United States of America v. Cameron Johnson

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2338
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
C AMERON JOHNSON ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:20-cr-00060 — Tanya Walton Pratt, Chief Judge.
____________________
A RGUED A PRIL 10, 2024 — DECIDED A UGUST 20, 2024
____________________
Before R IPPLE, HAMILTON , and BRENNAN , Circuit Judges.
R IPPLE, Circuit Judge. The Armed Career Criminal Act
(“ACCA”) prescribes enhanced penalties in felon-in-posses-
sion cases when the defendant has “three previous convic-
tions … 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). Cameron Johnson pleaded guilty to pos-
session of a firearm as a convicted felon. He previously had
been convicted of three counts of robbery under Indiana law,

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which is a violent felony under ACCA.1 He nevertheless con-
tended in the district court that he did not qualify for an en-
hanced sentence under ACCA. In his view, he had committed
two of the robberies on the same occasion, rather than on “oc-
casions different from one another.” Id. He also contended
that a jury should decide whether he had committed the rob-
beries on the same or different occasions.
The district court, relying on our precedent, rejected
Mr. Johnson’s contention that the different-occasions ques-
tion had to be decided by a jury. The court also concluded that
the robberies had been committed on different occasions. It
sentenced Mr. Johnson to fifteen years in prison, the mini-
mum under ACCA.
The Supreme Court recently has held that the Fifth and
Sixth Amendments entitle defendants to have a jury decide
whether prior offenses were committed on the same or differ-
ent occasions. Erlinger v. United States, 144 S. Ct. 1840, 1852
(2024). Given the advent of Erlinger, we now know that the
district court erred in declining to send the different-occasions
question to a jury. This error, moreover, was not a harmless
one. Accordingly, we vacate the judgment of the district court
and remand the case for further proceedings consistent with
this opinion.
I
BACKGROUND
On September 15, 2019, a police officer found a handgun
in Mr. Johnson’s car. As a convicted felon, Mr. Johnson could
not lawfully possess that handgun. The Government
1 United States v. Duncan, 833 F.3d 751, 752 (7th Cir. 2016).

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No. 23-2338 3
therefore charged him with possession of a firearm as a con-
victed felon, in violation of 18 U.S.C. § 922(g). He pleaded
guilty to that offense.
The Government also charged in the indictment that
Mr. Johnson qualified for an enhancement under ACCA. It re-
lied on three prior offenses: two robberies committed on Jan-
uary 22, 2009 and one robbery committed in 2016. Mr. John-
son objected to ACCA classification, contending that the two
January 22, 2009 robberies were committed on one occasion,
not on different occasions. After Mr. Johnson’s objection, both
the Government and Mr. Johnson submitted that a jury
should decide, on a beyond-a-reasonable-doubt standard,
whether the January 22, 2009 robberies were committed on
the same or different occasions. The district court rejected this
contention on the ground that it was foreclosed by Seventh
Circuit precedent. The court therefore concluded that it
would decide the different-occasions question at sentencing.
Before sentencing, the parties submitted evidence relevant
to the different-occasions question. According to the parties’
evidence, early in the morning of January 22, 2009, Mr. John-
son and two other individuals drove to a bus stop. Mr. John-
son and one of the other individuals got out of the car.
Mr. Johnson, armed with a handgun, ordered a man at the
bus stop to give up his sneakers, book bag, and cell phone.
The man complied. Mr. Johnson and his accomplices then
drove over to a different bus stop, 0.6 miles away. Mr. John-
son, still armed with the gun, got out of the car and took two
dollars from the purse of a woman waiting at the second bus
stop. The amount of time that elapsed between the two rob-
beries is not clear. The dispatches that local police received
after the robberies came in at “approximately 6:55am” and

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4 No. 23-2338
“approximately 7:00am.”2 A map that the parties submitted
indicates that it takes approximately two minutes to drive
from the first bus stop to the second one.
The district court concluded that the robberies were com-
mitted on different occasions. In support, it stated that the
robberies “did not occur at the same location with one ad-
dress,” were not “part and parcel of the same scheme,” and
were not “uninterrupted conduct.”3 The court explained that,
because Mr. Johnson’s three prior robberies amounted to vio-
lent felonies that were committed on different occasions,
Mr. Johnson qualified for an enhanced sentence under
ACCA. The court sentenced Mr. Johnson to fifteen years’ im-
prisonment to be followed by three years of supervised re-
lease.
II
DISCUSSION
A.
The governing statutory language appears straightfor-
ward. Under ACCA, a defendant convicted of possession of a
firearm as a convicted felon who has “three previous convic-
tions … for a violent felony or a serious drug offense, or both,
committed on occasions different from one another” must be
sentenced to at least fifteen years’ imprisonment. 18 U.S.C.
§ 924(e)(1).
Despite the uncomplicated text of the statute, significant
interpretative problems have arisen in implementing the
2 R.120-2 at 1.
3 Sent. Tr. at 10, 13.

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No. 23-2338 5
statute. One such problem has been determining what it
means for offenses to have been committed on different occa-
sions. In Wooden v. United States, 595 U.S. 360 (2022), the Su-
preme Court addressed that question. The defendant in that
case had burglarized ten connected storage units in a one-
building storage facility in a single evening in 1997. He
pleaded guilty to ten counts of burglary under Georgia law.
Nearly two decades later, police found guns in the defend-
ant’s home, and he pleaded guilty to possession of a firearm
as a convicted felon, in violation of 18 U.S.C. § 922(g). The
Government submitted that the ten 1997 burglary offenses
were committed on different occasions and that the defendant
therefore qualified for an enhanced sentence under ACCA.
The Supreme Court determined that Wooden had com-
mitted the offenses on the same occasion. It rejected the view
embraced by the Government and many of the courts of ap-
peals that offenses occur on different occasions whenever
they occur “sequentially rather than simultaneously.”
595 U.S. at 365; see id. at 365 n.1 (citing United States v. Morris,
821 F.3d 877, 880 (7th Cir. 2016) and other decisions). It held
that ACCA instead required a “more holistic inquiry” into a
“range of circumstances.” Id. at 365, 369. The test the Court
embraced is “multi-factored in nature”:
Offenses committed close in time, in an uninter-
rupted course of conduct, will often count as
part of one occasion; not so offenses separated
by substantial gaps in time or significant inter-
vening events. Proximity of location is also im-
portant; the further away crimes take place, the
less likely they are components of the same
criminal event. And the character and

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6 No. 23-2338
relationship of the offenses may make a differ-
ence: The more similar or intertwined the con-
duct giving rise to the offenses—the more, for
example, they share a common scheme or pur-
pose—the more apt they are to compose one oc-
casion.
Id. at 369. The Court concluded that, although there would be
“hard cases” under that test, Wooden’s case was an “easy
one,” because “every relevant consideration” indicated that
the burglaries occurred on one occasion. Id. at 370, 371 n.4.
Although Wooden settled one question, it brought another
to the surface. Prior to Wooden, the federal courts of appeals
had held that defendants did not have a right, under the Fifth
and Sixth Amendments, to a jury determination on the ques-
tion whether offenses were committed on different occa-
sions.4 But, as some judges pointed out, Wooden called for an
inquiry into a range of facts other than the fact of a prior con-
viction, while the Supreme Court’s recent jury trial cases held
that, in deciding eligibility for a mandatory minimum, courts
can look only to the fact of a prior conviction. See United States
v. Stowell, 82 F.4th 607, 612–14 (8th Cir. 2023) (en banc) (Erick-
son, J., dissenting) (citing Apprendi v. New Jersey, 530 U.S. 466
(2000) and its progeny); United States v. Brown, 67 F.4th 200,
215–16 (4th Cir. 2023) (Heytens, J., concurring) (citing the
same line of cases). Indeed, the Government itself came to the
position that the Constitution entitles defendants to a jury de-
termination on the different-occasions question. See Gov’t Br.
4 See Gov’t Br. Supp. Pet. Cert. at 9–10, Erlinger v. United States, No. 23-370
(U.S. Oct. 17, 2023) (collecting cases).

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No. 23-2338 7
Supp. Pet’r at 11, Erlinger v. United States, No. 23-370 (U.S. Jan.
3, 2024).
The Supreme Court agreed with that position in Erlinger
v. United States, supra. It held in that case that the Fifth and
Sixth Amendments entitle defendants to demand a determi-
nation by a unanimous jury, beyond a reasonable doubt, on
the different-occasions question. 144 S. Ct. at 1852. Erlinger ap-
plies here because Mr. Johnson’s case was still pending on di-
rect review at the time Erlinger was decided. See Griffith v. Ken-
tucky, 479 U.S. 314, 328 (1987). Given Erlinger, we agree with
Mr. Johnson that the district court erred in declining to send
the different-occasions question to a jury.
B.
The Government nevertheless submits that the error was
harmless. Errors that “infringe upon the jury’s factfinding
role” are “subject to harmless-error analysis.” Neder v. United
States, 527 U.S. 1, 18 (1999). This analysis is applicable when
there is a “[f]ailure to submit a sentencing factor to the jury.”
Washington v. Recuenco, 548 U.S. 212, 222 (2006); see Erlinger,
144 S. Ct. at 1860 (Roberts, C.J., concurring). However, a fail-
ure to submit a sentencing factor to a jury is harmless only if
it is “clear beyond a reasonable doubt” that a properly in-
structed jury would have found the same facts as the court.
United States v. Hollingsworth, 495 F.3d 795, 806 (7th Cir. 2007);
see Chapman v. California, 386 U.S. 18, 24 (1967) (setting forth
general standard for harmlessness of constitutional errors).
The error here was not harmless. A properly instructed
jury would have considered “a range of circumstances,” in-
cluding timing, proximity of location, and the character and
relationship of the offenses. Wooden, 595 U.S. at 369. No

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8 No. 23-2338
“substantial gap[] in time” separated the two robberies; to the
contrary, they appear to have been committed within minutes
of each other. Id. Mr. Johnson’s brief travel in his car between
the two robberies was not a “significant intervening event[].”
Id. The offenses did not occur in the same location, as in
Wooden, but a 0.6-mile distance still suggests some “[p]roxim-
ity of location.” Id. As for the “character and relationship of
the offenses,” although the victims of the two robberies were
different and neither robbery facilitated the other one, the rob-
beries seem to have “share[d] a common … purpose,” and
they were “accomplished by the same means.” Id. at 369, 370.
In sum, it is not clear beyond a reasonable doubt that a
properly instructed jury would have found that Mr. John-
son’s January 22, 2009 robberies were committed on different
occasions.
Conclusion
For the reasons stated, Mr. Johnson’s sentence is vacated,
and the case is remanded for further proceedings consistent
with this opinion.
VACATED AND REMANDED

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