United States of America v. Paul Erlinger

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 22-1926
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
PAUL ERLINGER ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Terre Haute Division.
No. 2:18-cr-00013-JMS-CMM-1 — Jane Magnus-Stinson, Judge.
____________________
A RGUED J ANUARY 18, 2023 — DECIDED A UGUST 10, 2023
____________________
Before HAMILTON , J ACKSON -A KIWUMI , and LEE, Circuit
Judges.
JACKSON -A KIWUMI , Circuit Judge. Paul Erlinger received a
prison term of 15 years for illegally possessing a firearm. The
district court imposed this mandatory minimum sentence un-
der the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e), because Erlinger had three prior convictions for vio-
lent felonies—all three of them Indiana burglaries. Erlinger
challenges his sentence on two grounds. First, he argues that

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2 No. 22-1926
Indiana burglary is not a predicate offense under ACCA be-
cause the state’s definition of burglary is broader than the fed-
eral statute. Second, he asserts that the three burglaries were
not committed on separate occasions and, in any event, the
Sixth Amendment requires a jury, not the judge, to decide this
question. The law of our circuit says otherwise on both issues,
so we affirm Erlinger’s sentence.
I
In 2018, Erlinger was charged with being a felon in posses-
sion of a firearm in violation of 18 U.S.C. § 922(g)(1). He en-
tered a guilty plea and was given an enhanced sentence of 15
years’ imprisonment under ACCA, 18 U.S.C. § 924(e), based
on his 1991 conviction for Illinois residential burglary, 1991
conviction for burglary in Pike County, Indiana, and two 2003
convictions for dealing in methamphetamine, also in Pike
County. The district court subsequently vacated Erlinger’s
sentence because we later ruled in separate opinions that Illi-
nois residential burglary is not a violent felony under ACCA,
United States v. Glispie, 978 F.3d 502 (7th Cir. 2020), and Indi-
ana methamphetamine convictions are not serious drug offenses
under ACCA, United States v. De La Torre, 940 F.3d 938, 952
(7th Cir. 2019). This left Erlinger with only one qualifying
prior conviction—or so it seemed—not three as required by
ACCA.
At the resentencing hearing, the government argued that
Erlinger still qualified for an ACCA-enhanced mandatory
minimum sentence because he had other 1991 burglary con-
victions from Dubois County, Indiana.1 To prove these
1 The government also relied on the 1991 Pike County burglary to seek
the ACCA enhancement again, but the district court disregarded that

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No. 22-1926 3
convictions, the government supplied a charging document—
in this case, an information—for each of the burglaries. Each
information charged a different burglary at a different busi-
ness, and three of them on different dates: April 4, 1991 at
Mazzio’s Pizza, April 8, 1991 at The Great Outdoors, Inc., and
April 11, 1991 at Druther’s and Schnitzelbank.2 The govern-
ment also supplied the plea entered in those cases.
Erlinger objected. He argued, among other things: (1) the
Indiana definition of a burglary is broader than the federal
definition of a generic burglary, therefore Indiana burglary
does not trigger ACCA; and (2) the Dubois County burglaries
were not committed on separate occasions as ACCA requires,
and a jury, not the judge, must make that factual determina-
tion. The district court overruled Erlinger’s objections, found
that he previously committed three burglaries on three sepa-
rate occasions, and imposed an ACCA-enhanced sentence of
15 years. Erlinger appeals.
II
We review questions of statutory interpretation and the
district court’s application of the ACCA enhancement to a de-
fendant’s sentence de novo. United States v. Clay, 50 F.4th 608,
611 (7th Cir. 2022); Kirkland v. United States, 687 F.3d 878, 882
charge (despite having apparently accepted it as a predicate at the original
sentencing) because the government did not present a judgment of con-
viction.
2 Because the informations for Druther’s and Schnitzelbank charged
that the burglaries occurred on the same date, and an ACCA enhancement
requires only three predicate offenses, the district court did not rely on the
Druther’s burglary.

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4 No. 22-1926
(7th Cir. 2012). We review factual findings regarding prior
convictions for clear error. Kirkland, 687 F.3d at 882.
We first address Erlinger’s argument that his prior Indiana
burglary offenses should not have been used to enhance his
sentence under ACCA because Indiana’s burglary statute co-
vers more conduct than generic burglary. ACCA mandates a
15-year minimum prison sentence for anyone possessing a
firearm after three prior convictions for serious drug offenses
or violent felonies “committed on occasions different from
one another.” § 924(e)(1). ACCA defines a violent felony, as
relevant here, as any offense that is a burglary. § 924(e)(2)(B).
“The term burglary in § 924(e)(2)(B)(ii) does not encompass
all burglaries, but only generic burglary.” United States v.
Perry, 862 F.3d 620, 623 (7th Cir. 2017) (cleaned). The Supreme
Court defines a generic burglary “as an unlawful or unprivi-
leged entry into, or remaining in, a building or other struc-
ture, with intent to commit a crime.” Taylor v. United States,
495 U.S. 575, 598 (1990). The generic offense also includes
“burglary of a structure or vehicle that has been adapted or is
customarily used for overnight accommodation.” United
States v. Stitt, 139 S. Ct. 399, 403–04 (2018).
Indiana’s definition of burglary is “[a] person who breaks
and enters the building or structure of another person, with
intent to commit a felony in it.” Ind. Code § 35-43-2-1 (1990).
Our prior cases make clear that Indiana burglary is a generic
burglary offense. In United States v. Perry, we rejected the de-
fendant’s argument that Indiana burglary is overly broad be-
cause it “may be committed in outdoor, fenced-in areas.” 862
F.3d at 622–24. We held Indiana burglary is a valid predicate
offense because it “requires that the defendant enter a wholly
enclosed area.” Id. In reaching this conclusion, we specifically

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No. 22-1926 5
considered the Indiana cases Erlinger cites here. Our oppor-
tunity to consider Indiana burglary did not end with Perry.
Shortly after Perry, in United States v. Foster, we addressed the
defendant’s contention that “the word ‘dwelling’ in the Indi-
ana code is broader than the generic ‘building or structure’ …
because Indiana defines ‘dwelling’ to include ‘other enclosed
space[s], permanent or temporary, movable or fixed.’” 877
F.3d 343, 345 (7th Cir. 2017). We again rejected the argument
and held Indiana “burglary requires that the location burglar-
ized be both a ‘building or structure’ and a ‘dwelling.’” Id.
Recognizing this precedent, Erlinger argues the Indiana
statute is broader because it interprets “building or structure”
to include boats, cars, and tents. But after we decided Perry
and Foster, the Supreme Court broadened the generic defini-
tion of burglary to include “a structure or vehicle that has been
adapted or is customarily used for overnight accommoda-
tion.” Stitt, 139 S. Ct. at 403–04 (emphasis added). The Su-
preme Court explained that statutes which criminalize break-
ing and entering “any boat or vessel, or railroad car” are still
beyond the scope of the generic definition if they “refer[] to
ordinary boats and vessels often at sea (and railroad cars often
filled with cargo, not people), nowhere restricting its cover-
age, as here, to vehicles or structures customarily used or
adapted for overnight accommodation.” Id. at 407. The Indi-
ana statute does not include the language the Supreme Court
deems overly broad, and Erlinger has not cited any Indiana
cases that interpret the statute in this manner. We therefore
see no basis to hold that the Indiana burglary statute no
longer qualifies for the enhanced sentence mandated by
ACCA.

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6 No. 22-1926
We now turn to Erlinger’s argument that the district court
violated his Sixth Amendment right to a jury trial when it
ruled his Dubois County burglaries were committed on sepa-
rate occasions. Before a district court can impose an ACCA
enhancement, a factfinder must determine whether the de-
fendant has at least three prior convictions for serious drug
offenses or violent felonies. Those prior convictions must
have been “committed on occasions different from one an-
other.” § 924(e)(1). We have held that a sentencing judge may
make a “separate occasions” finding when deciding the
ACCA enhancement. United States v. Elliott, 703 F.3d 378, 382
(7th Cir. 2012); United States v. Hatley, 61 F.4th 536, 542 (7th
Cir. 2023). Erlinger argues, and the government agrees, that
Wooden v. United States, 142 S.Ct. 1063 (2022), alters this prec-
edent. We disagree.
In Wooden, the sentencing court imposed an ACCA sen-
tencing enhancement on a defendant who had ten prior con-
victions for burglary—one for each storage unit he entered by
“crushing the interior drywall” between the units in a single
facility on the same evening. Id. at 1067. The Supreme Court
reversed Wooden’s sentence, holding that a defendant can
commit multiple sequential crimes as part of a single occasion.
Id. at 1070–71. The Court conducted a “multi-factored” in-
quiry, examining the timing of the offenses, proximity of lo-
cation, and “character and relationship of the offenses,” to
conclude that Wooden’s ten burglaries were part of a single
criminal act. Id. at 1071.
Here, both Erlinger and the government insist that the in-
quiry articulated in Wooden must be conducted by a jury be-
cause it requires proof of non-elemental facts about a defend-
ant’s prior conviction. See, e.g., Apprendi v. New Jersey, 530 U.S.

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No. 22-1926 7
466, 490 (2000). According to the parties, the district court vi-
olated Erlinger’s Sixth Amendment right to a trial by jury
when it made the finding that Erlinger’s Dubois County bur-
glaries were committed on separate occasions. But Wooden ex-
plicitly did not address whether the “separate occasions” de-
termination must be made by a jury rather than a judge, see
142 S.Ct. at 1068 n.3, and we are bound by our prior prece-
dent.3 In fact, earlier this year in Hatley, we likewise observed
that Wooden expressly reserved the Sixth Amendment issue.
61 F.4th at 542. We affirmed an ACCA sentence enhancement
in that case and held that we would continue to follow our
precedent. Id. We do so again today. The government was not
required to prove to a jury beyond a reasonable doubt that
Erlinger committed the Indiana burglaries on separate occa-
sions. The government could prove its position to the sentenc-
ing judge, and the applicable standard is preponderance of
the evidence. Kirkland, 687 F.3d at 889.
Having settled that the district court was within its author-
ity to decide the “separate offenses” question, we turn to the
decision itself. As instructed by Wooden, we must consider
timing, proximity of location, and “the character and relation-
ship of the offenses” to determine whether a defendant’s sen-
tence should be enhanced under ACCA because the defend-
ant committed qualifying offenses on separate occasions. 142
3 We pause to note that the parties’ position is foreclosed by current
precedent, but the fact that the government has conceded there is a Sixth
Amendment question here and urged that a jury should be deciding these
questions demonstrates that this issue is by no means static. So does the
Supreme Court’s footnote in Wooden making it clear the Court was not
addressing the Sixth Amendment question. We may one day be called
upon to revisit our precedent permitting a judge to make these determi-
nations.

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8 No. 22-1926
S. Ct. at 1071. In this case, three charging documents for Er-
linger’s Dubois County burglaries allege that the felonies took
place on three different dates and at three different busi-
nesses—again, April 4, 1991 at Mazzio’s Pizza, April 8, 1991
at The Great Outdoors, Inc., and April 11, 1991 at Schnit-
zelbank. See id., 142 S. Ct. at 1071 (“In many cases, a single
factor—especially of time or place—can decisively differenti-
ate occasions. Courts, for instance, have nearly always treated
offenses as occurring on separate occasions if a person com-
mitted them a day or more apart, or at a ‘significant dis-
tance.’”). Erlinger pleaded guilty to each charge. With the
Wooden criteria in mind, we agree with the district court’s con-
clusion that Erlinger’s Dubois County burglaries were com-
mitted on different occasions.
Erlinger supplied no argument or evidence that would
cast doubt on this conclusion, and the resentencing hearing
was his opportunity to do so. Erlinger did argue in the district
court and here that Indiana’s charging documents may not al-
ways be accurate or reliable. His point is well taken. But here,
the unequivocal nature of the charging documents about the
different dates of the offenses charged (there is no “on or
about” language, as the district court noted), plus Erlinger’s
guilty plea to each charge, are sufficient to show by a prepon-
derance of the evidence that the offenses were committed on
separate occasions. See, e.g., United States v. Cardenas, 217 F.3d
491, 492 (7th Cir. 2000) (holding two sales of crack cocaine on
the same day were “separate and distinct episodes” because
“[w]hile Cardenas sold the crack cocaine to the same people,
the sales were separated by forty-five minutes and a half a
block.”); United States v. Godinez, 998 F.2d 471, 473 (7th Cir.
1993) (a kidnapping and a robbery were not a “single occa-
sion” where the defendant “committed his crimes against

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No. 22-1926 9
different victims, in different places, more than an hour
apart” (internal quotation marks omitted)).
We AFFIRM Erlinger’s sentence.

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