Petition for Writ of Certiorari — James Benjamin Allen, Petitioner v. United States

Supreme Court briefJul 31, 2026

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No. 26In the

Supreme Court of the United States

JAMES BENJAMIN ALLEN,

Petitioner,

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

Brian Michael Aus

Counsel of Record

27 Water Front Lane

Timberlake, NC 27583

(919) 666-7690

brianauslaw@gmail.com

NCBN 12845

Attorney for Petitioner

132337

(800) 274-3321 • (800) 359-6859

QUESTION PRESENTED

Did the United States Court of Appeals for the Fourth Circuit Err in Failing to

Vacate and Remand Petitioner’s Case for Resentencing Where the District Court

Denied the Parties’ Request to Submit to the Jury the Issue of Whether Petitioner

was an Armed Career Offender as Now Required by this Court’s Decision in Erlinger

v. United States, 602 U.S. 821 (2024)?

PARTIES TO THE PROCEEDING

The Petitioner, James Benjamin Allen, is represented by Brian Michael Aus,

Attorney and Counsellor of the Supreme Court of the United States.

Respondent United States is represented by the Honorable Dan Bishop, United

States Attorney for the Middle District of North Carolina.

STATEMENT OF RELATED PROCEEDINGS

•

United States of America v. James Benjamin Allen, No. 1:22 CR 150, U.S.

District Court for the Middle District of North Carolina. Judgment entered

January 30, 2024.

•

United States of America v. James Benjamin Allen, No. 24-4071, U.S. Court of

Appeals for the Fourth Circuit. Judgment entered May 22, 2026.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................. i

PARTIES TO THE PROCEEDING .............................................................................. ii

STATEMENT OF RELATED PROCEEDINGS ........................................................... ii

TABLE OF CONTENTS ............................................................................................... iii

TABLE OF APPENDICES ........................................................................................... iv

TABLE OF AUTHORITIES .......................................................................................... v

OPINION BELOW......................................................................................................... 1

JURISDICTION............................................................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 2

STATEMENT OF THE CASE ....................................................................................... 3

REASON FOR GRANTING THE WRIT ...................................................................... 5

THE COURT OF APPEALS FOR THE FOURTH CIRCUIT ERRED WHEN

IT DECIDED THAT A DISTRICT JUDGE, NOT A JURY, COULD FIND

BY MERELY A PREPONDERANCE OF EVIDENCE THAT MR. ALLEN

WAS AN ARMED CAREER CRIMINAL AND THEN IMPOSE AN

ENHANCED SENTENCE UPON HIM .................................................................. 5

CONCLUSION............................................................................................................... 8

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED MAY 22, 2026 ........................................ 1a

APPENDIX B — SECOND SUPERSEDING INDICTMENT OF THE UNITED

STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH

CAROLINA, DATED SEPTEMBER 26, 2022 ....................................................... 6a

APPENDIX C — TRANSCRIPT EXCERPTS OF POSITIONS OF MR. ALLEN

AND GOVERNMENT AS TO THE JURY DETERMINING ARMED

CAREER CRIMINAL ISSUE AND DISTRICT COURT’S DECISION,

DATED JANUARY 16, 2024 ................................................................................ 12a

APPENDIX D — TRANSCRIPT EXCERPTS REGARDING 18 U.S.C.§ 3553(a)

SENTENCING FACTORS ON BEHALF OF MR. ALLEN, DATED

JANUARY 16, 2024 .............................................................................................. 17a

APPENDIX E — JUDGMENT AND ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH

CAROLINA, DATED JANUARY 30, 2024 AND JUNE 21, 2023 ...................... 20a

APPENDIX F — OPENING BRIEF IN UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT, FILED AUGUST 30, 2024 ............. 31a

APPENDIX G — GOVERNMENT’S BRIEF IN UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT, FILED JUNE 24, 2025 .................. 52a

APPENDIX H — REPLY BRIEF IN UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT, FILED JULY 7, 2025 ....................................... 71a

TABLE OF AUTHORITIES

Page(s)

Cases

Alleyne v. United States,

570 U.S. 99, 133 S.Ct. 2151 (2013) .......................................................................... 7

Erlinger v. United States,

602 U.S. 821, 144 S.Ct. 1840 (2024) ................................................................ 4, 6, 7

United States v. Brown,

136 F.4th 87 (4th Cir. 2025) ..................................................................................... 6

United States v. Legins,

34 F.4th 304 (4th Cir. 2022) ..................................................................................... 6

Constitutional Provisions

U.S. CONST., AMEND. V ................................................................................. 2, 4, 6, 7

U.S. CONST., AMEND. VI ................................................................................ 2, 4, 6, 7

Statutes

18 U.S.C. § 922(g) ...................................................................................................... 2, 3

18 U.S.C. § 922(g)(1) ...................................................................................................... 2

18 U.S.C. § 924(c)(1)(A)(i) .............................................................................................. 3

18 U.S.C. § 924(e)....................................................................................................... 2, 3

21 U.S.C. § 841(a)(1) ...................................................................................................... 3

21 U.S.C. § 841(b)(1)(C) ................................................................................................. 3

28 U.S.C. § 1254(1) ........................................................................................................ 1

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

The Petitioner, James Benjamin Allen, respectfully prays that a writ of

certiorari issue to review the judgment below.

OPINION BELOW

The opinion of the United States Court of Appeals for the Fourth Circuit

affirming the district court’s judgment appears as Appendix A to the petition and is

unpublished.

JURISDICTION

The United States Court of Appeals for the Fourth Circuit decided Mr. Allen’s

case on May 22, 2026, by affirming his sentence through an unpublished per curiam

opinion. The jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

U.S.CONST., AMEND. V provides in pertinent part:

No person shall be… deprived of life, liberty, or property,

without due process of law[.]

U.S. CONST., AMEND. VI provides in pertinent part:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the … district wherein the crime shall have

been committed[.]

Title 18 of the United States Code, Section 924(e) provides in pertinent part:

(1) In the case of a person who violates section 922(g) of this title and has three

previous convictions by any court referred to in section 922(g)(1) of this title for

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

different from one another, such person shall be fined under this title and

imprisoned not less than fifteen years[.]

STATEMENT OF THE CASE

James Benjamin Allen was charged by way of a second superseding indictment

filed on September 26, 2022, for possession with intent to distribute cocaine

hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) [Count One],

possession of a firearm in furtherance of a drug trafficking crime in violation of 18

U.S.C. § 924(c)(1)(A)(i) [Count Two] and as a felon in possession of ammunition in

violation of 18 U.S.C. §§ 922(g) and 924(e) [Count Three]. (Appendix B).

Mr. Allen was tried before a jury and was found guilty of possession with intent

to distribute cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C)

[Count One], possession of a firearm in furtherance of a drug trafficking crime in

violation of 18 U.S.C. § 924(c)(1)(A)(i) [Count Two] and as a felon in possession of

ammunition in violation of 18 U.S.C. § 922(g) [Count Three].

As to Count Three, the Government requested that a jury decide whether Mr.

Allen was an armed career criminal pursuant to 18 U.S.C. § 924(e). Mr. Allen had

also requested that the jury decide whether he was an armed career criminal

pursuant to 18 U.S.C. § 924(e). The district court indicated that it did not have the

authority to put the issue to a jury as to whether Mr. Allen was an armed career

criminal. (Appendix C).

Mr. Allen was consequently sentenced by the District Court as an armed career

criminal to a downward-variant sentence in the Bureau of Prisons of 180 months on

Counts One and Three and a consecutive term of 60 months on Count 2 followed by

a total of five years of supervised release. (Appendix E).

Mr. Allen entered Notice of Appeal and caused to have filed with the United

States Court of Appeals for the Fourth Circuit a brief raising the issue as to whether

the district court erred in judicially imposing an enhanced sentence by finding him to

be an armed career criminal by only a preponderance of the evidence rather than for

a jury deciding by proof beyond a reasonable doubt as to whether he was an armed

career criminal as required by Erlinger v. United States, 602 U.S. 821, 144 S. Ct. 1840

(2024). (Appendix F). The Government filed with the Fourth Circuit its brief in

opposition arguing that the district court’s Erlinger error was harmless because the

overwhelming and uncontroverted proof of Mr. Allen’s predicate convictions

conclusively showed that a jury would have found those facts beyond a reasonable

doubt. (Appendix G). Mr. Allen filed a reply brief arguing that this Court’s holding in

Erlinger was “on all fours” with his case thereby entitling him under the Fifth and

Sixth Amendments to have a jury decide by proof beyond a reasonable doubt as to

whether he was an armed career criminal. (Appendix H).

The United States Court of Appeals for the Fourth Circuit, through an

unpublished per curiam opinion on May 22, 2026, affirmed the judgment of the

district court. (Appendix A).

REASON FOR GRANTING THE WRIT

THE COURT OF APPEALS FOR THE FOURTH CIRCUIT ERRED

WHEN IT DECIDED THAT A DISTRICT JUDGE, NOT A JURY,

COULD FIND BY MERELY A PREPONDERANCE OF EVIDENCE

THAT MR. ALLEN WAS AN ARMED CAREER CRIMINAL AND

THEN IMPOSE AN ENHANCED SENTENCE UPON HIM.

Both the Government and Mr. Allen requested that the jury decide whether he

was an armed career criminal. The district court declined the joint request finding

that it lacked the authority to put the issue to the jury as to whether Mr. Allen was

an armed career criminal by proof beyond a reasonable doubt.

At the sentencing hearing, Mr. Allen argued in mitigation, inter alia, that one

set of the convictions being used to categorize him as an armed career criminal was

by way of 1996 juvenile petitions for assault with a deadly weapon inflicting serious

injury, assault with a deadly weapon and robbery with a dangerous weapon when he

was 15 years old. Mr. Allen was bound over to the North Carolina state Superior

Court to be tried as an adult and was convicted at the age of 16 of those particular

charges. (Appendix D). Aside from the convictions arising from the juvenile petition,

his North Carolina felony convictions were for distribution of cocaine base on January

22 and February 5, 2015, for which he was sentenced on both charges on February

17, 2016. (Appendix B). He had no other convictions for a crime of violence. (Appendix

D). The district court found Mr. Allen to be an armed career criminal and imposed

concurrent downward-variant sentences of 180 months in the Bureau of Prisons for

Counts One and Three, followed by the mandatory 60-month minimum for Count

Two. (Appendix E)

In his appeal to the Fourth Circuit, Mr. Allen contended that the district court

erred in not submitting to the jury the question of whether he was an armed career

criminal as requested by the parties. The per curiam opinion of the Fourth Circuit

applied a harmless-error review and concluded that because Mr. Allen was convicted

after a jury trial, that the Government made a showing that that “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’” relying on its decisions in United States v. Brown, 136 F.4th 87 (4th Cir. 2025)

and United States v. Legins, 34 F.4th 304 (4th Cir. 2022). Mr. Allen respectfully

submits that in applying this logic, the Fourth Circuit’s decision ignores this Court’s

holding in Erlinger that:

Presented with evidence about the times, locations, purpose, and

character of those crimes, a jury might have concluded that some or all

occurred on different occasions. Or it might not have done so. All we can

say for certain is that the sentencing court erred in taking that decision

from a jury of Mr. Erlinger's peers.

Erlinger, 144 S.Ct. at 1852. Whether Mr. Allen was an armed career criminal due to

a conviction arising from an armed robbery committed as a 15-year-old and whether

two drug offenses that were committed 2 weeks apart to which he pled guilty to on

the same date were to be considered “different occasions” was for the jury, not the

district court, to decide by proof beyond a reasonable doubt; not by a preponderance

of the evidence.

The Fourth Circuit’s decision cannot be reconciled with Mr. Allen’s Fifth and

Sixth Amendment rights as recognized in Erlinger. Any “fact that increases" a

defendant's exposure to punishment, whether by triggering a higher maximum or

minimum sentence, must "be submitted to a jury" and found unanimously and beyond

a reasonable doubt. Alleyne v. United States, 570 U.S. 99, 111-113, 133 S.Ct. 2151

(2013). This did not happen in Mr. Allen’s case. A jury is the finder of fact, not the

judge. A harmless-error analysis does not satisfy the Fifth and Sixth Amendment

requirements as no one knows, nor should we presume, that a jury of Mr. Allen’s

peers would have concluded beyond a reasonable doubt that he was an armed career

criminal. See Erlinger, 144 S.Ct. at 1852. The jury might have decided that his

conviction arising from the armed robbery as a 15-year-old was not sufficient. The

jury may also have decided that his two felony drug convictions did not occur on

“different occasions.” The Fourth Circuit’s decision stands on a slippery slope, for

using a harmless-error analysis begs the question: what is sufficient evidence of being

an armed career criminal and what is not? That should always be a jury question and

not a decision for the district court. Our Constitution requires as much.

Mr. Allen therefore is entitled to have his sentence vacated based on the

district court’s finding that he was an armed career criminal. A jury should be

empaneled to decide the issue of whether he is indeed an armed career criminal by

proof beyond a reasonable doubt.

CONCLUSION

For the reasons stated above, James Benjamin Allen prays this Petition for a

Writ of Certiorari be granted.

Respectfully submitted,

/s/ Brian Michael Aus

Brian Michael Aus

Counsel of Record

27 Water Front Lane

Timberlake, NC 27583

(919) 666-7690

brianauslaw@gmail.com

NCBN 12845

Attorney for Petitioner

APPENDIX

TABLE OF APPENDICES

Page

APPENDIX A — OPINION OF THE UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT, FILED MAY 22, 2026 . . 1a

APPENDIX B — SECOND SUPERSEDING INDICTMENT OF

THE UNITED STATES DISTRICT COURT FOR THE MIDDLE

DISTRICT OF NORTH CAROLINA, DATED SEPTEMBER 26,

2022 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6a

APPENDIX C — TRANSCRIPT EXCERPTS OF POSITIONS

OF MR. ALLEN AND GOVERNMENT AS TO THE JURY

DETERMINING ARMED CAREER CRIMINAL ISSUE AND

DISTRICT COURT’S DECISION, DATED JANUARY 16, 2024 . . . 12a

APPENDIX D — TRANSCRIPT EXCERPTS REGARDING 18

U.S.C. § 3553(a) SENTENCING FACTORS ON BEHALF OF

MR. ALLEN, DATED JANUARY 16, 2024 . . . . . . . . . . . . . . . . . . . . . . 17a

APPENDIX E — JUDGMENT AND ORDER OF THE UNITED

STATES DISTRICT COURT FOR THE MIDDLE DISTRICT

OF NORTH CAROLINA, DATED JANUARY 30, 2024 AND

JUNE 21, 2023 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20a

APPENDIX F — OPENING BRIEF IN UNITED STATES COURT

OF APPEALS FOR THE FOURTH CIRCUIT, FILED AUGUST

30, 2024 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31a

APPENDIX G — GOVERNMENT’S BRIEF IN UNITED STATES

COURT OF APPEALS FOR THE FOURTH CIRCUIT, FILED

JUNE 24, 2025 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52a

APPENDIX H — REPLY BRIEF IN UNITED STATES COURT OF

APPEALS FOR THE FOURTH CIRCUIT, FILED JULY 7, 2025 . . 71a

APPENDIX A

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

United States v. James Benjamin Allen, No. 24-4071

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UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 24-4071

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

JAMES BENJAMIN ALLEN,

Defendant - Appellant.

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

Greensboro. Loretta C. Biggs, Senior District Judge. (1:22-cr-00150-LCB-1)

Submitted: April 17, 2026

Decided: May 22, 2026

Before WYNN, THACKER, and RICHARDSON, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Brian Michael Aus, BRIAN AUS, PC, Timberlake, North Carolina, for

Appellant. Randall S. Galyon, Acting United States Attorney, Julie C. Niemeier, Assistant

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

North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

James Benjamin Allen appeals his conviction and sentence. A jury convicted him

of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1);

possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§ 924(c)(1)(A)(i); and possession of ammunition after having been convicted of a felony,

in violation of 18 U.S.C. § 922(g)(1). The district court sentenced him as an armed career

criminal under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).

The district court adopted the finding of the probation officer that Allen had three

previous convictions of a violent felony or a serious drug offense or both, committed on

occasions different from one another; and it overruled Allen’s objection that he was entitled

to have a jury resolve the occasions inquiry beyond a reasonable doubt. After he appealed,

the Supreme Court decided 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). On appeal, Allen contends that his Fifth and Sixth Amendment

rights were violated when the district court, rather than the jury, found him to be an armed

career criminal by a preponderance of the evidence. In response, the Government contends

that the Erlinger error in this case was harmless. We affirm.

Harmless-error review applies to Erlinger errors. United States v. Brown, 136 F.4th

87, 94-96 (4th Cir. 2025). Because Allen was convicted after a jury trial, the Government

must show that 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.” Id. at 96; United States v. Legins, 34 F.4th 304, 322 (4th Cir.

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2022). Having reviewed the record and briefs on appeal, we conclude that the Government

has made this showing. In the district court, the Government alleged Allen’s three ACCA

predicates in the indictment; and it provided evidence derived from Shepard v. United

States, 544 U.S. 13 (2005), documents to support the ACCA enhancement. But, the jury

was not asked to resolve the occasions inquiry as required by Erlinger.

In Wooden v. United States, 595 U.S. 360 (2022), “the Supreme Court held that the

word ‘occasion’ in ACCA should be given its ‘ordinary meaning’—that is, ‘essentially an

episode or event.’” Brown, 136 F.4th at 99 (quoting Wooden, 595 U.S. at 366). The

Supreme 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.

(quoting Wooden, 595 U.S. at 370). Accordingly, in Brown, we rejected the defendant’s

argument that two robberies, committed two months apart, were committed on the same

occasion because they shared a common scheme or purpose. Id. at 98-99.

Allen does not dispute that he had a prior conviction for robbery with a dangerous

weapon, a violent felony, which was committed on July 20, 1996, and two convictions for

distribution of cocaine base, serious drug offenses, which were committed two weeks apart,

on January 22, 2015, and February 5, 2015. Because, as in Brown, “there is no question as

to how a properly instructed jury would have resolved the ‘different occasions’ inquiry in

this case,” id. at 99, we conclude that the district court’s Erlinger error was harmless.

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Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED

APPENDIX B

Second Superseding Indictment

United States v. James Benjamin Allen,

1:22-cr-00150-LCB

Case 1:22-cr-00150-LCB Document 26 Filed 09/26/22 Page 1 of 5

Case 1:22-cr-00150-LCB Document 26 Filed 09/26/22 Page 2 of 5

Case 1:22-cr-00150-LCB Document 26 Filed 09/26/22 Page 3 of 5

10a

Case 1:22-cr-00150-LCB Document 26 Filed 09/26/22 Page 4 of 5

11a

Case 1:22-cr-00150-LCB Document 26 Filed 09/26/22 Page 5 of 5

APPENDIXC

Transcript Excerpts of Positions of Mr. Allen and Government as to the Jury

Determining Armed Career Criminal Issue and District Court's Decision in

United States v. James Benjamin Allen,

1:22-cr-00 150-LCB

12a

13a

14a

15a

16a

APPENDIXD

Transcript Excerpts Regarding 18 U.S.C. § 3553(a) Sentencing Factors on Behalf

of Mr. Allen in

United States v. James Benjamin Allen,

1:22-cr-00150-LCB

17a

18a

19a

APPENDIX E

Judgment and Commitment in

United States v. James Benjamin Allen,

1:22-cr-00150-LCB

20a

21a

Case 1:22-cr-00150-LCB Document 61 Filed 01/30/24 Page 1 of 10

AO 245B (NCMD Rev. 01/20) Sheet 2 - Imprisonment

DEFENDANT:

CASE NUMBER:

Page 2 of 8

JAMES BENJAMIN ALLEN

1:22-CR-00150-1

IMPRISONMENT

The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a total term of: 240 months.

[180 as to each of Counts 1ss and 3ss, to run concurrently with each other; 60 months as to Count 2ss, to run consecutively to Counts

1ss and 3ss]

☒ The court makes the following recommendations to the Bureau of Prisons: that the Defendant be designated to a facility that can

accommodate his mental health needs. It is further recommended that the Defendant be permitted to participate in the most intensive

substance abuse treatment program available and that he receives a mental health evaluation and any follow up treatment. It is

further recommended that the Defendant receives vocational training so that he many obtain his CDL and that he be designated to a

facility as close as possible to his family.

☒ The defendant is remanded to the custody of the United States Marshal.

☐ The defendant shall surrender to the United States Marshal for this district.

☐ at __________ am/pm on __________ .

☐ as notified by the United States Marshal.

☐ The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:

☐ before 2 pm on .

☐ as notified by the United States Marshal.

☐ as notified by the Probation or Pretrial Services Office.

RETURN

I have executed this judgment as follows:

Defendant delivered on ___________________ to ___________________________________ at

_________________________, with a certified copy of this judgment.

UNITED STATES MARSHAL

DEPUTY UNITED STATES MARSHAL

22a

Case 1:22-cr-00150-LCB Document 61 Filed 01/30/24 Page 2 of 10

AO 245B (NCMD Rev. 01/20) Sheet 3 - Supervised Release

DEFENDANT:

CASE NUMBER:

Page 3 of 8

JAMES BENJAMIN ALLEN

1:22-CR-00150-1

SUPERVISED RELEASE

Upon release from imprisonment, you will be on supervised release for a term of: five (5) years.

[3 years as to Count 1ss and 5 years as to each of Counts 2ss and 3ss, all to run concurrently with each other]

MANDATORY CONDITIONS

You must not commit another federal, state or local crime.

You must not unlawfully possess a controlled substance

You must refrain from any unlawful use of a controlled substance. You must 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.

☐ The above drug testing condition is suspended based on the court’s determination that the defendant poses a low risk of

future substance abuse. (Check, if applicable.)

☐ You must make restitution in accordance with 18 U.S.C §§ 3663 and 3663A or any other statute authorizing a sentence of

restitution. (check if applicable)

☒ You must cooperate in the collection of DNA as directed by the probation officer. (Check, if applicable.)

☐ You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C § 20901, et seq.) as

directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which you reside, work, are a

student, or were convicted of a qualifying offense. (Check, if applicable.)

☐ You must participate in an approved program for domestic violence. (Check, if applicable.)

You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached

page.

23a

Case 1:22-cr-00150-LCB Document 61 Filed 01/30/24 Page 3 of 10

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Case 1:22-cr-00150-LCB Document 61 Filed 01/30/24 Page 4 of 10

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Case 1:22-cr-00150-LCB Document 61 Filed 01/30/24 Page 5 of 10

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Case 1:22-cr-00150-LCB Document 61 Filed 01/30/24 Page 10 of 10

APPENDIX F

Opening Brief in

United States v. James Benjamin Allen, 24-4041 (4th Cir.)

31a

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24-4071

United States Court of Appeals

for the

Fourth Circuit

UNITED STATES OF AMERICA,

Plaintiff/Appellee,

– v. –

JAMES BENJAMIN ALLEN,

Defendant/Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA AT GREENSBORO

BRIEF OF APPELLANT

Brian Michael Aus

BRIAN AUS, PC

27 Water Front Lane

Timberlake North Carolina 27583

(919) 666-7690

Counsel for Appellant

(800) 4-APPEAL • (JOB 810865)

32a

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................................................................... ii

STATEMENT OF JURISDICTION.......................................................................... 1

ISSUE PRESENTED ................................................................................................. 2

STATEMENT OF THE CASE .................................................................................. 2

THE TRIAL EVIDENCE ..................................................................... 4

II.

THE SENTENCING HEARING .......................................................... 7

SUMMARY OF THE ARGUMENT ...................................................................... 10

ARGUMENT ........................................................................................................... 10

MR. ALLEN’S FIFTH AND SIXTH AMENDMENT RIGHTS

WERE VIOLATED WHEN THE DISTRICT COURT, RATHER

THAT THE JURY, FOUND HIM TO BE AN ARMED CAREER

OFFENDER BY A PREPONDERANCE OF THE EVIDENCE

AND IMPOSED AN ENHANCED SENTENCE UPON HIM .................... 10

Standard of Review ............................................................................. 10

Discussion ........................................................................................... 11

CONCLUSION ........................................................................................................14

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TABLE OF AUTHORITIES

Page(s)

Cases:

Alleyne v. United States,

570 U.S. 99, 133 S. Ct. 2151 (2013) .............................................................13

Apprendi v. New Jersey,

530 U.S. 466, 120 S. Ct. 2348 (2000) .................................................... 10, 13

Chapman v. California,

386 U.S. 18, 87 S. Ct. 824 (1967) .................................................................10

Erlinger v. United States,

602 U.S. ___ (2024).......................................................................... 11, 12, 13

Ramos v. Louisiana,

590 U.S. 83, 140 S. Ct. 1390 (2020) .............................................................12

Sullivan v. Louisiana,

508 U.S. 275, 113 S. Ct. 2078 (1993) ...........................................................13

United States v. Brown,

67 F.4th 200 (4th Cir. 2023) ............................................................... 8, 11, 13

United States v. Gaudin,

515 U.S. 506, 115 S. Ct. 2310 (1995) ...........................................................13

United States v. Haymond,

588 U.S. 634, 139 S. Ct. 2369 (2019) ...........................................................12

United States v. Lovern,

293 F.3d 695 (4th Cir. 2002) ............................................................. 10, 13-14

United States v. Mackins,

315 F.3d 399 (4th Cir. 2003) .........................................................................10

Statutes & Other Authorities:

U.S. Const., Amend. V ................................................................................. 2, 10, 12

U.S. Const., Amend. VI ................................................................................ 2, 10, 12

18 U.S.C. § 922(g) ...................................................................................... 2, 3, 7, 11

18 U.S.C. § 922(g)(1).............................................................................................1, 2

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18 U.S.C. § 924(c)(1)(A)(i) .......................................................................... 1, 2, 3, 7

18 U.S.C. § 924(e) ........................................................................................... passim

18 U.S.C. § 3742(a) ...................................................................................................2

21 U.S.C. § 841(a)(1) .................................................................................... 1, 2, 3, 7

21 U.S.C. § 841(b)(1)(C) .............................................................................. 1, 2, 3, 7

28 U.S.C. § 1291 ........................................................................................................2

Fed. R. Crim. P. 52(a) ..............................................................................................11

iii

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IN THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 24-4071

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

JAMES BENJAMIN ALLEN,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

BRIEF FOR APPELLANT

STATEMENT OF JURISDICTION

This is a direct appeal by a defendant of the judgment following a federal

criminal prosecution for possession with intent to distribute a detectable amount of

cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) [Count

One], possession of a firearm in furtherance of a drug trafficking crime in violation

of 18 U.S.C. § 924(c)(1)(A)(i) [Count Two] and possession of ammunition by a felon

in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) in which an enhanced sentence for

being an armed career criminal as defined in 18 U.S.C. §924(e) was imposed without

the jury making a factual finding that he was indeed an armed career criminal by

proof beyond a reasonable doubt.

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Jurisdiction was conferred upon the United States District Court pursuant to

18 U.S.C. § 922(g)(1), 18 U.S.C. § 924(c)(1)(A)(i), 18 U.S.C. § 924(e), 21 U.S.C. §

841(a)(1) and 21 U.S.C. § 841(b)(1)(C). Appellate jurisdiction is conferred upon the

United States Court of Appeals for the Fourth Circuit pursuant to 18 U.S.C. §

3742(a) and 28 U.S.C. § 1291.

Sentence was imposed by the district court on January 16, 2024, and the

judgment was filed on January 30, 2024. Notice of appeal from the final judgment

of the district court was filed on behalf of Mr. Allen on January 31, 2024.

ISSUE PRESENTED

Whether Mr. Allen’s Fifth and Sixth Amendment rights were violated when

the District Court, rather that the jury, found him to be an Armed Career Offender

by a preponderance of the evidence and imposed an enhanced sentence upon him.

STATEMENT OF THE CASE

James Benjamin Allen was charged by way of a three-count second

superseding indictment with possession with intent to distribute a quantity and

mixture of a substance containing a detectable amount of cocaine hydrochloride in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) [Count One], possession of a

firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. §

924(c)(1)(A)(i) [Count Two] and as a felon in possession of ammunition in violation

of 18 U.S.C. §§ 922(g) and 924(e) [Count Three]. (JA12-13).

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Mr. Allen was tried before a jury and was found guilty of possession with

intent to distribute cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and

(b)(1)(C) [Count One], possession of a firearm in furtherance of a drug trafficking

crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) [Count Two] and as a felon in

possession of ammunition in violation of 18 U.S.C. § 922(g) [Count Three].

(JA385).

As to Count Three, the Government requested that a jury decide whether Mr.

Allen was an armed career criminal pursuant to 18 U.S.C. § 924(e). (JA24-26). Mr.

Allen had also requested that the jury decide whether he was an armed career

criminal pursuant to 18 U.S.C. § 924(e). (JA486-487; See JA386). The district court

indicated that it did not have the authority to put the issue to a jury as to whether Mr.

Allen was an armed career criminal. (JA393, JA417-419, JA433).

Mr. Allen was sentenced by the District Court on January 16, 2024, as an

armed career criminal to a downward-variant sentence of 180 months on Counts One

and Three in the Bureau of Prisons and a consecutive term of 60 months on Count 2

followed by a total of five years of supervised release. (JA433-434). The Judgment

In A Criminal Case was filed on January 30, 2024. (JA441-443).

Notice of Appeal as to the verdict and sentence thereon was timely filed on

January 31, 2024. (JA451).

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THE TRIAL EVIDENCE

Timothy Furlow, a supervisory United States Probation officer in the Middle

District of North Carolina testified that James Benjamin Allen had previously been

convicted for the offense of possessing firearms in commerce after a felony

conviction. (JA186, JA188). Furlow, who had been Mr. Allen’s probation officer

while he was on supervised release, made an in-court identification of Mr. Allen.

(JA190).

Lieutenant Casey Norwood of the Durham County Sheriff's Office identified

Mr. Allen, (JA215), and testified that while working speed enforcement, he stopped

a Lexus Sport car that was travelling 53 miles per hour in a 35 mile per hour zone.

The vehicle was registered to Mr. Allen. (JA217). Norwood approached the vehicle

and immediately noticed the apparent odor of marijuana emanating from the open

window. Mr. Allen was the only person in the car. Mr. Allen admitted that he had a

“blunt’s worth” of marijuana in his possession. (JA218). Mr. Allen appeared “really

nervous.” When asked to give Norwood the marijuana, Mr. Allen started fumbling

in his cargo pocket. Norwood thought it was taking too long for him to produce the

marijuana. Consequently, Norwood told Mr. Allen to get out of the car. (JA219).

Mr. Allen continued to “mess around in his pocket.” (JA220). Norwood ordered Mr.

Allen to place his hands on the hood of his car and shone his flashlight into Mr.

Allen’s pocket. Norwood saw bags of white powder-like substance. Norwood

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retrieved a bag of marijuana and 13 individually wrapped bags of the powdery

substance. (JA220-221). When asked if there was anything else in the car, Mr. Allen

stated that he had a gun. Norwood located a loaded Polymer80 firearm [“ghost gun”]

in the glove box of the vehicle. (JA222).

Special Agent Michael Newsome for the Bureau of Alcohol, Tobacco,

Firearms and Explosives was designated as an expert in the areas of the nexus for

firearms and ammunition. (JA256-257). Newsome testified that the firearm seized

was a privately made 9-millimeter handgun, meaning that it was made by an

individual other than a licensed manufacturer. There was no indication of the identity

of the manufacturer, nor did it have a serial number. (JA257-258). Newsome testfired the weapon and it functioned as designed. (JA258). The ammunition from the

firearm was examined. The cartridge casings were manufactured by three

manufacturers: Remington, Federal, and Winchester. (JA259). Newsome opined

that the 9-mm cartridge casings were manufactured outside of the state of North

Carolina. 1 (JA260).

Anthony Marino, an information technology analyst with the Durham County

Sheriff's Office, testified that the Durham jail provided video visitation, inmate

phone calls and media tablets to detainees. (JA269-270). At the beginning of every

The cartridge casing is the metal part of the bullet which holds the powder and

where the projectile is inserted into. (JA260).

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call, inmates are given notice that their communications may be monitored. All

communications

are

recorded

and

stored.

(JA270).

Marino

extracted

communications attributed to Mr. Allen and provided them to Task Force Officer

Christy. (JA272).

Task Force Officer Justin Christy of the Durham Police Department obtained

records of Mr. Allen’s felony convictions from the Durham County Clerk of Court.

(JA274-275). The Clerk’s records indicated that Mr. Allen had been convicted in

state court for two counts of assault with a deadly weapon inflicting serious injury

and one count of robbery with a dangerous weapon to which he was imprisoned for

a minimum term of 38 months and a maximum term of 55 months. (JA277). Christy

also had obtained copies of the recordings of Mr. Allen’s jail calls which were played

to the jury. (JA280). On a recording, Mr. Allen discussed how he got arrested at a

traffic stop and stated that he had the gun and was arrested because he had the gun

and ammunition. (JA282). Christy also obtained Mr. Allen’s video calls from the

Guilford County North Carolina jail that were played to the jury. (JA284). In one of

his calls, he said to his girlfriend, “True, I had a gun.” He also discussed the drug

charges against him, including what appeared to be his knowledge of the weight and

number of bags that contained white powder. (JA287).

Grace Connolly, a forensic scientist at the North Carolina State Crime Lab in

the Raleigh laboratory was designated as an expert in the area of the identification

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of unknown substances for controlled substances. (JA291, JA294). Connolly had

been presented with 13 knotted plastic bag corners containing white material.

(JA295). Connolly was able to determine that for the eight pieces of evidence that

she examined, she determined that cocaine hydrochloride was present in the eight

plastic bag corners. (JA297).

The court denied Mr. Allen’s Rule 29 motions to dismiss the charges. (JA304307). Mr. Allen did not testify nor present evidence. (JA308). The jury returned

guilty verdicts as to possession with intent to distribute cocaine hydrochloride in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) [Count One], possession of a

firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C.

§ 924(c)(1)(A)(i) [Count Two] and felon in possession of ammunition in violation

of 18 U.S.C. § 922(g). (JA374-375), The jury made no finding as to whether Mr.

Allen violated 18 U.S.C. § 924(e). (See JA385).

II.

THE SENTENCING HEARING

Mr. Allen’s sole objection at sentencing was to his classification as an armed

career criminal, along with the resulting criminal history category and guidelines.

(JA417). Although counsel for Mr. Allen agreed that Fourth Circuit law stated

otherwise, the basis of the objection was that Mr. Allen was not afforded the chance

to have a jury decide whether he was in fact an armed career criminal. (JA418-419).

The Government agreed that the issue of whether the court or a jury makes the

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determination of whether Mr. Allen is an armed career criminal was “live in the

courts,” also agreed that Fourth Circuit law at the time held that the court should

make the determination. The Court overruled Mr. Allen’s objection on the grounds

that United States versus Brown, 67 F.4th 200 (4th Cir. 2023), required the Court to

make the determination of whether Mr. Allen is an armed career criminal. (JA419).

The court found, without further objection, that under the sentencing guideline

that Mr. Allen’s total offense level was Level 33 and a criminal history category of

IV. The resulting imprisonment range for Counts One and Three was 188 months to

235 months. The imprisonment range on Count Two was 60 months. The guideline

supervised release range on Count One was three years, and on Counts Two and

Three two years to five years. (JA420-421). No requests were made for a departure

from the guideline range of punishment and the court found no basis for a departure.

(JA421).

Mr. Allen requested a downward variant sentence of 180 months for Counts

One and Three based the fact that the convictions used to categorize him as an armed

career criminal consisted of charges, by way of juvenile petitions, of assault with a

deadly weapon inflicting serious injury, assault with a deadly weapon and robbery

with a dangerous weapon was when he was 15 years old. He was bound over to the

state Superior Court to be tried as an adult and was convicted at the age of 16 of

those particular charges. (JA422). Aside from the convictions arising from the

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juvenile petition, he had no other convictions for a crime of violence. Among other

things, Mr. Allen grew up in a turbulent home, had an unstable childhood, was

exposed to violence at an early age and was almost killed at age 14. (JA423-424).

Physically, he suffers from gunshot wounds that still bother him and broke his hip

which makes it difficult for him in an incarceration situation. (JA425). Mr. Allen

also suffers from mental health issues including schizophrenia. (JA424). In spite of

these problems, Mr. Allen received his GED and was steadily employed. (JA424425).

The Government argued that prior lengthy sentences did not deter Mr. Allen’s

conduct and requested the court impose the mandatory minimum sentence of 20

years. (JA428-430). Mr. Allen addressed the court and acknowledged he had made

some mistakes. He also addressed his mother and fiancé who were present and

apologized for “putting them through these troubles.” (JA430-431).

The court stated that “[t]his is one of those really sad situations” due to mental

health issues as well as difficulties in his childhood and with his family. (JA431432). The court imposed on Mr. Allen concurrent downward-variant sentences of

180 months in the Bureau of Prisons for Counts One and Three, followed by the

mandatory 60-month minimum for Count Two. (JA433-434).

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SUMMARY OF THE ARGUMENT

Appellant James Benjamin Allen argues in this brief that the district court

erred when it overruled his objection to the jury deciding whether he was an armed

career criminal by proof beyond a reasonable doubt, and the corresponding sentence

imposed.

ARGUMENT

MR. ALLEN’S FIFTH AND SIXTH AMENDMENT RIGHTS WERE VIOLATED

WHEN THE DISTRICT COURT, RATHER THAT THE JURY, FOUND HIM TO

BE AN ARMED CAREER OFFENDER BY A PREPONDERANCE OF THE

EVIDENCE AND IMPOSED AN ENHANCED SENTENCE UPON HIM.

Standard of Review.

Where a defendant has made a timely and sufficient sentencing objection on

constitutional grounds to the trial court and preserved the objection, this Court

conducts a de novo review. See United States v. Mackins, 315 F.3d 399, 405 (4th

Cir. 2003)(discussing Apprendi error). In such circumstances, this Court must

reverse unless the constitutional error is harmless beyond a reasonable doubt, with

the Government bearing the burden of proving harmlessness. See Chapman v.

California, 386 U.S. 18, 24, 87 S. Ct. 824 (1967)(holding that "before a federal

constitutional error can be held harmless, the court must be able to declare a belief

that it was harmless beyond a reasonable doubt"); United States v. Lovern, 293 F.3d

695, 701 (4th Cir. 2002)(concluding that under harmless constitutional error

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standard "[t]he government bears the burden of demonstrating that the error was

harmless"); see also Fed. R. Crim. P. 52(a).

Discussion

Count Three of Mr. Allen’s indictment charged him with being a felon in

possession of ammunition in violation of 18 U.S.C. § 922(g) and being an armed

career criminal pursuant to 18 U.S.C. § 924(e). In his trial brief, Mr. Allen objected

to the application of the less rigorous burden of proof of a preponderance of the

evidence rather than by proof beyond a reasonable doubt. (See JA38). Both Mr.

Allen and the Government requested that a jury decide whether he was an armed

career criminal pursuant to 18 U.S.C. § 924(e). (JA24-26, JA486-487, JA386). The

jury convicted Mr. Allen of all counts but did not decide whether he was an armed

career criminal in violation of 18 U.S.C. § 924(e). (JA385). During sentencing, Mr.

Allen preserved his objection to having the trial court decide whether he was an

armed career criminal. (JA415-419).

The trial court, however, overruled the

objections based on this Court’s holding in United States v. Brown, 67 F.4th 200,

201 (4th Cir. 2023). (JA419).

Mr. Allen respectfully argues that, based on the Supreme Court’s decision in

Erlinger v. United States, 602 U. S. ___ (2024), No. 23-370, United States v. Brown

is no longer is valid law. Accordingly, Mr. Allen is entitled to a have his enhanced

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sentence vacated and his case remanded for a jury to determine whether he is an

armed career criminal by proof beyond a reasonable doubt.

Erlinger concerned the Armed Career Criminal Act (ACCA) and the Fifth and

Sixth Amendments. ACCA imposes lengthy mandatory prison terms on certain

defendants who have previously committed three violent felonies or serious drug

offenses on separate occasions. The question the Supreme Court faced was whether

a judge may decide that a defendant's past offenses were committed on separate

occasions under a preponderance-of-the-evidence standard, or whether the Fifth and

Sixth Amendments require a unanimous jury to make that determination beyond a

reasonable doubt. Erlinger, No. 23-370 at p. 1.

The Sixth Amendment promises that "[i]n all criminal prosecutions the

accused" has "the right to a speedy and public trial, by an impartial jury." Inhering

in that guarantee is an assurance that a guilty verdict will issue only from a

unanimous jury. Erlinger, No. 23-370 at p. 6 (Citing Ramos v. Louisiana, 590 U. S.

83, 93, 140 S. Ct. 1390 (2020)). The Fifth Amendment further promises that the

government may not deprive individuals of their liberty without "due process of

law." It is a promise that safeguards for criminal defendants those procedural

protections well established at common law, including the "ancient rule" that the

government must prove to a jury every one of its charges beyond a reasonable doubt.

Id. (Citing United States v. Haymond, 588 U. S. 634, 641, 139 S. Ct. 2369 (2019);

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Apprendi v. New Jersey, 530 U.S. 466, 477-478 120 S. Ct. 2348 (2000); United

States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310 (1995); Sullivan v. Louisiana,

508 U.S. 275, 277-278, 113 S. Ct. 2078 (1993)). Any “fact that increases" a

defendant's exposure to punishment, whether by triggering a higher maximum or

minimum sentence, must "be submitted to a jury" and found unanimously and

beyond a reasonable doubt. Id. at p. 9 (Citing Alleyne v. United States, 570 U.S. 99,

111-113, 133 S. Ct. 2151 (2013)).

Based on the above-referenced analysis, the Supreme Court concluded that

“Mr. Erlinger was entitled to have a jury resolve ACCA's occasions inquiry

unanimously and beyond a reasonable doubt” and is that the sentencing court erred

in taking that decision away from a jury of Mr. Erlinger's peers. Erlinger, 602 U.S.

___ , No. 23-370 at p. 11.

Mr. Allen’s case is on all fours with Erlinger. The trial court erred by relying

on this Court’s decision in United States v. Brown, as it has now been overruled by

Erlinger. The Government cannot meet its burden of proving that the constitutional

error of denying Mr. Allen the opportunity to have a jury decide whether that he is

an armed career criminal was harmless beyond a reasonable doubt. 2 See Lovern,

The Supreme Court noted: “Presented with evidence about the times, locations,

purpose, and character of those crimes, a jury might have concluded that some or all

occurred on different occasions. Or it might not have done so.” Erlinger, No. 23-370

at p. 11.

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293 F.3d 695 at 701 (Standard of proof). Mr. Allen therefore is entitled to have a

jury decide by proof beyond a reasonable doubt whether he is an armed career

criminal.

CONCLUSION

For the reasons stated above, Mr. Allen prays that this Court vacate his

enhanced sentence and remand his case for a jury to decide whether he is an armed

career criminal by proof beyond a reasonable doubt.

Respectfully submitted, this 30th day of August 2024.

/s/ Brian Michael Aus

BRIAN MICHAEL AUS

27 Water Front Lane

Timberlake, NC. 27583

NCBN 12845

(919) 666-7690

brianauslaw@gmail.com

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CERTIFICATE OF COMPLIANCE

This brief complies with type-volume limits because, excluding the parts of

the document exempted by Fed. R. App. P. 32(f) (cover page, disclosure

statement, table of contents, table of citations, statement regarding oral

argument, signature block, certificates of counsel, addendum, attachments):

[ X ] this brief contains [3,033] words.

[ ] this brief uses a monospaced type and contains [state the number of]

lines of text.

This brief complies with the typeface and type style requirements because:

[ X ] this brief has been prepared in a proportionally spaced typeface using

[Microsoft Word 365] in [14pt Times New Roman]; or

[ ] this brief has been prepared in a monospaced typeface using [state

name and version of word processing program] with [state number of

characters per inch and name of type style].

Dated: August 30, 2024

/s/ Brian Michael Aus

Counsel for Appellant

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CERTIFICATE OF FILING AND SERVICE

I hereby certify that on this 30th day of August, 2024, I caused this Brief of

Appellant and Joint Appendix to be filed electronically with the Clerk of the Court

using the CM/ECF System, which will send notice of such filing to the following

registered CM/ECF users:

Kyle D. Poussan

Assistant U. S. Attorney

OFFICE OF THE U.S. ATTORNEY

101 S. Edgeworth Street

4th Floor

Greensboro, North Carolina 27401

Counsel for Appellee

I further certify that on this 30th day of August, 2024, I caused a copy of the

Sealed Volume of the Joint Appendix to be served, via FedEx, upon counsel for

the Appellee, at the above address and a copy of the Brief of Appellant to be

served, via U.S. Mail, postage prepaid, upon the Appellant, at the address below:

James Benjamin Allen

FCI Ashland

Federal Correctional Institution

P.O. Box 6001

Ashland, KY 41105

Appellant

/s/ Brian Michael Aus

Counsel for Appellant

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APPENDIX G

Government’s Brief in

United States v. James Benjamin Allen, 24-4041 (4th Cir.)

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No. 24–4071

United States Court of Appeals

for the Fourth Circuit

UNITED STATES OF AMERICA,

Appellee,

JAMES BENJAMIN ALLEN,

Appellant.

On Appeal from the United States District Court for

the Middle District of North Carolina

BRIEF OF THE UNITED STATES

RANDALL S. GALYON

Acting United States Attorney

BY:

JULIE C. NIEMEIER

Assistant United States Attorney

101 South Edgeworth Street, 4th Floor

Greensboro, North Carolina 27401

Telephone: (336) 333–5351

Attorneys for Appellee

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TABLE OF CONTENTS

STATEMENT OF JURISDICTION .......................................................... 1

ISSUE PRESENTED ................................................................................ 2

STATEMENT OF THE CASE .................................................................. 2

SUMMARY OF ARGUMENT ................................................................... 5

ARGUMENT ............................................................................................. 6

The district court’s Erlinger error was harmless because the

overwhelming and uncontroverted proof of Allen’s predicate

convictions conclusively shows that a jury would have found

those facts beyond a reasonable doubt. ................................................ 6

Standard of Review ................................................................. 6

Discussion................................................................................ 6

CONCLUSION ........................................................................................ 13

CERTIFICATE OF COMPLIANCE ........................................................ 14

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

Cases

Erlinger v. United States,

602 U.S. 821 (2024) ...................................................................... passim

Neder v. United States,

527 U.S. 1 (1999) ................................................................................ 7, 9

Shepard v. United States,

544 U.S. 13 (2005) ................................................................................ 11

United States v. Boggs,

No. 22-4707, 2025 WL 1249364 (4th Cir. Apr. 30, 2025) ...................... 8

United States v. Brown,

67 F.4th 200 (4th Cir. 2023) .................................................................. 4

United States v. Brown,

136 F.4th 87 (2025) ...................................................................... passim

United States v. Legins,

34 F.4th 304 (4th Cir. 2022) .................................................................. 9

Washington v. Recuenco,

548 U.S. 212 (2006) ................................................................................ 7

Wooden v. United States,

595 U.S. 360 (2022) .................................................................. 3, 5, 8, 12

Statutes

18 U.S.C. § 922(g)(1).................................................................................. 2

18 U.S.C. § 924(c)(1)(A) ............................................................................. 2

18 U.S.C. § 3231 ........................................................................................ 1

21 U.S.C. § 841(a)(1).................................................................................. 2

28 U.S.C. § 1291 ........................................................................................ 2

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In the

UNITED STATES COURT OF APPEALS

for the Fourth Circuit

No. 24-4071

UNITED STATES OF AMERICA,

Appellee,

JAMES BENJAMIN ALLEN,

Appellant.

On Appeal from the United States District Court

For the Middle District of North Carolina

BRIEF FOR APPELLEE

STATEMENT OF JURISDICTION

James Benjamin Allen directly appeals the armed career criminal

sentence imposed by the district court following a jury trial. The United

States District Court for the Middle District of North Carolina had

jurisdiction pursuant to 18 U.S.C. § 3231 and entered judgment on

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January 30, 2024. JA9, JA441–450. Allen timely appealed on January

31, 2024. JA451–452. This Court has jurisdiction under 28 U.S.C. § 1291.

ISSUE PRESENTED

Was the district court’s decision to impose an armed

career criminal sentence without submitting the issue

to a jury, in violation of Erlinger v. United States, 602

U.S. 821 (2024), harmless error?

STATEMENT OF THE CASE

Following Allen’s arrest in a September 2021 traffic stop with

cocaine and a polymer 9mm handgun with an extended magazine, a

grand jury charged him in a three-count indictment. Count One alleged

Allen possessed with intent to distribute cocaine hydrochloride, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C); Count Two charged him

with possessing a firearm in furtherance of a drug trafficking crime, in

violation of 18 U.S.C. § 924(c)(1)(A); and Count Three charged Allen with

possession of ammunition as a felon, having three previous convictions

for a violent felony or serious drug offense or both committed on occasions

different from one another, in violation of 18 U.S.C. § 922(g)(1) and 924(e)

(the Armed Career Criminal Act [“ACCA”] count). JA12–14. The ACCA

count specified Allen’s predicate offenses as a North Carolina conviction

for robbery with a dangerous weapon, committed July 20, 1996, and two

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federal convictions for distribution of cocaine base: one committed

January 22, 2015, and the other February 5, 2015. JA13.

Allen pleaded not guilty to all counts, and the case proceeded to

trial in November 2022. JA4–6. The United States requested a bifurcated

trial in which the jury would first consider guilt, and then—if Allen was

convicted on the ACCA count—whether to impose an ACCA sentence,

citing Wooden v. United States, 595 U.S. 360 (2022). JA25–26. Allen

concurred that he was entitled to have a jury consider his ACCA status

but indicated he would waive his right and request the district court to

determine the issue under a reasonable doubt standard. JA38. The

district court denied both requests. Following a two-day trial, the jury

returned a guilty verdict on all three counts. JA374–375, JA385.

Prior to sentencing, a presentence investigation report (“PSR”) was

prepared reflecting that Allen was an armed career criminal. JA459–461,

JA464, JA474. Allen objected to his classification as armed career,

questioning whether his federal offenses were committed on different

occasions and objecting to the district court determining his ACCA

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status. JA483, JA485–487. At sentencing, in accordance with thencontrolling precedent, United States v. Brown, 67 F.4th 200 (4th Cir.

2023), the district court determined that Allen committed his offenses on

three different occasions as described in the PSR. JA419–421. The court

sentenced Allen to a downward variance sentence of 180 months of

imprisonment on the ACCA count, to run concurrently with a 180-month

sentence on Count One, and a consecutive 60 months on Count Two.

JA441–450. Allen timely appealed. JA451–452.

In his opening brief, Allen argues that following Erlinger v. United

States, 602 U.S. 821 (2024) (holding that the Fifth and Sixth

Amendments require a jury, not a sentencing judge, to determine beyond

a reasonable doubt whether a defendant is subject to an ACCA sentence),

the district court’s imposition of an ACCA sentence was reversible error.

This Court held the case in abeyance pending its decision in United States

v. Brown, No. 21-4253, then on remand following grant of certiorari and

vacatur of this Court’s 2023 decision. Following its decision on April 29,

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2025, see United States v. Brown, 136 F.4th 87 (2025), the Court lifted

the abeyance.

SUMMARY OF ARGUMENT

The district court’s Erlinger error was harmless. Even if Allen’s

ACCA status had been submitted to a jury, rather than the sentencing

judge,

overwhelming

and

uncontroverted

evidence

would

have

established that Allen has three qualifying convictions committed on

different occasions, and a jury would have found those facts beyond a

reasonable doubt.

Courts have nearly always concluded that offenses “committed [] a

day or more apart” were committed on separate occasions. Wooden, 595

U.S. at 370. Here, Allen was convicted of a violent felony offense he

committed in 1996—and then, nearly two decades later, was convicted of

two serious drug offenses committed two weeks apart. Accordingly, a jury

would have found beyond a reasonable doubt that Allen was subject to an

ACCA sentence. Because the Erlinger error had no effect on the sentence

Allen received, it is harmless.

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ARGUMENT

The district court’s Erlinger error was harmless

because the overwhelming and uncontroverted proof

of Allen’s predicate convictions conclusively shows

that a jury would have found those facts beyond a

reasonable doubt.

Standard of Review

This Court reviews a district court’s Erlinger error for harmless

error. Brown, 136 F.4th at 94. Applying this standard to a jury-trial

appeal, the issue for this Court is whether, in the absence of the Erlinger

error, a jury would have found beyond a reasonable doubt that the

defendant committed three “violent felony” offenses or “serious drug

offense[s],” or both, on occasions different from one another. Id. at 97.

Discussion

In Erlinger, the Supreme Court held that the Fifth and Sixth

Amendments require that a unanimous jury, not a judge, find that a

defendant committed three violent felonies or serious drug offenses on

different occasions before a defendant is sentenced to enhanced penalties

under the ACCA. Erlinger, 602 U.S. at 834–35.

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The Erlinger majority did not address the position advanced by the

government in its merits brief—that even conceding the district court

erred by making the different-occasions determination itself, such error

is subject to harmless error review. Gov. Br. *27–28, United States v.

Erlinger, 2024 WL 81850 (Jan. 3, 2024) (citing Washington v. Recuenco,

548 U.S. 212, 218, 222 (2006) and Neder v. United States, 527 U.S. 1, 18

(1999)). The Chief Justice wrote separately, however, to expressly affirm

such errors “are subject to harmless error review” and recommend that

the Seventh Circuit, on remand, consider “the Government’s contention

that the error here was harmless.” Erlinger, 602 U.S. at 850 (Roberts,

C.J., concurring). Moreover, Justice Kavanaugh (joined by Justice Alito

as to the relevant part) agreed, citing Recuenco and Neder, noting that

the “harmless-error rule will likely ameliorate some of the short-term

problems that today’s decision otherwise would cause. In any case that

has not become final, the relevant appellate court can apply harmlesserror analysis.” Id. at 859 (Kavanaugh, J., dissenting). Justice

Kavanaugh also recalled the Court’s observation in Wooden that courts

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“‘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. at 859–60 (quoting Wooden, 595 U.S. at 370).

Interpreting Erlinger in view of other relevant authority, this Court

recently affirmed that such errors are subject to harmless-error review.

Brown, 136 F.4th at 94. Brown addressed Erlinger error in the context of

a guilty plea, where the error was the indictment’s failure to allege the

defendant committed three ACCA predicate offenses on different

occasions, as well as the court’s failure to inform the defendant during

his Rule 11 colloquy that he had the right to have a jury make that

determination beyond a reasonable doubt. Id.; see also United States v.

Boggs, No. 22-4707, 2025 WL 1249364, *3 (4th Cir. Apr. 30, 2025)

(applying Brown harmless-error review where indictment alleged three

ACCA predicates but omitted allegation defendant committed them on

different occasions).

Rejecting Brown’s argument that Erlinger error was “structural,”

i.e., per se prejudicial, this Court applied the reasoning of Recuenco to

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conclude that Erlinger error is a type of Apprendi error—where a fact

that increases the statutory penalty is omitted from the indictment and

decided by a judge, not a jury. Id. at 93–94. The Court highlighted that

the Erlinger Court itself had observed its holding was “a straightforward

application of Apprendi.” Id. at 95. As Apprendi errors are subject to

harmless-error review, so must errors under Erlinger. Id. at 95.

This Court also addressed the nuance between what harmless-error

analysis requires in a guilty-plea case versus when the defendant went

to trial. In Brown, both parties were arguing from the standard

articulated in Neder and applied in United States v. Legins, 34 F.4th 304,

323 (4th Cir. 2022) (concluding Apprendi error was harmless). In those

cases, an error was held harmless where proof of the missing fact or

element is so “overwhelming and uncontroverted” that it shows

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

reasonable doubt had it been submitted to them. Neder, 527 U.S. at 18;

Legins, 34 F.4th at 323–24.

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The Brown Court distinguished that standard, clarifying it only

applies to cases where a defendant has gone to trial. Brown, 136 F.4th at

97. In the case of a defendant like Brown who pleaded guilty without

being properly charged or advised of his right to have a jury decide his

ACCA status, the standard is slightly different: whether the government

has shown beyond a reasonable doubt that, had the defendant been

properly charged and correctly advised at his plea hearing, he would have

nonetheless waived that right and admitted his ACCA status as part of

his guilty plea. Id.

Accordingly, though this Court has not previously applied the

Erlinger harmless-error standard in a jury-trial appeal, Brown clarified

that the Neder/Legins analysis applies. Under that standard, the

government must show that the proof that a defendant committed at

least three ACCA predicate offenses on occasions different from one

another is so “overwhelming and uncontroverted” that it shows

conclusively that a jury would have found those facts beyond a reasonable

doubt. Id.

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here,

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record

establishes,

overwhelming and uncontroverted evidence derived from Shepard1

documents, that Allen had three prior convictions for qualifying offenses

committed on occasions different from one another. In 1997, Allen was

convicted in North Carolina state court of felony robbery with a

dangerous weapon and sentenced in a consolidated judgment to 38 to 55

months of imprisonment. JA460–461, JA509. The judgment reflects the

offense was committed on July 20, 1996. JA509 (see entry for

97CRS1918). Then, in 2016, Allen was convicted in United States District

Court of two counts of distribution of cocaine base and sentenced to 28

months of imprisonment on each count. JA503–504. The judgment

reflects the first offense ended on January 22, 2015, and the second on

February 5, 2015. JA503; see also JA464 (describing discrete acts of

distribution on January 22, 2015, and February 5, 2015).

Allen’s violent felony offense (robbery with a dangerous weapon)

was committed nearly two decades before the two serious drug offenses,

1 Shepard v. United States, 544 U.S. 13 (2005).

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which in turn were separated by over two weeks. See Wooden, 595 U.S.

at 369–70 (“In many cases, a single factor—especially of time or place —

can decisively differentiate occasions. Courts, for instance, 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.”). Allen

did not contest below the accuracy of the Shepard data summarized in

the PSR, JA484–486, or that submitted by the government. JA503–514,

JA417–418. There is no rational theory by which the offense dates—July

20, 1996, January 22, 2015, and February 5, 2015—could not be

considered different occasions, and Allen offers none. Br. of Appellant 13–

14. See, e.g., Brown, 136 F.4th at 98 (observing “[a]bsolutely 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.’”).

The proof that Allen committed those three predicate offenses on

different occasions is so “overwhelming and uncontroverted” that it

conclusively shows a jury would have found those facts beyond a

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reasonable doubt. Brown, 136 F.4th at 97. Accordingly, the Erlinger error

in this case is harmless. Id.

CONCLUSION

Based on the foregoing, the United States respectfully requests that

the Court affirm the judgment of the district court.

Respectfully submitted,

RANDALL S. GALYON

Acting United States Attorney

/S/ JULIE C. NIEMEIER

Assistant United States Attorney

NCSB #29365

United States Attorney’s Office

Middle District of North Carolina

101 S. Edgeworth Street, 4th Floor

Greensboro, NC 27401

Phone: 336/333-5351

Date: June 24, 2025

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UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

Effective 12/01/2016

No. 24-4071

Caption: United States of America v. James Benjamin Allen

CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMIT

Type-Volume Limit, Typeface Requirements, and Type-Style Requirements

Type-Volume Limit for Briefs: Appellant’s Opening Brief, Appellee’s Response Brief, and

Appellant’s Response/Reply Brief may not exceed 13,000 words or 1,300 lines. Appellee’s

Opening/Response Brief may not exceed 15,300 words or 1,500 lines. A Reply or Amicus

Brief may not exceed 6,500 words or 650 lines. Amicus Brief in support of an

Opening/Response Brief may not exceed 7,650 words. Amicus Brief filed during

consideration of petition for rehearing may not exceed 2,600 words. Counsel may rely on the

word or line count of the word processing program used to prepare the document. The wordprocessing program must be set to include headings, footnotes, and quotes in the count. Line

count is used only with monospaced type. See Fed. R. App. P. 28.1(e), 29(a)(5), 32(a)(7)(B) &

32(f).

Type-Volume Limit for Other Documents if Produced Using a Computer: Petition

for permission to appeal and a motion or response thereto may not exceed 5,200 words.

Reply to a motion may not exceed 2,600 words. Petition for writ of mandamus or prohibition

or other extraordinary writ may not exceed 7,800 words. Petition for rehearing or rehearing

en banc may not exceed 3,900 words. Fed. R. App. P. 5(c)(1), 21(d), 27(d)(2), 35(b)(2) &

40(b)(1).

Typeface and Type Style Requirements: A proportionally spaced typeface (such as

Times New Roman) must include serifs and must be 14-point or larger. A monospaced

typeface (such as Courier New) must be 12-point or larger (at least 10½ characters per inch).

Fed. R. App. P. 32(a)(5), 32(a)(6).

This brief or other document complies with type-volume limits because, excluding the parts

of the document exempted by Fed. R. App. R. 32(f) (cover page, disclosure statement, table of

contents, table of citations, statement regarding oral argument, signature block, certificates

of counsel, addendum, attachments):

X this brief or other document contains 2,087 words

this brief uses monospaced type and contains lines

This brief or other document complies with the typeface and type style requirements

because:

X this brief or other document has been prepared in a proportionally spaced

typeface using Microsoft Word 2016 in Century Schoolbook 14 or

this brief or other document has been prepared in a monospaced typeface using

(s) Julie C. Niemeier

Party Name: United States of America /Appellee

Dated:

June 24, 2025

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that, on June 24, 2025, I

electronically filed the foregoing with the Clerk of Court using the

CM/ECF System, which will send notice of such filing to the following

registered CM/ECF user:

Brian M. Aus, Esq.

/S/ JULIE C. NIEMEIER

Assistant United States Attorney

NCSB #29365

United States Attorney’s Office

Middle District of North Carolina

101 S. Edgeworth Street, 4th Floor

Greensboro, NC 27401

Phone: 336/333-5351

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APPENDIX H

Reply Brief in

United States v. James Benjamin Allen, 24-4041 (4th Cir.)

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.