Waiver exception leaves ACCA challenge intact but harmless

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The 4th U.S. Circuit Court of Appeals held that the defendant knowingly and intelligently waived his right to appeal his conviction and sentence, but the waiver did not clearly bar his challenge based on Erlinger v. United States. Even so, the court affirmed the judgment because any error related to the Armed Career Criminal Act (ACCA) was harmless.

The defendant pleaded guilty to possession of a firearm and ammunition as a convicted felon and received a 180-month sentence under the ACCA. Although the defendant’s waiver permitted appeals based on ineffective assistance, prosecutorial misconduct, and “future changes in the law,” the defendant—through Anders counsel—argued that Erlinger qualified as such a change and permitted review.

The 4th Circuit agreed that the waiver language was not “clear and unambiguous” as to whether the exception for future legal developments covered the ACCA claim. Because ambiguity is construed against the Government, the court declined to enforce the waiver on that issue.

On the merits, however, the panel found no reversible error. The indictment did not allege the ACCA “different occasions” element, and the district court itself determined that the prior offenses occurred on separate occasions without advising the defendant of his right to have a jury decide that fact beyond a reasonable doubt. Under Erlinger, both omissions constituted error.

But the errors were harmless. The defendant acknowledged during the plea colloquy that he faced ACCA-enhanced penalties, never challenged the enhancement, stipulated to committing qualifying offenses, and did not dispute the presentence report. His prior offenses occurred months apart. The court concluded there was “no doubt” he would have pleaded guilty even with a properly alleged indictment and jury instruction.

The six-page opinion is United States v. Michael Jerome Davis, Lawyers Weekly No. 003-034-25.