Petition for Writ of Certiorari — Rico Lorodge Brown, Petitioner v. United States

No. ____

_____________

In The

Supreme Court of the United States

______________________________

RICO LORODGE BROWN,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

______________________________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fourth Circuit

______________________________

APPENDIX

______________________________

John G. Baker

FEDERAL PUBLIC DEFENDER FOR THE

WESTERN DISTRICT OF NORTH CAROLINA

Joshua B. Carpenter

Appellate Chief

Counsel of Record

One Page Avenue, Suite 210

Asheville, NC 28801

Telephone: (828) 232-9992

Email: Joshua_Carpenter@fd.org

TABLE OF CONTENTS

Opinion of the United States Court of Appeals for the Fourth Circuit,

filed April 29, 2025 ..................................................................................... App. 1

Judgment of the United States Court of Appeals for the Fourth Circuit,

filed April 29, 2025 ................................................................................... App. 22

Order on Rehearing of the United States Court of Appeal for the

Fourth Circuit, filed September 3, 2024 .................................................. App. 23

Order of the United States Court of Appeals for the Fourth Circuit

Remanding Case, filed August 5, 2024 .................................................... App. 24

Order on Rehearing of the United States Court of Appeals for the

Fourth Circuit, filed August 9, 2023 ........................................................ App. 25

Opinion of the United States Court of Appeals for the Fourth Circuit,

filed May 3, 2023....................................................................................... App. 39

Judgment of the United States Court of Appeals for the Fourth Circuit,

filed May 3, 2023....................................................................................... App. 74

Judgment of the United States District Court for the Western District

of North Carolina, filed May 13, 2021 ..................................................... App. 75

Bill of Indictment from the United States District Court for the

Western District of North Carolina, filed June 19, 2020 ........................ App. 82

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4253

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICO LORODGE BROWN,

Defendant - Appellant.

On Remand from the Supreme Court of the United States. (S. Ct. No. 23-6433)

Argued: December 10, 2024

Decided: April 29, 2025

Before NIEMEYER and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge

Heytens and Senior Judge Floyd joined.

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH

CAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright,

Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,

Charlotte, North Carolina, for Appellee. ON BRIEF: John G. Baker, Federal Public

Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,

Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, OFFICE

OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

App. 1

NIEMEYER, Circuit Judge:

In our prior decision in this case, we affirmed Rico Brown’s 15-year sentence for

the illegal possession of a firearm under 18 U.S.C. § 922(g), a sentence that was enhanced

under the Armed Career Criminal Act (ACCA) by reason of Brown’s three prior

convictions for violent felonies “committed on occasions different from one another,” as

found by the sentencing judge. United States v. Brown, 67 F.4th 200, 201 (4th Cir. 2023)

(quoting 18 U.S.C. § 924(e)(1)). We rejected Brown’s contention that the “different

occasions” element of the ACCA enhancement should have been alleged in his indictment

and have been either subject to a jury finding beyond a reasonable doubt or admitted by

him in his guilty plea. We reasoned that under Almendarez-Torres v. United States,

523 U.S. 224 (1998), the “different occasions” requirement was a sentencing factor to be

found by the sentencing judge, rather than a jury. Brown, 67 F.4th at 201. From our

decision, Brown filed a petition for a writ of certiorari in the Supreme Court.

After we published our decision, the Supreme Court held in Erlinger v. United

States that because the factual finding that a defendant’s prior crimes were committed on

different occasions “had the effect of increasing both the maximum and minimum

sentences” for his firearm-possession conviction, the defendant was entitled, under

Apprendi v. New Jersey, 530 U.S. 466 (2000), “to have a jury resolve ACCA’s occasions

inquiry,” rather than the judge. Erlinger v. United States, 602 U.S. 821, 835 (2024). And

in light of its decision in Erlinger, the Court granted Brown’s petition for a writ of certiorari

in this case, vacated our judgment, and remanded “for further consideration in light of

Erlinger.” Brown v. United States, 144 S. Ct. 2712 (2024).

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App. 2

On remand, we requested that the parties submit additional briefing on the issue of

whether the Erlinger error was subject to harmless-error review, and we then held another

oral argument. For the reasons given, we now conclude (1) that an Erlinger error is subject

to harmless-error review, and (2) that the Erlinger error in this case was indeed harmless.

Accordingly, we affirm the judgment of the district court, which included an ACCAenhanced sentence of 180 months’ imprisonment.

I

After Rico Brown sold a handgun to an undercover law enforcement officer on

September 23, 2019, in Union County, North Carolina, he was indicted for possession of a

firearm while knowing that he had previously been convicted of a felony, in violation of

18 U.S.C. § 922(g)(1). At that time, the maximum sentence for that crime, without any

enhancement, was 10 years’ imprisonment, id. § 924(a)(2) (2012) (amended 2022), but if

ACCA were implicated, the sentence would have been enhanced to a mandatory minimum

sentence of 15 years’ imprisonment and a maximum of life, see id. § 924(e)(1). A

defendant qualified for an ACCA sentencing enhancement if he had three previous

convictions for a violent felony or serious drug offense “committed on occasions different

from one another.” Id. Because the then-governing law made the application of ACCA a

sentencing factor, district courts determined at sentencing whether the defendant had three

qualifying prior convictions and whether those convictions were for offenses committed

on different occasions. See, e.g., United States v. Thompson, 421 F.3d 278, 285–86 (4th

Cir. 2005). Consequently, the government did not charge the ACCA enhancement in

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App. 3

Brown’s indictment. Brown was, nonetheless, notified at his initial appearance of both the

ten-year maximum penalty for a violation of § 922(g)(1) and the enhanced sentence that

would apply if his criminal history satisfied ACCA’s requirements.

Brown pleaded guilty to the firearm charge, and at the hearing conducted to

determine whether his plea was knowing and voluntary, he was again advised that “the

statutory punishment for a 922(g) [offense was] a maximum term of imprisonment of ten

years,” except that if ACCA applied, “the minimum term of imprisonment [would be] 15

years and the maximum term [would be] life.” Brown confirmed that he understood this

and that he nonetheless wanted to plead guilty. The court found Brown’s plea to be

knowing and voluntary and thus accepted it.

In the presentence report prepared for sentencing, the probation officer, using state

court records, concluded that Brown was indeed subject to ACCA’s enhanced sentencing

range because he had three previous convictions for crimes that qualified as violent felonies

and were committed on different occasions. The probation officer relied on: (1) a 2008

North Carolina conviction for robbery with a dangerous weapon arising out of a robbery

committed on July 14, 2007, during which Brown used a handgun to threaten the life of

Jesus Jasso; (2) a 2008 North Carolina conviction for robbery with a dangerous weapon

arising out of a robbery committed on September 24, 2007, during which Brown used a

shotgun to threaten the life of Tushar Mukundbhai Shah; and (3) a 2013 North Carolina

conviction for common-law robbery arising out of a robbery committed on October 8,

2012, during which Brown used violence or the threat of violence to take property from

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App. 4

Pedro Alonso. Brown was sentenced for the first two of these prior convictions in a single

proceeding conducted on May 13, 2008.

Brown did not object to the accuracy of any information included in the presentence

report that pertained to his criminal history. Nor did he argue at the sentencing hearing

that the district judge should find that the two armed robberies for which he was convicted

in 2008 were part of a single criminal episode constituting one occasion, so as to render

ACCA inapplicable. But he did mount a constitutional challenge to the application of

ACCA. He contended that even if the court could constitutionally find the fact of his three

prior convictions, the fact that the underlying offenses had been committed on different

occasions should have been (1) charged in the indictment and (2) either found by a jury or

admitted by him in his guilty plea. He argued that because neither had occurred, sentencing

him under ACCA would violate the Fifth and Sixth Amendments, as delineated in

Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S.

99 (2013).

The district court overruled Brown’s constitutional objections, relying on “the

existing authority of the Fourth Circuit,” and sentenced Brown under ACCA to 180

months’ imprisonment.

On appeal, we affirmed. United States v. Brown, 67 F.4th 200 (4th Cir. 2023). We

reasoned that the Supreme Court had held in Almendarez-Torres v. United States that “the

facts that support a recidivism enhancement are resolved by the district court during

sentencing” and that “ACCA provides just such a recidivism enhancement.” Id. at 201

(citing 523 U.S. 224 (1998)). We further concluded that subsequent Supreme Court

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App. 5

decisions had “not narrowed or overruled Almendarez-Torres” and that “if they [had] done

so by implication, the Supreme Court must say so, not a court of appeals.” Id. When

Brown filed a petition in our court for rehearing en banc, we denied it, but almost every

member of our court joined an opinion urging the Supreme Court to resolve the issue. See

United States v. Brown, 77 F.4th 301, 301–02 (4th Cir. 2023) (Heytens, J., statement

concerning the denial of rehearing en banc); id. at 302 (Niemeyer, J., concurring in part in

the statement of Heytens, J.) (joining in “urging the Supreme Court to give the courts of

appeals guidance in this important matter”); id. at 303 (Wynn, J., dissenting from the denial

of rehearing en banc) (agreeing that “the Supreme Court should take up the key question

in this case”). Brown then filed a petition for a writ of certiorari in the Supreme Court.

The Supreme Court did indeed take up the issue in a similar case from the Seventh

Circuit and held that a defendant is “entitled to have a jury resolve ACCA’s occasions

inquiry unanimously and beyond a reasonable doubt.” Erlinger v. United States, 602 U.S.

821, 835 (2024). In light of its decision, the Court also granted Brown’s petition for a writ

of certiorari, vacated our decision, and remanded the case to us “for further consideration

in light of Erlinger.” Brown v. United States, 144 S. Ct. 2712 (2024).

On remand from the Supreme Court, we requested supplemental briefs from the

parties addressing whether the Erlinger error was subject to harmless-error review, and

thereafter we held a second oral argument to focus on that issue.

6

App. 6

II

The Erlinger error committed in this case, in violation of the Fifth and Sixth

Amendments, was, first, the government’s failure to allege in the indictment that Brown’s

prior convictions were for offenses “committed on occasions different from one another,”

18 U.S.C. § 924(e)(1), and second, in a similar vein, the court’s failure to advise Brown

during his guilty-plea hearing under Rule 11 that he had the right to have that “different

occasions” element found by a jury, rather than the sentencing judge. 1 Because the failure

to allege and the failure to advise are directly related, we take them collectively as “the

Erlinger error.” The issue now presented is whether that error is subject to harmless-error

review.

The government contends that the Erlinger error is nothing more than an Apprendi

error and that our precedents are clear that Apprendi errors are subject to harmless-error

review. See, e.g., United States v. Legins, 34 F.4th 304, 321–22 (4th Cir. 2022) (explaining

that Washington v. Recuenco, 548 U.S. 212 (2006), made clear that Apprendi errors are

subject to harmless-error review).

Brown, however, contends that an Erlinger error is “per se prejudicial” and “can

never be harmless.” In other words, he maintains that it is the type of error referred to in

cases as “structural error,” for which relief may be granted without regard to the error’s

The Fifth Amendment provides, “No person shall be held to answer for a . . . crime,

unless on a presentment or indictment of a Grand Jury . . . nor be deprived of life, liberty,

or property, without due process of law . . . .” U.S. Const. amend. V. And the Sixth

Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury . . . .” Id. amend. VI.

1

7

App. 7

effect on the case’s outcome. He argues that this follows from the reasoning of Erlinger

itself and also from our decision in United States v. Whitfield, 695 F.3d 288 (4th Cir. 2012),

where we held that a district court’s constructive amendment of an indictment to add a new

offense was prejudicial per se and thus not subject to harmless-error review.

We begin by identifying the applicable legal principles. Federal Rule of Criminal

Procedure 52(a), which applies when the defendant has made a timely objection before the

district court, provides that any error “that does not affect substantial rights must be

disregarded.” Stated otherwise, even preserved error must have been “prejudicial” to be

considered on review; “it must have affected the outcome of the district court proceedings.”

United States v. Olano, 507 U.S. 725, 734 (1993) (cleaned up). When “Rule 52(a) applies,

a court of appeals normally engages in a specific analysis of the district court record — a

so-called ‘harmless error’ inquiry — to determine whether the error was prejudicial,” and

the government “bears the burden of persuasion with respect to prejudice.” Id. When the

error is a constitutional one, that burden requires the government to “prove beyond a

reasonable doubt that the error complained of did not contribute to the [result] obtained.”

Chapman v. California, 386 U.S. 18, 24 (1967).

While Rule 52(a) “by its terms applies to all errors where a proper objection [was]

made,” there is nonetheless “a limited class of fundamental constitutional errors that defy

analysis by ‘harmless error’ standards” and are “so intrinsically harmful as to require

automatic reversal (i.e., ‘affect substantial rights’) without regard to their effect on the

outcome.” Neder v. United States, 527 U.S. 1, 7 (1999) (cleaned up). The Supreme Court

has repeatedly emphasized, however, that this class of errors — i.e., structural errors — is

8

App. 8

“very limited” and that such errors are “highly exceptional.” Greer v. United States,

593 U.S. 503, 513 (2021) (first quoting Neder, 527 U.S. at 8; and then quoting United

States v. Davila, 569 U.S. 597, 611 (2013)). Specifically, structural errors are understood

to be “errors that affect the entire conduct of the proceeding from beginning to end.” Id.

(emphasis added) (cleaned up). Examples include the “denial of counsel of choice, denial

of self-representation, denial of a public trial, and failure to convey to a jury that guilt must

be proved beyond a reasonable doubt.” Id. (quoting Davila, 569 U.S. at 611). Indeed, “if

the defendant had counsel and was tried by an impartial adjudicator, there is a strong

presumption that any other constitutional errors that may have occurred are subject to

harmless-error analysis.” Recuenco, 548 U.S. at 218 (cleaned up). Thus, “discrete defects

in the criminal process” — even if they represent a constitutional error — “are not

structural because they do not ‘necessarily render a criminal trial fundamentally unfair or

an unreliable vehicle for determining guilt or innocence.’” Greer, 593 U.S. at 513 (first

emphasis added) (quoting Neder, 527 U.S. at 9).

Under these principles, Apprendi errors — those errors where a fact that increases

the statutory penalty for a crime is omitted from the indictment and decided by a judge,

rather than a jury — are not structural errors but discrete defects that can be reviewed on

appeal for their effect on the outcome of the proceeding. This is clear from Recuenco. See

548 U.S. at 220–22; see also Legins, 34 F.4th at 322.

In Recuenco, the jury found that the defendant had committed an assault “with a

deadly weapon,” which would have resulted in a one-year sentence enhancement. 548 U.S.

at 215. The trial judge, however, applied a mandatory three-year enhancement based on

9

App. 9

his finding during sentencing that the deadly weapon was in fact a “firearm.” Id. The

Supreme Court of Washington concluded that the trial judge had committed an Apprendi

error and that the error was structural. Id. at 216. The U.S. Supreme Court, however,

reversed, concluding that the Apprendi error was not structural but was subject to review

under the harmless-error standard. Id. at 221–22. In reaching its conclusion, the Court

relied directly on its prior decision in Neder, indeed finding that the case before it was

“indistinguishable from Neder.” Id. at 220.

In Neder, the trial court did not submit to the jury the offense element of

“materiality” as it related to a false statement, reserving a finding on that element for the

court. 527 U.S. at 6. Even though that error amounted to a violation of the defendant’s

Sixth Amendment right to have the jury decide all elements of the offense, the Neder Court

held that the error was nonetheless subject to harmless-error review. See id. at 8–10.

The Recuenco Court recognized Neder’s distinguishing circumstances. In Neder,

the jury purportedly convicted the defendant of a crime without actually finding all the

crime’s elements. See Recuenco, 548 U.S. at 220–21. Conversely, in Recuenco, the jury

did find all the elements of one offense, but the defendant was sentenced as if the jury had

also found the sentencing factor that was necessary for his enhanced sentence. Id. Yet,

the Court reasoned that the distinction was of no “constitutional significance,” relying on

Apprendi’s recognition that “elements and sentencing factors [are] treated the same for

Sixth Amendment purposes.” Id. at 220. Thus, the Court concluded that “[f]ailure to

submit a sentencing factor to the jury, like failure to submit an element to the jury, is not

structural error.” Id. at 222 (emphasis added).

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App. 10

Just as the failure to submit a sentencing factor or an element to the jury is not

structural error, neither is the closely related “failure to charge” error, in violation of the

Fifth Amendment, structural error. See Legins, 34 F.4th at 322–23. It is not an error so

fundamental as to have “affected the entire conduct of the proceeding from beginning to

end.” Greer, 593 U.S. at 513 (cleaned up). And similarly, the Greer Court recently

recognized that “[t]he omission of [an] element from a plea colloquy” “is likewise not

structural” because it “does not affect the entire framework within which the proceeding

occurs.” Id. at 513–14 (citing Neder 527 U.S. at 8). All are subject to harmless-error

analysis.

Therefore, under the Supreme Court’s decisions in Neder, Recuenco, and Greer, as

well as our decision in Legins, we conclude that harmless-error review applies to the

Erlinger error before us — i.e., to both (1) the indictment’s failure to allege that Brown

committed ACCA predicate offenses on at least three different occasions and (2) the district

court’s failure to inform Brown during his plea colloquy that he had the right to have a jury

find that fact beyond a reasonable doubt.

In so holding, we join all other courts of appeals that have decided the issue. See

United States v. Butler, 122 F.4th 584, 589 (5th Cir. 2024) (rejecting defendant’s argument

that the Erlinger error presented “falls within the limited class of constitutional errors that

require automatic reversal” and relying instead on its prior recognition “that Apprendi

errors are subject to a harmless-error analysis”); United States v. Campbell, 122 F.4th 624,

630 (6th Cir. 2024) (same); United States v. Johnson, 114 F.4th 913, 917 (7th Cir. 2024)

(applying harmless-error analysis).

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App. 11

Brown nonetheless argues that Erlinger itself “implicitly rejected” using the

harmless-error analysis for the failure to submit the “different occasions” element of the

ACCA sentencing enhancement to a jury. He relies on the statement in Erlinger where the

Court explained that a criminal defendant has the right to require the government to prove

to a jury that he committed his prior predicate offenses on different occasions “‘regardless

of how overwhelmin[g]’ the evidence may seem to a judge.” 602 U.S. at 842 (alteration

in original) (quoting Rose v. Clark, 478 U.S. 570, 578 (1986)). In that quote, however, the

Court was simply explaining that it was error for the judge, not a jury, to have made the

“different occasions” finding, noting that such is true even in the “many” “straightforward”

cases where the “defendant’s past offenses” were “separated by enough time and space that

there is little question he committed them on separate occasions.” Id. The Court did not,

however, address how such an error should be treated once it has occurred. Indeed, Chief

Justice Roberts made this point explicit in a concurring opinion, in which he emphasized

that the error identified would be “subject to harmless error review.” Id. at 850 (Roberts,

C.J., concurring). Had the Erlinger Court provided otherwise, the Chief Justice, who

joined the Court’s opinion in full, could not have contributed that observation.

Moreover, Brown’s argument overlooks the Court’s observation that an Erlinger

error is merely a type of Apprendi error. See Erlinger, 602 U.S. at 848 (characterizing its

holding as a “straightforward application of Apprendi to ACCA’s different-occasions

requirement” (cleaned up)). And, of course, Recuenco established that Apprendi errors of

the type found in Erlinger are subject to harmless-error review. Recuenco, 548 U.S. at

221–22.

Nothing in Erlinger purported to change or undermine that holding.

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App. 12

See

Campbell, 122 F.4th at 631 (rejecting the argument that Erlinger had “implicitly view[ed]

the underlying error at issue there as structural”).

Brown also contends that our decision in Whitfield, where we held that a judge’s

constructive amendment of an indictment was prejudicial per se, is “indistinguishable” and

therefore controls this case. In Whitfield, the district court, through instructions given to

the jury over the defendant’s objection, added a new crime for consideration by the jury —

“an offense not charged” in the indictment. 695 F.3d at 306. And the jury, following the

court’s instruction, convicted the defendant of that new offense. By being convicted of a

charge not included in the indictment, the defendant was denied all the benefits of an

indictment guaranteed by the Constitution — notice, an opportunity to defend, and

protection against a second prosecution on the same charge. See id. at 308. Unsurprisingly,

we held that the district court’s constructive amendment of the indictment denied the

defendant his Fifth Amendment rights and that the error was “fatal and reversible per se.”

Id. at 307 (cleaned up).

Importantly, however, we distinguished the constructive

amendment of an indictment from the situation where the error was “the failure of an

indictment to allege an element of a charged offense.” Id. at 308 (emphasis added) (quoting

United States v. Higgs, 353 F.3d 281, 306 (4th Cir. 2003)). As to that type of error, we

noted that it would be subject to harmless-error review. Id. As we explained:

Although the distinction between a constructive amendment and a Higgstype indictment error [involving an omitted element] may be nuanced, the

difference is appreciable in this case. Here, there was substantially more than

a simple neglect to allege an element of a charged offense. . . . The error

arose not from the indictment’s omission of an element of a charged offense

but from the district court’s instructions on an element of an uncharged

offense . . . on which Whitfield was ultimately convicted and sentenced.

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App. 13

Id. (cleaned up).

Clearly, the circumstances here do not involve the addition of a new offense to the

indictment; it was, rather, the failure to allege in the indictment but one element of the

ACCA sentencing enhancement to be decided by the jury. And, as we stated in Whitfield,

such an error of omission is subject to harmless-error review. 695 F.3d at 308. Indeed,

such an omission falls squarely within the holding of Recuenco that Apprendi errors are

subject to harmless-error review. See Recuenco, 548 U.S. at 221–22; see also Legins,

34 F.4th at 322 (“The takeaway from Recuenco is clear: The Government’s failure to

include a sentence-enhancing factor in the indictment and jury charge . . . like its failure to

include any other element of an offense” is subject to “harmless-error analysis”).

Whitfield is made yet more inapplicable because it did not arise in the context of a

guilty plea, where the defendant was, at every stage of the proceedings, advised that he

could be sentenced under ACCA’s enhanced sentencing range, notwithstanding the

indictment’s silence as to ACCA and its “different occasions” requirement. To be sure,

following Erlinger, the government must allege ACCA’s “different occasions” element in

the indictment when it intends to argue that ACCA is applicable. But because that was not

the case when Brown’s indictment was returned, Brown and his lawyer would not have

inferred anything from the omission of ACCA from his indictment. Thus, the error here

does not involve a failure of notice or ability to defend — benefits provided by an

indictment — but misadvice about a discrete procedure. And such misadvice is typically

subject to harmless-error review. See Greer, 593 U.S. at 508, 513–14 (holding that the

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App. 14

district court’s failure to advise the defendant of an element of the offense at his plea

hearing was subject to plain-error review, which also requires a showing as to prejudice).

In short, Whitfield hardly provides Brown with support for his claim that the

Erlinger error in this case — i.e., omitting an element of the ACCA sentencing

enhancement from the indictment and failing to advise him that such element is subject to

a jury finding — is structural error.

At bottom, we reject Brown’s argument that an Erlinger error is “per se prejudicial”

and instead conclude that it is subject to harmless-error review.

III

Brown contends that even under the harmless-error standard of review, the

government has not met its burden of showing beyond a reasonable doubt that the Erlinger

error was harmless. He notes that the harmless-error analysis requires deciding whether

proof of the missing fact or element was overwhelming and uncontroverted so as to be able

to determine conclusively that a jury would have found the fact or element beyond a

reasonable doubt. See Neder, 527 U.S. at 17–18; Legins, 34 F.4th at 322–23. And he

argues that the government has not demonstrated that the Erlinger error was harmless

because it has not advanced overwhelming and uncontroverted evidence that the jury

would have found that his previous convictions were for offenses committed on different

occasions. He contends that the Supreme Court’s decision in Wooden v. United States,

595 U.S. 360 (2022), requires “a qualitative assessment about the character and relationship

of the offenses, including an inquiry into whether the crimes shared a common scheme or

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App. 15

purpose.” (Cleaned up). And because, as he maintains, there is a controversy over whether

Brown’s two 2007 North Carolina robberies shared a common purpose, the government

cannot show beyond a reasonable doubt that the jury would have concluded — also beyond

a reasonable doubt — that the offenses were committed on different occasions.

The government argues the flipside, contending that the factual circumstances

contained in the presentence report about the two 2007 robberies show uncontroversially

and overwhelmingly that Brown committed them on different occasions, such that we can

be sure that a jury would have so found beyond a reasonable doubt. Therefore, it contends,

the error was harmless.

We believe, however, that both Brown and the government misdirect their

arguments in the context of this case. While the harmless-error analysis that the parties

invoke applies when a defendant went to trial and was convicted by the jury, there was no

trial in this case. Brown waived his right to go to trial and instead pleaded guilty. In this

context, the harmless-error burden is different, requiring that the government show that, “if

the District Court had correctly advised him of the [missing] element of the offense,” it is

clear beyond a reasonable doubt that “he would not have pled guilty.” Greer, 593 U.S. at

508 (emphasis added); see also Olano, 507 U.S. at 734 (explaining that the prejudice prong

of the plain-error test mirrors prejudice for harmless error, except as to which party bears

the burden on the issue of prejudice); United States v. Heyward, 42 F.4th 460, 466 (4th Cir.

2022) (discussing Greer’s two standards and explaining that the showing for a defendant

who pleaded guilty differs for one who is convicted by a jury “because the decision whether

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App. 16

to plead guilty always belongs to the defendant”). 2 Thus, the government’s harmless-error

burden is to show beyond a reasonable doubt that if Brown’s indictment had alleged the

“different occasions” element of ACCA and if Brown had been correctly advised at his

plea hearing that he “was entitled to have a jury resolve [that issue] unanimously and

beyond a reasonable doubt,” Erlinger, 602 U.S. at 835, he would have nonetheless waived

that right and admitted as part of his guilty plea that his prior offenses were committed on

different occasions. See Greer, 593 U.S. at 508; Heyward, 42 F.4th at 466. If the

government were unable to meet that burden, the remedy would be to vacate Brown’s

conviction and remand for further proceedings. See United States v. Hairston, 522 F.3d

336, 342 (4th Cir. 2008).

In the circumstances presented, we have little difficulty concluding that the Erlinger

error — both the failure to charge the “different occasions” element of the ACCA

sentencing enhancement in the indictment and the failure to inform Brown of his right to

have that element found by a jury — was indeed harmless.

We begin by noting that Brown chose to plead guilty to the firearm-possession

offense after having been twice informed that ACCA’s mandatory minimum of 15 years

and its maximum of life would apply if the judge found its requirements satisfied. At his

Nonetheless, we note that some courts continue to formulate the same burden

regardless of whether the defendant went to trial or pleaded guilty. See United States v.

Cogdill, 130 F.4th 523, 525, 529 (6th Cir. 2025) (“Cogdill pleaded guilty to being a felon

in possession of a firearm . . . . To prove that the Erlinger error here was harmless, the

government must show, beyond a reasonable doubt, that any rational jury would have

found that all three of Cogdill’s predicate offenses were committed on occasions different

from one another” (cleaned up)); Johnson, 114 F.4th at 914, 917 (same).

2

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App. 17

initial appearance, Brown was specifically advised of the ACCA enhancement, and before

he pleaded guilty, he was again so advised, confirming that he understood and nonetheless

wanted to plead guilty. When the presentence report showed that ACCA’s requirements

were indeed satisfied by Brown’s criminal history, Brown did not object to the qualifying

data supporting that conclusion, nor did he argue that two of his ACCA predicate offenses

were, in fact, committed on a single occasion. And during all of these stages, he was

represented by counsel.

While Brown was not told that he was entitled to have a jury, rather than a judge,

determine whether his previous offenses had been committed on different occasions, that

misadvice apparently played no role in his guilty plea. Even after he raised the Apprendi

issue before the district court, he did not seek to withdraw his plea. To the contrary, he

sought the benefits of the plea, which included a three-level reduction of his offense level

for accepting responsibility. Had he instead gone to trial and been found guilty of both the

offense and the “different occasions” element of the ACCA enhancement, he likely would

have had an advisory Guidelines range of 235 to 293 months’ imprisonment. But under

the guilty plea, his Guidelines range was 180 to 210 months’ imprisonment, and he

received a 180-month sentence.

To be sure, a defendant’s evaluation of the likelihood of a jury’s finding that his

prior predicate offenses were not committed on at least three different occasions could be

a significant factor when deciding whether to plead guilty to that fact. But, in this case,

that factor could hardly be meaningful. Brown was fully aware of his criminal history, and

whether the jury or the judge assessed that history, the outcome in this case would have

18

App. 18

been the same, even under the jury’s higher standard of proof. As summarized in the

presentence report, state court records showed that Brown committed the first of his North

Carolina robberies on July 14, 2007; that the robbery involved his threatening Jesus Jasso;

and that he was arrested for that offense on July 17, 2007. The records also showed that

Brown committed a second robbery on September 24, 2007 — i.e., more than two months

after he was arrested for the first robbery — and that the robbery involved his threatening

Tushar Mukundbhai Shah. Finally, they showed that Brown committed a third robbery on

October 8, 2012, more than five years after the second offense. Brown had every incentive

to dispute the accuracy of the report’s information at his sentencing hearing if it were

mistaken, yet he did not do so. He did not even argue to the district court that it should

find that the first two robberies were part of a single criminal episode, which would have

avoided the ACCA sentencing enhancement altogether. In these circumstances, we can

conclude that whether the court or the jury decided the “different occasions” fact, the

outcome would have been the same — and that Brown and his lawyer would have

appreciated that practical reality at the time of his guilty plea.

Nonetheless, at oral argument, Brown maintained that he would have concluded that

he had a reasonable jury argument that the two 2007 robberies were committed on the same

occasion because they shared a common scheme or purpose, relying on the Supreme

Court’s analysis in Wooden. We cannot agree.

In Wooden, the Supreme Court held that the word “occasion” in ACCA should be

given its “ordinary meaning” — that is, “essentially an episode or event.” 595 U.S. at 366.

In that case, the defendant, “[i]n the course of one evening,” “burglarized ten units in a

19

App. 19

single storage facility,” such that giving “occasion” its ordinary meaning made all the

difference. Id. at 362. The Court explained that an ordinary person, “using language in its

normal way,” would say, “On one occasion, Wooden burglarized ten units in a storage

facility,” not “On ten occasions, Wooden burglarized a unit in the facility” or “On

one occasion, Wooden burglarized a storage unit; on a second occasion, he burglarized

another . . . and so on.” Id. at 367. It noted that “given what ‘occasion’ ordinarily means,

. . . a range of circumstances may be relevant to identifying” whether multiple criminal

offenses were committed on one occasion or separate ones. Id. at 369 (emphasis added).

Key among the factors recognized by the Court as relevant was the timing of the offenses

— specifically, “[o]ffenses committed close in time, in an uninterrupted course of conduct,

will often count as part of one occasion; not so offenses separated by substantial gaps in

time or significant intervening events.” Id. at 369. Indeed, the Court expressly recognized

that the timing factor “can decisively differentiate occasions,” and it noted with approval

that offenses “have nearly always” been treated “as occurring on separate occasions if a

person committed them a day or more apart.” Id. at 370 (emphasis added). The Wooden

Court concluded that, “[f]or the most part, applying this approach will be straightforward

and intuitive,” id. at 369, a point echoed by the Erlinger Court, see 602 U.S. at 842.

Brown’s case is certainly one of the straightforward ones. Absolutely no one would

say, “On one occasion, Brown robbed a person at gunpoint and on the same occasion, more

than two months later, he robbed a different person at gunpoint.” Instead, the person would

say, “On one occasion, Brown robbed someone, and on another occasion, he robbed

someone else.” And that, under Wooden, ends the matter. Thus, there is no question as to

20

App. 20

how a properly instructed jury would have resolved the “different occasions” inquiry in

this case.

Of course, as we have noted, when a defendant’s conviction resulted from a guilty

plea, the question for our harmless-error analysis is not how a jury would have ruled, but

whether the government has shown, beyond a reasonable doubt, that the defendant would

have still pleaded guilty. But given that the possibility of a favorable verdict on the

“different occasions” issue would have been so exceedingly remote as to be practically

irrelevant, we cannot fathom that Brown would have traded the benefit of pleading guilty

for such long odds. Thus, we conclude that there is no doubt that Brown would have

pleaded guilty if the indictment had alleged that he committed his prior robberies on three

different occasions and if he had been informed that he was entitled to have a jury find that

fact beyond a reasonable doubt.

At bottom, while an Erlinger error was committed in failing to charge Brown with

the ACCA element of “different occasions” and in failing to advise him of the right to have

that element decided by a jury, we are confident, beyond a reasonable doubt, that this error

had no effect on his substantial rights and hence must be “disregarded.” Fed. R. Crim. P.

52(a). Accordingly, the judgment of the district court in accepting Brown’s guilty plea and

in sentencing him to 180 months’ imprisonment, as enhanced by ACCA, is affirmed.

AFFIRMED

21

App. 21

USCA4 Appeal: 21-4253

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App. 22

FILED: September 3, 2024

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 21-4253

(3:20-cr-00223-KDB-DCK-1)

___________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

RICO LORODGE BROWN

Defendant - Appellant

___________________

ORDER

___________________

The court grants the petition for rehearing.

The parties are directed to file supplemental briefs addressing whether the

Erlinger error is subject to harmless error. The briefs shall be filed simultaneously

and no later than September 17, 2024.

This case shall be scheduled for the next available court session.

For the Court

/s/ Nwamaka Anowi, Clerk

App. 23

USCA4 Appeal: 21-4253

Doc: 66

Filed: 08/05/2024

Pg: 1 of 1

FILED: August 5, 2024

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

___________________

No. 21-4253

(3:20-cr-00223-KDB-DCK-1)

___________________

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

RICO LORODGE BROWN

Defendant - Appellant

___________________

ORDER

___________________

Pursuant to the Supreme Court’s decision in Erlinger v. United States, 602

U.S. ___, 2024 WL 3074427 (June 21, 2024), the judgment of the district court is

vacated, and the case is remanded for further proceedings consistent with Erlinger.

Entered at the direction of Judge Niemeyer with the concurrence of Judge

Heytens and Senior Judge Floyd.

For the Court

/s/ Nwamaka Anowi, Clerk

App. 24

FILED: August 9, 2023

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4253

(3:20-cr-00223-KDB-DCK-1)

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICO LORODGE BROWN,

Defendant - Appellant.

ORDER

The court denies the petition for rehearing en banc.

A requested poll of the court failed to produce a majority of judges in regular active

service and not disqualified who voted in favor of rehearing en banc. Chief Judge Diaz

and Judges Wilkinson, Niemeyer, Agee, Harris, Richardson, Quattlebaum, Rushing,

Heytens, and Benjamin voted to deny rehearing en banc. Judges King, Gregory, Wynn,

and Thacker voted to grant rehearing en banc.

Entered at the direction of Judge Niemeyer.

For the Court

/s/ Patricia S. Connor, Clerk

App. 25

Statement of Circuit Judge HEYTENS, in which Chief Judge DIAZ and Judges AGEE,

HARRIS, RICHARDSON, RUSHING, and BENJAMIN join, concerning the denial of

rehearing en banc:

This appeal raises an important and recurring issue that should be considered by the

Supreme Court: Whether the Sixth Amendment permits district courts to decide a

defendant’s prior offenses were “committed on occasions different from one another” for

purposes of the Armed Career Criminal Act. 18 U.S.C. § 924(e)(1). Both parties recognize

Rico Brown preserved his argument on this point. And both sides agree this Court’s

existing precedent—and that of every other court of appeals—is wrong. Cf. Wooden v.

United States, 142 S. Ct. 1063, 1068 n.3 (2022) (not addressing the Sixth Amendment issue

because “Wooden did not raise it”). I nonetheless do not think en banc review is warranted

here because I believe this case implicates “an important question of federal law that has

not been, but should be, settled by [the Supreme] Court.” S. Ct. R. 10(c).

The problem is the uncertain scope of Almendarez-Torres v. United States, 523 U.S.

224 (1998), and how to square the broad language in that opinion with other broad language

in more recent decisions. The Supreme Court has instructed that if a decision “has direct

application in a case, yet appears to rest on reasons rejected in some other line of decisions,”

we “should follow the case which directly controls” and leave to the Court “the prerogative

of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Anderson Express, Inc.,

490 U.S. 477, 484 (1989). But Almendarez-Torres may not have “direct application” (id.)

because it involved a different statute (the Immigration and Nationality Act) and a different

question (whether the defendant in an illegal reentry prosecution was removed “subsequent

2

App. 26

to a conviction for commission of an aggravated felony”). Almendarez-Torres, 523 U.S. at

226 (quoting 8 U.S.C. § 1326(b)(2)). Thus, the challenge: Is this issue governed by

Almendarez-Torres’ sweeping statements about “recidivism” and its direct reference to the

ACCA, see, e.g., id. at 230, or, instead, by a host of later decisions that seemingly claw

back nearly all that language? See United States v. Brown, 789 F.3d 200, 215–18 (4th Cir.

2023) (Heytens, J., concurring in the judgment) (citing cases).

Given the constitutional rule announced in Apprendi v. New Jersey, 530 U.S. 466,

490 (2000), I believe a district court may not find a defendant committed previous offenses

on different occasions using the framework described in Wooden, and then increase the

defendant’s criminal penalty based on such judicial factfinding. But I recognize reasonable

people can disagree (and have disagreed). And because this disagreement stems from deep

tension within the Supreme Court’s precedent, an inferior court is poorly positioned to

resolve it. For that reason—and because the Eighth Circuit’s grant of rehearing en banc

may provide the Supreme Court a timely opportunity to consider this issue, see United

States v. Stowell, 2022 WL 16942355 (8th Cir. Nov. 15, 2022) (granting rehearing)—I do

not believe en banc review is warranted here. But I hope the Supreme Court will step in to

illuminate the path soon.

3

App. 27

NIEMEYER, Circuit Judge, with whom Senior Circuit Judge FLOYD joins, concurring in

part in Judge HEYTENS’ Statement:

As author of the opinion in this case, I wish to express my concurrence in most of

what my good colleague Judge Heytens has said in his thoughtful Statement urging the

Supreme Court to clarify and settle the question of whether the “different occasions” facts

required by 18 U.S.C. § 924(e)(1) should be found by a court or must be found by a jury.

I also concur in his reasons for why this issue would not be advanced by our en banc review.

I do have a different approach as to the scope of Almendarez-Torres’s continuing

vitality in light of subsequent Supreme Court cases, as discussed in United States v. Brown,

67 F.4th 200 (4th Cir. 2023), but this difference is the very basis for our urging the Supreme

Court to give the courts of appeals guidance in this important matter.

4

App. 28

KING, Circuit Judge, concurring in the dissent of Judge WYNN from the denial of

rehearing en banc, and separately dissenting from the denial of rehearing en banc:

For the reasons so well expressed by my distinguished colleague Judge Wynn, I

agree that our Court should have granted rehearing en banc to consider and resolve the

important Sixth Amendment issue presented in this appeal. I write separately to emphasize

some additional considerations.

As I observed in the not-too-distant past, “[i]t would certainly make our lives easier

as judges if we were free to resolve only the easy issues in a case and disregard the hard

ones, but, alas, we cannot do so and remain faithful to our constitutional charge to decide

cases and controversies as they are presented to us.” See Doe v. Va. Dep’t of State Police,

720 F.3d 212, 214 n.* (4th Cir. 2013) (King, J., dissenting from denial of rehearing en

banc). To that end, the Supreme Court has recently stressed that “resolving hard cases is

part of the judicial job description.” See Dubin v. United States, 143 S. Ct. 1557, 1573

n.10 (2023) (emphasis added).

Yet in these circumstances, our Court has denied an en banc rehearing, apparently

viewing this as being a difficult case in which “the Supreme Court will [soon] step in to

illuminate the path” forward. See Statement of Circuit Judge Heytens 3. In my view,

however, that speculative rationale does not provide a sound basis for denying en banc

review. Rather, because this appeal “involves a question of exceptional importance,”

rehearing en banc was warranted. See Fed. R. App. P. 35(a)(2).

That this appeal “involves a question of exceptional importance” is illustrated by

the unusual fact that the parties — the defendant and the government — agreed that en

5

App. 29

banc review by our Court was warranted. See Fed. R. App. P. 35(a)(2). And in that regard,

the government’s support of an en banc rehearing was with the prior authorization of the

Solicitor General of the United States. See U.S. Dep’t of Just., Justice Manual, § 2-2.122

(2020) (mandating that “[t]he prior authorization of the Solicitor General . . . must be

obtained for the filing of a petition for rehearing en banc in a court of appeals”).

More broadly, Judge Wynn persuasively explains that en banc review was necessary

in this situation to determine whether our 2005 decision in United States v. Thompson, 421

F.3d 278 (4th Cir. 2005) — which relies on the Supreme Court’s 1998 decision in

Almendarez-Torres v. United States, 523 U.S. 224 (1998) — conflicts with the Court’s

more recent decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), Descamps v. United

States, 570 U.S. 254 (2013), Mathis v. United States, 579 U.S. 500 (2016), and Wooden v.

United States, 142 S. Ct. 1063 (2022). To be sure, that is precisely the type of question a

court of appeals is obliged to assess and resolve, unless and until the Supreme Court says

otherwise. See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (recognizing that when

Supreme Court precedent has “direct application . . . yet appears to rest on reasons rejected

in some other line of decisions, [a court of appeals] should follow the line of cases which

directly controls, leaving to [the Supreme] Court the prerogative of overturning its own

decisions” (emphasis added)). And as Judge Wynn observes, that is probably why our

colleagues on the Eighth Circuit recently granted en banc rehearing in a similar situation.

See United States v. Stowell, No. 21-2234, 2022 WL 16942355 (8th Cir. Nov. 15, 2022).

6

App. 30

Put simply, this appeal is exceptionally important, and rehearing en banc was

warranted pursuant to Rule 35(a)(2). Although this may be a “hard case” that could one

day attract the attention of the Supreme Court, that does not mean our Court should have

steered clear of en banc review.

* * *

I am honored to confirm that Judge Gregory and Judge Wynn join in this

submission.

7

App. 31

WYNN, Circuit Judge, with whom Judge KING, Judge GREGORY, and Judge

THACKER join, dissenting from the denial of rehearing en banc:

I agree with my colleagues that developments in the Supreme Court over the past

two decades cast serious doubt on the continuing viability of Almendarez-Torres. And I

also agree that the Supreme Court should take up the key question in this case.

But I disagree with my colleagues’ conclusion that we must sit on our hands until it

does so. Instead, we should rehear this matter en banc and correct the flaws in our own

precedent.

***

The Armed Career Criminal Act provides that a criminal defendant who is convicted

of possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g), and who has “three

previous convictions . . . for a violent felony or a serious drug offense . . . committed on

occasions different from one another,” 18 U.S.C. § 924(e)(1), shall be subject to a

minimum of 15 years’ imprisonment, an enhanced sentence based on the defendant’s

criminal history.

In 2005, this Court addressed the question presented in this case: whether the Sixth

Amendment requires a jury to find that a defendant’s prior convictions were “committed

on occasions different from one another,” or whether that fact may be found by the

sentencing judge. United States v. Thompson, 421 F.3d 278 (4th Cir. 2005). We held that

the Sixth Amendment permits a judge to make that determination. Id.

In reaching that conclusion, we relied heavily on the Supreme Court’s decision in

Almendarez-Torres v. United States, 523 U.S. 224 (1998). There, the Supreme Court held

8

App. 32

that a different statute that authorized a court to increase the sentence based on a

defendant’s prior conviction did not require the Government to charge the earlier

conviction as an element in the indictment. Id. at 226–27. The Court explained that,

although an indictment must set forth each element of the charged crime, it need not set

forth those factors that are relevant only to sentencing—factors which are, ordinarily, for

Congress to determine. Id. at 228.

To ascertain whether it was faced with an element or a mere sentencing factor, the

Court looked to the intent of Congress: “Did it intend the factor that the statute

mentions . . . to help define a separate crime? Or did it intend the presence of an earlier

conviction as a sentencing factor, a factor that a sentencing court might use to increase

punishment?” Id. This distinction—element or sentencing factor—matters because an

element must be submitted to a jury (or admitted by the defendant), whereas a sentencing

factor may be determined by a sentencing judge. See Mathis v. United States, 579 U.S. 500,

504 (2016); Apprendi v. New Jersey, 530 U.S. 466, 485–86 (2000).

Noting that recidivism was a “traditional” basis “for a sentencing court’s increasing

an offender’s sentence,” Almendarez-Torres, 523 U.S. at 243, the Supreme Court rejected

petitioner’s invocation of the constitutional-avoidance canon. It explained that the Court

did not have grave doubts as to whether Congress could authorize courts “to impose longer

sentences upon recidivists who commit a particular crime.” Id. at 238.

Just two years later—still before this Court decided Thompson—the Supreme Court

narrowed its earlier holding. In Apprendi v. New Jersey, the Court held that, “[o]ther than

the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

9

App. 33

prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable

doubt.” 530 U.S. at 490 (emphases added). Recognizing that this holding was in tension

with its conclusion just two years earlier in Almendarez-Torres, the Court acknowledged

that it was “arguable that Almendarez-Torres was incorrectly decided,” id. at 489, but

declined to revisit Almendarez-Torres since no party contested its validity.

Instead, the Apprendi Court took pains to emphasize that the conclusion in

Almendarez-Torres “turned heavily” upon the fact that the increased sentence was based

on “the prior commission of a serious crime.” Id. at 488 (quoting Almendarez-Torres, 523

U.S. at 230). And the Sixth Amendment concerns that would otherwise have been

implicated by permitting a judge to determine the fact of a prior crime were mitigated, in

part, by the fact that the prior convictions had all “been entered pursuant to proceedings

with substantial procedural safeguards of their own.” Id. Thus, the Court came to recognize

Almendarez-Torres as “a narrow exception” to Apprendi’s general rule. Alleyne v. United

States, 570 U.S. 99, 111 n.1 (2013).

In Thompson, this Court relied on that exception. Recognizing that AlmendarezTorres represented a carveout from Apprendi’s rule for the “fact of a prior conviction,” the

Court concluded that a prior conviction cannot “be reduced to nothing more than that the

defendant was at some prior time convicted of some crime.” Thompson, 421 F.3d at 282.

We concluded that although that “bare fact is certainly at the nucleus of the conviction,”

that nucleus “also contains other operative facts, such as the statute which was violated,”

“the date of the conviction,” and, relevant here, “the fact that [the prior crimes] were

separate episodes.” Id. at 282, 286.

10

App. 34

But subsequent developments have raised doubts as to whether our treatment of

Almendarez-Torres was correct, even at the time that we decided Thompson. Notably, the

Supreme Court has since clarified that the Apprendi rule applies not only to facts which

increase the statutory maximum, but also to those that raise a mandatory minimum sentence

dictated by statute. Alleyne, 570 U.S. at 103. The resulting rule is that “[a]ny fact that, by

law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and

found beyond a reasonable doubt.” Id.

And the Supreme Court has since relied on the broadest version of the Apprendi rule

time and time again. See, e.g., Descamps v. United States, 570 U.S. 254, 269 (2013)

(quoting the Apprendi holding and explaining that, because “[u]nder ACCA, the court’s

finding of a predicate offense indisputably increases the maximum penalty,” that finding

“would (at the least) raise serious Sixth Amendment concerns if it went beyond merely

identifying a prior conviction”); Mathis, 579 U.S. at 511 (“[O]nly a jury, and not a judge,

may find facts that increase a maximum penalty, except for the simple fact of a prior

conviction.”); Hurst v. Florida, 577 U.S. 92, 97–98 (2016) (reiterating the Apprendi

holding and collecting cases in which the Supreme Court has applied that rule).

While the Supreme Court has repeatedly applied the Apprendi rule in various

circumstances, it has not confronted the pressing question that we answered in Thompson:

does the Sixth Amendment require a jury, rather than a judge, to determine whether a

defendant’s prior crimes occurred on “occasions different from one another”?

As evidenced by the majority opinion and persuasive dissent in Thompson,

reasonable minds could reach different conclusions as to whether the Supreme Court meant

11

App. 35

precisely what it said in Apprendi: that, “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime” beyond the statutory range must be submitted to a

jury. Apprendi, 530 U.S. at 490 (emphasis added). But “a good rule of thumb for reading

[Supreme Court] decisions is that what they say and what they mean are one and the same.”

Mathis, 579 U.S. at 514. And the fact of a prior conviction plainly does not encompass the

date of a prior offense—which the jury may not even have been required to find in

convicting the defendant of the prior crime.

If there were any lingering doubt after Apprendi, Alleyne, Descamps, and Mathis,

none remains after Wooden v. United States, 142 S. Ct. 1063 (2022). That’s because

Wooden confirmed that the separate-occasions question is deeply fact-bound. It requires a

“multi-factored” analysis examining the timing, proximity, character, and relationship of

the past offenses. Id. at 1070–71. After Wooden, it strains credulity to say that the “simple

fact of a prior conviction,” Mathis, 579 U.S. at 511, encompasses all of those other, notso-simple facts.

These subsequent developments have further eroded any foundation on which

Thompson once stood. And though the panel in this case correctly concluded that it was

not itself at liberty to overrule Thompson, see McMellon v. United States, 387 F.3d 329,

332–33 (4th Cir. 2004) (en banc) (noting that a panel will not overrule a decision by another

panel), this Court sitting en banc can—and should.

But today, this Court chooses to avoid confronting the question of whether

individuals may be serving lengthy terms of imprisonment under sentences that were

determined in violation of the Sixth Amendment to the Constitution. And, it chooses to do

12

App. 36

so in the face of agreement by both parties that en banc review is warranted here because

the Sixth Amendment requires that a jury find, or a defendant admit, that prior convictions

were for offenses occurring on occasions different from one another. See Pet. for Reh’g En

Banc at 9–10; Resp. to Appellant’s Pet. for Reh’g En Banc at 1.

I note with great respect that the Supreme Court has instructed that if one of its

decisions “has direct application in a case, yet appears to rest on reasons rejected in some

other line of decisions,” the lower courts “should follow the case which directly controls”

until the Supreme Court itself overrules the earlier case. Rodriguez de Quijas v.

Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). But as the separate opinion

by Judge Heytens correctly points out, it is not clear that Almendarez-Torres does, in fact,

have “direct application” in this case; it involved a different statute and a different factual

determination by the sentencing court. And more importantly, we are certainly free to

overrule prior decisions of this Court that, with the benefit of hindsight, appear to have

been wrongly decided.

That much was recently recognized by the Eighth Circuit when it took up this mantle

to address its own precedent in United States v. Stowell, No. 21-2234, 2022 WL 16942355

(8th Cir. Nov. 15, 2022) (granting rehearing en banc in an analogous case in that circuit).

And, as Brown points out, the Government has urged the Supreme Court to wait for lower

courts to weigh in before taking up this issue. See Pet. for Reh’g En Banc at 1 (noting that,

although “the Solicitor General has conceded that this ‘issue is important and frequently

recurring,’” it has “urged the Supreme Court to delay review because ‘lower courts have

13

App. 37

not yet had adequate time to react to Wooden.’” (quoting Br. for the United States in Opp’n,

Reed v. United States, No. 22-336, at 6 (Dec. 12, 2022)).

But alas, today’s choice to duck this issue and wait for potential action by the

Supreme Court means the courts and panels in this circuit must continue to apply strikingly

questionable precedent, entirely at the expense of rights conferred under the Sixth

Amendment.

***

At the end of the day, while I agree with my good colleagues that the Supreme Court

should take up its own precedent involving this vital question, we shouldn’t wait for it to

do so. We should take up our own precedent, established by Thompson, and determine

whether it runs afoul of the Constitution. That’s our duty as judges.

14

App. 38

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4253

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

RICO LORODGE BROWN,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of North Carolina, at

Charlotte. Kenneth D. Bell, District Judge. (3:20-cr-00223-KDB-DCK-1)

Argued: March 10, 2023

Decided: May 3, 2023

Before NIEMEYER and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Senior Judge

Floyd joined. Judge Heytens wrote a separate opinion concurring in the judgment.

ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH

CAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright,

OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for

Appellee. ON BRIEF: John G. Baker, Federal Public Defender, FEDERAL

DEFENDERS OF WESTERN NORTH CAROLINA, INC., Charlotte, North Carolina, for

Appellant. Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES

ATTORNEY, Charlotte, North Carolina, for Appellee.

App. 39

NIEMEYER, Circuit Judge:

After pleading guilty to possession of a firearm by a felon, in violation of 18

U.S.C. § 922(g)(1), Rico Brown was sentenced to 15 years’ imprisonment, an enhanced

penalty that represents the mandatory minimum sentence required for such a violation

when the provisions of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1),

are satisfied. ACCA provides that when a defendant violates § 922(g) and has “three

previous convictions . . . for a violent felony or a serious drug offense . . . committed on

occasions different from one another,” he shall be given the enhanced sentence. Id.

Brown’s indictment did not allege the facts supporting the ACCA enhancement; instead,

the district court found them as part of the sentencing procedure.

Even though we held in United States v. Thompson that district courts may,

consistent with the Constitution, use information “found in conclusive judicial records” to

determine at sentencing that the defendant has three qualifying convictions for offenses

committed on different occasions, thus triggering the ACCA enhancement, 421 F.3d 278,

285–86 (4th Cir. 2005), Brown contends that in light of the Supreme Court’s intervening

decisions in Descamps v. United States, 570 U.S. 254 (2013), Mathis v. United States, 579

U.S. 500 (2016), and Wooden v. United States, 142 S. Ct. 1063 (2022), Thompson is no

longer good law. He maintains that, in light of these Supreme Court cases and the Fifth

and Sixth Amendments, ACCA’s requirement that the defendant have committed the prior

offenses on different occasions must be alleged in the indictment and found by a jury or

admitted by the defendant in his guilty plea because that fact increases the penalty for his

crime.

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We conclude, however, that the ACCA enhancement remains a matter for

sentencing. Under Almendarez-Torres v. United States, 523 U.S. 224 (1998), the facts that

support a recidivism enhancement are resolved by the district court during sentencing, and

ACCA provides just such a recidivism enhancement, as we recognized in Thompson.

Despite Brown’s arguments to the contrary, we conclude that the Supreme Court’s

decisions in Descamps, Mathis, and Wooden have not narrowed or overruled AlmendarezTorres. And if they have done so by implication, the Supreme Court must say so, not a

court of appeals. Accordingly, we affirm.

I

On September 23, 2019, in Union County, North Carolina, Rico Brown sold a

handgun to an undercover law enforcement officer.

He was thereafter indicted for

possession of a firearm while knowing that he had been convicted of a felony, in violation

of 18 U.S.C. § 922(g)(1). At the time, the maximum sentence for that crime was 10 years’

imprisonment, unless ACCA was applicable. See 18 U.S.C. § 924(a)(2) (2018). Under

ACCA, when a defendant violates § 922(g) and has “three previous convictions . . . for a

violent felony or a serious drug offense, or both, committed on occasions different from

one another,” the mandatory minimum sentence is 15 years’ imprisonment and the

maximum sentence is life imprisonment. Id. § 924(e)(1). In this case, Brown’s indictment

did not allege whether he was subject to ACCA, leaving the applicability of the

enhancement to be resolved at sentencing.

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In January 2021, Brown pled guilty to the § 922(g)(1) offense. But before pleading

guilty, he was advised that “the statutory punishment for a [§] 922(g) [offense] is a

maximum term of imprisonment of ten years,” except that “if 18 U.S.C. § 924(e)(1) [i.e.,

ACCA] applies, and the defendant has three previous convictions by any court for a violent

felony or a serious drug offense, the minimum term of imprisonment is 15 years, and the

maximum term is life.” Brown confirmed that he understood this, and the district court

then found his guilty plea to be knowing and voluntary.

The presentence report prepared for sentencing concluded that Brown was indeed

subject to ACCA’s enhanced penalties based on three prior North Carolina convictions:

(1) a 2008 conviction for robbery with a dangerous weapon, committed on July 14, 2007;

(2) a second 2008 conviction for robbery with a dangerous weapon, committed on

September 24, 2007; and (3) a 2013 conviction for common law robbery, committed on

October 8, 2012.

The proceedings following the two 2007 robbery charges were

consolidated, and Brown was convicted of both robberies and sentenced to 46 to 65

months’ imprisonment on May 13, 2008.

At the sentencing hearing, the district court adopted the presentence report and

concluded that each of Brown’s North Carolina robbery convictions qualified as a

conviction for a violent felony under ACCA and that, based on the information from state

court records included in the presentence report, the three robberies were committed on

different occasions. The court therefore sentenced Brown under ACCA to the mandatory

minimum sentence of 15 years’ imprisonment.

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Brown did not object to the accuracy of any information included in the presentence

report pertaining to his criminal history, but he did object to the report’s conclusion that he

was subject to ACCA’s enhanced penalties, arguing that “sentencing him under the ACCA

would violate his Fifth and Sixth Amendment rights under Apprendi v. New Jersey, 530

U.S. 466, 490 (2000) and Alleyne v. United States, [570 U.S. 99] (2013).” He reasoned

that even if the fact of his convictions could constitutionally be found by the court at

sentencing under the holding of Almendarez-Torres, the fact that the underlying offenses

had been committed on different occasions should have been charged in his indictment and

found by the jury or admitted by him in his guilty plea. Brown acknowledged that this

court had rejected his precise argument in Thompson, but he argued that the Supreme

Court’s intervening decisions in Descamps and Mathis showed that the Court had adopted

a narrower understanding of Almendarez-Torres and that “[i]n light of Descamps and

Mathis, [the district court] should conclude that Thompson [was] no longer controlling

precedent.”

At his sentencing hearing on May 13, 2021, Brown reiterated the same argument

while again acknowledging to the district court that “it does appear that . . . current Fourth

Circuit precedent forecloses [it].” He noted, however, that there was “a current Supreme

Court case pending” — namely, Wooden v. United States — that might show “that

Thompson [was] decided wrongly.” He also continued to press his earlier arguments made

under Descamps and Mathis. The district court overruled Brown’s objection, relying on

“the existing authority of the Fourth Circuit,” i.e., Thompson.

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From the district court’s judgment, Brown filed this appeal. We thereafter placed

his appeal in abeyance pending the Supreme Court’s decision in Wooden, and after that

decision was issued, the parties filed their briefs.

II

ACCA provides for enhanced penalties for § 922(g) violations when (1) the

defendant has three prior convictions for a violent felony or a serious drug offense and

(2) those offenses were “committed on occasions different from one another.” 18 U.S.C.

§ 924(e)(1). Brown contends that the second prong — the “different occasions” phrase —

constitutes an element of a distinct, aggravated § 922(g) offense that must be alleged in the

indictment and be either found by the jury or admitted by the defendant in his guilty plea.

To support his argument, he relies on Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)

(holding that “[o]ther than the fact of a prior conviction, any fact that increases the penalty

for a crime beyond the prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt”), and Alleyne v. United States, 570 U.S. 99, 103, 111

n.1 (2013) (holding that “any fact that increases the mandatory minimum [sentence] is an

‘element’ that must be submitted to the jury” but “not revisit[ing]” the “exception to this

general rule for the fact of a prior conviction”). Brown acknowledges that the Supreme

Court continues to recognize that the fact of a prior conviction remains an exception that

may be found by the sentencing judge, and thus he focuses his argument on the second

prong — the “different occasions” phrase. See Apprendi, 530 U.S. at 490; AlmendarezTorres, 523 U.S. at 244. He also acknowledges that we specifically rejected the argument

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as to the “different occasions” phrase in Thompson, where we held that the district court

could constitutionally determine at sentencing that the defendant committed qualifying

offenses on different occasions. 421 F.3d at 285–86.

To avoid the consequence of Thompson’s binding authority, Brown argues that it

has been “fatally undermined” by two different strands of “intervening Supreme Court

precedent.” First, he contends that in reaching its holding, the Thompson court construed

the scope of the Almendarez-Torres exception in a manner inconsistent with the Supreme

Court’s subsequent reasoning in Descamps and Mathis. Second, he contends that “the

Thompson majority relied on an interpretation of the different-occasions standard that is

inconsistent with Wooden.” “Taken together,” he maintains, Descamps and Mathis,

combined with Wooden, “dictate that the ACCA enhancement creates an aggravated felonin-possession offense” and that the Constitution requires that the “different-occasion

element” of that aggravated offense “be charged in an indictment and either admitted by

the defendant as part of a guilty plea or proven to a jury beyond a reasonable doubt at trial.”

The government initially argued that “[t]he district court properly applied the Armed

Career Criminal Act without requiring an allegation in the indictment or a finding by a jury

that Brown committed his predicate offenses on different occasions.” Subsequently,

however, the government advised us that, in light of Wooden, “the Solicitor General has

determined that a jury must find, or a defendant must admit, that a defendant’s predicates

under the Armed Career Criminal Act were committed on occasions different from one

another.” As it stands, therefore, the government has changed its position and now agrees

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App. 45

that Brown is correct on the merits of his argument, although it maintains that the error

here was harmless.

While this is unusual, it does not follow that we are required to accede to the parties’

view of such an important issue. This is especially so when we, sitting as a three-judge

panel, may not be permitted to reach that conclusion given our precedents on this issue.

See McMellon v. United States, 387 F.3d 329, 332–33 (4th Cir. 2004) (en banc)

(recognizing that “one panel cannot overrule a decision issued by another panel” but that

one panel may conclude that the prior decision is no longer binding because it “has been

overruled by an intervening opinion from this court sitting en banc or the Supreme Court”).

Thus, the precise question before us is the relatively narrow one of whether our

precedent holding that the district court should determine at sentencing whether ACCA’s

recidivism enhancement is applicable — including whether the defendant committed the

three predicate offenses “on occasions different from one another” — is no longer binding

in light of intervening Supreme Court decisions.

Beginning with some general principles, we recognize that in a federal prosecution,

the Fifth and Sixth Amendments require that the government allege in the indictment all

the elements of the crime charged and, unless the defendant waives his right to a jury trial

and pleads guilty, prove each element to the jury beyond a reasonable doubt. See Jones v.

United States, 526 U.S. 227, 232 (1999); see also U.S. Const. amend. V (requiring that

crimes be prosecuted on a presentment or indictment); id. amend. VI (requiring that “[i]n

all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by

an impartial jury”). Thus, “[m]uch turns on the determination that a fact is an element of

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App. 46

an offense,” as distinct from a sentencing factor. Jones, 562 U.S. at 232 (emphasis added);

see also Apprendi, 530 U.S. at 500 (Thomas, J., concurring) (“All of these constitutional

protections turn on determining which facts constitute the ‘crime’ — that is, which facts

are the ‘elements’ . . . of a crime”). And in defining elements, the Court has held, subject

to one exception, that the Constitution requires that “any fact that increases the penalty for

a crime beyond the prescribed statutory maximum” be treated as an element of an

aggravated offense — with the consequence that it must be alleged in any federal

indictment, “submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530

U.S. at 490; see also Alleyne, 570 U.S. at 103, 111 n.1 (extending Apprendi and holding

that “any fact that increases the mandatory minimum is an ‘element,’” but continuing to

recognize “a narrow exception to this general rule”). The exception preserved in both

Apprendi and Alleyne is a penalty enhancement based on recidivism — i.e., a defendant’s

prior convictions for crimes — as described in Almendarez-Torres. Because Brown’s

argument turns in large part on the proper understanding of the scope of that exception, we

turn first to examining Almendarez-Torres.

In Almendarez-Torres, the defendant was given an enhanced penalty for an

immigration offense, as authorized by 8 U.S.C. § 1326. That provision makes it a crime

for a person who was previously deported from the United States to return without

permission, and while that crime ordinarily carries a maximum sentence of 2 years’

imprisonment, the statute also authorizes an enhanced sentence of up to 20 years’

imprisonment if the initial deportation took place after the person was convicted of an

aggravated felony. See 8 U.S.C. § 1326(a), (b)(2). The question presented was whether

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App. 47

the condition for the higher maximum sentence was an element of a separate crime or

whether it was a “penalty provision” authorizing the court to impose an enhanced sentence

based on the defendant’s recidivism. Almendarez-Torres, 523 U.S. at 226. The Court

concluded that it was the latter, id., and in doing so, it specifically considered and rejected

the defendant’s argument that “the Constitution requires Congress to treat recidivism as an

element of the offense — irrespective of Congress’ contrary intent,” id. at 239. The Court

explained that “recidivism . . . is a traditional, if not the most traditional, basis for a

sentencing court’s increasing an offender’s sentence.” Id. at 243. Indeed, the Court gave

special emphasis to that fact, stating that “recidivism . . . is as typical a sentencing factor

as one might imagine.” Id. at 230. And in the course of this discussion, the Court

specifically identified ACCA as an example of another statute that provides for recidivism

as a sentencing factor to be found by a court. Id. (citing 18 U.S.C. § 924(e)). The Court

explained that recidivism was “distinct” from other sentence-enhancing factors insofar as

“recidivism ‘does not relate to the commission of the offense, but goes to the punishment

only, and therefore . . . may be subsequently decided.’” Id. at 244 (emphasis altered)

(quoting Graham v. West Virginia, 224 U.S. 616, 629 (1912)).

The Almendarez-Torres Court noted further that, “[c]onsistent with [the] tradition”

of treating recidivism as a sentencing matter for the court, it had recognized “long ago”

that the government “need not allege a defendant’s prior conviction in the indictment or

information that alleges the elements of an underlying crime.” 523 U.S. at 243–44

(emphasis omitted) (citing Graham, 224 U.S. at 624; Oyler v. Boles, 368 U.S. 448, 452

(1962); Parke v. Raley, 506 U.S. 20, 27 (1992)). Thus, the Court explained, “to hold that

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App. 48

the Constitution requires that recidivism be deemed an ‘element’ of petitioner’s offense

would mark an abrupt departure from a longstanding tradition of treating recidivism as [a

sentencing factor] going to the punishment only.” Id. at 244 (cleaned up). The Court

concluded that the Constitution did not require that “abrupt” recharacterization of

recidivism, and it accordingly “reject[ed] petitioner’s constitutional claim that his

recidivism must be treated as an element of his offense.” Id. at 247.

Almendarez-Torres thus stands for the proposition that facts showing recidivism are

distinct from other facts that alter the statutory sentencing range for the crime charged and

that the Constitution does not require that facts demonstrating recidivism be treated as

elements of a distinct, aggravated offense. Indeed, the Supreme Court itself confirmed this

understanding of the scope of its Almendarez-Torres’ holding in Jones, stating that its

“precise holding” in that case was that “recidivism increasing the maximum penalty need

not be . . . charged” in the indictment and that this “holding . . . rested in substantial part

on the tradition of regarding recidivism as a sentencing factor, not as an element.” Jones,

526 U.S. at 248–49.

Thereafter, in Apprendi, Almendarez-Torres was again left undisturbed. To be sure,

the Apprendi Court observed that “it [was] arguable that Almendarez-Torres was

incorrectly decided.” Apprendi, 530 U.S. at 489. Yet, the Apprendi Court nonetheless

chose not to “revisit” Almendarez-Torres and instead to “treat the case as a narrow

exception to the general rule.” Id. at 490 (emphasis added). It identified two “reasons

supporting” its recognition of this recidivism exception. Id. at 496. First, tracking the

rationale of Almendarez-Torres itself, the Apprendi Court explained that “[w]hereas

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recidivism ‘does not relate to the commission of the offense’ itself,” the fact at issue before

it was whether, in committing a lesser included firearm offense, the defendant had acted

with a particular purpose, which went “precisely to what happened in the ‘commission of

the offense.’” Id. (quoting Almendarez-Torres, 523 U.S. at 244). Second, the Apprendi

Court reasoned that “there is a vast difference between accepting the validity of a prior

judgment of conviction entered in a proceeding in which the defendant had the right to a

jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt,

and allowing the judge to find the required fact under a lesser standard of proof.” Id. The

Court thus recognized, in shorthand form, the Almendarez-Torres exception, stating that

“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt.” Id. at 490 (emphasis added). There was no discussion in Apprendi

suggesting that with that holding, the Court intended to modify or narrow the scope of the

Almendarez-Torres holding, even though the Apprendi Court referred to the recidivism

exception based on that decision simply as “the fact of a prior conviction.” Id.

After Apprendi, defendants around the country who had been convicted of § 922(g)

offenses relied on it to argue that their Fifth and Sixth Amendment rights had been violated

when district courts determined at sentencing that ACCA’s enhanced penalties were

applicable. They urged that in light of Apprendi, courts should treat ACCA’s requirements

as elements of a distinct, aggravated § 922(g) offense. Those arguments, however, were

uniformly rejected by every court of appeals — including our own — and they did so by

recognizing that Almendarez-Torres remained binding law, notwithstanding Apprendi. See

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Thompson, 421 F.3d 278; see also, e.g., United States v. Moore, 286 F.3d 47, 51 (1st Cir.

2002) (“In the post-Apprendi era, we have ruled with a regularity bordering on the

monotonous that, given the explicit exception and the force of Almendarez-Torres, the

rationale of Apprendi does not apply to sentence-enhancement provisions based upon prior

criminal convictions,” including ACCA); United States v. Santiago, 268 F.3d 151, 155 (2d

Cir. 2001); United States v. Blair, 734 F.3d 218, 226–28 (3d Cir. 2013); United States v.

White, 465 F.3d 250, 254 (5th Cir. 2006) (per curiam); United States v. Burgin, 388 F.3d

177, 183–87 (6th Cir. 2004); United States v. Morris, 293 F.3d 1010, 1012–13 (7th Cir.

2002); United States v. Harris, 794 F.3d 885, 887 (8th Cir. 2015); United States v. Grisel,

488 F.3d 844, 845–47 (9th Cir. 2007) (en banc), abrogated in part on other grounds by

United States v. Stitt, 139 S. Ct. 399 (2018); United States v. Michel, 446 F.3d 1122, 1132–

33 (10th Cir. 2006); United States v. Spears, 443 F.3d 1358, 1361 (11th Cir. 2006); United

States v. Thomas, 572 F.3d 945, 952 n.4 (D.C. Cir. 2009).

While Brown accepts the continued vitality of the Almendarez-Torres exception

insofar as it relates to the mere fact of a prior conviction, he contends that the AlmendarezTorres exception does not reach ACCA’s second requirement — that the prior convictions

be for offenses committed on different occasions. Yet, most, if not all, of the courts of

appeals — again including our own — have also considered and rejected that argument.

See Thompson, 421 F.3d at 284–87; see also, e.g., Santiago, 268 F.3d at 156–57

(Sotomayor, J.) (“[W]e are satisfied . . . that § 924(e)’s ‘different occasions’ requirement

falls safely within the range of facts traditionally found by judges at sentencing and is

sufficiently interwoven with the facts of the prior crimes that Apprendi does not require

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different fact-finders and different burdens of proof for Section 924(e)’s various

requirements”); Blair, 734 F.3d at 226–28 (relying on “the continuing control of

Almendarez-Torres” to reject the argument); Burgin, 388 F.3d at 186 (“[W]e conclude that

the determinations by a district court that prior felony convictions exist and were

committed on different occasions, are so intimately related that the ‘different occasions’

requirement of § 924(e) sufficiently comes within the exception in Apprendi for a prior

conviction”); Morris, 293 F.3d at 1012–13 (“Unless and until the Court chooses to overrule

Almendarez-Torres, we are bound by it. . . . Morris has failed to articulate a reasoned basis

for distinguishing [whether the predicate offenses were committed on different occasions]

from other factors traditionally considered in enhancing a sentence based on recidivism”);

Harris, 794 F.3d at 887 (“Whether prior offenses were committed on different occasions

is among the recidivism-related facts covered by the rule of Almendarez-Torres”); United

States v. Harris, 447 F.3d 1300, 1304 (10th Cir. 2006) (holding that the “separateness [of

occasions] falls within [Apprendi’s] prior crimes exception”); United States v. Longoria,

874 F.3d 1278, 1283 (11th Cir. 2017) (per curiam) (“Longoria’s claim that his Fifth and

Sixth Amendment rights were violated by the District Court determining his convictions

occurred on different occasions is unavailing”).

Most relevant here, of course, is our Thompson precedent, which clearly rejected

the precise argument that Brown raises, relying on the full scope of the Almendarez-Torres

exception. While the dissenting judge in Thompson did argue that Almendarez-Torres had

been limited to the “fact of a prior conviction” and not to facts “about a prior conviction,”

421 F.3d at 292 (Wilkins, C.J., dissenting), the majority held that in applying ACCA’s

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recidivism enhancement, sentencing courts could consult “conclusive judicial records”

from the defendant’s prior criminal proceeding, “take notice of the . . . dates [and] locations

of [the prior offenses]” as reflected in those records, as well as other information relevant

to the “different occasions” question, and on that limited basis determine whether the

government had established that the defendant had committed the offenses that resulted in

his three prior qualifying convictions on separate occasions. Thompson, 421 F.3d at 286.

Because Almendarez-Torres had held that the Constitution did not require that “recidivism

. . . be treated as an element,” 523 U.S. at 247, we concluded that limited judicial factfinding with respect to the defendant’s prior convictions did not violate the defendant’s

Fifth or Sixth Amendment rights, Thompson, 421 F.3d at 284–87.

Brown does indeed acknowledge that Thompson is squarely on point and thus would

foreclose his argument if it were still good law. But he maintains that Thompson is no

longer controlling because it has been “fatally undermined” by the Supreme Court’s

intervening decisions in Descamps, Mathis, and Wooden. We therefore must turn to those

cases to determine whether they overruled or narrowed the Court’s earlier holding in

Almendarez-Torres.

First, the Supreme Court’s decision in Wooden — the most recent of the cases relied

on by Brown and the one prompting the government to reconsider its views on ACCA’s

sentencing enhancement — addresses specifically the meaning of the “different occasions”

phrase in ACCA’s second prong. See 142 S. Ct. at 1068. The Wooden Court concluded

that the word “occasion” in ACCA should be given its “ordinary meaning” — “essentially

an episode or event,” id. at 1069, and that, as a result, “a range of circumstances may be

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App. 53

relevant to identifying” whether multiple criminal offenses were committed on one

occasion or separate ones, id. at 1071; see also id. at 1071 n.4. Key among the factors

recognized by the Court as relevant to the inquiry were the timing of the offenses and their

locations. See id. at 1071. Thus, the Court explained that “a single factor — especially of

time or place — can decisively differentiate occasions,” and it noted with approval that

“[c]ourts . . . have nearly always treated offenses as occurring on separate occasions if a

person committed them a day or more apart, or at a significant distance.” Id. (cleaned up).

By contrast, “a continuous stream of closely related criminal acts at one location”

represents “a single occasion,” id., even if those crimes were committed “sequentially

rather than simultaneously,” id. at 1068. Thus, the Court held that to determine whether

prior offenses were committed on different occasions, courts should apply a “multifactored” test in which “a range of circumstances may be relevant.” Id. at 1070–71.

Wooden is thus a statutory decision, not a constitutional one, and the Court stated as

much, noting that while “[t]wo amici curiae [had] briefed . . . whether the Sixth

Amendment requires that a jury, rather than a judge, resolve whether prior crimes occurred

on a single occasion,” it was “not address[ing] that issue because Wooden did not raise it.”

142 S. Ct. at 1068 n.3. The Wooden decision not only did not address the constitutional

question that is before us — whether ACCA’s requirement that the defendant have

committed his prior crimes on different occasions must be treated as an element of an

aggravated offense — it did not even cite Almendarez-Torres, which held that such

recidivism provisions are not elements of an aggravated offense, Almendarez-Torres, 523

U.S. at 239–47.

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Given that Wooden specifically stated that it was not addressing the constitutional

question presented in this case, it is hardly controlling on the question of whether

recidivism is a sentencing matter or an element of an aggravated offense so as to undermine

our holding in Thompson. Indeed, as a matter of statutory interpretation, Wooden is largely

consistent with Thompson, as we noted in Thompson that “several factors” are relevant to

the different occasions inquiry, chief among them “the date and location of an offense.”

Thompson, 421 F.3d at 285–86. In short, Wooden clarifies what is relevant to determining

that the defendant’s prior predicate offenses were committed on different occasions, but it

is silent as to who (judge or jury) should make that determination.

As such,

notwithstanding Brown’s claim to the contrary, Wooden does not undermine the validity

of our holding in Thompson. Accord United States v. Reed, 39 F.4th 1285, 1295–96 (10th

Cir. 2022) (emphasizing that “recently, when given the opportunity to decide ‘whether the

Sixth Amendment requires that a jury . . . resolve whether prior crimes occurred on a single

occasion[,]’ . . . the Supreme Court declined to reach the issue” and reasoning that while

“[t]he Supreme Court may” address the issue in the future “and reach a different result”

than the Tenth Circuit previously had, its own precedent on the issue would remain binding

“until then” (quoting Wooden, 142 S. Ct. at 1068 n.3)); United States v. Stowell, 40 F.4th

882, 885 (8th Cir. 2022) (concluding that “[t]he problem” with the defendant’s Apprendi

argument as to ACCA’s occasions phrase “is that [it] is foreclosed by [Eighth Circuit]

precedent” and that “nothing in Wooden changed this”), vacated by grant of reh’g en banc,

No. 21-2234, 2022 WL 16942355 (8th Cir. Nov. 15, 2022).

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In addition to Wooden, Brown also relies on Descamps and Mathis to argue that,

despite our prior holding in Thompson, we are compelled to conclude that ACCA’s

different occasions requirement is an element of an aggravated offense, rather than a

sentencing factor for the district court to determine. But this argument can be made only

if Descamps or Mathis either overruled or narrowed the holding of Almendarez-Torres.

We now turn to those decisions.

First, neither Descamps nor Mathis considered ACCA’s “different occasions”

phrase. Instead, both addressed ACCA’s first requirement that the defendant have “three

previous convictions . . . for a violent felony or a serious drug offense,” 18 U.S.C.

§ 924(e)(1), as those terms are statutorily defined, see id. § 924(e)(2)(A), (B), and, in

particular, the categorical approach required for determining whether prior convictions

qualified as predicates. Prior to Descamps and Mathis, the Supreme Court had long held

that when determining whether one of a defendant’s prior convictions qualified as a

predicate conviction for ACCA, sentencing courts were to use the “categorical approach,”

which involved “‘look[ing] only to the statutory definitions’ — i.e., the elements — of a

defendant’s prior offenses, and not ‘to the particular facts underlying those convictions.’”

Descamps, 570 U.S. at 261 (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)).

In cases like Taylor and Shepard v. United States, 544 U.S. 13 (2005), the Court had also

developed a “modified categorical approach,” which, when applicable, permitted the

sentencing court “to examine a limited class of documents” from the defendant’s prior

criminal proceeding in order to determine whether the resulting conviction qualified as an

ACCA predicate. Descamps, 570 U.S. at 262.

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At issue in both Descamps and Mathis was the question of when a court could apply

the modified categorical approach to facilitate the determination of whether a prior

conviction qualified as an ACCA predicate. Specifically, in Descamps, the Court held

“that sentencing courts may not apply the modified categorical approach when the crime

of which the defendant was convicted has a single, indivisible set of elements.” 570 U.S.

at 258. Instead, Descamps confirmed, the modified categorical approach may only be

employed “when a defendant was convicted of violating a divisible statute” with

“alternative elements . . . [that] effectively creates several different crimes,” and then it

may be used only to determine “which [crime] the defendant was convicted of,” so that the

sentencing court may then determine whether the elements of that crime establish that it is

categorically a “violent felony” or a “serious drug offense.” Id. at 263–64 (cleaned up).

Similarly, in Mathis, the Court held that if the statute of conviction “enumerates various

[alternative] means of committing a single element,” rather than alternative elements, then

the modified categorical approach could not be used, thus making it critical for courts to

determine correctly whether the items enumerated in an alternatively phrased statute of

conviction were “elements” or “means.” 579 U.S. at 506 (emphasis added). Thus, the

holdings of Descamps and Mathis contribute nothing to the issue before us.

Brown, however, seizes on limited portions of the Court’s reasoning in those

decisions to argue that they demonstrate that the Court has, by negative inference, narrowed

the Almendarez-Torres exception to include only the fact that the defendant was previously

convicted of a particular crime and that other facts establishing the defendant’s recidivism

must be alleged in indictments and proved to juries as elements of an aggravated offense.

19

App. 57

In both Descamps and Mathis, the Court explained that its caselaw “establishing

[an] elements-centric, ‘formal categorical approach’” for evaluating whether a defendant’s

prior convictions qualified as ACCA predicate convictions had consistently relied on “three

grounds.” Descamps, 570 U.S. at 267; accord Mathis, 579 U.S. at 510. The first of those

was “ACCA’s text and history” — namely, that by “increas[ing] the sentence of a

defendant who has three ‘previous convictions’ for a violent felony,” “Congress intended

the sentencing court to look only to the fact that the defendant had been convicted of crimes

falling within certain categories, and not to the facts underlying the prior convictions.”

Descamps, 570 U.S. at 267 (emphasis added) (quoting Taylor, 495 U.S. at 600); see also

Mathis, 579 U.S. at 511. A second reason relied on was grounded on “the practical

difficulties and potential unfairness of a factual approach,” Descamps, 570 U.S. at 267

(quoting Taylor, 495 U.S. at 600), with the Court cautioning that “[s]tatements of ‘nonelemental fact’ in the records of prior convictions are prone to error precisely because their

proof is unnecessary,” Mathis, 579 U.S. at 512 (quoting Descamps, 570 U.S. at 270). And

the third reason reiterated in Descamps and Mathis for strictly limiting the use of the

modified categorical approach was “the categorical approach’s Sixth Amendment

underpinnings.” Descamps, 570 U.S. at 269; see also Mathis, 579 U.S. at 511–12.

Specifically, noting that Apprendi had “held that ‘[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt,’” the

Descamps Court observed that because a district “court’s finding of a predicate offense

[under ACCA] indisputably increases the maximum penalty[,] . . . that finding would (at

20

App. 58

the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a

prior conviction.” 570 U.S. at 269 (quoting Apprendi, 530 U.S. at 490). The Court further

noted that it had previously recognized that “[t]hose concerns . . . counsel[led] against

allowing a sentencing court to ‘make a disputed’ determination ‘about what the defendant

and state judge must have understood as the factual basis of the prior plea,’ or what the

jury in a prior trial must have accepted as the theory of the crime,” hence the “insistence

on the categorical approach.” Id. (quoting Shepard, 544 U.S. at 25 (plurality opinion)).

By contrast, Descamps explained, by allowing the modified categorical approach to be

employed whenever the statute of conviction encompasses more conduct than a qualifying

offense, the lower court’s “ruling [had] flout[ed] [that] reasoning . . . by extending judicial

factfinding beyond the recognition of a prior conviction.” Id. And therein lay “the

constitutional rub”:

The Sixth Amendment contemplates that a jury — not a sentencing court —

will find such facts, unanimously and beyond a reasonable doubt. And the

only facts the court can be sure the jury so found are those constituting

elements of the offense — as distinct from amplifying but legally extraneous

circumstances. Similarly, as Shepard indicated, when a defendant pleads

guilty to a crime, he waives his right to a jury determination of only that

offense’s elements; whatever he says, or fails to say, about superfluous facts

cannot license a later sentencing court to impose extra punishment.

Id. at 269–70 (citation omitted).

Mathis subsequently echoed that “serious Sixth Amendment concerns” had been

one of the grounds for the Court’s development of and adherence to a strict categorical

approach for the identification of qualifying predicate convictions. See 579 U.S. at 511–

12. And, in elaborating on those “concerns,” Mathis stated as follows:

21

App. 59

This Court has held that only a jury, and not a judge, may find facts that

increase a maximum penalty, except for the simple fact of a prior conviction.

See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). That means a judge

cannot go beyond identifying the crime of conviction to explore the manner

in which the defendant committed that offense. He is prohibited from

conducting such an inquiry himself; and so too he is barred from making a

disputed determination about ‘what the defendant and state judge must have

understood as the factual basis of the prior plea’ or ‘what the jury in a prior

trial must have accepted as the theory of the crime.’ He can do no more,

consistent with the Sixth Amendment, than determine what crime, with what

elements, the defendant was convicted of.

Id. (emphasis added) (citations omitted).

While the Supreme Court’s decisions in Descamps and Mathis were focused on

carrying out the restrictions of the categorical approach, their language at times did

arguably create some tension with Thompson, where we held that a district court may,

consistent with the Fifth and Sixth Amendments, determine at sentencing that conclusive

judicial records demonstrate that the offenses giving rise to the defendant’s three prior

qualifying convictions were committed on different occasions and on that basis apply

ACCA as a sentencing enhancement. See United States v. Span, 789 F.3d 320, 331–32

(4th Cir. 2015) (observing that “[t]he tension between Descamps and Thompson . . . is

apparent” but also suggesting that “the Supreme Court’s statements in Descamps, while

foreboding, will most likely be confined to identification of a violent felony under the

categorical approach”). Yet, the facts other than the fact of conviction were understood in

both Descamps and Mathis to be those facts that would show that a prior conviction

involved conduct amounting to a “violent felony” or “serious drug offense,” not the facts

that would show that prior offenses were committed on different occasions. See Descamps,

570 U.S. at 267 (noting that a sentencing court may “look only to the fact that the defendant

22

App. 60

had been convicted of crimes falling within certain categories, and not to the facts

underlying the prior convictions” (quoting Taylor, 495 U.S. at 600)); Mathis, 579 U.S. at

509 (emphasizing that a court may only consider the fact of conviction and not the

underlying facts of each conviction and stating, “How a given defendant actually

perpetrated the crime — what we have referred to as the underlying brute facts or means

of commission — makes no difference” (cleaned up)); id. at 510–11 (noting that “a

sentencing judge may look only to the elements of the offense, not to the facts of the

defendant’s conduct” and that the sentencing judge “cannot go beyond identifying the

crime of conviction to explore the manner in which the defendant committed that offense”

(emphasis added) (cleaned up)). The facts about whether prior offenses were committed

on different occasions were never considered in either Descamps or Mathis. Thus, whereas

Almendarez-Torres recognized that sentencing courts may find such other facts as

necessary to show recidivism, Descamps and Mathis never questioned that. As such,

Almendarez-Torres was left undisturbed in its holding that recidivism facts may be

resolved by the sentencing judge.

Moreover, the same tension suggested as existing between Descamps and Mathis,

on the one hand, and Thompson, on the other, would also exist between Descamps and

Mathis, on the one hand, and Almendarez-Torres, on the other. In Almendarez-Torres, the

Court specifically held that the Constitution does not “require[] Congress to treat

recidivism [increasing the statutory sentencing range] as an element of the offense” but

instead permits recidivism to be a sentencing factor found by the court. 523 U.S. at 239;

see also id. at 247 (“For these reasons, we reject petitioner’s constitutional claim that his

23

App. 61

recidivism must be treated as an element of his offense”); Jones, 526 U.S. at 248–49

(recognizing that “the precise holding” of Almendarez-Torres was “that recidivism

increasing the maximum penalty need not be . . . charged” as an element of an aggravated

offense and that that “holding . . . rested in substantial part on the tradition of regarding

recidivism as a sentencing factor, not as an element”). Yet in Descamps and Mathis, the

Court never explored that tension with Almendarez-Torres’ holding; indeed, the opinions

for the Court did not even cite Almendarez-Torres. Until the Supreme Court recognizes

and resolves any alleged tension, or limits or overrules Almendarez-Torres, we are bound

to apply it. Accord Blair, 734 F.3d at 227 (holding, after Descamps, that the defendant’s

constitutional argument with respect to ACCA’s different occasions requirement “fail[s]

. . . because Almendarez-Torres has not been narrowed and remains the law”); see also

United States v. Walker, 953 F.3d 577, 581 (9th Cir. 2020) (rejecting defendant’s argument

that its precedent on the issue had been “implicitly overruled by Mathis,” reasoning that

“Mathis . . . only proscribed judges from determining whether a given factual scenario

substantially qualifies as a predicate offense” and “did not speak to courts looking at dates

of conviction”).

At bottom, because ACCA’s sentencing enhancement for § 922(g) offenses is

indisputably based on the defendant’s recidivism, we conclude that, under AlmendarezTorres, the facts establishing the enhancement remain sentencing facts, not elements of a

separate aggravated crime. Those sentencing facts are that the defendant have three prior

convictions for specified offenses committed on different occasions, and together they

form the basis of a single “penalty provision [that] simply authorizes a court to increase

24

App. 62

the sentence for a recidivist.” Almendarez-Torres, 523 U.S. at 226. Importantly, those

recidivism facts do “not define a separate crime.” Id. And, “[c]onsequently, neither the

statute nor the Constitution requires the Government” to treat ACCA’s different occasions

requirement “as an element of” an aggravated version of one of the § 922(g) offenses. Id.

at 226–27, 247. Moreover, the facts addressed by Almendarez-Torres are recidivism facts

and are therefore distinct from the facts referred to in Descamps and Mathis, which

addressed and prohibited consideration of the facts of conduct underlying each prior

conviction. See Descamps, 570 U.S. at 267; Mathis, 579 U.S. at 509–10.

We understand Brown’s argument to be that language in Descamps and Mathis

shows that Apprendi had excepted from an indictment and jury only the simple fact of a

prior conviction, demonstrating that the Almendarez-Torres exception is more limited than

previously understood. But the Court’s analysis in Descamps and Mathis, which did not

discuss Almendarez-Torres, was guided by the binary question before the Court in both

cases regarding whether the first prong of the ACCA enhancement — whether the

defendant has three previous qualifying convictions — is found by the fact of a prior

conviction or by the facts underlying the prior conviction. Those decisions never suggested

that they were limiting or narrowing Almendarez-Torres’ application with respect to facts

demonstrating the defendant’s recidivism. Rather, they were addressing only the one

aspect of recidivism that required a showing of three prior convictions.

Indeed, against the background of Almendarez-Torres and the rationale for

recognizing an exception to Apprendi based on it, Brown’s argument that the exception has

been limited to the mere fact of conviction would lead to irrational consequences. To

25

App. 63

begin, it appears that Apprendi could not have narrowed Almendarez-Torres in the manner

that Brown suggests without reversing the actual result that the Almendarez-Torres Court

reached. The statutory enhancement there required that the defendant’s prior deportation

have occurred “subsequent to” the predicate conviction. 8 U.S.C. § 1326(b)(2) (emphasis

added). Thus, to find that the defendant was subject to the enhanced penalty provided by

§ 1326(b)(2), the sentencing court had to find not only that the defendant had been

convicted of an aggravated felony but also that he had been convicted of that felony before

his previous deportation. This sequence was essential. Yet, despite the fact that the

sentencing court could apply the enhanced penalty only if it made this additional finding,

Almendarez-Torres held that “Congress intended [§ 1326(b)(2)] to set forth a sentencing

factor” for a judge’s determination, rather than an element of “a separate crime.” 523 U.S.

at 230. And it further held that the Constitution permitted Congress to make that choice

and elect to “authorize courts to impose longer sentences upon recidivists who commit a

particular crime.”

Id. at 238 (emphasis added).

This demonstrates that we, as an

intermediate court, are not at liberty to read the “fact of a prior conviction” exception

preserved in Apprendi and Alleyne as literally limited to the bare fact of a prior conviction.

Otherwise, the result reached in Almendarez-Torres could not have stood. But yet all agree

that the Supreme Court has not overturned Almendarez-Torres, notwithstanding repeated

calls from one member of the Court to do so. See, e.g., Sessions v. Dimaya, 138 S. Ct.

1204, 1253 (2018) (Thomas, J., dissenting) (“The exception recognized in AlmendarezTorres for prior convictions is an aberration, has been seriously undermined by subsequent

precedents, and should be reconsidered”); Mathis, 579 U.S. at 522 (Thomas, J.,

26

App. 64

concurring); Descamps, 570 U.S. at 280–81 (Thomas, J., concurring in the judgment);

Shepard, 544 U.S. at 28 (Thomas, J., concurring in part and concurring in the judgment)

(“Almendarez-Torres was wrongly decided” and, “in an appropriate case, this Court should

consider [its] continuing viability”); see also Apprendi, 530 U.S. at 499–523 (Thomas, J.,

concurring) (writing “separately to explain [his] view that the Constitution requires a

broader rule than the Court adopts,” with no fact of a prior conviction exception).

Moreover, Almendarez-Torres was based on the rationale that “recidivism does not

relate to the commission of the [instant] offense, but goes to the punishment only.” 523

U.S. at 244 (cleaned up). And recognizing this, Apprendi explained that the AlmendarezTorres exception was based on facts distinct from the facts of the crime being prosecuted.

See Apprendi, 530 U.S. at 488. The Court, in its decisions subsequent to AlmendarezTorres, has not undermined or dismissed the rationale that lies at the heart of AlmendarezTorres. This “distinct nature” of recidivism, which is defined by what the defendant did in

the past before the conduct of his charged crime, is a sound reason to conclude — as,

indeed, the Supreme Court has held — that the Constitution does not require “recidivism

[to] be treated as an element of” an aggravated offense. Almendarez-Torres, 523 U.S. at

244, 247 (cleaned up). Yet, despite this rationale inherent in Almendarez-Torres, Brown

would have the jury decide whether prior offenses were committed on different occasions,

even before the court at sentencing had found the fact of the prior convictions.

On a more practical level, and one implicating fundamental fairness, if recidivism

were to be understood as an element of an aggravated offense, the result would be that any

defendant who exercised his right to a jury trial could face having certain portions of his

27

App. 65

criminal history dragged in front of the jury tasked with deciding whether he has committed

the instant offense. Thus, for example, if Brown were correct, he would not simply have

been charged with possessing a firearm while knowing he had been convicted of a crime

punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C.

§ 922(g)(1); he would have been charged with the aggravated crime of possessing a firearm

while knowing he had been convicted of a crime punishable by imprisonment for a term

exceeding one year and after “committ[ing] on occasions different from one another” three

crimes that qualify categorically as violent felonies or serious drug offenses.

Of course, a defendant charged with such an aggravated offense who chose to go to

trial might be able to simply stipulate that he had three prior predicate convictions for

crimes that occurred on different occasions. See Old Chief v. United States, 519 U.S. 172,

191–92 (1997). But “[e]ven if a defendant’s stipulation were to keep the name and details

of the previous offense[s] from the jury, jurors would still learn, from the indictment, the

judge, or the prosecutor, that the defendant had committed” three offenses that qualify as

violent felonies or serious drug offenses. Almendarez-Torres, 523 U.S. at 235 (citation

omitted). And the Supreme Court “has long recognized [that] the introduction of evidence

of a defendant’s prior crimes risks significant prejudice” and that “‘evidence of the . . .

nature of the prior offense’” only increases that risk. Id. (quoting Old Chief, 519 U.S. at

185). Thus, “[w]hile some defendants might benefit from a requirement that all facts —

except the fact of prior conviction, interpreted in the narrowest possible sense — be found

by a jury beyond a reasonable doubt, . . . such a requirement is far more likely to prejudice

rather than protect defendants,” Santiago, 268 F.3d at 156, a consideration that may well

28

App. 66

counsel hesitation before a declaration is made that that is what the Constitution

nonetheless requires in order to adequately protect defendants’ rights.

As it stands for now, we, as a court of appeals, remain bound by Almendarez-Torres,

which we do not understand the Supreme Court to have narrowed or modified in the

manner suggested by Brown. And the negative inferences that Brown advances based on

some language in subsequent cases are for the Supreme Court to draw, not a court of

appeals. See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (“We do not acknowledge,

and we do not hold, that other courts should conclude our more recent cases have, by

implication, overruled an earlier precedent. We reaffirm that ‘if a precedent of this Court

has direct application in a case, yet appears to rest on reasons rejected in some other line

of decisions, the Court of Appeals should follow the case which directly controls, leaving

to this Court the prerogative of overruling its own decisions’” (emphasis added) (quoting

Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989))).

Thus, unless and until the Supreme Court expressly overturns or narrows AlmendarezTorres, we conclude that our precedent in Thompson remains good law and that, based on

the Almendarez-Torres exception to Apprendi’s general rule, it does not offend the

Constitution to treat ACCA — including its “different occasions” requirement — as an

enhancement to be applied by the district court at sentencing. See Thompson, 421 F.3d at

285–86; see also United States v. Moon, 31 F.4th 259, 263–64 (4th Cir. 2022) (concluding,

post-Wooden, that ACCA is not “a standalone criminal offense” but instead “merely a

sentencing enhancement”).

Accordingly, the judgment of the district court is

29

App. 67

AFFIRMED.

30

App. 68

TOBY HEYTENS, Circuit Judge, concurring in the judgment:

I agree this panel may not grant relief, but only because of the “pruden[tial]” rule

that “one panel cannot overrule a decision issued by another panel.” McMellon v. United

States, 387 F.3d 329, 332, 334 (4th Cir. 2004) (en banc). I thus concur in the judgment.

In the past 20 years, the Supreme Court has incanted the same constitutional rule no

fewer than nine times: “Other than the fact of a prior conviction, any fact that increases the

penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490

(2000). *

I see two routes for saying a judge may decide whether a defendant, like Brown,

committed previous offenses “on occasions different from one another,” 18 U.S.C.

§ 924(e)(1), without violating Apprendi’s constitutional rule. The problem is Supreme

Court decisions have blocked both paths.

The first avenue would be concluding the “different occasions” question presents

an issue of law rather than one of fact. After all, nothing in the Apprendi line of cases

disturbs “the good old rule that on questions of fact it is the province of the jury, [and] on

See United States v. Cotton, 535 U.S. 625, 627 (2002); Harris v. United States,

536 U.S. 545, 563 (2002) (overruled on other grounds by Alleyne v. United States, 570 U.S.

99 (2013)); Schriro v. Summerlin, 542 U.S. 348, 350 (2004); Blakely v. Washington,

542 U.S. 296, 301 (2004); United States v. Booker, 543 U.S. 220, 231 (2005); Washington

v. Recuenco, 548 U.S. 212, 216 (2006); Southern Union Co. v. United States, 567 U.S. 343,

348 (2012); Descamps v. United States, 570 U.S. 254, 269 (2013); see also Jones v. United

States, 526 U.S. 227, 243 n.6 (1999) (“[A]ny fact (other than prior conviction) that

increases the maximum penalty for a crime must be charged in an indictment, submitted to

a jury, and proven beyond a reasonable doubt.”).

*

31

App. 69

questions of law it is the province of the court, to decide.” Sparf v. United States, 156 U.S.

51, 64 (1895). But whether something happened in the past (here, conviction for a crime)

is a quintessentially factual question—a point underscored by the Court’s repeated use of

the words “the fact of a prior conviction.” Worse still, Wooden v. United States, 142 S. Ct.

1063 (2022), confirms the different-occasions analysis requires a “multi-factored” inquiry

into “a range of ” circumstances about a defendant’s prior convictions. Id. at 1070–71. And

probing the details about the “when,” “where,” “how,” and sometimes even “why” of a

defendant’s previous conduct, see id. at 1071, is the precise thing the Sixth Amendment

forbids judges from doing. See Mathis v. United States, 579 U.S. 500, 511 (2016) (“[A]

judge cannot go beyond identifying the crime of conviction to explore the manner in which

the defendant committed that offense.”).

The second road would be saying Almendarez-Torres v. United States, 523 U.S. 224

(1998), provides a constitutional get-out-of-jail-free card for certain types of judicial

factfinding, and the “different occasions” inquiry is one of them. I agree we may not

overrule a Supreme Court decision or seek to predict whether the Court will do so.

See Agostini v. Felton, 521 U.S. 203, 237 (1997). But Almendarez-Torres is not directly

on point because it involved a different statute (the Immigration and Nationality Act) and

a different question (whether the defendant in an illegal reentry prosecution was removed

“subsequent to a conviction for commission of an aggravated felony”). 523 U.S. at 226

(quoting 8 U.S.C. § 1326(b)(2)).

What is more, the Supreme Court has repeatedly said the “narrow exception” to

Apprendi’s general rule applies only to “the fact of a prior conviction,” Alleyne v. United

32

App. 70

States, 570 U.S. 99, 111 n.1 (2013), or “the simple fact of a prior conviction,” Mathis,

579 U.S. at 511. But as both the statutory text and Wooden make clear, determining

whether Brown’s previous offenses were committed “on occasions different from one

another,” 18 U.S.C. § 924(e)(1), requires going far beyond the limited fact of his

convictions. I see no reason why it is any more constitutionally permissible for courts “to

try to discern what a trial showed, or a plea proceeding revealed, about the defendant’s

underlying conduct” when the question shifts from whether that conduct was “violent” to

whether it happened on different “occasions.” Descamps v. United States, 570 U.S. 254,

269 (2013).

I recognize Almendarez-Torres speaks more broadly about “recidivism” and

distinguishes between facts that are “sentencing factors” and those that are “elements”

warranting constitutional safeguards. See, e.g., 523 U.S. at 230. But the constitutional rule

we must apply comes from Apprendi, not Almendarez-Torres. So we should be guided by

the Supreme Court’s repeated counsel about the scope of the “narrow exception” to

Apprendi’s general rule (Alleyne, 570 U.S. at 111 n.1) rather than sweeping language and

semantic distinctions that have largely been clawed back by later decisions. See, e.g.,

United States v. Haymond, 139 S. Ct. 2369, 2379 (2019) (noting that, since Apprendi, the

Court has “repeatedly rejected efforts to dodge the demands of the Fifth and Sixth

Amendments by the simple expedient of relabeling a criminal prosecution a sentencing

enhancement” (quotation marks omitted)); Mathis, 579 U.S. at 511–12 (stating that, under

the Sixth Amendment, a judge “can do no more . . . than determine what crime, with what

elements, the defendant was convicted of ” without mentioning any general “recidivism”

33

App. 71

exception); Apprendi, 530 U.S. at 494 & n.19 (dismissing, when it comes to facts that

“increase beyond the maximum authorized statutory sentence,” any constitutional

distinction “between ‘elements’ and ‘sentencing factors’”).

The rub is that most everything I just said has been rejected by previous panels of

this Court in cases involving the same statute and the same legal question. See United

States v. Span, 789 F.3d 320, 330–32 (4th Cir. 2015); United States v. Thompson, 421 F.3d

278, 284–87 (4th Cir. 2005). Indeed, the heart of my concern—that the Sixth Amendment

permits judges to find the “fact of a prior conviction” but not “fact[s] about a prior

conviction”—was voiced by then-Chief Judge Wilkins in his dissent in Thompson.

See 421 F.3d at 292 (Wilkins, C.J., dissenting) (quotation marks omitted).

True, this Court’s precedent allows a panel to depart from an earlier decision that

has been “overruled . . . by the Supreme Court,” McMellon, 387 F.3d at 334, or which

intervening Supreme Court authority renders “no longer tenable,” United States v. Banks,

29 F.4th 168, 178 (4th Cir. 2022). But that is a high standard, and I am not confident it is

satisfied here. Yes, the Supreme Court decided two cases bearing on this question—Mathis

and Wooden—after this Court reaffirmed its position in United States v. Span, 789 F.3d

320 (4th Cir. 2015). But Mathis largely reiterated the teachings of Descamps v. United

States, 570 U.S. 254 (2013), which, this Court concluded, did not warrant revisiting

Thompson. See Span, 789 F.3d at 330–32. And Wooden, in turn, announced a case-specific

and fact-intensive inquiry for the “different occasions” question not dissimilar to one this

Court has applied for more than 25 years. See Thompson, 421 F.3d at 285 (discussing

34

App. 72

United States v. Letterlough, 63 F.3d 332, 335 (4th Cir. 1995)). In short, my arguments are

not terribly new ones.

Concluding the choice to revisit this issue belongs to the en banc Court rather than

this panel, I concur in the decision rejecting Brown’s claim.

35

App. 73

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App. 74

AO 245B (WDNC Rev. 01/2020) Judgment in a Criminal Case

UNITED STATES DISTRICT COURT

Western District of North Carolina

UNITED STATES OF AMERICA

V.

RICO LORODGE BROWN

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JUDGMENT IN A CRIMINAL CASE

(For Offenses Committed On or After November 1, 1987)

Case Number: DNCW320CR000223-001

USM Number: 03327-509

Cecilia Oseguera

Defendant’s Attorney

THE DEFENDANT:

 Pleaded guilty to count 1.

 Pleaded nolo contendere to count(s) which was accepted by the court.

 Was found guilty on count(s) after a plea of not guilty.

ACCORDINGLY, the court has adjudicated that the defendant is guilty of the following offense(s):

Title and Section

18 U.S.C. § 922(g)(1)

and 924(e)(1)

Nature of Offense

Possession of a Firearm By a Convicted Felon

Date Offense

Concluded

9/23/2019

Counts

1

The Defendant is sentenced as provided in pages 2 through 7 of this judgment. The sentence is imposed

pursuant to the Sentencing Reform Act of 1984, United States v. Booker, 125 S.Ct. 738 (2005), and 18 U.S.C. § 3553(a).

 The defendant has been found not guilty on count(s).

 Count(s) (is)(are) dismissed on the motion of the United States.

IT IS ORDERED that the Defendant shall notify the United States Attorney for this district within 30 days of any

change of name, residence, or mailing address until all fines, restitution, costs, and special assessments imposed by this

judgment are fully paid. If ordered to pay monetary penalties, the defendant shall notify the court and United States

attorney of any material change in the defendant's economic circumstances.

Date of Imposition of Sentence: 5/13/2021

Date: May 13, 2021

Case 3:20-cr-00223-KDB-DCK Document 28 Filed 05/13/21 Page 1 of 7

App. 75

AO 245B (WDNC Rev. 01/2020) Judgment in a Criminal Case

Defendant: Rico Lorodge Brown

Case Number: DNCW320CR000223-001

Judgment- Page 2 of 7

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of

ONE HUNDRED EIGHTY (180) MONTHS.

 The Court makes the following recommendations to the Bureau of Prisons:

1.

2.

3.

4.

5.

Placed in a facility as close to Charlotte, NC, consistent with the needs of BOP.

Participation in any available educational and vocational opportunities.

Participation in any available mental health treatment programs.

Participation in any available substance abuse treatment program and, if eligible, receive benefits of

18:3621(e)(2).

Defendant shall support all dependents from prison earnings.

 The Defendant is remanded to the custody of the United States Marshal.

 The Defendant shall surrender to the United States Marshal for this District:

 As notified by the United States Marshal.

 At on .

 The Defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

 As notified by the United States Marshal.

 Before 2 p.m. on .

 As notified by the Probation Office.

RETURN

I have executed this Judgment as follows:

Defendant delivered on __________ to _______________________________________ at

________________________________________, with a certified copy of this Judgment.

United States Marshal

By:

Deputy Marshal

Case 3:20-cr-00223-KDB-DCK Document 28 Filed 05/13/21 Page 2 of 7

App. 76

AO 245B (WDNC Rev. 01/2020) Judgment in a Criminal Case

Defendant: Rico Lorodge Brown

Case Number: DNCW320CR000223-001

Judgment- Page 3 of 7

SUPERVISED RELEASE

Upon release from imprisonment, the defendant shall be on supervised release for a term of FOUR (4) YEARS.

☐ The condition for mandatory drug testing is suspended based on the court's determination that the defendant poses a low risk of

future substance abuse.

CONDITIONS OF SUPERVISION

The defendant shall comply with the mandatory conditions that have been adopted by this court.

1.

The defendant shall not commit another federal, state, or local crime.

2.

The defendant shall not unlawfully possess a controlled substance.

3.

The defendant shall refrain from any unlawful use of a controlled substance. The defendant shall submit to one drug test within 15 days of release from

imprisonment and at least two periodic drug tests thereafter, as determined by the Court (unless omitted by the Court).

4.

The defendant shall cooperate in the collection of DNA as directed by the probation officer (unless omitted by the Court).

The defendant shall comply with the discretionary conditions that have been adopted by this court and any additional conditions ordered.

5.

The defendant shall report to the probation office in the federal judicial district where he/she is authorized to reside within 72 hours of release from

imprisonment, unless the probation officer instructs the defendant to report to a different probation office or within a different time frame.

6.

The defendant shall report to the probation officer in a manner and frequency as directed by the court or probation officer.

7.

The defendant shall not leave the federal judicial district where he/she is authorized to reside without first getting permission from the Court or probation

officer.

8.

The defendant shall answer truthfully the questions asked by the probation officer.

9.

The defendant shall live at a place approved by the probation officer. The probation officer shall be notified in advance of any change in living arrangements

(such as location and the people with whom the defendant lives).

10.

The defendant shall allow the probation officer to visit him/her at any time at his/her home or any other reasonable location as determined by the probation

office, and shall permit the probation officer to take any items prohibited by the conditions of his/her supervision that the probation officer observes.

11.

The defendant shall work full time (at least 30 hours per week) at lawful employment, unless excused by the probation officer. The defendant shall notify the

probation officer within 72 hours of any change regarding employment.

12.

The defendant shall not communicate or interact with any persons he/she knows is engaged in criminal activity, and shall not communicate or interact with any

person he/she knows to be convicted of a felony unless granted permission to do so by the probation officer.

13.

The defendant shall notify the probation officer within 72 hours of being arrested or questioned by a law enforcement officer.

14.

The defendant shall not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was designed, or

was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).

15.

The defendant shall not act or make any agreement with a law enforcement agency to act as a confidential informant without first getting the permission of the

Court.

16.

If the probation officer determines that the defendant poses a risk to another person (including an organization), the probation officer may require the

defendant to notify the person about the risk. The probation officer may contact the person and make such notifications or confirm that the defendant has

notified the person about the risk.

17.

The defendant shall refrain from excessive use of alcohol and shall not unlawfully purchase, possess, use, distribute or administer any narcotic or controlled

substance or any psychoactive substances (including, but not limited to, synthetic marijuana, bath salts) that impair a person’s physical or mental functioning,

whether or not intended for human consumption, or any paraphernalia related to such substances, except as duly prescribed by a licensed medical

practitioner.

18.

The defendant shall participate in a program of testing for substance abuse if directed to do so by the probation officer. The defendant shall refrain from

obstructing or attempting to obstruct or tamper, in any fashion, with the efficiency and accuracy of the testing. If warranted, the defendant shall participate in a

substance abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise the defendant’s participation in

the program (including, but not limited to, provider, location, modality, duration, intensity) (unless omitted by the Court).

19.

The defendant shall not go to, or remain at any place where he/she knows controlled substances are illegally sold, used, distributed, or administered without

first obtaining the permission of the probation officer.

20.

The defendant shall submit his/her person, property, house, residence, vehicle, papers, computers (as defined in 18 U.S.C. § 1030(e)(1)), or other electronic

communications or data storage devices or media, or office, to a search conducted by a United States Probation Officer and such other law enforcement

personnel as the probation officer may deem advisable, without a warrant based upon reasonable suspicion and/or with the consent of the defendant. The

defendant shall warn any other occupants that such premises may be subject to searches pursuant to this condition.

21.

The defendant shall pay any financial obligation imposed by this judgment remaining unpaid as of the commencement of the sentence of probation or the term

of supervised release in accordance with the schedule of payments of this judgment. The defendant shall notify the court of any changes in economic

circumstances that might affect the ability to pay this financial obligation.

22.

The defendant shall provide access to any financial information as requested by the probation officer and shall authorize the release of any financial

information. The probation office may share financial information with the U.S. Attorney’s Office.

23.

The defendant shall not seek any extension of credit (including, but not limited to, credit card account, bank loan, personal loan) unless authorized to do so in

advance by the probation officer.

24.

The defendant shall support all dependents including any dependent child, or any person the defendant has been court ordered to support.

25.

The defendant shall participate in transitional support services (including cognitive behavioral treatment programs) and follow the rules and regulations of such

program. The probation officer will supervise the defendant’s participation in the program (including, but not limited to, provider, location, modality, duration,

intensity). Such programs may include group sessions led by a counselor or participation in a program administered by the probation officer.

26.

The defendant shall follow the instructions of the probation officer related to the conditions of supervision.

Case 3:20-cr-00223-KDB-DCK Document 28 Filed 05/13/21 Page 3 of 7

App. 77

AO 245 B (WDNC Rev. 02/11) Judgment in a Criminal Case

revTitle

Defendant: Rico Lorodge Brown

Case Number: DNCW320CR000223-001

Judgment- Page 4 of 7

ADDITIONAL CONDITIONS:

27.

The defendant shall participate in a mental health evaluation and treatment program and follow the rules and regulations of

that program. The probation officer, in consultation with the treatment provider, will supervise the defendant’s participation

in the program (including, but not limited to provider, location, modality, duration, and intensity). The defendant shall take

all mental health medications as prescribed by a licensed health care practitioner.

Case 3:20-cr-00223-KDB-DCK Document 28 Filed 05/13/21 Page 4 of 7

App. 78

AO 245B (WDNC Rev. 01/2020) Judgment in a Criminal Case

Defendant: Rico Lorodge Brown

Case Number: DNCW320CR000223-001

Judgment- Page 5 of 7

CRIMINAL MONETARY PENALTIES

The defendant shall pay the following total criminal monetary penalties in accordance with the Schedule of Payments.

ASSESSMENT

$100.00

RESTITUTION

$0.00

FINE

$0.00

 The determination of restitution is deferred until. Upon such a determination an Amended Judgment in a Criminal Case

(AO 245C) will be entered. Failing such a determination by, restitution amount becomes $0.00 without further Order of the

Court.

INTEREST

The defendant shall pay interest on any fine or restitution of more than $2,500.00, unless the fine or restitution is

paid in full before the fifteenth day after the date of judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options

on the Schedule of Payments may be subject to penalties for default and delinquency pursuant to 18 U.S.C. § 3612(g).

 The court has determined that the defendant does not have the ability to pay interest and it is ordered that:

 The interest requirement is waived.

 The interest requirement is modified as follows:

COURT APPOINTED COUNSEL FEES

 The defendant shall pay court appointed counsel fees.

Case 3:20-cr-00223-KDB-DCK Document 28 Filed 05/13/21 Page 5 of 7

App. 79

AO 245B (WDNC Rev. 01/2020) Judgment in a Criminal Case

Defendant: Rico Lorodge Brown

Case Number: DNCW320CR000223-001

Judgment- Page 6 of 7

SCHEDULE OF PAYMENTS

Having assessed the defendant’s ability to pay, payment of the total criminal monetary penalties shall be due as follows:

A  Lump sum payment of $0.00 due immediately, balance due

 Not later than

 In accordance  (C),  (D) below; or

B  Payment to begin immediately (may be combined with  (D) below); or

C  Payment in equal monthly installments of $50.00 to commence 60 days after the date of this judgment; or

D  In the event the entire amount of criminal monetary penalties imposed is not paid prior to the

commencement of supervision, payments shall be made in

equal monthly installments of $50.00 to commence 60 days after release from imprisonment to a term of

supervision. The U.S. Probation Officer shall pursue collection of the amount due, and may request to modify

a payment schedule if appropriate 18 U.S.C. § 3572.

Special instructions regarding the payment of criminal monetary penalties:

 The defendant shall pay the cost of prosecution.

 The defendant shall pay the following court costs:

 The defendant shall forfeit the defendant’s interest in the following property to the United States as set forth in the

Consent Order document 27 entered 5/13/2021:

Document No. 27 is incorporated into this judgment.

Unless the court has expressly ordered otherwise in the special instructions above, if this judgment imposes a period of

imprisonment payment of criminal monetary penalties shall be due during the period of imprisonment. All criminal

monetary penalty payments are to be made to the United States District Court Clerk, 401 West Trade Street,

Room 1301, Charlotte, NC 28202, except those payments made through the Bureau of Prisons’ Inmate Financial

Responsibility Program. All criminal monetary penalty payments are to be made as directed by the court.

The Defendant shall receive credit for all payments previously made toward any criminal monetary penalties

imposed.

Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA assessment,

(5) fine principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs, including cost of

prosecution and court costs.

Case 3:20-cr-00223-KDB-DCK Document 28 Filed 05/13/21 Page 6 of 7

App. 80

AO 245B (WDNC Rev. 01/2020) Judgment in a Criminal Case

Defendant: Rico Lorodge Brown

Case Number: DNCW320CR000223-001

Judgment- Page 7 of 7

STATEMENT OF ACKNOWLEDGMENT

I understand that my term of supervision is for a period of _______months, commencing on ____________________.

Upon a finding of a violation of probation or supervised release, I understand that the court may (1) revoke supervision,

(2) extend the term of supervision, and/or (3) modify the conditions of supervision.

I understand that revocation of probation and supervised release is mandatory for possession of a controlled substance,

possession of a firearm and/or refusal to comply with drug testing.

These conditions have been read to me. I fully understand the conditions and have been provided a copy of them.

(Signed)

____________________________________ Date: _________________

Defendant

(Signed)

____________________________________ Date: _________________

U.S. Probation Office/Designated Witness

 The Court gives notice that this case may involve other defendants who may be held jointly and severally liable for

payment of all or part of the restitution ordered herein and may order such payment in the future.

Case 3:20-cr-00223-KDB-DCK Document 28 Filed 05/13/21 Page 7 of 7

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3:20-cr-223-KDB

Case 3:20-cr-00223-KDB-DCK Document 1 Filed 06/19/20 Page 1 of 1

App. 82