Supreme Court hears arguments in Erlanger v. United States over ACCAdifferent-occasions clause and who decides prior-offense facts

The Supreme Court on oral argument examined whether the Armed Career Criminal Act(ACCA) requires a jury, not a judge, to decide whether a defendant's prior offenses occurred on "different occasions," a factual determination that can trigger a mandatory enhancement.

Counsel for the petitioner, identified in argument as Mister Fisher, told the justices that "the Apprendi rule directly applies" to any offense-related conduct beyond the elements of a prior conviction and urged the Court to reverse the court of appeals. Fisher described bifurcation—having a separate jury proceeding on the enhancement questionas a well-established remedy to avoid prejudice and said it would be workable in the relatively small number of ACCA cases each year.

The Solicitor General's office, represented by counsel identified as Mister Fagan, pressed a view that the ACCA ‘‘different occasions’’ inquiry is a multifactored factual question invoking timing, geographic proximity and the nature of the offenses (the approach used in Wooden), and that the Sixth Amendment requires those facts to be found by a jury when they increase a sentence. Fagan told the Court he did not think overruling Almendarez Torres was necessary and said remand for harmless-error review would be appropriate in the present case.

Justices repeatedly pressed both sides on two practical points: how a jury would be instructed on a multifactor "single criminal episode" versus "different occasions" inquiry, and how harmless-error review should work in cases resolved by pleas rather than trials. Justice Alito asked whether charging papers, plea colloquies or prior jury instructions would be admissible to show what a prior jury decided; Fisher acknowledged hearsay concerns for charging documents but noted court records and plea colloquies are often admissible. Justice Gorsuch and others voiced concern that harmless-error analysis is difficult when the sentencing record, not a trial record, supplies the facts.

A recurring historical question animated the argument: whether, at the relevant historical times, there was a near-uniform practice allowing judges (not juries) to make recidivism or sequencing findings. Counsel and amicus briefers debated how many states historically left such facts to judges, and who bears the burden of demonstrating a settled historical practice that would permit a judge to make the findings. The term "Almendarez Torres" came up repeatedly as a narrow precedent that historically permitted judicial factfinding about prior convictions; several justices asked whether that narrow exception should be overruled or clarified.

Counsel cited facts specific to the underlying sentencing record: the government said the enhancement here rested on three robberies alleged to have occurred on April 4, April 8, and April 11; petitionerthrough counselargued the plea records and charging documents are unreliable and that remand is the safer course to resolve harmless-error questions.

The Court also heard concerns about the practical impact of any ruling on state systems and plea bargaining. Fisher noted there are "fewer than 200 ACCA cases a year" and that many are pleas; other counsel warned states could be affected if the Court significantly narrows Almendarez Torres.

The arguments ended after extended colloquy; the case was submitted for decision.

The Courtwhich heard argument from petitioner counsel Mister Fisher, the Solicitor General's representative Mister Fagan, and amicus counsel Mister Harperasked for elaboration on history, evidentiary rules and the mechanics of jury instructions and harmless-error review. The decision will determine whether the Sixth Amendment and Apprendi line require jury findings for the ACCA's different-occasions enhancement or whether longstanding judicial factfinding under Almendarez Torres survives.

No vote or decision was announced at argument; the matter is under submission to the Court.