UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

┐ UNITED STATES OF AMERICA, │ Plaintiff-Appellee, │ > No. 23-5529 │ v. │ │ JERMAINE KIMBROUGH, │ Defendant-Appellant. │ ┘ Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:22-cr-20206-1—Thomas L. Parker, District Judge.

Decided and Filed: May 21, 2025

Before: GILMAN, READLER, and BLOOMEKATZ, Circuit Judges.

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COUNSEL ON BRIEF: J. Everett Hoagland, FEDERAL PUBLIC DEFENDER’S OFFICE, Memphis, Tennessee, for Appellant. Karen Hartridge, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.

GILMAN, J., delivered the opinion of the court in which BLOOMEKATZ, J., concurred. READLER, J. (pp. 10–22), delivered a separate opinion concurring in part and dissenting in part. _________________

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. Jermaine Kimbrough pleaded guilty in 2022 to four criminal offenses that involved carjacking and firearms. At sentencing, the district court determined that Kimbrough had committed three prior violent felonies “on occasions different No. 23-5529 United States v. Kimbrough Page 2

from one another,” which made him subject to an enhanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1).

The Supreme Court subsequently held in Erlinger v. United States, 602 U.S. 821, 835 (2024), that error occurs when a judge, instead of a jury, makes the “occasions” decision. We review that decision to determine if the error was harmless. See United States v. Campbell, 122 F.4th 624, 629–31 (6th Cir. 2024). Because the error was not harmless in the present case, we VACATE Kimbrough’s sentence on Counts One, Two, and Four and REMAND for further proceedings consistent with this opinion.

I. BACKGROUND

Kimbrough pleaded guilty to the following offenses: (1) conspiracy to commit carjacking (Count One), in violation of 18 U.S.C. § 371; (2) carjacking (Count Two), in violation of 18 U.S.C. § 2119(1); (3) using, carrying, and brandishing a firearm during and in relation to a crime of violence (Count Three), in violation of 18 U.S.C. § 924(c); and (4) being a felon in possession of a firearm (Count Four), in violation of 18 U.S.C. § 922(g)(1). Kimbrough committed all of these offenses in July 2021. The offense of being a felon in possession of a firearm carried a maximum penalty of 10 years’ imprisonment at that time. 18 U.S.C. § 924(a)(2) (2018). But under the ACCA, a defendant convicted of a felon-in-possession offense under 18 U.S.C. § 922(g) 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). An ACCA designation would therefore increase Kimbrough’s statutory penalty range for Count Four from a maximum of 10 years to a minimum of 15 years.

The Presentence Report (PSR) recommended treating K