US v. Manger Blackmon - Criminal Appeal

UNPUBLISHED UNITED STATES CO URT OF APPEALS FOR THE FOURTH C IRCUIT No. 22-4576 UNITED STATES OF AMERICA, Plaintiff – Appellee, v. MANGER TOBIAS B LACKMON, Defendant – Appellant. Appeal from the United States District Court for the Middle District of North Carolina at Greensboro. Thomas D. Schroeder, Distr ict Judge. (1:22−cr−000 39−TDS−1) Argued: February 12, 2026 Decided: March 5, 2026 Before DIAZ, Chief Ju dge, and WILKINSON and HEYTENS, Circu it Judges. Affirmed by unpublished opinion. Judge Wilkinson wrot e the opinion, in which Chi ef Judge Diaz and Jud ge Heytens joined. ARGUED: T iffany T. McGregor, OFFICE OF THE F EDERAL PUBLIC DEFENDER, Greensboro, North Carolina, for Appellant. Julie Carol Niemeier, OFFIC E OF THE UNITED ST A TES A TTORNEY, Greens boro, North Car olina, fo r Appellee. ON BRIEF: Eric D. Plac ke, Interim Federal Public Defender, OFFICE OF THE FEDERAL PUBLI C DEFENDER, Greensboro, North Carolina, fo r Appellant. Clif ton T. Barrett, Unit ed States Attorney, OFFICE OF THE UNITED ST A TE S A TTORNEY, Greensboro, North Carolina, for Appellee.

2 Unpublished opinions are not binding precedent in this circuit.

3 WILKINSON, Circuit Judge: Manger Blackmon has been convict ed of dozens of crimes. Among them are three violent felonies: a common law robbery from 2003, an assault by strangulation from 2008, and a breaking and ent ering with intent to injure an occupant from 2015. The district court judge, after finding Bl ackmon co mmitted these offense s on d ifferent occasion s, deem ed him an “armed career criminal. ” D oing so triggered a mandatory minimum sentence of fifteen years’ imprison ment. See 18 U.S.C. § 924(e)(1). The Supreme Court has since held that defenda nts are entitled to ha ve a jury resolve this occasions inquiry. Erlinger v. United States, 144 S. Ct. 1840, 1852 (2024). On appeal, Blackmon claims he mi ght not have pled guilty had he known about this right. But any jury would have readily agr eed with the district court’s straightforward analysis, and Blackmon never withdrew his plea or challenged the facts underlying his convictions despite knowing that both set the stage for his enh anced se ntence. Seeing no reaso n to depart from analogous cases holding this type of error to be harmless, we affirm. I. In 2021, police arreste d Blackmon for violating the conditions of his pretrial release in a state proceeding. During the arrest, they found two bullets o n his person and two loade d handguns nearby. Those items were proble ms due to Blac kmon’s extensive criminal history, particularly reg arding acts of viole nce. Three such offenses bear mention: First, in 2003, Blackmon broke into the home of S.H., punched her in the face, and stole some of her property. He also stole property fr om J.H. That all led to his conviction f or (among other crimes) common law robbery, a felony.

4 Second, in 2 008, Bla ckmon squeezed J.H. around the neck, restr icting he r abil ity to breathe. That led to hi s conviction for felon y assault by strangulation. Third, in 2015, Blackmon struck M.R. in the forehead with a door as he broke into her home. That led to his conviction for felon y breaking and enterin g with intent to injure an occupant. R eturning to his 2021 arrest, Blackmon was charged as a felon in possession of a firearm and ammuniti on. See 18 U.S.C. § 922(g)(1). The ind ictment added tha t Blackmon had three pr ior convicti ons for vio lent felonies or serious drug crimes, each committed on a separate occasion. See id. § 924(e)(1). The latter, if true, ren dered him an armed c areer criminal subject to a mandatory mi nimum sentence of fifteen years in prison. Id. Blackmon pled guilty to being a felon in poss ession. During his plea hearing, the district court told Bla ckmon tha t it would determine at sentencing whether he qualifi ed as an armed care er criminal. Black mon then c onfirmed that he understood the statutor y sentencing range applicable if he did so qualify, as well a s if he did not. The distri ct court also verified that Blackmon understood an d discussed with counsel his written plea agreement, which explained how his conviction created the possib ility of a fifteen -year minimum sentence. The res ulting presentence report labeled Black mon an arm ed ca reer cr iminal. To do so, it reasoned that the three previous off enses above qualified as violent fe lonies committed on differen t occasions. Following this designation, the report calculated a Sentencing Guidelines range of 180 to 188 months, which reflected a three-level red uction for Blackmon’s accept ance of responsibility. See U.S. Se nt ’ g Guidelines Ma nual § 3E1.1

5 (U.S. Sent ’ g Comm ’ n 2021). Without that reduction, his Guidelines range likely would have been 210 to 262 months. See id. ch. 5, pt. A. At sentencing, the dis trict court adopted this presentence report without change and treated all its contents a s findings of fact. Imme diately afterwar d, the government explained its recent policy of conceding that juries, not judges, should assess whether predicate offenses occur on diffe rent occasions. At the same time, the government clarifie d that then- valid Fourth Circuit la w authorized judges to make the de termination themselves. Blackmon, for his part, made no objection to the presentence report. Rather, when asked about the government’s qualm above, he stated he “would leave [the issue] up to the [c]ourt” but reserved his right to a ppeal it. J.A. 52. The district court thus d ecided the matter itself, agreeing wit h the presentence re port that Blackmon co mmitted three violent f elonies on different o ccasions. It accordingly sentenced him to fif teen years in prison. Blackmon appealed. This court held his case in abeyance pendi ng another pan el’s decision about th e constitutionalit y of judges answering the occasions inquiry. See United States v. Br own, 67 F.4th 200 (4th Cir. 2023), vacated, 144 S. Ct. 27 12 (202 4). And after the Supreme Court specified that the re is a right to a jur y on this scor e, see Erlinger, 1 44 S. Ct. at 1852, the other panel, on remand, held that we revi ew judge - made occasions findings for har mless error, see United States v. Brown, 136 F.4 th 87, 96 (4th Cir. 2025). This court then lifted th e abeyance on Blackm on’s appeal.

6 I I. The Armed Career Criminal Act (“ACCA”) sets a fifteen-year sentencing floor for possession of a firearm or ammunition as a felon with three prior convictions for certain crimes “ committed on occasions differe nt fr om one another.” 18 U.S.C. § 924(e)(1). Blackmon’s appeal hin ges on the district court ’s application of this “o ccasions clause.” A. The Supreme Court ha s twice of late clarified how to approach this clause. First, i n Wooden v. United Sta tes, 142 S. Ct. 1063 (2022), it relied on the ordinary mea ning of “occasion” to conclude that the occasions clause demands a “ multi - factored” analy sis into the timing, proximity of location, and character and relationshi p of the defendant’s predicate offenses. Id. at 1069 – 71. Secon d, in Erlinger v. United States, 144 S. Ct. 18 40, it determined that the Fifth and Sixth Amendme nts require a jury — not a judge — to reso lve the occasions inqui ry “ unanimously and beyond a reasonable dou bt. ” Id. at 1852. After this latter decisio n, our court held in United States v. Brown, 136 F.4th 87, that “ Erlinge r error [s] ” are reviewed for harmlessness. Id. at 96. That is, when such an error “does not affect substantial r ights,” we “disregard[]” it. Fed. R. Crim. P. 52(a). For a defendant who never went to trial, li ke Black mon, we affir m if the government proves that the error made no difference; in ot her words, it must show bey ond a reasonable doubt t hat the defendant, had he been advised of his jury right, “ wou ld have non etheless waived that right and admitted as part of his guilty plea that his prior offenses were committed on different occasio ns. ” B rown, 136 F.4th at 97. The government has easily met thi s burden here.

7 B. Consider first the stren gth of the evidence supporting the ACCA enhancement — the heart of our harmless- error review in the Erlinger context. See id. at 98. Blackmon’s “case is certainly one of the s traightforward ones.” I d. at 99. Just look at when he comm itted his predicate crimes: 2003, 2008, an d 2015. As the Supreme Court wrote in Wooden, predicate offenses “have nearl y always” been treated “ as occurring on separ ate occasions i f a person committed t hem a day or more apart.” Wooden, 142 S. Ct. at 1071. The yearslong gap s here come no where near what the Justices envisioned as close calls. See, e.g., id. at 1080 (Gorsuch, J., concurring in the judgment) (“I magine a defendant who sells drugs to the same undercover police officer twice at the same street corner one ho ur apart. Do the sales take place on the sa me occasion or different ones? ”). This easy obser vation ju st ab out en ds the Wooden inquiry. “ In many cases, a single factor — especially of time. . . — can decisively differentiate occasions.” Id. at 10 71 (majority opinion). To elimi nate any s emblance of a doubt, the government has also proven Blackmon’s predicate offenses lacked a “commo n scheme or purpose.” Id. One crime, the felonious breaking and enter ing, involved a different victim. The victims in t he other two likely differed as well; though both featured J. H., Blackmon’s robbery conv iction seems to derive solely from his inter actions with S.H. beca use common law robber y requires theft “fro m the person of a nother, or in his presence, aga inst his will, by violen ce or putting him in fear. ” State v. Stewart, 122 S.E.2d 355, 356 (N.C. 1961) (per curiam). And Blackmon’ s acts again st J. H. had entirely di stinct purposes regardless. Wherea s he wanted h er pro perty (and that of S.H.) in one instance, h e sought to strangle her in the othe r.

8 Taking everything together, “[a]bsolut ely no one would say” that, on one occasion, Blackmon robbed on e or two wome n and, on the same occasion more than five years later, he strangled one of those women. Brown, 136 F.4th at 99. And “[a]bs olutely no one would say” that either of these offenses occu rred on the same occasion as when Blackmo n, nearl y seven years after the str angulation, injure d an entirely d ifferent woma n while breakin g into her home. Id. These ready inferences all but dictate the result of our harmlessness review. Recall that by pleading guilty, Blackmon received a three-lev el reductio n for acceptance of responsibility. Had Blackmon ins tead insisted on a trial, he probably would have forgone this redu ction yet assuredly still been deemed, by a jury, an armed career criminal. The rub is that Blackmon onl y stood to benefi t from accepting h is fate, as it reduced the bounds of his Guidelines range to the tune of several years. “[G]iven th at the possibility of a favorable verdict on the ‘diff erent occasions’ issue would have been so exceedingly remote a s to be practically irrelevant, we canno t fathom that ” Blackmon “ would have traded the benefit of pleading guilty for suc h long odds.” Id. Blackmon nevertheless posits that, even if he declined a plea and then lost on the occasions issue, the district court might have still granted him a do wnward va riance to fifteen y ears. That wou ld have rendered his decision to go to trial costless, making it the objectively optimal stra tegy. However, Black mon has given no plausible justification as to why the district court would make such a variance. S ee Gall v. United States, 552 U.S. 38, 50 (2007). This rem ote possibi lity of a devi ation from the Guideli nes would not have persuaded him ex ante to roll the dice on the d istrict court’s sympathy.

9 C. The other signs of harmlessness i n the Erlinger error setting only bolster our conclusion. For starters, Blackmon knew about the possibility of an ACCA enhan cement. The fifteen-yea r minim um was explained at length in his plea agreement, which Blackmon attested to reading an d discussing with cou nsel, and at his plea hearing. Moreover, Blackmon verified that he understood how the district court ’s occasions determination affected his statutory sentencing range. Just li ke the defendant in Brown, then, B lackmon “ chose to plead guilty. . . after having been twice informed that ACCA’s mandatory minimum of 15 ye ars . . . would apply if the judge found its req uirements satisfi ed.” Brown, 136 F.4th at 98. Blackmon also did not seek to withdraw his plea. Indeed, he did not do so even when the government advised the district court that a jury should answer the occasions question. Such an unusual maneuver could have clued Blackmon in to the prospects of the constitutional argument that soon thereafter pre vailed in Erli nger. This too renders his case akin to Brown, where “[e] ven after [the defendant] raised the [Erl inger ] issue before the district court, he did no t seek to withdraw his plea. ” Id. Finally, Blackmon never challenged the accur acy of his pres entence report. Though he debates whe ther the information i n his rep ort can justify an ACC A enhancement, its factual truth — includin g when and how his vi olent felonies occurred — has never been in question. Once again, this aligns his position with that o f the def endant in Brown, who “did not object to the qualifying data supporting th[e ] conclusion” in the presentence report “that ACCA’s requirements were indeed satisfied by [the defendant’s] criminal hist ory.” Id.

10 D. At bottom, Blackmon ’s case is on all fours with Brown. This precedent thus forecloses his remaining arguments. For i nstance, while Black mon criticizes the government for failing to furnish additi onal information be yond the contents of the presentence report, the panel in Brown relied just as much on the presentence report of the defendant before it. I d. at 91, 98. And for good reason; as just explained, the factual contents of the report went wholl y unchallenged there. S o too here. The same goes for Blackmon’s speculatio n that the government might not have been able to find enough evidence admissible before a jury about each pre dicate offe nse. This far - fetched possibility existed equally in Brown; indeed, it e xists in every case involvin g an Erlinger error after a guilty plea. And Blackmon cannot plausibly claim his convic tions present spe cial evid entiary hurdles due to their age. Even the date of the oldest predicate offense — February 26, 2003 — is well wit hin the range of what courts have co nfronted when holding other Erlinger errors harmles s. See, e.g., United States v. Butler, 122 F.4th 584, 590 (5th Cir. 2024) (finding harmless error for predicates that occurred in 1995, 1996, and 2005); United Stat es v. Camp bell, 122 F. 4th 62 4, 627, 632 (6th Cir. 2024) (fin ding harmless error for pr edicates that occurred, a t the latest, in 1993). Also u navailing is Bla ckmon’s observation t hat a jury in the Northern District of Georgia once found a defendant did n ot co mmit three offense s on separate occasions, even though they occurred over nine years ’ time. S ee Phase Two Verdic t at 1, United States v. Pennington, No. 19- CR -455 (N.D. Ga. Sep. 20, 2022), ECF No. 173. Wooden ’s occasions analysis is inherently c ase - specific, and no “properly instructe d” jury would ever find that

11 the facts here indicate fewer than three occasions. Brown, 136 F.4th at 99. Indeed, this court has already deemed harmless plenty of Erlinger errors where the predicate offenses spanned much short er periods — e ven w hen the defenda nt has cited that very jury verdict. See, e.g., United States v. McN eil, No. 22-4308, 2025 WL 176799 0, at *1 (4th Cir. June 26, 202 5) (p er cur iam) (finding har mless error given pred icate offenses sep arated by at least three days each, despite the defendant discussing the same Georgian jury verdict in his reply brief). III. Try as he might, Blackmon cannot escape the grasp of Brown. As was true of the defendant there, the benefits of Black mon’s g uilty plea far out weighed the costs; all he forfeited was the right to have a jury hear an open - and -shut argument about why he is an armed career crimin al. And as was true of the defendant there, Bl ackmon neither withdrew his plea nor disp uted th e accuracy of his presentence repor t after being advised of ACCA’s ramifications. Treatin g like cases alike, “ we have little diffic ulty concluding that the Erlinger error ” here —that is, “ the failur e to i nform ” Blackmon “ of his right to have [the occasions] element fou nd by a jury — was indeed harmless. ” Brow n, 136 F.4th at 97 – 98. AFFIRMED