglaries were
“components of the same criminal event.” See id. As to the “character and relationship of the
offenses,” a reasonable jury could find that the two 2016 burglaries were “similar or intertwined”
and “share[d] a common scheme or purpose.” See id. These facts could lead a reasonable jury to
conclude that the burglaries were committed by the same individuals, using the same modus
operandi—breaking into homes through windows when people were not home and driving away
in the same stolen vehicle. And tellingly, Kimbrough’s accomplice told the police: “Y’all have
us for at least seven . . . I know.”
Finally, the record is unclear as to exactly when in 2016 the two burglaries occurred.
Some documents suggest that the first burglary was reported on March 17, 2016, while others
state that it was committed on that date. As to the second burglary, the record shows only that it
was reported on March 26, 2016, with no indication of when it was committed. Vacationers or
business travelers might not immediately discover and report the burglary of their residence.
See, e.g., Pittman v. State Farm Fire & Cas. Co., 662 F. App’x 873, 875 (11th Cir. 2016) (per
curiam); United States v. Guenther, 470 F.3d 745, 746 (8th Cir. 2006). And even if the
burglaries were committed nine days apart, that would not necessarily establish beyond a
reasonable doubt that they constituted “separate occasions.” To the contrary, Erlinger held that
“no particular lapse of time . . . automatically separates a single occasion from distinct ones.”
602 U.S. at 841 (citing Wooden, 595 U.S. at 369–70). This court, moreover, has held that “a gap
in time between offenses—even one as long as three months—” does not necessarily establish
that the offenses occurred on different occasions. Cogdill, 130 F.4th at 530.
A jury could therefore reasonably find that Kimbrough’s two burglaries in 2016 were part
of an “uninterrupted course of conduct,” and thus “part of one occasion,” despite occurring nine
days apart. See Wooden, 595 U.S. at 369. In addition to these two burglaries, which were

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reported on March 17th and March 26th, Kimbrough was accused of committing several similar
offenses in the same area around the same time: a theft on March 7th, an attempted burglary on
March 12th, a burglary on March 16th, and an attempted burglary on March 24th. He was
arrested for all of these offenses on March 26, 2016. There were no intervening arrests or other
“significant intervening events.” See id.
Kimbrough pleaded guilty to both of the burglaries in question on the same date, and the
sentences ran concurrently. See Cogdill, 130 F.4th at 529 (emphasizing that “[n]o one arrested
Cogdill between the June offense and the September offense, and he ultimately was convicted of
both offenses on the same date”). In its analysis of whether Kimbrough’s burglaries occurred on
different occasions, the district court itself noted that Kimbrough appeared to have been “on a
spree for a while.”
The government has the burden to prove beyond a reasonable doubt that a jury would
find that Kimbrough’s offenses occurred on different occasions. Here, the record leaves
reasonable doubt about whether a rational jury, properly instructed under Wooden and Erlinger,
would have found that Kimbrough committed the two 2016 burglaries in question on different
occasions. See Cogdill, 130 F.4th at 530. A jury could reasonably find that these offenses were
committed “during a single criminal episode.” Erlinger, 602 U.S at 835. The government has
therefore not satisfied its harmless-error burden.
Kimbrough’s sentence was impacted by the ACCA enhancement. The district court
grouped Counts One, Two, and Four together. Under the Sentencing Guidelines, Count Four—
being a felon in possession of a firearm—dictated the sentencing range for the grouped counts.
U.S.S.G. §§ 3D1.3(a), 2K2.1. And the statutory maximum for Count Four was 120 months of
imprisonment. 18 U.S.C. § 924(a)(2) (2018). Yet the district court sentenced Kimbrough to 148
months of imprisonment on each count, to be served concurrently. Without the ACCA
enhancement, the Guidelines range for this group of counts would have been 84–105 months.
The ACCA enhancement thus raised the sentence for Kimbrough’s felon-in-possession offense
over the statutory maximum.

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Sentencing on grouped Counts One and Two might also have been affected by the
ACCA enhancement. When we review a sentencing error for harmlessness, our question is not
whether the district court could have imposed the same total sentence without the constitutional
violation. It is whether the government has shown us “with certainty” that the court would have
done so. United States v. Alvarado, 95 F.4th 1047, 1056 (6th Cir. 2024) (citations omitted). If
not, we must remand for resentencing. Id. The government has not met that burden here. The
sentencing transcripts and the PSR contain no indication that the court would have sentenced
Kimbrough to 148 months of imprisonment for Counts One and Two if not for the enhancement
to Kimbrough’s grouped § 922(g)(1) sentence.
Kimbrough properly preserved this argument by noting in his briefing that “[t]he ACCA
drove [his] guidelines range,” so “his sentence reflects the imposition of the ACCA penalty.”
Moreover, the parties agree that this case involved a sentencing error. This means that the
government has the burden to prove that the error was harmless—Kimbrough does not have the
burden to prove the opposite. See id. We will therefore vacate Kimbrough’s sentence on Counts
One, Two, and Four and remand for resentencing.
C. Count One’s statutory maximum
Another reason that Count One must be remanded for resentencing is that the sentence
exceeded the statutory maximum for that count. The statutory maximum sentence for conspiracy
to commit carjacking is 60 months. See 18 U.S.C. § 371. Accordingly, the PSR recommended a
sentence of 60 months for Count One. But the district court sentenced Kimbrough to 148
months on Counts One, Two, and Four, to be served concurrently, which exceeded the statutory
maximum sentence for Count One. The parties agree that this provides an independent reason to
vacate Kimbrough’s sentence for Count One and remand for resentencing.
D. Double jeopardy
We now turn to Kimbrough’s Double-Jeopardy argument. In his supplemental brief,
Kimbrough argues for the first time that, following Erlinger, the Double Jeopardy Clause bars
the government from seeking an ACCA enhancement based on his § 922(g)(1) offense of being a
felon in possession of a firearm. Generally speaking, sentencing enhancements do not count as

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additional “offenses” that create “new jeopardy.” Monge v. California, 524 U.S. 721, 728 (1998)
(citations omitted). But Kimbrough argues that, until Erlinger, the ACCA enhancement under
18 U.S.C. § 924(e) was just that—an enhancement—rather than a separate “offense.” With
Erlinger now the law, he contends that § 922(g)(1) is a lesser-included offense of § 924(e). If
this is correct, then Kimbrough could not have made a Double-Jeopardy argument until the
Supreme Court issued Erlinger. We do not fault Kimbrough “for failing to raise an argument
before there was legitimate legal support for” it. See Planned Parenthood Cincinnati Region v.
Taft, 444 F.3d 502, 516 (6th Cir. 2006). In sum, Kimbrough has not forfeited his
Double-Jeopardy argument.
But “[l]ike the Supreme Court, we are a court of review, not first view,” Cogdill, 130
F.4th at 532 (quoting United States v. Houston, 792 F.3d 663, 669 (6th Cir. 2015)). We will
therefore follow Cogdill in leaving the merits of the Double-Jeopardy issue to the district court to
address in the first instance if the government seeks an ACCA-enhanced sentence on remand.
See id.
III. CONCLUSION
For all the reasons set forth above, we VACATE Kimbrough’s sentence on Counts One,
Two, and Four and REMAND for further proceedings consistent with this opinion.

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_____________________________
CONCURRENCE / DISSENT
_____________________________
CHAD A. READLER, Circuit Judge, concurring in part and dissenting in part. Can
crimes committed nine days apart ever occur on the same “occasion”? Consult a dictionary
definition of the term, and the answer is surely no. See Occasion, American Heritage Dictionary
859 (2d college ed. 1982) (“An event or happening; incident.”); Occasion, Webster’s Third New
International Dictionary 1560 (1986) (“Happening, incident.”). Consult the proverbial woman
on the street, and the answer is assuredly the same. See, e.g., The Office: Fun Run, NBC, pt. 1, at
16:54 (television broadcast Sept. 27, 2007) (“Intern: ‘It also says you were recently bitten by a
raccoon?’ Meredith: ‘And a rat. Separate occasions.’”). Were there any doubt on this score,
consider that the crimes at issue here, in addition to being detached by more than a week, also
targeted different victims, and took place miles apart. Taking all of this together, it is beyond the
realm of reasonable disagreement to say that these crimes occurred on the same “occasion,” as
that term is used in the Armed Career Criminal Act. For these straightforward reasons, I would
affirm the district court’s similar assessment. I would vacate and remand only the sentence for
Jermaine Kimbrough’s conspiracy to commit carjacking.
I.
In ten years, Kimbrough racked up twenty-two criminal convictions. They span an array
of wrongdoing—vandalism, indecent exposure, and aggravated animal cruelty, to name a few.
They include various completed and attempted burglaries. And they likewise include a felon-in-
possession offense, the charge underlying today’s prosecution. See 18 U.S.C. § 922(g)(1). That
latter offense has potentially serious consequence for Kimbrough: under ACCA, a defendant
who is convicted of being a felon in possession of a firearm under § 922(g)(1) and who “has
three previous convictions . . . for a violent felony or a serious drug offense, or both, committed
on occasions different from one another,” is subject to a minimum sentence of fifteen years’
imprisonment. Id. § 924(e)(1). The district court deemed three of Kimbrough’s earlier

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convictions, all aggravated home burglaries (one from 2012 and two from 2016), sufficient to
label Kimbrough an “armed career criminal.”
A. All agree that the 2012 aggravated burglary conviction qualifies as an ACCA
predicate offense. Kimbrough’s ACCA predicate-offense count thus starts at one. If his 2016
aggravated burglaries occurred on “occasions different from one another,” id., they too count as
separate violent felonies for ACCA purposes, giving Kimbrough three qualifying offenses. And
if every rational jury would agree on that point, the district court’s Sixth Amendment error (in
not having a jury determine whether those crimes occurred on different occasions) was harmless,
see Erlinger v. United States, 144 S. Ct. 1840 (2024); United States v. Campbell, 122 F.4th 624,
630–31 (6th Cir. 2024), meaning Kimbrough’s sentence must be affirmed.
1. That Kimbrough’s 2016 burglaries were committed on different occasions is not a
difficult conclusion to reach. Start with the fact that the burglaries were reported nine days apart
from each other. This temporal difference alone suffices to find different occasions. See
Wooden v. United States, 142 S. Ct. 1063, 1071 (2022) (“In many cases, a single factor—
especially of time or place—can decisively differentiate occasions.”); id. at 1078 (Barrett, J.,
concurring in part and concurring in the judgment) (noting how “proximity in time and location”
are “the most important indicators”). As the Supreme Court explained in Wooden v. United
States, an occasion is an “event, occurrence, happening, or episode,” in other words, a set of
“activities” that, even if “temporally distinct” in some respect, are nevertheless so “proximate in
time” that they form a single “episode.” Id. at 1069 (majority opinion). Put another way,
“temporally discrete offenses” qualify as one occasion if they are based on “acts” that either
occur all “at once” (i.e., “during” the same time) or “succeed one another” (i.e., “just after” each
other). Id. at 1070; see also id. at 1078 (Barrett, J., concurring in part and concurring in the
judgment) (agreeing that acts “committed sequentially,” such as those in Wooden’s single-
evening “spree,” “happen on the same ‘occasion’” when they constitute “close-in-time crimes”).
The Supreme Court treated the ten burglary offenses at issue there as having occurred on one
occasion because the offenses took place successively, over an evening. Id. at 1067 (majority
opinion). But given the inherently limited duration of an “occasion,” courts “have nearly always
treated offenses as occurring on separate occasions if a person committed them a day or more

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apart.” Id. at 1071; see also id. at 1078–79 (Barrett, J., concurring in part and concurring in the
judgment) (“Take a case involving three drug sales that occurred at 8 o’clock on three
consecutive evenings at three different locations. Applying the ordinary meaning of the text
seems straightforward enough: The three offenses are separate occasions because they occurred a
day apart and at different locations, notwithstanding the similarity of the crimes.”). A nine-day
gap, it thus should be easy to see, clears that low threshold. See United States v. Stowell, 82
F.4th 607, 610 (8th Cir. 2023) (en banc) (deeming would-be Erlinger error harmless because
defendant committed his offenses three days apart).
Wooden’s example of a wedding confirms the point. While a wedding often
“encompasses multiple, temporally distinct activities,” it is customarily deemed a single
occasion. Wooden, 142 S. Ct. at 1069–70. Yet even that relatively elaborate occasion typically
occurs over the course of an afternoon and evening, not nine days. By that point, the newlyweds
have already enjoyed their honeymoon and returned to work. Under any fair reading of the term
“occasion,” in other words, the lengthy gap between Kimbrough’s crimes is enough to deem
those illegalities to have occurred on separate occasions.
More difficult cases may abound, especially where crimes are separated by an hour or
less. Imagine, for example, a situation in which a defendant “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?” Id. at 1080 (Gorsuch, J., concurring in the judgment); see also id.
(“[W]hat if our hypothetical defendant assaults one victim inside the bar and another 20 minutes
later in the street outside, in part because the second victim called the police?”). Tougher to say.
On the one hand, “[o]ffenses committed close in time, in an uninterrupted course of conduct, will
often count as part of one occasion.” Id. at 1071 (majority opinion) (emphasis added). Yet on
the other, saying as much implies that, in the right (albeit rare) circumstances, even events that
are “close in time” and “uninterrupted,” id., could break across multiple occasions. Perhaps the
lapse of merely an hour or two might lead to a difficult occasions analysis, as Justice Gorsuch’s
separate writing theorizes. But nine days? No opinion in Wooden even hints that events
“[]interrupted” by an over week-long hiatus could constitute a single occasion. Id.

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If there is any lingering doubt on that score, consider two other aspects of Kimbrough’s
burglary offenses. One, a 2.5-mile drive (or 2.3 miles as the crow, but not Kimbrough, flies)
separated the homes burglarized by Kimbrough. This too indicates that the crimes were
committed on different occasions. See, e.g., United States v. Jenkins, 770 F.3d 507, 509–10 (6th
Cir. 2014) (finding different occasions for robberies committed on same day separated “by one
to two miles apiece”); United States v. Perez, 477 F. App’x 337, 342–43 (6th Cir. 2012) (same
for burglaries in a single night separated by 1.5 miles); United States v. Elliott, 703 F.3d 378, 387
(7th Cir. 2012) (collecting similar cases). Two, the burglaries involved unrelated victims. That
reality further confirms that Kimbrough’s offenses occurred on different occasions. See, e.g.,
Mitchell v. United States, 43 F.4th 608, 616 (6th Cir. 2022) (finding different occasions for
crimes involving “different victims”); United States v. Hennessee, 932 F.3d 437, 445 (6th Cir.
2019) (same); Jenkins, 770 F.3d at 510 (same). On this record, no “rational jury” could reach a
different conclusion than that of the district court. Neder v. United States, 527 U.S. 1, 18 (1999);
see, e.g., United States v. Brady, 988 F.2d 664, 669 (6th Cir. 1993) (en banc) (finding different
occasions because defendant “committed crimes against different victims at different places and
at distinctly different times”).
2. Our recent decision in United States v. Cogdill, 130 F.4th 523 (6th Cir. 2025), does
not say otherwise. As a starting point, Cogdill is exceedingly difficult to reconcile with Wooden.
Cogdill held that methamphetamine dealing separated by over three months could reflect the
same occasion. See id. at 529–30. Yet in Wooden, every Justice took it for granted that a day’s
time would typically suffice for two events to have occurred on different occasions. See, e.g.,
Wooden, 142 S. Ct. at 1071; id. at 1079 (Barrett, J., concurring in part and concurring in the
judgment). Again, Justice Gorsuch, who would go on to author Erlinger, offered the following
“hard” hypotheticals: selling drugs at the same street corner one hour apart, assaulting someone
outside a bar just twenty minutes after doing the same in the premises, and assaulting a pursuing
police officer after committing a robbery or burglary. Id. at 1080–81 (Gorsuch, J., concurring in
the judgment). Drug deals a season apart land nowhere near the realm of fair debate.
To reach its unusual outcome, Cogdill had to rewrite the Wooden framework. Wooden
emphasized that among the relevant considerations in the separate occasions analysis, “[t]iming

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of course matters.” Wooden, 142 S. Ct. at 1071. “[T]he character and relationship of the
offenses,” by comparison, merely “may make a difference.” Id.; see also id. at 1078 (Barrett, J.,
concurring in part and concurring in the judgment). Yet Cogdill flipped these metrics,
emphasizing the similarity of the defendant’s predicate offenses while barely mentioning the vast
temporal separation between them. See Cogdill, 130 F.4th at 529–30. Wholly discounting prior
offenses simply because they reflect similar (or even the same) forms of misconduct distorts
Wooden and defangs ACCA, which, remember, “is concerned with recidivism[],” Brown v.
United States, 144 S. Ct. 1195, 1205 n.4 (2024), conduct that by definition often repeats itself.
In the end, Cogdill transforms ACCA from a question of repetition to a question of novelty, an
approach at odds not only with ACCA’s text and Wooden, but also common sense.
Making matters worse is Cogdill’s consultation of a single jury verdict to validate its
reading of ACCA’s occasions clause. Cogdill, 130 F.4th at 530 (discussing United States v.
Willis, No. 21-cr-548, 2025 WL 304623 (E.D. Mo. July 16, 2024)). As a starting point, looking
to this verdict for guidance conflates a factual question—what an actual jury has done—with a
legal one—what a rational jury could do. Consider, for example, how reasoning like Cogdill’s
would affect sufficiency-of-the-evidence claims. There, we ask the criminal defendant to make a
legal showing: “that no rational jury could have found the essential elements of [his crime]
beyond a reasonable doubt.” United States v. Wheat, 988 F.3d 299, 306 (6th Cir. 2021)
(emphasis added). Yet such a claim arises only when an actual jury has, in fact, already made
those findings. See id. Under Cogdill’s logic, the government could defeat every sufficiency
challenge by simply pointing to the verdict itself as per se proof that a rational jury could
convict. Put differently, Cogdill assumed what it set out to prove—that a jury finding like the
one made in Willis was rational.
Equally true, in answering legal questions like this one, we typically do not elevate the
factfinding of twelve laymen in Missouri over the Supreme Court’s statutory interpretation. See
Wooden, 142 S. Ct. at 1071. Nor, for that matter, do we ignore prior decisions of our own Court.
On that point, it bears noting that in Campbell, which predated Cogdill, we declined to rely on
that very same jury verdict, explaining that it at most reflected “only a theoretical possibility of
acquittal” insufficient “to defeat demonstrated harmless error.” Id. at 633; see also Appellant’s

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Suppl. Br. in Supp. of Pet. for Reh’g En Banc or Panel Reh’g at 13, Campbell, 122 F.4th 624
(No. 22-5567), ECF No. 56 (discussing Willis at length). So too here.
In any event, Cogdill is readily distinguishable. ACCA’s “occasions” analysis is
understandably fact-intensive. See Wooden, 142 S. Ct. at 1070–71. And Cogdill is nothing like
this case. There, the predicate offenses could have occurred “in the exact same place.” Cogdill,
130 F.4th at 529. Not so here, where the length of Central Park spans the divide between
Kimbrough’s burglaries. Likewise, Cogdill involved a potentially ongoing criminal business,
namely, dealing methamphetamine. Id. at 526. Tennessee aggravated burglary, on the other
hand, involves discrete conduct that terminates, at the latest, when the offender exits the
burglarized habitation. See Tenn. Code Ann. §§ 39-13-1002(a), 39-13-1003(a). In the end, the
“possibility” that a rational jury could unearth a ninety-five-day “occasion” in Cogdill, does not
mean that the jury would replicate that discovery in every case involving a similar or shorter time
span. Cogdill, 130 F.4th at 531. Again, Wooden expressly endorsed a “multi-factored”
balancing test over any bright-line rules. Wooden, 142 S. Ct. at 1070.
B. In seeing the possibility that Kimbrough’s crimes occurred on a single occasion, the
majority opinion rests on a creative reading of the record. It first speculates that because
Kimbrough’s burglaries were reported nine days apart from each other, he could have committed
them within a far shorter span of time. Maj. Op. at 6. That is difficult to believe. Who, after all,
would not discover and immediately report the burglary of their residence? Nor would most
neighbors or passersby wait nine days to investigate a shattered window at a nearby home. In the
end, instead of “bend[ing] over backwards” to overanalyze the presentence report, as the district
court properly refrained from doing, R. 118, PageID#493, we should reach the commonsense
conclusion, as would a rational jury, that Kimbrough committed the burglaries nine days apart,
see Sixth Cir. Comm. on Pattern Crim. Jury Instructions, Pattern Criminal Jury Instructions
§ 1.03(4) (2024 ed.) (“Possible doubt or doubts based purely on speculation are not reasonable
doubts. A reasonable doubt is a doubt based on reason and common sense.”).
Doing otherwise, the majority opinion speculates that Kimbrough’s victim was
vacationing or on business travel at the point his home was vandalized, leading to a delay of
roughly nine days in reporting the offense. Maj. Op. at 6. The two cases it digs up to validate

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this supposition? In one, the prime theory of the burglary was that the homeowner himself
participated in it to defraud his insurer. See Pittman v. State Farm Fire & Cas. Co., 662 F.
App’x 873, 875–77 (11th Cir. 2016) (per curiam). No wonder, then, that there may have been
some discrepancy in the date of the purported break-in. And in the other, the burglar entered a
rural residence by denting its backdoor while the homeowner was away for, at most, two days.
Trial Tr., vol. 1, at 165, 170, 286, Guenther v. United States, No. 4-476 (D. Minn. June 9, 2008),
ECF No. 57. Support like this gives analogy a bad name.
The majority opinion also fashions Kimbrough’s two 2016 burglaries into one occasion
because, to its mind, no “significant intervening events” transpired during the nine-day interlude.
Maj. Op. at 6–7. I can think of many. For instance, between those crimes, Kimbrough tried to
burglarize yet another residence. He also would have needed to sleep and eat—and, of course, to
travel at least 2.5 miles. True, as the majority opinion notes, Kimbrough was not arrested during
that duration. Id. at 7. Yet, happily, there is more to a defendant’s life than his arrests. See, e.g.,
Wooden, 142 S. Ct. at 1081 (Gorsuch, J., concurring in the judgment) (explaining how
defendant’s decision to burglarize each storage unit “presented a kind of intervening event”).
Even then, different occasions exist when “offenses [are] separated by substantial gaps in time or
significant intervening events.” Id. at 1071 (majority opinion) (emphasis added). As just
explained, nine days suffice for the first half of this disjunctive.
No further availing is the majority opinion’s conclusion that Kimbrough’s burglaries
arguably reflect a “common scheme or purpose.” As Wooden makes clear, this is the least
significant factor in the ACCA analysis. See, e.g., id. (“In many cases, a single factor—
especially of time or place—can decisively differentiate occasions.”); id. at 1078 (Barrett, J.,
concurring in part and concurring in the judgment) (“[T]he most important indicators of whether
crimes occurred on a single ‘occasion’—proximity in time and location—will matter most
. . . .”). It likewise has little bearing here. Both burglaries, I recognize, feature a broken window.
See Maj. Op. at 6. Of course, forced entry characterizes two-thirds of all Tennessee burglaries.
Property Crime 2023, Tennessee Crime Stats, https://perma.cc/D453-K68K (last visited Apr. 7,
2025). The majority opinion next surmises (without record support) that Kimbrough left each
crime in a Ford F-150. Maj. Op. at 6. Setting aside the fact that no vehicle is more common on

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American roads, see John Seabrook, Green Giants, New Yorker, Jan. 31, 2022, at 41, for legal
purposes it bears remembering that Tennessee burglary is complete upon entering a property, see
State v. Ralph, 6 S.W.3d 251, 255 (Tenn. 1999). As a result, the presumed getaway vehicle
holds no relevance to the crime’s scheme or purpose.
All told, the purported intertwinement between Kimbrough’s offenses rests solely on the
fact that both were aggravated burglaries that “involved break-ins into homes.” United States v.
Curtis, No. 18-4907, 2024 WL 1281335, at *6 (4th Cir. Mar. 26, 2024). Yet that “is not, in and
of itself, enough to constitute a common scheme or purpose.” Id.; see also United States v.
Robinson, 133 F.4th 712, 724–25 (6th Cir. 2025) (deeming Erlinger error harmless despite two
predicate offenses being possession with intent to sell drugs); United States v. Sain, No. 22-6131,
2025 WL 801366, at *2 (6th Cir. Mar. 13, 2025) (per curiam) (same for multiple burglary
predicates). Concluding as much, as does the majority opinion, disregards Wooden’s analysis on
this point. Recall the wedding example. Id. at 1069–70. The “ceremony, cocktail hour, dinner,
and dancing” together formed “a single event” because each had the “shared theme” of
“celebrating the happy couple.” Id. at 1069 (emphasis added). But suppose you attend weddings
of two different couples, one at the Potter Stewart Courthouse in downtown Cincinnati, and the
other a week later and two miles away, across the Ohio River at the Covington Cathedral
Basilica. Would anyone say you attended those weddings on the same “occasion” just because
each had the “shared theme” of “celebrating” a “happy couple”? See id. Of course not. Would
that conclusion change simply because you wore the same attire to each wedding, took the same
date, and called an Uber at the end of each night? Again, no. If unrelated burglaries distanced
by more time and space than these two weddings qualify as the same occasion simply because
they share superficial similarities, one wonders how we could ever deem an Erlinger error
harmless. See Krzeminski v. Perini, 614 F.2d 121, 125 (6th Cir. 1980) (Keith, J.) (noting how
the possibility of “an irrational jury” does not suffice to deem an error harmful).
* * *
Stepping back, it bears reminding that “the term [occasion] in ACCA has just its ordinary
meaning,” so much so that “most cases should involve no extra-ordinary work.” Wooden, 142 S.
Ct. at 1071. In that respect, the nine-day gap between Kimbrough’s offenses against unrelated

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victims 2.5 miles apart makes the occasions analysis here about as straightforward as it comes.
Tellingly, it takes a heavy lift to reach the majority opinion’s contrary conclusion. Doing so
renders an easy case oddly difficult and, in the end, wrong.
All of this makes one wonder whether the majority opinion, at bottom, simply rejects our
binding decision in Campbell without expressly saying so. That may explain why the majority
opinion goes out of its way to praise the “[t]houghtful jurists” who have previously questioned
Campbell’s holding that Erlinger errors are not structural. Maj. Op. at 4. Of course, those
thoughtful jurists, at least in this Circuit, amount to just one. See Cogdill, 130 F.4th at 532 (Clay,
J., dissenting). The other cited jurist, it bears noting, “agree[d] with and join[ed] the [Campbell]
majority’s opinion,” concurring separately simply to address the scope of what can be considered
for the harmlessness analysis. Campbell, 122 F.4th at 635 (Davis, J., concurring). And more
broadly, every circuit to consider the issue has likewise agreed with Campbell’s plain reading of
Supreme Court precedent. See United States v. Saunders, No. 23-6735, 2024 WL 4533359, at *2
(2d Cir. Oct. 21, 2024) (reviewing, unanimously, Erlinger error for harmlessness); United States
v. Brown, --- F.4th ----, No. 21-4253, 2025 WL 1232493, at *5 (4th Cir. Apr. 29, 2025) (same);
United States v. Butler, 122 F.4th 584, 589 (5th Cir. 2024) (same); United States v. Johnson, 114
F.4th 913, 917 (7th Cir. 2024) (same); United States v. Robinson, No. 23-3438, 2024 WL
4448849, at *1 (8th Cir. Oct. 8, 2024) (per curiam) (same); United States v. Rivers, 134 F.4th
1292, 1305–06 (11th Cir. 2025) (same); see also United States v. Trahan, 111 F.4th 185, 197–98
(1st Cir. 2024) (reviewing Alleyne challenge for harmlessness while favorably citing calls from
four Justices to apply such review to Erlinger errors). If the majority opinion is quietly siding
with our thoughtful colleague by functionally making all Erlinger errors nonharmless, it is
joining the deep minority in this split of opinion.
II.
The majority opinion’s path here is all the more puzzling when one considers that it
enjoyed another route to deeming the Erlinger error harmless. Recall, Kimbrough received a
concurrent 148-month sentence for carjacking. That sentence falls within the crime’s statutory
maximum, see 18 U.S.C. § 2119(1) (15 years), and it was not subject to ACCA’s statutory
minimum. It follows that had the district court never applied § 924(e)(1), Kimbrough would still

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be serving a 232-month prison sentence: 148 months for carjacking, followed by 84 months for
using, carrying, and brandishing a firearm during and in relation to a crime of violence. Because
§ 924(e)(1) thus “d[id] not add any length to the overall terms of imprisonment,” the Erlinger
error did “not affect [Kimbrough’s] substantial rights,” and “is therefore harmless.” United
States v. Burns, 298 F.3d 523, 544–45 (6th Cir. 2002).
To sidestep this obvious result, the majority opinion deems the carjacking sentence
tainted alongside the felon-in-possession sentence and vacates both. See Maj. Op. at 7–8. At the
outset, it is difficult to see how a sentence for Kimbrough’s § 2119(1) conviction—148 months’
imprisonment—was somehow affected by ACCA, which, if applicable, requires at least 180
months’ imprisonment. Yet the majority opinion persists. It begins by noting how the sentence
for Kimbrough’s felon-in-possession offense, absent the ACCA enhancement, exceeded its then-
applicable statutory maximum. Id. at 7. This argument, I note, is wholly absent from
Kimbrough’s briefing. See Operating Eng’rs Loc. 324 Health Care Plan v. G & W Constr. Co.,
783 F.3d 1045, 1057 (6th Cir. 2015) (“[I]t is not our function to craft an appellant’s arguments.”
(citation omitted)). And it is entirely beside the point. The statutory maximum for Kimbrough’s
substantive carjacking was fifteen years at the time of the crime’s commission, see 18 U.S.C.
§ 2119(1), and his 148-month sentence sits comfortably under that ceiling. How the statutory
maximum for one crime somehow influenced the sentence or statutory maximum for another
crime is left unsaid.
The district court, I acknowledge, did group Kimbrough’s carjacking and felon-in-
possession offenses together for sentencing purposes, meaning his § 2119(1) sentence partly
derived from an advisory enhancement under the Sentencing Guidelines for his armed career
criminal classification. See U.S. Sent’g Guidelines Manual § 4B1.4(a) (U.S. Sent’g Comm’n
2024). Yet that makes little difference, in multiple respects.
One, Kimbrough does not seem to have challenged the district court’s application of the
Guidelines; his briefing instead focuses on the statutory minimum in § 924(e)(1). Confirming as
much, the majority opinion points to a lone sentence in Kimbrough’s second supplemental brief.
Maj. Op. at 8. Of course, arguments raised for the first time in supplemental briefing—let alone
a second one—are forfeited. See United States v. Walker, 615 F.3d 728, 734 (6th Cir. 2010).

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Nor do we ordinarily craft arguments on a litigant’s behalf regarding “issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed argumentation.” United States
v. Smith, 749 F.3d 465, 489 (6th Cir. 2014) (quotation omitted). No further availing is the
assurance that “the parties agree that this case involved a sentencing error.” Maj. Op. at 8. The
government has conceded error only as to the sentence for Kimbrough’s conspiracy to commit
carjacking—not for his substantive carjacking sentence. We need not throw out all of a
defendant’s multiple sentences upon noticing an error in just one of them. See, e.g., United
States v. Gray, 521 F.3d 514, 544 (6th Cir. 2008); United States v. Wettstain, 618 F.3d 577, 593
(6th Cir. 2010).
Two, Erlinger did not concern the armed career criminal enhancement in the Sentencing
Guidelines. That fact is notable, as Apprendi v. New Jersey, 530 U.S. 466 (2000), and its related
errors apply only to statutory minimums and maximums, not judicial factfinding under the
advisory Sentencing Guidelines. E.g., United States v. Osborne, 545 F.3d 440, 445 (6th Cir.
2008) (“[A] district court may make findings of fact in order to calculate a sentence under the
advisory Sentencing Guidelines.”); United States v. Cooper, 739 F.3d 873, 884 (6th Cir. 2014)
(“Alleyne [v. United States, 570 U.S. 99 (2013),] dealt with judge-found facts that raised the
mandatory minimum under a statute, not judge-found facts that trigger an increased guidelines
range . . . .”); see also Erlinger, 144 S. Ct. at 1852 (“Really, this case is as nearly on all fours
with Apprendi and Alleyne as any we might imagine.”). In the end, the sole constitutional error
in Erlinger—application of the fifteen-year minimum in § 924(e)(1) without a jury—did not
affect Kimbrough’s carjacking sentence.
III.
The majority opinion’s treatment of Kimbrough’s Double Jeopardy Clause claim is
similarly problematic. As the majority opinion acknowledges, Kimbrough made this argument
“for the first time” in his supplemental briefing. Maj. Op. at 8. He thus forfeited the point by not
raising it in his merits brief. See, e.g., Walker, 615 F.3d at 734.
Yet here again the majority opinion opts to forgo longstanding party presentation
principles and instead reserves this forfeited issue for first review on remand. Maj. Op. at 8–9.

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To do so, it reasons that Kimbrough should not be faulted for failing to make his Double
Jeopardy Clause challenge before the Supreme Court decided Erlinger, as that intervening case
purportedly sheds light on whether § 924(e)(1) is merely a sentencing enhancement or, instead, a
greater offense of § 922(g). Id. at 9. But Erlinger never spoke to this issue. Tellingly, neither
the majority opinion nor Kimbrough offer a single citation to Erlinger on the point. Id.;
Appellant’s First Suppl. Br. 26. At any rate, when there has been an intervening change in law,
we may exercise discretion to reach forfeited issues “only if the issue was not previously
available.” S.C. v. Metro. Gov’t of Nashville, 86 F.4th 707, 718 (6th Cir. 2023) (quotations and
citation omitted). Kimbrough falls well short of this standard. Remember, he dedicated nearly
twenty pages of his principal brief, submitted pre-Erlinger, to arguing that the Sixth Amendment
requires a jury to answer ACCA’s occasions question. Appellant Principal Br. 15–34. At that
juncture, he could have easily raised the Double Jeopardy Clause challenge presented here—
especially if, as Kimbrough suggests, this newfound challenge stems from the same reasons
underpinning the threshold jury requirement.
All of this has already been explained in our recent, on-point decision in United States v.
Sain, 2025 WL 801366. There, the defendant—in his reply brief—raised an identical Double
Jeopardy Clause challenge against the district court’s post-plea use of the armed career criminal
enhancement. Id. at *1–2. Understandably, the panel did not bite. “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 does it rely on any other recent developments. . .
. Defendant has not, therefore, preserved this issue for appeal.” Id. at *2. The panel then
affirmed the defendant’s sentence. Id. at *3. The majority opinion should take heed. After all,
not only does Kimbrough stand in an identical posture, but his briefing on the issue virtually
matches that in Sain. Compare Appellant’s First Suppl. Br. 26–28 (“If any doubt remains about
the fundamental nature of the error here and its proper remedy[] . . . .”), with Reply Br. of
Appellant at 28–31, Sain, No. 22-6131 (6th Cir. Mar. 13, 2025), 2024 WL 4170148, at *28–31,
ECF No. 39 (“If any doubt remains about the fundamental nature of the error here and its proper
remedy[] . . . .”).

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Here too, Cogdill is a poor guide. To be sure, Cogdill asserted an identical Double
Jeopardy Clause challenge, which the panel there, as here, reserved for initial consideration on
remand. Cogdill, 130 F.4th at 523. But Cogdill, I note, did so without explaining why it ignored
our settled forfeiture doctrine. See id. It is thus no surprise that Sain did not even address its
seeming inconsistency with Cogdill. Like Sain, I would apply our normal forfeiture doctrine—
one that long-predates Cogdill.
Either way, the eventual outcome is the same. Assuming Kimbrough raises his Double
Jeopardy Clause challenge on remand, the government can simply respond that it has been
forfeited. Again, Kimbrough “could have raised his argument[]” earlier “but failed to do so, and,
therefore, [forfeited] his right to raise the[] issue[] before the district court on remand or before
this court on appeal after remand.” United States v. Adesida, 129 F.3d 846, 849–50 (6th Cir.
1997). At day’s end, neither the district court nor this Court need reach the merits of the Double
Jeopardy Clause challenge.
* * * * *
Setting aside these many disagreements, I agree with the majority opinion that we must
vacate and remand the sentence for Kimbrough’s conspiracy to commit carjacking. See Maj. Op.
at 8. That sentence exceeded the five-year statutory maximum in 18 U.S.C. § 371, and the
government does not oppose us remanding it for resentencing.

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