United States of America v. Deangelus Thomas

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 25a0174p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DEANGELUS THOMAS,
Defendant-Appellant.
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No. 22-6067
On Remand from the United States Supreme Court.
United States District Court for the Western District of Tennessee at Memphis.
No. 2:21-cr-20078-1—Jon Phipps McCalla, District Judge.
Decided and Filed: July 2, 2025
Before: COLE, McKEAGUE, and NALBANDIAN, Circuit Judges
_________________
COUNSEL
ON SUPPLEMENTAL BRIEF: Needum L. Germany, FEDERAL PUBLIC DEFENDER’S
OFFICE, Memphis, Tennessee, for Appellant. Karen Hartridge, Mary H. Morris, Regina
Thompson, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.
NALBANDIAN, J., delivered the opinion of the court, in which COLE and
McKEAGUE, JJ., concurred, and a separate concurring opinion (pp. 20–27). COLE, J. (pp. 14–
19), delivered a separate concurring opinion.
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OPINION
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NALBANDIAN, Circuit Judge. Deangelus Thomas was indicted on two counts of being
a felon in possession under 18 U.S.C. § 922(g)(1) for his role in a shooting. Though his
indictment gave him notice that he might be subject to enhanced penalties based on his criminal
>

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history, he was not formally indicted as an armed career criminal. At trial, a jury found him
guilty of both felon-in-possession counts.
Throughout sentencing, Thomas maintained that he could not be sentenced under the
Armed Career Criminal Act (ACCA). 18 U.S.C. § 924(e)(1). Because he had never been
indicted for it, and the jury had not found the essential fact —that he had three prior violent-
felony convictions committed on different “occasions,” —he claimed he could only be subject to
the penalties associated with § 922(g)(1). Otherwise, his Fifth and Sixth Amendment rights
would be violated.
The district judge disagreed. Following then-binding Sixth Circuit precedent, the judge
found the fact of Thomas’s three prior convictions by a preponderance of evidence at sentencing,
and imposed an enhanced, 432-month sentence on Thomas. We affirmed. But the Supreme
Court later decided Erlinger v. United States, 602 U.S. 821 (2024), which held that the Fifth and
Sixth Amendments require a jury to find the three-occasions element of an ACCA conviction.
Now, Thomas is back before us.
He argues that Erlinger is a form of structural error and requires automatic reversal. As a
remedy, he argues for a remand to the district judge for resentencing based on the crime he was
convicted of by a jury—the unenhanced § 922(g)(1). Because our circuit has already decided
that Erlinger errors are subject to harmless error, we affirm his sentence because the failure to
charge the jury was harmless.
I.
Thomas thought his girlfriend was cheating on him. Jealous, Thomas pulled out a
handgun, chambered a round, and threatened her with her life if she didn’t confess. Once she
admitted to seeing another man on the side, Thomas punched her twice and pistol-whipped her.
Still, Thomas wanted revenge on her lover. So he forced his girlfriend to set up a meeting so
Thomas could confront him.
Thomas and his girlfriend drove together to a predetermined location where Thomas
forced her into the driver seat while he hid in the backseat to ambush her lover. When he

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No. 22-6067 United States v. Thomas Page 3
approached the car, Thomas shot him twice with a rifle. Thomas and his girlfriend drove off to
his cousin’s house, leaving the lover to fend for himself.
His cousin called the police, advising them of Thomas’s assault on his girlfriend.
Memphis Police Officers, with consent from his cousin, searched the area around Thomas while
he slept and recovered a DB9R rifle loaded with five rounds of ammo and a Sig Sauer P239
pistol loaded with eight rounds. Because Thomas has been convicted of several violent felonies,
his possession of a firearm was prohibited.
On January 19, 2021, Thomas was arrested, and officers confirmed through witnesses
and their own investigation that Thomas was responsible for his girlfriend’s injuries and for
shooting her lover. For these events, Thomas was indicted on two counts of being a felon in
possession in violation of 18 U.S.C. § 922(g)(1). Thomas went to trial and the jury found him
guilty of both.
A garden-variety § 922(g)(1) conviction has a maximum sentence of 15 years. 18 U.S.C.
§ 924(a)(8). But if a defendant is an “armed career criminal, the penalty ratchets up to a
mandatory minimum of 15 years if he has “three previous convictions” for a “violent felony”
that he “committed on occasions different from one another.” Id. § 924(e)(1).
Between the time Thomas was indicted and sentenced, the Supreme Court decided
Wooden v. United States, 595 U.S. 360, 369 (2022), which concluded that the occasions-different
inquiry was fact-intensive and “multi-factored in nature.” By implication Thomas argued, the
three-occasions requirement was an element of the enhanced offense that needed to be charged in
the indictment, proven to a jury, and found beyond a reasonable doubt. And the failure to do so
had violated his Fifth and Sixth Amendment rights. After a hearing on the question, the judge
overruled Thomas’s objections and the government’s request for a sentencing jury. Because
then-binding Sixth Circuit precedent had determined that Wooden left untouched the conclusion
that a judge could find the facts necessary to apply the ACCA enhancement, the judge made the
necessary factual findings and imposed the enhanced sentence.
The judge, relying on the facts of the Presentence Report (PSR), found the three predicate
offenses necessary for the enhancement. Thomas’s first predicate offense was an aggravated

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No. 22-6067 United States v. Thomas Page 4
robbery from October 2000. Second, was an aggravated assault from December 2007. Finally,
was a conviction for attempted second-degree murder from August 2010. Based on these
findings, and the judge’s consideration of the 18 U.S.C. § 3553 factors, the judge found Thomas
was an armed career criminal and calculated the advisory-Guidelines range: thirty years to life.
He imposed a 432-month term of imprisonment and a five-year term of supervised release.
Thomas appealed, arguing that the ACCA enhancement could not be imposed without it
first being indicted and found by a jury beyond a reasonable doubt. United States v. Thomas,
No. 22-6067, 2023 WL 5535124, at *2 (6th Cir. Aug. 8, 2023). Because then-binding Sixth
Circuit precedent held to the contrary, we affirmed. So Thomas petitioned for, and was granted,
certiorari on the Fifth and Sixth Amendment questions raised by imposing an ACCA
enhancement without a jury finding. Thomas v. United States, 144 S. Ct. 2710 (2024). The
Supreme Court then remanded for further consideration in light of Erlinger, 602 U.S. 821. Now,
we must determine how Erlinger impacts Thomas’s sentence.
II.
Thomas challenges his enhanced sentence on three grounds. First, he claims Erlinger
errors are structural. Second, he argues that, even if Erlinger errors are subject to harmless error,
the government has not met its burden of proof because the Shepard documents are unreliable
for facts unrelated to the essential elements of a prior conviction. And finally, he claims that
jeopardy attached when he was tried for the unenhanced offense, and so his case must be
remanded for resentencing based on the jury’s conviction.
The government concedes that after Wooden and Erlinger it was error not to charge in the
indictment the occasions-different element, not to have the jury be instructed on the same, and
not to have them find the facts beyond a reasonable doubt. Still, it maintains that these errors
were harmless. And because a previous panel has resolved that Erlinger errors are not structural,
and because the Supreme Court has reiterated that Shepard documents may be used for the
limited purpose of harmless-error review, we hold that the Erlinger error was harmless in his
case. Nor does the Double Jeopardy Clause pose a problem.

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No. 22-6067 United States v. Thomas Page 5
A.
Thomas argues that Erlinger is a form of structural error—it renders the proceeding
“fundamentally unfair or an unreliable vehicle for determining guilt or innocence” and so his
sentence is subject to automatic reversal. Neder v. United States, 527 U.S. 1, 9 (1999). In
support of this view, he raises three primary arguments. First, he claims that omitting this
element from the jury’s purview operates as a wholesale abridgement of his jury trial right, and
under Sullivan v. Louisiana, constitutes a structural error. 508 U.S. 275, 278 (1993). Next, he
argues that harmless error presupposes a trial. So applying harmless error when the indictment
did not allege the three occasions, and when no evidence was admitted at trial, would effectively
have the court act as a hypothetical jury, impermissibly intruding on the Sixth Amendment. And
finally, he asks us to read the tea leaves and based on the Erlinger majority’s unwillingness to
answer whether the error was harmless, we should view this as evidence that the error is
structural.
After briefing occurred in this case, another panel of this court responded to these exact
arguments, dismissed each, and concluded that Erlinger errors are subject to harmless-error
review. United States v. Campbell, 122 F.4th 624, 629–31 (6th Cir. 2024), denying reh’g en
banc, No. 22-5567 (6th Cir. Feb. 19, 2025) (order). Because we are bound by the decisions of
another panel unless there is intervening Supreme Court authority that requires modification, or
we sit en banc to overrule the panel’s decision, we need not rehash the same arguments. Salmi v.
Sec’y of Health & Hum. Servs., 774 F.2d 685, 689 (6th Cir. 1985); see also United States v.
Cogdill, 130 F.4th 523, 527–31 (6th Cir. 2025) (applying harmless error to an Erlinger error
based on Campbell, 122 F.4th 624).
Campbell’s logic is two-fold. First, most constitutional errors are not structural, and the
Supreme Court has applied harmless-error review when an element is omitted from the jury
instructions, so by analogy, a district judge’s factfinding should also be subject to harmless error.
Campbell, 122 F.4th at 630 (citing Washington v. Recuenco, 548 U.S. 212, 218, 222 (2006) and
Neder, 527 U.S. at 18). Second, because Erlinger was “nearly on all fours” with Apprendi v.
New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013), and because

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No. 22-6067 United States v. Thomas Page 6
we have consistently reviewed such errors for harmlessness, Erlinger’s remedy should be the
same. Campbell, 122 F.4th at 629–30 (quoting Erlinger, 602 U.S. at 835).
Even if we could overrule a panel decision, we see no reason to disagree. So for the
reasons outlined in Campbell, we proceed to determine whether the error in this case was
harmless.
B.
Thomas claims that even if Erlinger errors aren’t structural, this error was harmful. We
will not set aside an “otherwise valid conviction,” if we can “confidently say, on the whole
record, that the constitutional error was harmless beyond a reasonable doubt.” Rose v. Clark,
478 U.S. 570, 576 (1986) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986)). The
government bears the burden to show that an error was harmless. Reiner v. Woods, 955 F.3d
549, 555 (6th Cir. 2020) (citing Arizona v. Fulminante, 499 U.S. 279, 296 (1991)). So we ask
whether the “record contains evidence that could rationally lead to a contrary finding with
respect to the omitted element.” Neder, 527 U.S. at 19.
Wooden acknowledges that, typically, the inquiry for the three occasions is “multi-
factored in nature.” 595 U.S. at 369. Because a “range of circumstances may be relevant to
identifying episodes of criminal activity”—that is, just because two crimes are committed at
different times, does not automatically mean they are on different occasions. Id. Wooden itself
recognizes that “most cases” won’t involve “extra-ordinary work”; the factors, though reflective
of the fact-based nature of the inquiry, are “straightforward and intuitive.” Id. at 369–70. So
even if there may be “some hard cases in between,” the single factor of time or place will often
“decisively differentiate occasions.” Id. at 370. Thomas’s is such a straightforward case.
The government makes two points to satisfy its harmless-error burden: the dates of each
offense and the absence of any common scheme or purpose. Based on a review of the Shepard
documents described in the PSR, the district judge’s error of finding the occasions-different
element by a preponderance of the evidence was harmless beyond a reasonable doubt.

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No. 22-6067 United States v. Thomas Page 7
The three predicate offenses took place years apart—in fact, a decade separates the first
and third offenses. October 2000, December 2007, and August 2010. They also took place in
three different places. For example, the first was at a residence, the second in a parking lot.
Each involved a different victim. Each involved a different crime. The first an aggravated
robbery, the second an aggravated assault, and the third, attempted-second-degree murder. The
only unifying theme is their inherent violence and Thomas’s proclivity for violence with a
firearm. Neither of which suggests that Thomas was engaged in one continuous violent felony in
the way Wooden describes.
Thomas fights this conclusion by challenging our use of Shepard documents. On his
view, they are “prone to error” and so cannot be relied on for non-elemental information they
contain. R.25, Appellant Supp. Br., p.14 (quoting Mathis v. United States, 579 U.S. 500, 512
(2016)). He claims Erlinger cast Shepard documents as “inherently unreliable.” Id. at 14. But
Campbell addressed this too.
It’s true that Erlinger has some harsh words about Shepard documents. Erlinger, 602
U.S. at 839–42 (discussing Shepard v. United States, 544 U.S. 13 (2005)). As Campbell notes,
the fact that such documents are prone to error is in part why Erlinger determined that the
occasions-different inquiry should be submitted to the jury. Campbell, 122 F.4th at 632. That
conclusion, however, doesn’t preclude our reliance on these documents for our harmless-error
review. With caution, appellate courts must look to “all ‘relevant and reliable information’ in the
‘entire record,’ which in turn is gauged through ‘case-by-case adjudication rather than through a
categorical bar against’ certain categories of evidence.” Id. at 632–33 (quoting Greer v. United
States, 593 U.S. 503, 511 (2021)). And that includes the information in the PSR. Erlinger, 602
U.S. at 841; Greer, 593 U.S. at 510–11.
That doesn’t mean that Shepard documents are automatically valid. Where there is
reason to, a defendant can challenge the validity of the PSR and its contents. This includes
instances where “adversarial testing was ‘unnecessary’” in the proceeding where the facts were
originally developed. Erlinger, 602 U.S. at 841 (quoting Mathis, 579 U.S. at 512). In that way,
the defendant can undermine the government’s theory of harmless error. But without such an

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No. 22-6067 United States v. Thomas Page 8
objection, and absent a reason to question the reliability of the PSR’s findings, we can rely on its
contents for our harmless-error inquiry.
Below, Thomas only challenged the constitutional nature of the occasions-different
inquiry. So because he didn’t contest the contents of the Shepard documents or the PSR, we
have no reason to doubt the information synthesized by it and we can rely on its contents to
affirm his sentence.
Thomas raises a final challenge to the harmless-error analysis. He claims that in many
other cases, juries have acquitted on the three-occasions question; essentially theorizing that the
possibility of a jury acquittal is enough to undermine a finding of harmless error. But again, we
rejected this attack in Campbell: “[I]f only a theoretical possibility of acquittal were sufficient to
defeat demonstrated harmless error, harmless error could not exist.” Campbell, 122 F.4th at 633.
At bottom, the government has satisfied its burden to show that its failure to submit the
occasions-different question to the jury was harmless. The Shepard documents—as aggregated
by the PSR—provide the necessary information to answer the occasions-different inquiry.
Finding that an error was harmless does not constitute a “denigration” of Thomas’s Fifth and
Sixth Amendment jury trial rights. Neder, 527 U.S. at 19 (quoting Rose, 478 U.S. at 577).
Instead, it reflects the “very useful purpose” of ensuring that convictions are not set aside for
“small errors or defects” that have “little, if any, likelihood of having changed the result of the
trial.” Id. (quoting Chapman, 386 U.S. at 22).1
1This Circuit’s recent cases in Cogdill, 130 F.4th 523 and United States v. Kimbrough, 138 F.4th 473 (6th
Cir. 2025) don’t change our conclusion here. Those cases found Erlinger errors harmful based on dramatically
different facts and ambiguities in the factual record that made it impossible to discern, under harmless error, whether
the government satisfied its beyond-a-reasonable-doubt burden. Cogdill, 130 F.4th at 529–31; Kimbrough, 138
F.4th at 477–79. Both contemplate a defendant’s prior felonies that occurred days apart, and a PSR that omitted key
factual details, like location. Cogdill, 130 F.4th at 529–31; Kimbrough, 138 F.4th at 477–79. By contrast, they both
distinguish Campbell because it applies harmless error in a factual context which we think governs here. Cogdill,
130 F.4th at 531; Kimbrough, 138 F.4th at 478. Given the many years separating Thomas’s prior convictions, the
many different victims, and the many locations where he committed these violent felonies, these circumstances
show no similar scheme or plan akin to the continuous occasions described in Wooden. See Campbell, 122 F.4th at
631–32.

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No. 22-6067 United States v. Thomas Page 9
C.
Thomas’s final argument is that double-jeopardy principles prevent the harmless-error
conclusion in these circumstances. He argues that because jeopardy attached during his trial for
the unenhanced § 922(g)(1) offense, the government cannot “punish him as if he had pled
[guilty] to it.” R.25, Appellant Supp. Br., p.6–7.
1.
The Double Jeopardy Clause provides that no person shall “be subject for the same
offence to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. It offers three
distinct but related protections. A defendant may not be subject to (1) a “second prosecution for
the same offense after acquittal,” (2) a “second prosecution for the same offense after
conviction,” or (3) “multiple punishments for the same offense.” Brown v. Ohio, 432 U.S. 161,
165 (1977) (quoting North Carolina v. Pearce, 395 U.S. 711, 717 (1969)).
Double jeopardy is unlike other protections and is not concerned with finality. Instead,
jeopardy relates to the court’s power “to determine [a defendant’s] guilt or innocence,” Soto v.
Siefker, 79 F.4th 715, 719 (6th Cir. 2023), so it does not hinge on a final judgment, Swisher v.
Brady, 438 U.S. 204, 214–15 (1978). Jeopardy questions, then, are a matter of both timing and
substance—that is, they require answering whether jeopardy has attached and whether two
crimes constitute the “same offense.”
In a jury trial, jeopardy attaches when the “jury is empaneled and sworn.” Martinez v.
Illinois, 572 U.S. 833, 834 (2014) (quoting Crist v. Bretz, 437 U.S. 28, 35 (1978)). And whether
jeopardy precludes a second prosecution based on the “same offense” is answered by the
Blockburger test—if the same “act” violates two “distinct statutory provisions,” the question is
whether “each provision requires proof of a fact which the other does not.” Blockburger v.
United States, 284 U.S. 299, 304 (1932). Unless two statutes require proof of an “additional
fact,” double jeopardy forbids a second or successive prosecution. Brown, 432 U.S. at 166
(internal quotations marks omitted).

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No. 22-6067 United States v. Thomas Page 10
So lesser and greater offenses raise potential double-jeopardy concerns because of the
relationship between the elements necessary to prove each. A lesser offense requires “no proof
beyond that which is required for conviction of the greater” offense and therefore the greater
offense is “by definition” the same as the lesser offense for purposes of double jeopardy. Id. at
168. And the double-jeopardy bar applies regardless of the order of prosecution—a second
prosecution is prohibited (except for certain exceptions inapplicable here) no matter if the
prosecution for the lesser or greater offense came first. Id.
2.
Because Erlinger is an outgrowth of Apprendi, the conclusion that a jury must find the
occasions-different element effectively confirms that § 922(g)(1) and § 924(e)(1) convictions are
related, lesser and greater offenses, respectively. Without a finding of three occasions, a felon in
possession is subject only to the lesser offense in § 922(g)(1) and the corresponding penalty. But
if the government proves both the lesser § 922(g)(1) offense and that the defendant committed
three prior violent felonies on different occasions in § 924(e)(1), the defendant is guilty of the
greater offense and the enhanced penalties.
Controlled substance prosecutions illustrate why this is. It is unlawful for any person to
“knowingly or intentionally” “manufacture, distribute, or dispense, or possess with intent to
manufacture, distribute, or dispense, a controlled substance.” 21 U.S.C. § 841(a)(1). But if
death results from one of these crimes, then the defendant is subject to an enhanced mandatory
minimum and maximum. Id. § 841(b)(1)(A), (b)(1)(B), (b)(1)(C). The Supreme Court
explained—relying on Apprendi and Alleyene—that “[b]ecause the ‘death results’ enhancement
increased the minimum and maximum sentences to which [the defendant is] exposed, it is an
element that must be submitted to the jury and found beyond a reasonable doubt.” Burrage v.
United States, 571 U.S. 204, 210 (2014).
So after Burrage, a violation of § 841(a)(1) is a “lesser included offense.” Id. at 210 n.3.
By contrast, the death-resulting charge is the greater offense and requires the government to
prove “two principal elements: (i) knowing or intentional distribution of heroin, § 841(a)(1), and
(ii) death caused by (‘resulting from’) the use of that drug.” Id. at 210 (footnote and citation

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No. 22-6067 United States v. Thomas Page 11
omitted) (emphasis added); see also Alleyne, 570 U.S. at 104–05 (“The Sixth Amendment
provides that those ‘accused’ of a ‘crime’ have the right to a trial ‘by an impartial jury.’ This
right, in conjunction with the Due Process Clause, requires that each element of a crime be
proved to the jury beyond a reasonable doubt.” (citations omitted)). And thus after Erlinger, the
same conclusion applies to § 922(g)(1) and § 924(e)(1)—that is, they are lesser and greater
offenses.
* * *
Altogether then, three principles relate to Thomas’s conviction. First, jeopardy attached
as soon as the jury was empaneled for his § 922(g)(1) trial. Second, that jeopardy was offense
specific, attaching to the § 922(g)(1) offense he was indicted for. Third, his indictment, trial, and
jury findings all concerned the lesser included § 922(g)(1) offense rather than the enhanced
§ 924(e)(1) greater offense.
3.
Reasoning from these conclusions, Thomas claims he cannot be subject to an enhanced-
ACCA penalty without having pled to it or having been indicted for it. For support, he points
only to United States v. Bell, 37 F.4th 1190 (6th Cir. 2022).
Thomas roots his argument in the Double Jeopardy Clause’s prohibition on successive
prosecutions. And on his view, Bell holds that the Double Jeopardy Clause precludes a
defendant from being tried for a greater offense once he has pleaded guilty to a lesser-included
offense. So to allow Thomas to be sentenced for the “unindicted, greater offense in these
circumstances perpetuates the same kind of Double Jeopardy harm.” R.25, Appellant Supp. Br.,
p.7. But Bell contemplated a unique factual circumstance arising out of a Federal Rule of
Criminal Procedure 11(c)(1)(C) plea agreement and does not sweep as broadly as Thomas
suggests.
Take Bell’s facts. There, a grand jury returned a two-count indictment: Count 1 alleged
distribution of controlled substances with death resulting (in violation of 21 U.S.C.
§ 841(b)(1)(C)) and Count 2 charged possession with intent to distribute. Bell, 37 F.4th at 1194.

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No. 22-6067 United States v. Thomas Page 12
He pleaded guilty via a 11(c)(1)(C)-plea to a “lesser included offense in Count 1” (a distribution
charge) even though it was not described in the indictment. Id. And under the proposed plea
agreement, the parties had agreed to a 168-month sentence. Id. The judge accepted Bell’s plea
but rejected the plea agreement; there was a “vast discrepancy” between the agreed-to 168
months and the advisory-Guidelines range (six to twelve months). Id. The government objected
and asked the judge to set a trial date on the greater, death-resulting offense. Overruling this
request, the judge proceeded to sentencing and imposed a thirty-month sentence. Id.
The government appealed and asked the Sixth Circuit to vacate the conviction on the
lesser-included offense and remand for proceedings on the greater offense. Id. For support, it
relied on a catch-all provision in the agreement. It explained that if the district judge rejected the
agreement, the plea would be void, neither party would be bound to it, and the government could
then “pursue any and all charges supported by the facts and law and, upon conviction, pursue
imposition of any sentence supported by the facts and law.” Id. at 1197.
The panel reasoned that the plea did not offer the government any cover. The provision
did not indicate that the government’s consent to the plea on the lesser offense was “contingent”
on the judge accepting the agreement. Id. Rather, if charges had remained after the plea, or the
defendant had withdrawn his plea, this provision gave the government the ability to try those
charges that remained. Id. Because the defendant had pleaded guilty to the lesser offense—
which the judge had accepted—there was nothing left to do but impose a sentence based on that
plea. Id. at 1198. Under those circumstances, we affirmed because any “subsequent
reindictment for the greater included offense implicates double jeopardy concerns under the Fifth
Amendment.” Id.
In a vacuum, Bell might be read to suggest that the government is stuck with the sentence
for the lesser-included § 922(g)(1) conviction in Thomas’s case. But the double-jeopardy
conclusion in Bell was tied to the government’s argument that Ohio v. Johnson allowed the
second prosecution. 467 U.S. 493, 502 (1984). There, the Supreme Court said the Double
Jeopardy Clause did not prohibit the state from prosecuting a defendant for murder and
aggravated robbery even though the defendant had pleaded guilty to their lesser included
offenses—involuntary manslaughter and grand theft, respectively. That meant Johnson still had

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No. 22-6067 United States v. Thomas Page 13
substantive charges left for the government to prosecute after he had pleaded guilty—only “part
of the charges against him” had been resolved. Id. at 501. By contrast, Bell sat in a different
place factually—his guilty plea fully resolved the charges against him. And since the
government had not made its consent to the plea on the lesser-included offense contingent on the
court’s acceptance of the agreement, and given the unique circumstances that arise when the
government offers a (c)(1)(C)-plea, we affirmed. Because Bell concerned the unique factual
circumstance when the district judge accepts the defendant’s guilty plea but rejects the (c)(1)(C)-
agreement, its conclusions are not applicable here.
All in all, in the years following Apprendi and Alleyne, appellate courts have consistently
applied harmless-error review to these types of Sixth Amendment injuries. We are skeptical that
after more than 50 years of applying Chapman’s harmless-error inquiry, that all this time we
have been encroaching on defendants double-jeopardy rights.2
Because we hold that Erlinger errors are subject to harmlessness review, and because
Thomas’s arguments about double jeopardy do not undermine that conclusion, we AFFIRM his
enhanced sentence based on his three prior violent felonies.
2Thomas invokes several out-of-circuit cases for the proposition that the proper remedy here is to “remand
for resentencing without the ACCA enhancement.” R. 25, Appellant Supp. Br., p.18 (collecting cases). Thomas
argues that this is the only way to avoid the second-order-double-jeopardy injury that arises after the Sixth
Amendment error. And the government, for its part, offers no view on how double jeopardy might bear on our
harmless-error analysis.
But Thomas’s argument assumes that there’s reason to remand. It’s true that, for example, in United States
v. Pena, 742 F.3d 508 (1st Cir. 2014) the panel found an Alleyne error harmful and limited the scope of the remand
to the unenhanced offense in the guilty plea. But essential to that conclusion was the government’s concession that
the error was harmful. And for that reason, Pena does not change the outcome here. See also Alleyne, 570 U.S. at
117–18 (remanding for resentencing consistent with jury verdict because error was harmful).
Thomas’s limited double-jeopardy argument is based solely on his reading of Bell, which we reject for the
reasons above. We leave to a future panel to address whether applying harmless error itself violates the Double
Jeopardy Clause on some other theory. Cf. Cogdill, 130 F.4th at 532 (leaving for the district court to determine in
the first instance whether double jeopardy prohibited government from retrying a harmful Erlinger error).

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No. 22-6067 United States v. Thomas Page 14
_________________
CONCURRENCE
_________________
COLE, Circuit Judge, concurring. A jury convicted Deangelus Thomas of being a felon
in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Deciding—without a jury
determination—that Thomas’s three previous convictions were for violent felonies committed on
different occasions, the district court sentenced him pursuant to the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e), a designation which substantially increased his statutory penalty
and guideline range.
The Supreme Court has since made clear that the district court erred in failing to submit
the ACCA different-occasions inquiry to a jury, Erlinger v. United States, 602 U.S. 821, 835
(2024), and our decision in United States v. Campbell, 122 F.4th 624, 630–31 (6th Cir. 2024)
instructs us to conduct harmless error review. Subsequent panels have relied upon Campbell to
do so. See, e.g., United States v. Cogdill, 130 F.4th 523, 527 (6th Cir. 2025); United States v.
Robinson, 133 F.4th 712, 723–725 (6th Cir. 2025); United States v. Kimbrough, 138 F.4th 473,
475 (6th Cir. 2025). Nonetheless, 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). I share that concern. But because we are bound by Campbell, I concur with my
colleagues that the error was harmless based upon this record. I write separately to caution
against overextending Campbell so far that it encroaches upon the Supreme Court’s holding in
Erlinger.
I.
The Fifth and Sixth Amendments require that a “unanimous jury” determine “beyond a
reasonable doubt” that a defendant’s past offenses were committed on separate occasions under
the ACCA. Erlinger, 602 U.S. at 836. That requirement stems from the well-established
principle that “[o]nly a jury may find ‘facts that increase the prescribed range of penalties to
which a criminal defendant is exposed.” Id. at 833 (quoting Apprendi v. New Jersey, 530 U.S.
466, 490 (2000)). The ACCA indisputably imposes such increased penalties.

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No. 22-6067 United States v. Thomas Page 15
To qualify for an ACCA enhancement, a jury must determine that a 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); Erlinger, 602 U.S. at 835.
Concluding that offenses occurred on different occasions requires examining a range of factors,
including timing, proximity, and the character and relationship of the offenses. See Cogdill, 130
F.4th at 528 (citing Wooden v. United States, 595 U.S. 360, 369 (2022)). When the district court
fails to submit this inquiry to a jury, 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 [the defendant] committed the prior offenses on different occasions.”
Id. (quoting Campbell, 122 F.4th at 630–33).
Here, the district court relied on facts contained in the Presentence Report (PSR) to
conclude that Thomas was convicted of the necessary three predicate offenses. Thomas
challenges the district court’s use of the PSR and other “Shepard documents”—documents that
include judicial records, plea agreements, and colloquies between a judge and a defendant—
which he argues are prone to error and therefore unreliable. See Shepard v. United States, 544
U.S. 13, 26 (2005).
Relying on Campbell, the majority opinion readily dismisses Thomas’s argument.
Indeed, Campbell sets out that our “harmless error review is based on an assessment of all
‘relevant and reliable information’ in the ‘entire record,’ which in turn is gauged through ‘case-
by-case adjudication rather than through a categorical bar against’ certain categories of
evidence.” 122 F.4th at 632–33 (quoting Greer v. United States, 593 U.S. 503, 510–11 (2021)).
The “entire record” includes information contained in Shepard documents like the PSR. Id. at
633. We cannot, however, discount Erlinger’s guidance when reviewing for harmless error.
Rather, Erlinger must inform our view of Shepard documents and the extent of their permissible
use.
A.
Erlinger makes the Supreme Court’s guidance with respect to the use of Shepard
documents for the different-occasions inquiry plain: courts may use Shepard documents in a

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No. 22-6067 United States v. Thomas Page 16
limited manner and, when they do, they must exercise caution. Erlinger, 602 U.S. at 839–42.
First, with respect to their “limited function,” the Court explains that “[t]o ensure compliance
with the Fifth and Sixth Amendments,” judges may use Shepard documents to determine “the
fact of a prior conviction and the then-existing elements of that offense.” Id. at 839 (citation
omitted). “No more is allowed.” Id. (citation omitted). Judges therefore “may not use
information in Shepard documents to decide what the defendant actually did, or the means or
manner in which he committed his offense[.]” Id. at 839–40. (cleaned up). “To sanction that
practice would be to allow a sentencing court to do exactly what the Fifth and Sixth
Amendments forbid.” Id. at 840.
Second, even when using Shepard documents for this limited purpose, courts must
exercise caution. Erlinger expands on the various reasons a court should not wholly rely upon a
PSR and other judicial records:
Not only are Shepard documents of limited utility, they can be prone to error.
The risk of error may be especially grave when it comes to facts recounted in
Shepard documents on which adversarial testing was unnecessary in the prior
proceeding. As we have recognized, at trial, and still more at plea hearings, a
defendant may have no incentive to contest what does not matter to his conviction
at the time . . . .
As a matter of fair notice alone, old recorded details, prone to error, sometimes
untested, often inessential, and the consequences of which a defendant may not
have appreciated at the time, should not come back to haunt him many years
down the road by triggering a lengthy mandatory sentence.
Id. at 841–42 (cleaned up). A defendant’s failure to challenge the documents’ accuracy below
does not per se make them reliable either:
At the time of his prior conviction, a defendant might not have cared if a judicial
record contained a mistake about, say, the time or location of his offense. Back
then, fine details like those might not have mattered a bit to his guilt or innocence.
Contesting them needlessly, too, might have risked squandering the patience and
good will of jury or the judge responsible for pronouncing a sentence. Yet, years
later and faced with an ACCA charge, those kinds of details can carry with them
life-altering consequences.
Id. at 841.

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No. 22-6067 United States v. Thomas Page 17
The majority acknowledges that “Erlinger has some harsh words about Shepard
documents.” (Maj. Op. at 8.) That characterization understates the Supreme Court’s skepticism
of the use of Shepard documents to conduct the different occasions analysis. While our binding
precedent holds that “Erlinger did not preclude the use of Shepard documents in reviewing an
error for harmlessness,” Campbell, 122 F.4th at 632, the Supreme Court’s concerns about their
utility remain relevant even when we are reviewing for harmlessness.
True, Erlinger discusses these concerns in the context of sentencing judges, not appellate
courts’ review for harmless error. But it is unlikely that the Supreme Court views appellate
judges as less immune than trial judges to the risks presented by Shepard documents when
conducting the wide-ranging factual inquiry required to establish beyond a reasonable doubt that
a defendant committed his offenses on different occasions. Indeed, precedent counsels the
opposite. See, e.g., Buford v. United States, 532 U.S. 59, 64–66 (2001) (observing that district
courts are better positioned to conduct fact-intensive inquiries); United States v. Clark, 24 F.4th
565, 578 (6th Cir. 2022) (“The district court is better suited to develop [] fact-intensive
questions.”); United States v. Shanklin, 924 F.3d 905, 919 (6th Cir. 2019) (observing that an
inquiry that is “necessarily fact-specific” is “better examined by the district court”) (citation
omitted).
To proceed with harmless error review without accounting for Erlinger’s cautions risks
reproducing the same infringements on a defendant’s constitutional rights the Supreme Court
sought to guard against. Even if our post-Erlinger precedent requires us to conduct harmless
error review, we should not sanction wholesale reliance on Shepard documents. Although
Shepard documents may form part of the record we can examine when reviewing for
harmlessness, our examination of them must be colored by Erlinger. And where our use or the
district court’s use of Shepard documents must exceed Erlinger’s boundaries to achieve the
multi-factored analysis required for the ACCA’s different occasions inquiry, the error cannot be
harmless. See Erlinger, 602 U.S. at 840 (“Often, [] Shepard documents will not contain all the
information needed to conduct a sensible ACCA occasions inquiry[.]”).

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No. 22-6067 United States v. Thomas Page 18
B.
This case presents that rare situation where our necessarily limited and skeptical view of
Shepard documents still permits us to conclude, beyond a reasonable doubt, that a defendant
committed his offenses on different occasions.1
Here, the district court did not have to go beyond the fact of Thomas’s convictions—the
dates and the offense elements—to determine that they constituted qualifying offenses. See
Erlinger, 602 U.S. at 839 (citation omitted). Thomas qualified for the ACCA enhancement
based on the following three predicate offenses: an aggravated robbery conviction from October
2000; an aggravated assault conviction from December 2007; and an attempted second-degree
murder conviction from August 2010.2 Each offense is separated by at least three years, with
nearly ten years separating the first from the third. And each conviction involves different
offense conduct, against different victims. And while “no particular lapse of time or distance
between offenses automatically separates a single occasion from distinct ones,” id. at 841, the
different nature of the offenses combined with their temporal distance make it clear that “any
reasonable jury would have found that [Thomas] committed the prior offenses on different
occasions.” See Cogdill, 130 F.4th at 528 (quoting Campbell, 122 F.4th at 630–33).
1Citing Wooden, the majority notes that “in most cases,” like here, the different-occasions inquiry will be
straightforward. (Maj. Op. at 7.) But even a seemingly straightforward inquiry does not require a finding of
harmlessness, or even make it likely. Erlinger, which followed Wooden, counsels otherwise:
We do not question [the] assessment that in many cases the occasions inquiry will be
straightforward. . . . Often, a defendant’s past offenses will be different enough and separated by
enough time and space that there is little question he committed them on separate occasions. But
none of that means a judge rather than a jury should make the call. There is no efficiency
exception to the Fifth and Sixth Amendments. In a free society respectful of the individual, a
criminal defendant enjoys the right to hold the government to the burden of proving its case
beyond a reasonable doubt to a unanimous jury of his peers regardless of how overwhelming the
evidence may seem to a judge.
Erlinger, 602 U.S. at 842 (cleaned up).
2The majority identifies a “unifying theme” of these offenses being “their inherent violence and Thomas’s
proclivity for violence with a firearm.” (Maj. Op. at 8.) But no unifying theme is required. To the contrary, the
focus of our inquiry is that each offense be three separate violent felony or drug offenses, not united in common
scheme or purpose. See Cogdill, 130 F.4th at 528.

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No. 22-6067 United States v. Thomas Page 19
Additionally, the majority indicates that Thomas’s decision not to dispute the PSR’s
accuracy gives us “no reason to doubt” the reliability of the PSR’s contents. (Maj. Op. at 9.)
The fact that Thomas did not do so on this appeal may support our reliance on its information
here. To be clear, however, the fact that Thomas chose not to challenge the contents of the PSR
during proceedings below would not support our reliance on it, for the reasons Erlinger outlines.
See 602 U.S. at 839–41.
II.
Finally, I concur with my colleagues that no Double Jeopardy problem is presented here.
But that does not foreclose the potential for a Double Jeopardy problem arising if the district
court’s error had been harmful. As the majority opinion explains, Erlinger makes § 922(g)(1)
and § 924(e)(1) lesser and greater offenses, respectively. If remanding for resentencing was
required, it is not clear why empaneling a second jury to make the necessary findings to support
the § 924(e)(1) enhancement would not present a Double Jeopardy problem. See United States v.
Pena, 742 F.3d 508, 518–519 (1st Cir. 2014). Thomas’s final § 922(g)(1) conviction would have
completely resolved the charges pending against him: here, being a felon in possession of a
firearm. Compare Ohio v. Johnson, 467 U.S. 493, 502 (1984), with United States v. Bell, 37
F.4th 1190, 1198 (6th Cir. 2022). And jeopardy attached for that offense. As such, the prospect
of empaneling a second jury to support the government’s continued pursuit of an unindicted
§ 924(e)(1) enhancement would likely “raise[] a thicket of potential and thorny double jeopardy
issues, into which it is wiser not to enter.” Pena, 742 F.3d at 518. But since remand is not
required, we stop short of that thicket here.

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No. 22-6067 United States v. Thomas Page 20
_________________
CONCURRENCE
_________________
NALBANDIAN, Circuit Judge, concurring. This is yet another case that challenges the
application of harmless-error review to Erlinger errors under the Double Jeopardy Clause.
United States v. Kimbrough, 138 F.4th 473, 477–79 (6th Cir. 2025); United States v. Cogdill, 130
F.4th 523, 532 (6th Cir. 2025); United States v. Sain, No. 22-6131, 2025 WL 801366, at *2 (6th
Cir. Mar. 13, 2025). Defendants in these cases claim that if the jury didn’t find the facts
supporting their ACCA enhancement, then they can’t be punished as if the jury had because this
would constitute a successive prosecution. This theory raises an interesting question about the
relationship between the Double Jeopardy Clause, Chapman v. California’s harmless-error rule,
and Griffith v. Kentucky’s retroactive-application-of-new-rules principle. 386 U.S. 18 (1967);
479 U.S. 314 (1987).
Though the majority doesn’t resolve the question, I write separately to explain my
skepticism that, for cases pending on direct appeal, the Double Jeopardy Clause is a bar to
imposing an enhanced ACCA sentence on remand after a harmful Erlinger error. As I see it, the
core double-jeopardy protection against successive prosecutions is not implicated when the
“error” results from a post hoc change in the law. The government is free to prove the
occasions-different element to a jury on remand.
I.
The Double Jeopardy Clause’s language is straightforward, but it has proven difficult to
apply in some cases. Still, its motivating principle—as reflected in its text—guides its
application through most complex issues, including this one. The Double Jeopardy Clause
shields against prosecutorial overreach by preventing the government from getting two bites at
the proverbial apple. Garrett v. United States, 471 U.S. 773, 795 (1985) (O’Connor, J.,
concurring) (collecting cases); see also Ex Parte Lange, 85 U.S. 163, 169–70 (1873) (discussing
the common law origins of the Double Jeopardy Clause’s prohibition on successive
prosecutions); id. (“[T]he law abhors a multiplicity of suits, it is yet more watchful in criminal

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No. 22-6067 United States v. Thomas Page 21
cases that the crown shall not oppress the subject, or the government the citizen, by unreasonable
prosecutions.”). The Court has reiterated that the bar on successive prosecutions ensures that the
State,
with all its resources and power[,] should not be allowed to make repeated
attempts to convict an individual for an alleged offense, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to live in a continuing
state of anxiety and insecurity, as well as enhancing the possibility that even
though innocent he may be found guilty.
Green v. United States, 355 U.S. 184, 187–88 (1957); see also Kepner v. United States, 195 U.S.
100, 120–21 (1904) (similar).
So the core protection of the Double Jeopardy Clause ensures that the government does
not get a second chance to “supply evidence which it failed to muster in the first proceeding.”
Tibbs v. Florida, 457 U.S. 31, 41 (1982) (quoting Burks v. United States, 437 U.S. 1, 11 (1978)).
But that leaves unanswered whether the Double Jeopardy Clause forbids a retrial after a
defendant successfully challenges his conviction on appeal. To address the Clause’s application
in specific cases, the Court has considered both the defendant’s interest in the finality of his
judgment and the government’s interest in vindicating the social good of prosecuting those who
violate the law. Id. at 40; United States v. Tateo, 377 U.S. 463, 466 (1964).
Based on these interests, as a general rule, if a defendant successfully appeals his
conviction, the government may retry him “for the same offense of which he had been
convicted.” Tibbs, 457 U.S. at 39–40 (quoting Ball v. United States, 163 U.S. 662, 671–72
(1896)). This is for two reasons. First, “society would pay too high a price ‘were every accused
granted immunity from punishment because of any defect sufficient to constitute reversible error
in the proceedings leading to conviction.’” Id. at 40 (quoting Tateo, 377 U.S. at 466). And
second, retrial in these circumstances doesn’t implicate the “governmental oppression targeted
by the Double Jeopardy Clause.” Id. Most errors that a defendant appeals don’t implicate
whether the government failed to convince the jury of his guilt, and instead highlight a problem
with the judicial process. So these errors “impl[y] nothing with respect to the guilt or innocence
of the defendant.” Burks, 437 U.S. at 15. In effect, the successful defendant “nullifies” his
original conviction so that he can challenge the charges against him in a proceeding that satisfies

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No. 22-6067 United States v. Thomas Page 22
the Constitution and the rules of procedure. Chaffin v. Stynchcombe, 412 U.S. 17, 24 (1973)
(quoting North Carolina v. Pearce, 395 U.S. 711, 721 (1969)).
Originally, this general rule permitting retrial applied in every case, even when a
reviewing court held that insufficient evidence supported a jury’s verdict. Bryan v. United
States, 338 U.S. 552, 560 (1950), overruled by Burks, 437 U.S. at 18. That is, for double-
jeopardy purposes, the Court viewed a reversal for insufficient evidence as no different than
more traditional trial errors like the erroneous admission of evidence or problematic jury
instructions.
But the Court later reversed course, holding that a reviewing court’s finding of
insufficient evidence is a “narrow exception” to the general rule that a defendant can be retried
when he prevails on appeal. Tibbs, 457 U.S. at 40; Lockhart v. Nelson, 488 U.S. 33, 39 (1988)
(same). This makes sense because when a reviewing court sets aside a defendant’s conviction
for insufficient evidence, this is “in effect a determination that the government’s case against the
defendant was so lacking” that it never should have been submitted to the jury. Lockhart, 488
U.S. at 39. In other words, a sufficiency reversal goes directly to guilt or innocence. So whether
it’s by a jury acquittal, a trial court’s grant of a motion to acquit, or an appellate court’s
insufficiency reversal, see Fed. R. Crim. P. 29, the defendant has been acquitted of guilt because
the government has failed to prove its case. Importantly, this exception captures the intuitive
principle—and the “core” of the Clause’s protection—that the government does not get a second
chance to “supply evidence which it failed to muster in the first proceeding.” Tibbs, 457 U.S. at
41 (quoting Burks, 437 U.S. at 11).
But subject only to Burks’s narrow exception, the general rule is straightforward: a
defendant who succeeds in proving on appeal that his judicial process was deficient because of a
harmful error can be retried on remand.
II.
With this background, the question here is whether, after Erlinger, the jury’s failure to
find the occasions-different element is really a failure to muster sufficient evidence, or just a
(potentially harmful) trial error. If the latter, then retrial poses no double-jeopardy concern. But

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No. 22-6067 United States v. Thomas Page 23
if it’s really an insufficiency problem, then retrial is prohibited even in cases pending on direct
review.
I think Burks’s logic shows that the Double Jeopardy Clause doesn’t thwart retrial here.
The relevant error is the jury’s failure to find (what is now) an element of the crime—as required
by the Supreme Court’s Apprendi line of cases. Alleyne v. United States, 570 U.S. 99, 114
(2013). And to be fair, Apprendi errors manifest elsewhere in the criminal process: the element
is omitted from the indictment, so the government fails to prove it, and the jury instructions don’t
address it. But all these errors occurred only because the law changed while the case was
pending on appeal. In other words, these are “errors” that only became errors after the fact—at
trial, the parties had no reason to know they should treat the occasions-different fact as an
element to be proven by the government and found by a jury.
Strong support for this outcome comes from Lockhart, 488 U.S. at 38. There, the state
appellate courts had rejected the defendant’s argument that a piece of evidence to support his
sentencing enhancement was erroneously admitted. Id. at 34–37. On habeas review, the district
court found that the defendant was right. The district court also found that the remaining
evidence couldn’t sustain the government’s burden of proof. And the court said that, in these
circumstances, Burks prohibited a retrial. Id. at 37. The Eighth Circuit agreed.
But the Court reversed, finding the Burks exception inapplicable. The relevant error for
the double-jeopardy question was the erroneous admission of a particular piece of evidence, not
the second-order problem that the remaining evidence was insufficient. Indeed, with the
disputed evidence, there was sufficient evidence—and the error in admitting the evidence was
about its “legal effect” not its “probative value.” Id. at 40. Viewed this way, there was no
sufficiency problem. In fact, if the defendant had successfully excluded the relevant evidence at
trial, the prosecution could have sought to rework its case or offer alternative evidence. If so,
then reversing for a new trial simply placed the parties in the position they would have been in if
the trial court had properly excluded the evidence in the first place. Id. at 42.
Similarly, an Erlinger error is not a first-order sufficiency problem. As an outgrowth of
Apprendi, the substance of the error is that the jury didn’t resolve an element it should have.

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No. 22-6067 United States v. Thomas Page 24
And like in Lockhart, this omission doesn’t concern the government’s failure in proof, it
highlights a “judicial process” that was “defective.” Id. at 40 (quoting Burks, 437 U.S. at 15).
So also like Lockhart, no “acquittal” has occurred—by a jury or reviewing court—because there
has been no “resolution” of “some or all of the factual elements” of the occasions-different
element. Burks, 437 U.S. at 10 (internal quotation marks omitted).
Yes, we apply Chapman’s harmless-error rule to Erlinger errors. And that analysis
resembles a sufficiency inquiry. That is, assuming the defendant has not objected to the facts of
the presentence report and there is no evidence of its unreliability, the court of appeals looks at
the entire record to determine whether the Erlinger error would have changed the outcome.1
Presumably that’s what happened in Lockhart as well—everyone agreed that once the erroneous
evidence was excluded, the error wasn’t harmless. But that still didn’t transform Lockhart into a
Burks-like sufficiency case. Instead, the case was remanded for retrial, subjecting the error to the
general rule that defendants can be retried after a successful appeal. Lockhart, 488 U.S. at 42.
Furthermore, for these cases pending on direct review, it’s not that the government failed
to offer evidence of an element that it knew it had an obligation to prove. This is another way
Erlinger errors mirror Lockhart’s error. There, the trial court didn’t exclude the evidence so the
government didn’t know that it would have to present more evidence—in that case proof of a
different prior felony. Id. at 37. So by remanding for retrial, the court placed the parties in the
positions that they would’ve been in at the moment of proper exclusion. Id. at 42. Here, were
we to remand for a retrial, the parties would be on notice of the now-prevailing standard, so the
parties would know both that the government must offer proof of at least three prior violent
felonies, and that a jury must be the one to find those facts.
1I understand, as Judge Cole notes in his concurrence, that harmless-error review can sometimes be in
tension with the Sixth Amendment injury itself: if the Sixth Amendment is designed to protect a defendant’s right to
have a jury of his peers resolve the facts of his case, how is three judges resolving the case a permissible remedy?
Neder v. United States, 527 U.S. 1, 30 (1999) (Scalia, J., concurring in part and dissenting in judgment) (“I believe
that depriving a criminal defendant of the right to have the jury determine his guilt of the crime charged—which
necessarily means his commission of every element of the crime charged—can never be harmless.”). But as the lead
opinion notes, given our repeated application of harmless error to Apprendi-style errors, until we receive direction
from the Supreme Court otherwise, we are bound to continue this path. Op. at 5–8; see also United States v.
Campbell, 122 F.4th 624, 631 (6th Cir. 2024).

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No. 22-6067 United States v. Thomas Page 25
This conclusion is similarly supported by cases from other circuits. Our sister circuits
agree that when an “error” occurs because of a change in the law while the case is pending on
direct appeal, the Double Jeopardy Clause does not pose a bar to retrial. They explain:
Remanding for retrial . . . does not give the government the opportunity to supply
evidence it “failed” to muster at the first trial within the meaning of Tibbs. The
government had no reason to introduce such evidence because, at the time of trial,
under the law of our circuit, the government was not required to prove that
[element]. . . . The district court at trial could have required such proof only by
disregarding clear rulings by this court. The government therefore is not being
given a second opportunity to prove what it should have proved earlier, and
double jeopardy protections do not bar retrial.
United States v. Weems, 49 F.3d 528, 530 (9th Cir. 1995) (remand for retrial was appropriate
after proof at trial was rendered insufficient because of intervening Supreme Court decision in
Ratzlaf v. United States, 510 U.S. 135 (1994)).
In essence, the government never got its first bite at the apple to prove that element. So
“a defendant cannot make out a sufficiency challenge as to offense elements that the government
had no requirement to prove at trial under then-prevailing law.” United States v. Reynoso, 38
F.4th 1083, 1091 (D.C. Cir. 2022) (analyzing Double Jeopardy Clause implication on error that
arose because of intervening Supreme Court decision in Rehaif v. United States, 588 U.S. 225
(2019)); United States v. Davies, 942 F.3d 871, 874 (8th Cir. 2019) (remand for retrial did not
offend Double Jeopardy Clause after harmful Rehaif error); United States v. Delgado-Marrero,
744 F.3d 167, 192–93 (1st Cir. 2014) (“Because the Alleyne error here was an instructional error,
the Double Jeopardy Clause does not prohibit retrial.”).2
2Our sister circuits, as in Weems, regularly apply these Burks-Tibbs-Lockhart principles in non-Apprendi
cases to justify a remand for retrial when harmful errors occur because of a change in the law while a case is
pending on direct appeal. Each time, the changed law impacted the government’s case in some way—like making
jury instructions unconstitutional or rendering the government’s proof of guilt insufficient under the now-prevailing
standard. And each time, the circuit court found remand for retrial did not offend the Double Jeopardy Clause. See
e.g., United States v. Wacker, 72 F.3d 1453, 1464–65 (10th Cir. 1995) (proof at trial rendered insufficient because of
intervening Supreme Court decision in Bailey v. United States, 516 U.S. 137 (1995), superseded by statute, Bailey
Fix Act, Pub. L. No. 105-386, 112 Stat. 3469, as recognized in United States v. O’Brien, 560 U.S. 218, 233 (2010));
United States v. Gonzalez, 93 F.3d 311, 323 (7th Cir. 1996) (proof at trial rendered insufficient because of
intervening Supreme Court decision in Bailey, 516 U.S. 137); United States v. Ellyson, 326 F.3d 522, 533–34 (4th
Cir. 2003) (jury instruction rendered unconstitutional because of intervening Supreme Court decision in Ashcroft v.
Free Speech Coalition, 535 U.S. 234 (2002)); United States v. Recio, 371 F.3d 1093, 1106–07 (9th Cir. 2004) (proof

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No. 22-6067 United States v. Thomas Page 26
Finally, I’ll note that in the context of this case, the government likely could not have
offered occasions-different evidence at trial even if it had wanted to. Before Erlinger, in our
circuit at least, if a defendant raised a Rule 29 motion at the close of the government’s case
claiming it had failed to prove the occasions-different element, the district court would have
erred by granting the motion. Weems, 49 F.3d at 530. Under pre-Erlinger law, the government
had no need to prove the prior convictions beyond a reasonable doubt, assuming it could even
admit evidence to prove them.3 United States v. Cook, No. 22-5056, 2022 WL 4684595, at *2
(6th Cir. Oct. 3, 2022) (noting that though the government believed Wooden required the
different occasions be found by a jury, binding circuit precedent foreclosed reversal on those
grounds). So to say that the government failed to muster sufficient evidence of the prior
occasions highlights why Rule 29—and by extension Burks’s insufficient-evidence-bars-retrial
exception—is a poor fit for the type of argument Thomas raises here.
At bottom, retrial after an Erlinger error “is not the sort of governmental oppression at
which the Double Jeopardy Clause is aimed”—the government never had the chance to prove the
Erlinger fact at trial in the first place. See Lockhart, 488 U.S. at 42; see also Green, 355 U.S. at
187 (“[T]he State . . . should not be allowed to make repeated attempts to convict an individual
for an alleged offense,” since “[t]he constitutional prohibition against ‘double jeopardy’ was
designed to protect an individual from being subjected to the hazards of trial and possible
conviction more than once for an alleged offense.”); Burks, 437 U.S. at 11 (“The Double
Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another
opportunity to supply evidence which it failed to muster in the first proceeding.”); Garrett, 471
U.S. at 789–90 (“We do not think that the Double Jeopardy Clause may be employed to force the
at trial rendered insufficient because of intervening Supreme Court decision in Ratzlaf, 510 U.S. 135); United States
v. Ford, 703 F.3d 708, 710–11 (4th Cir. 2013) (proof at trial rendered insufficient because of intervening change in
circuit law); United States v. Harrington, 997 F.3d 812, 815 (8th Cir. 2021) (proof at trial rendered insufficient
because of intervening Supreme Court decision in Burrage v. United States, 571 U.S. 204 (2014)); United States v.
Aiello, 118 F.4th 291, 300 (2d Cir. 2024) (proof at trial rendered insufficient because of intervening Supreme Court
decision in Ciminelli v. United States, 598 U.S. 306 (2023)).
3As well, before Erlinger, a defendant would have had strong grounds to object to the admission of his
prior convictions. See Cook, 2022 WL 4684595, at *2 (affirming that Wooden didn’t disrupt prior circuit precedent
and three occasions could be found by judge without violating Apprendi). Without proof that the defendant’s prior
violent felonies had a permissible use, see Fed. R. Evid. 404(b)(2), that evidence would have been extremely
prejudicial to the defendant and likely would have been excluded, see Fed. R. Evid. 404(b)(1). That’s especially
true if the prior violent felonies share traits with the present substantive offense. See Fed. R. Evid. 403.

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No. 22-6067 United States v. Thomas Page 27
Government’s hand in this manner. . . . One who insists that the music stop and the piper be paid
at a particular point must at least have stopped dancing himself before he may seek such an
accounting.”).
So though I recognize that some Erlinger errors are harmful, that just means the
defendant was subject to an erroneous judicial process that must be corrected. Lockhart, 488
U.S. at 40; Burks, 437 U.S. at 15. And on remand, the defendant can exercise his rights under
the Due Process Clause and put the government to its burden to prove beyond a reasonable doubt
the occasions-different question to the proper fact-finder—a jury of his peers. To hold otherwise
would extend the Double Jeopardy Clause beyond its essential protection to shield defendants
not only from a second shot, but also from the government’s first shot under the now-prevailing
standard.
Thus cases pending on direct review are differently situated from future cases the
government will bring. If the government files a new indictment tomorrow and fails to include
the different occasions, or prove them beyond a reasonable doubt at trial, all the double-jeopardy
concerns discussed by the majority about greater- and lesser-included offenses would be directly
at play. The essential difference is that the government is now on notice of Erlinger’s
requirements. So if in the future it fails to allege the different occasions in the indictment, this
omission could invite the possibility of a constructive amendment. And if it fails to prove the
facts beyond a reasonable doubt, this will implicate the government’s first bite at the apple, so it
will be barred from a second bite under the Double Jeopardy Clause. Cf. Burks, 437 U.S. at 11
n.6 (“[W]here the Double Jeopardy Clause is applicable, its sweep is absolute.”). But because
cases like Thomas’s were pending on direct review when Erlinger was decided, a retrial about
the occasions-different element does not offend the Double Jeopardy Clause.

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