USCA11 Case: 20-12263 Document: 77-1 Date Filed: 10/17/2024 Page: 1 of 6

[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit ____________________ No. 20-12263 ____________________ UNITED STATES OF AMERICA, Plaintiff-Appellee, versus SURRODRICK MCCOBB,

Defendant-Appellant.

____________________ Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 8:19-cr-00088-VMC-JSS-1 ____________________ Before ROSENBAUM, JILL PRYOR, and ED CARNES, Circuit Judges.

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2 Opinion of the Court 20-12263 PER CURIAM: After appellant Surrodrick McCobb pleaded guilty to being a felon in possession of a firearm, the district court concluded that he was subject to an enhanced penalty range under the Armed Ca- reer Criminal Act (“ACCA”) because he had three or more convic- tions for “serious drug offenses” and these offenses occurred on dif- ferent occasions. 18 U.S.C. § 924(e). At sentencing, the district court imposed a 180-month sentence.

On appeal, McCobb has moved for summary reversal, ar- guing that the district court erred in applying the ACCA enhance- ment because a jury did not find beyond a reasonable doubt that his predicate offenses were committed on different occasions. He asks that we remand for resentencing without the enhancement.

The government does not oppose the motion. We grant McCobb’s motion, vacate his sentence, and remand for resentencing.

I.

In 2020, McCobb pleaded guilty to one count of possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S.C. § 922(g). As part of the plea, he admitted to committing the crime of possessing a firearm as a convicted felon. He also admitted that he had four previous convictions for sale or delivery of cocaine with one of the offenses occurring on or about July 13, 1995, and the three others occurring on or about Jan- uary 30, 1998. He did not admit as part of his plea that he had three or more previous convictions for serious drug offenses that oc- curred on different occasions from one another.

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20-12263 Opinion of the Court 3 Before sentencing, a probation officer prepared a Presen- tence Investigation Report (“PSR”). The PSR reported that without an ACCA enhancement, McCobb’s Sentencing Guidelines range would be 18 to 24 months’ imprisonment. But the PSR concluded that an ACCA enhancement applied because McCobb had at least “three prior convictions” for “a serious drug offense,” and these of- fenses were committed on different occasions. 18 U.S.C. § 924(e)(1). After applying the ACCA enhancement, the PSR re- flected that McCobb’s guidelines range was 188 to 235 months’ im- prisonment and he faced a mandatory minimum sentence of years.

McCobb objected to the ACCA enhancement, arguing, among other things, that the government failed to prove that he had three previous offenses committed on separate occasions. The district court overruled the objection and applied the ACCA en- hancement. It ultimately sentenced McCobb to 180 months’ im- prisonment followed by a five-year term of supervised release.

II.

In his unopposed motion for summary reversal, McCobb ar- gues that the district court erred in applying the ACCA enhance- ment. According to McCobb, his constitutional rights were vio- lated when the district court increased his penalty range based on its factfinding at sentencing that he committed predicate offenses on three different occasions. We agree that summary reversal is warranted.

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4 Opinion of the Court 20-12263 As relevant here, summary disposition is appropriate where “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1161–62 (5th Cir. 1969). 1 According to the United States Supreme Court, under the Fifth and Sixth Amendments of the Constitution, “[o]nly a jury may find facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” Erlinger v. United States, 144 S. Ct. 1840, 1850 (2024) (internal quotation marks omitted). Be- cause a factual finding that the defendant’s predicate offenses “oc- curred on at least three separate occasions” has “the effect of in- creasing both the maximum and minimum sentences” he faces, such finding “must be resolved by a unanimous jury beyond a rea- sonable doubt (or freely admitted in a guilty plea).” Id. at 1851–52.

Here, a constitutional violation occurred because the factual ques- tion of whether McCobb’s previous offenses were committed on different occasions was decided by the district court at sentencing instead of by a unanimous jury beyond a reasonable doubt.

We assume without deciding that a district court’s constitu- tional error in failing to submit to a jury the question of whether the defendant’s previous convictions occurred on different occa- sions does not require reversal or vacatur if the error was In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.

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20-12263 Opinion of the Court 5 harmless. 2 Harmless error review generally “block[s] setting aside [sentences] for small errors or defects that have little, if any, likeli- hood of having changed the result of the trial.” Neder v. United States, 527 U.S. 1, 19 (1999) (internal quotation marks omitted); see also United States v. Roy, 855 F.3d 1133, 1167 (11th Cir. 2017) (en banc) (“As the Supreme Court has repeatedly held, the vast major- ity of constitutional errors that occur at a criminal trial, including Sixth Amendment violations, should be examined for prejudicial effect and those errors do not require reversal if they are harm- less.”).

McCobb argues that the constitutional error here was not harmless because the evidence in the record does not establish be- yond a reasonable doubt that he committed predicate offenses on three different occasions. Notably, after McCobb raised this argu- ment, the government did not oppose his request for summary re- versal. After reviewing the record, we cannot say it is “clear beyond a reasonable doubt that a rational jury would have found” that McCobb’s predicate offenses were committed on at least three

2 In Erlinger, the majority opinion did not address whether an error in failing to have a jury decide whether the defendant’s previous convictions occurred on different occasions is subject to harmless error review. Two separate opin- ions suggested that harmless error review would apply. Erlinger, 144 S. Ct. at 1860–61 (Roberts, J., concurring) (stating that an Erlinger error would be “sub- ject to harmless error review”); id. at 1866 (Kavanaugh, J., dissenting). The Chief Justice’s concurring opinion directed the Seventh Circuit to “consider on remand the Government’s contention that the error here was harm- less.” Id. at 1860–61 (Roberts, J., concurring).

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6 Opinion of the Court 20-12263 separate occasions. Neder, 527 U.S. at 18. Accordingly, we conclude that the Erlinger error was not harmless.

Because McCobb is correct as a matter of law that the dis- trict court erred in applying the ACCA enhancement,3 we grant his unopposed motion for summary reversal, vacate his sentence, and remand for resentencing.

VACATED and REMANDED.

3 On appeal, McCobb also challenged the ACCA enhancement on the ground that the government failed to prove that a Florida state conviction for sale or delivery of cocaine categorically qualified as a serious drug offense for pur- poses of the ACCA. He pointed to an alleged mismatch between how Florida law and federal law treated certain cocaine isomers. Because we grant McCobb’s motion for summary reversal based on the Erlinger error, we do not address the merits of this issue.