UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 22-5603 │ v. │ │ CALVIN COGDILL, │ Defendant-Appellant. │ ┘

On Remand from the United States Supreme Court United States District Court for the Eastern District of Tennessee at Chattanooga. No. 1:20-cr-00087-1—Curtis L. Collier, District Judge.

Argued: October 2, 2024

Decided and Filed: March 3, 2025

Before: CLAY, GRIFFIN, and DAVIS, Circuit Judges.

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COUNSEL ARGUED: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. ON SUPPLEMENTAL BRIEF: Jennifer Niles Coffin, FEDERAL DEFENDER SERVICES OF EASTERN TENNESSEE, INC., Knoxville, Tennessee, for Appellant. Luke A. McLaurin, UNITED STATES ATTORNEY’S OFFICE, Knoxville, Tennessee, for Appellee. GRIFFIN, J., delivered the opinion of the court in which DAVIS, J., concurred. CLAY, J. (pp. 12–26), delivered a separate dissenting opinion. No. 22-5603 United States v. Cogdill Page 2

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OPINION _________________

GRIFFIN, Circuit Judge.

This case returns to us after the Supreme Court vacated our earlier decision and remanded for our reconsideration following Erlinger v. United States, 602 U.S. 821 (2024). After defendant Calvin Cogdill pleaded guilty to being a felon in possession of a firearm, the district court, over Cogdill’s objection, determined that Cogdill committed three prior drug offenses “on occasions different from one another,” subjecting him to an enhanced sentence under the Armed Career Criminal Act. Erlinger later clarified that it was error for the judge, instead of a jury, to make that occasions decision. Here, we must review that error for harmlessness, see United States v. Campbell, 122 F.4th 624, 629–31 (6th Cir. 2024), and we hold that the district court’s error was not harmless. We thus vacate Cogdill’s sentence and remand to the district court for further proceedings consistent with this opinion.

I.

A.

In February 2022, without a plea agreement, Cogdill pleaded guilty to one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At the time of his plea, that offense ordinarily carried a maximum penalty of 10 years’ imprisonment. 18 U.S.C. § 924(a)(2) (2018). But under the Armed Career Criminal Act (ACCA), a defendant convicted of a § 922(g) offense who “has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another” is subject to a minimum sentence of 15 years’ imprisonment. 18 U.S.C. § 924(e)(1).

The Presentence Investigation Report (PSR) concluded that Cogdill was “subject to an enhanced sentence” under ACCA based on three prior o