Derrick Lorenzo Casey v. United States

Mr. Casey was indicted for a violation of 18 U.S.C. § 922(g)(1) before this Court issued Erlinger v. United States, 602 U.S. 821 (2024). This indictment did not include the elements of the aggravated offense contained in 18 U.S.C. § 924(e) as is required by the Fifth Amendment, Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S. 99 (2013). Moreover, Mr. Casey was not informed that he was entitled under the Fifth and Sixth Amendments to have a jury decide whether he was an armed career criminal. Instead, at sentencing, the district court determined, based on a preponderance of the evidence and Shepard 1 documents, that Mr. Casey qualified for that aggravated offense. Mr. Casey did not object to these constitutional violations. Accordingly, his appeal was considered under plain error review. This case presents an excellent opportunity for this Court to provide definitive guidance to the lower courts regarding whether the Fifth Amendment “charging error” which occurred in this case is structural error, a question left open by United States v. Cotton, 535 U.S. 625 (2002), and United States v. Resendiz-Ponce, 549 U.S. 102 (2007). Even if this Court declines to grant certiorari to address the Fifth Amendment “charging error” present in Mr. Casey’s case, this Court should grant certiorari in Mr. Casey’s case on a second question to address a significant circuit split regarding the correct application of harmless error analysis of Erlinger-based errors for individuals 1 Shepard v. United States, 544 U.S. 13 (2005).