United States v. Rico Brown ( 2023 )

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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.
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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 Almendarez-
Torres. 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; Almendarez-
Torres, 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 felon-
in-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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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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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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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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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 Almendarez-
Torres 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 fact-
finding 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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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 “multi-
factored” 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.
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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 ‘non-
elemental 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
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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:
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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
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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
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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 Almendarez-
Torres, 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
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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
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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 Almendarez-
Torres 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.,
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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 Almendarez-
Torres 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 Almendarez-
Torres, has not undermined or dismissed the rationale that lies at the heart of Almendarez-
Torres. 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
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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
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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 Almendarez-
Torres, 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
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AFFIRMED.
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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.”).
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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
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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”
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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
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USCA4 Appeal: 21-4253 Doc: 46 Filed: 05/03/2023 Pg: 35 of 35
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