USCA4 Appeal: 21-4253 Doc: 46 Filed: 05/03/2023 Pg: 1 of 35

Certiorari granted by Supreme Court, July 2, 2024 Vacated and remanded by Supreme Court, July 2, 2024

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. USCA4 Appeal: 21-4253 Doc: 46 Filed: 05/03/2023 Pg: 2 of 35

NIEMEYER, Circuit Judge:

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

(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”),

(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,

,

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

decisions in Descamps v. United States,

(2013), Mathis v. United States,

(2016), and Wooden v. United States,

(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,

(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

(g)(1). At the time, the maximum sentence for that crime was 10 years’

imprisonment, unless ACCA was applicable. See

(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

(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,

(2000) and Alleyne v. United States, [

] (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.”

(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,

(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,

, 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,

; Almendarez-

Torres,

. 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,

, 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,

(1999); see also U.S. Const. amend. V (requiring that

crimes be prosecuted on a presentment or indictment);

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,

(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,

; see also Alleyne,

, 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

. 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

(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,

. The Court

concluded that it was the latter,

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,”

. The Court

explained that “recidivism . . . is a traditional, if not the most traditional, basis for a

sentencing court’s increasing an offender’s sentence.”

. Indeed, the Court gave

special emphasis to that fact, stating that “recidivism . . . is as typical a sentencing factor

as one might imagine.”

. 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.

(citing

(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.’”

(emphasis altered)

(quoting Graham v. West Virginia,

(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,

; Oyler v. Boles,

(1962); Parke v. Raley,

(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,

. 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.”

(emphasis added). It identified two “reasons

supporting” its recognition of this recidivism exception.

. 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.’”

(quoting Almendarez-Torres,

). 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.”

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,

; see also, e.g., United States v. Moore,

(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,

(2d

Cir. 2001); United States v. Blair,

, 226–28 (3d Cir. 2013); United States v.

White,

(5th Cir. 2006) (per curiam); United States v. Burgin,

, 183–87 (6th Cir. 2004); United States v. Morris,

, 1012–13 (7th Cir.

2002); United States v. Harris,

(8th Cir. 2015); United States v. Grisel,

, 845–47 (9th Cir. 2007) (en banc), abrogated in part on other grounds by

United States v. Stitt,

(2018); United States v. Michel,

, 1132–

33 (10th Cir. 2006); United States v. Spears,

(11th Cir. 2006); United

States v. Thomas,

, 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

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,

(“[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,

(“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,

(10th Cir. 2006) (holding that the “separateness [of

occasions] falls within [Apprendi’s] prior crimes exception”); United States v. Longoria,

(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,”

(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,

.

Because Almendarez-Torres had held that the Constitution did not require that “recidivism

. . . be treated as an element,”

, 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,

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.”

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,

, 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,

(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,

(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,”

(e)(1), as those terms are statutorily defined, see

§ 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,

(quoting Taylor v. United States,

(1990)).

In cases like Taylor and Shepard v. United States,

(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,

.

18 USCA4 Appeal: 21-4253 Doc: 46 Filed: 05/03/2023 Pg: 19 of 35

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.”

(emphasis added). Thus, the

holdings of Descamps and Mathis contribute nothing to the issue before us.

Brown, however, seizes on limited portions of the Court’s reasoning in those

decisions to argue that they demonstrate that the Court has, by negative inference, narrowed

the Almendarez-Torres exception to include only the fact that the defendant was previously

convicted of a particular crime and that other facts establishing the defendant’s recidivism

must be alleged in indictments and proved to juries as elements of an aggravated offense.

19 USCA4 Appeal: 21-4253 Doc: 46 Filed: 05/03/2023 Pg: 20 of 35

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,

; accord Mathis,

. 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,

(emphasis added) (quoting Taylor,

); see also

Mathis,

. A second reason relied on was grounded on “the practical

difficulties and potential unfairness of a factual approach,” Descamps,

(quoting Taylor,

), 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,

(quoting Descamps,

). 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,

; see also Mathis, 579 U.S. at 511–12.

Specifically, noting that Apprendi had “held that ‘[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt,’” the

Descamps Court observed that because a district “court’s finding of a predicate offense

[under ACCA] indisputably increases the maximum penalty[,] . . . that finding would (at

20 USCA4 Appeal: 21-4253 Doc: 46 Filed: 05/03/2023 Pg: 21 of 35

the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a

prior conviction.” 570 U.S. at 269 (quoting Apprendi,

). 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.”

(quoting Shepard,

(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.”

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.

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,

(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.

(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,

, 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,

(noting that a sentencing court may “look only to the fact that the defendant

22 USCA4 Appeal: 21-4253 Doc: 46 Filed: 05/03/2023 Pg: 23 of 35

had been convicted of crimes falling within certain categories, and not to the facts

underlying the prior convictions” (quoting Taylor,

)); Mathis,

(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));

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.

;

see also

(“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,

(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,

(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

24 USCA4 Appeal: 21-4253 Doc: 46 Filed: 05/03/2023 Pg: 25 of 35

the sentence for a recidivist.” Almendarez-Torres,

. Importantly, those

recidivism facts do “not define a separate crime.”

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,

; 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.

(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.”

. 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.”

(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,

(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,

(Thomas, J.,

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concurring); Descamps, 570 U.S. at 280–81 (Thomas, J., concurring in the judgment);

Shepard,

(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.”

(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,

. 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,

(cleaned up). Yet, despite this rationale inherent in Almendarez-Torres, Brown

would have the jury decide whether prior offenses were committed on different occasions,

even before the court at sentencing had found the fact of the prior convictions.

On a more practical level, and one implicating fundamental fairness, if recidivism

were to be understood as an element of an aggravated offense, the result would be that any

defendant who exercised his right to a jury trial could face having certain portions of his

27 USCA4 Appeal: 21-4253 Doc: 46 Filed: 05/03/2023 Pg: 28 of 35

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

(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,

,

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,

(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.

(quoting Old Chief,

). 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,

, 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,

(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.,

(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

F.3d at

285–86; see also United States v. Moon,

, 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,

(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,

(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,”

(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,

(2002); Harris v. United States,

(2002) (overruled on other grounds by Alleyne v. United States,

(2013)); Schriro v. Summerlin,

(2004); Blakely v. Washington,

(2004); United States v. Booker,

(2005); Washington v. Recuenco,

(2006); Southern Union Co. v. United States,

(2012); Descamps v. United States,

(2013); see also Jones v. United States,

, 243 n.6 (1999) (“[A]ny fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.”).

31 USCA4 Appeal: 21-4253 Doc: 46 Filed: 05/03/2023 Pg: 32 of 35

questions of law it is the province of the court, to decide.” Sparf v. United States,

(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,

(2022), confirms the different-occasions analysis requires a “multi-factored” inquiry

into “a range of ” circumstances about a defendant’s prior convictions.

at 1070–71. And

probing the details about the “when,” “where,” “how,” and sometimes even “why” of a

defendant’s previous conduct, see

, is the precise thing the Sixth Amendment

forbids judges from doing. See Mathis v. United States,

(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,

(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,

(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”).

(quoting

(b)(2)).

What is more, the Supreme Court has repeatedly said the “narrow exception” to

Apprendi’s general rule applies only to “the fact of a prior conviction,” Alleyne v. United

32 USCA4 Appeal: 21-4253 Doc: 46 Filed: 05/03/2023 Pg: 33 of 35

States,

, 111 n.1 (2013), or “the simple fact of a prior conviction,” Mathis,

. But as both the statutory text and Wooden make clear, determining

whether Brown’s previous offenses were committed “on occasions different from one

another,”

(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,

(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.,

. 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,

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,

(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,

& 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,

, 330–32 (4th Cir. 2015); United States v. Thompson,

, 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

(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,

, or which

intervening Supreme Court authority renders “no longer tenable,” United States v. Banks,

(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,

(4th Cir. 2015). But Mathis largely reiterated the teachings of Descamps v. United

States,

(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,

(discussing

34 USCA4 Appeal: 21-4253 Doc: 46 Filed: 05/03/2023 Pg: 35 of 35

United States v. Letterlough,

(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