Background
A jury convicted Alexander Faulkner in 2015 of being a felon in possession of a firearm and ammunition. The district court sentenced him to 280 months in prison under the Armed Career Criminal Act, treating a 1984 burglary conviction and two 1996 drug convictions as qualifying offenses committed on separate occasions. The two drug offenses consisted of participation in a cocaine-trafficking conspiracy from October 1993 through February 1995 and possession of cocaine with intent to distribute arising from a February 1995 arrest.
After several unsuccessful collateral challenges and compassionate-release motions, Faulkner filed a fifth motion relying on USSG § 1B1.13(b)(6), which permits consideration of certain changes in law affecting unusually long sentences. While his appeal was pending, the Supreme Court held in Erlinger v. United States that a jury, rather than a judge, generally must determine beyond a reasonable doubt whether ACCA predicates occurred on different occasions. On remand, the district court concluded that any error under Erlinger was harmless and again denied relief.
The Court’s Holding
The Eighth Circuit affirmed. It held that Faulkner could not establish the gross disparity required by § 1B1.13(b)(6) because no rational jury could find that his two 1996 drug offenses occurred on the same occasion. His drug conspiracy continued for more than a year before the discrete possession-with-intent-to-distribute offense, and the 2015 jury had found him guilty of both offenses beyond a reasonable doubt. Accordingly, any error caused by the sentencing judge, rather than a jury, deciding the different-occasions question was harmless.
The court did not conclusively decide whether § 1B1.13(b)(6) validly permits a nonretroactive change in law to qualify as an extraordinary and compelling reason for compassionate release. It observed, however, that the Supreme Court’s decision in Rutherford v. United States and the Eighth Circuit’s subsequent decision in United States v. Loggins appear to establish that nonretroactive legal changes cannot supply such a reason. Because harmless error independently resolved Faulkner’s motion, the panel declined to request further briefing on whether Loggins controlled.
Key Takeaways
- An Erlinger error is harmless when no rational jury could conclude that the defendant’s ACCA predicate offenses occurred on the same occasion.
- A discrete drug offense committed more than a year into an ongoing drug conspiracy may qualify as a separate ACCA occasion.
- The panel indicated that, under Rutherford and Loggins, nonretroactive changes in law cannot constitute extraordinary and compelling reasons for compassionate release in the Eighth Circuit.
Why It Matters
The decision shows that defendants invoking Erlinger through compassionate-release proceedings must demonstrate more than the absence of a jury finding: they must show that the different-occasions issue could reasonably have been decided in their favor. A clear temporal separation between an ongoing conspiracy and a discrete offense may make the judicial factfinding error harmless.
The opinion also signals a substantial additional obstacle to change-in-law compassionate-release claims. Although the panel resolved Faulkner’s appeal on harmless-error grounds, it stated that binding circuit precedent appears to foreclose treating a nonretroactive legal change as an extraordinary and compelling reason for reducing a sentence.