United States of America v. Rico Lorodge Brown

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4253
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICO LORODGE BROWN,
Defendant - Appellant.
On Remand from the Supreme Court of the United States. (S. Ct. No. 23-6433)
Argued: December 10, 2024 Decided: April 29, 2025
Before NIEMEYER and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit Judge.
Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Heytens and Senior Judge Floyd joined.
ARGUED: Joshua B. Carpenter, FEDERAL DEFENDERS OF WESTERN NORTH
CAROLINA, INC., Asheville, North Carolina, for Appellant. Anthony Joseph Enright,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee. ON BRIEF: John G. Baker, Federal Public
Defender, FEDERAL DEFENDERS OF WESTERN NORTH CAROLINA, INC.,
Charlotte, North Carolina, for Appellant. Dena J. King, United States Attorney, OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

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NIEMEYER, Circuit Judge:
In our prior decision in this case, we affirmed Rico Brown’s 15-year sentence for
the illegal possession of a firearm under 18 U.S.C. § 922(g), a sentence that was enhanced
under the Armed Career Criminal Act (ACCA) by reason of Brown’s three prior
convictions for violent felonies “committed on occasions different from one another,” as
found by the sentencing judge. United States v. Brown, 67 F.4th 200, 201 (4th Cir. 2023)
(quoting 18 U.S.C. § 924(e)(1)). We rejected Brown’s contention that the “different
occasions” element of the ACCA enhancement should have been alleged in his indictment
and have been either subject to a jury finding beyond a reasonable doubt or admitted by
him in his guilty plea. We reasoned that under Almendarez-Torres v. United States,
523 U.S. 224 (1998), the “different occasions” requirement was a sentencing factor to be
found by the sentencing judge, rather than a jury. Brown, 67 F.4th at 201. From our
decision, Brown filed a petition for a writ of certiorari in the Supreme Court.
After we published our decision, the Supreme Court held in Erlinger v. United
States that because the factual finding that a defendant’s prior crimes were committed on
different occasions “had the effect of increasing both the maximum and minimum
sentences” for his firearm-possession conviction, the defendant was entitled, under
Apprendi v. New Jersey, 530 U.S. 466 (2000), “to have a jury resolve ACCA’s occasions
inquiry,” rather than the judge. Erlinger v. United States, 602 U.S. 821, 835 (2024). And
in light of its decision in Erlinger, the Court granted Brown’s petition for a writ of certiorari
in this case, vacated our judgment, and remanded “for further consideration in light of
Erlinger.” Brown v. United States, 144 S. Ct. 2712 (2024).

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On remand, we requested that the parties submit additional briefing on the issue of
whether the Erlinger error was subject to harmless-error review, and we then held another
oral argument. For the reasons given, we now conclude (1) that an Erlinger error is subject
to harmless-error review, and (2) that the Erlinger error in this case was indeed harmless.
Accordingly, we affirm the judgment of the district court, which included an ACCA-
enhanced sentence of 180 months’ imprisonment.
I
After Rico Brown sold a handgun to an undercover law enforcement officer on
September 23, 2019, in Union County, North Carolina, he was indicted for possession of a
firearm while knowing that he had previously been convicted of a felony, in violation of
18 U.S.C. § 922(g)(1). At that time, the maximum sentence for that crime, without any
enhancement, was 10 years’ imprisonment, id. § 924(a)(2) (2012) (amended 2022), but if
ACCA were implicated, the sentence would have been enhanced to a mandatory minimum
sentence of 15 years’ imprisonment and a maximum of life, see id. § 924(e)(1). A
defendant qualified for an ACCA sentencing enhancement if he had three previous
convictions for a violent felony or serious drug offense “committed on occasions different
from one another.” Id. Because the then-governing law made the application of ACCA a
sentencing factor, district courts determined at sentencing whether the defendant had three
qualifying prior convictions and whether those convictions were for offenses committed
on different occasions. See, e.g., United States v. Thompson, 421 F.3d 278, 285–86 (4th
Cir. 2005). Consequently, the government did not charge the ACCA enhancement in

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Brown’s indictment. Brown was, nonetheless, notified at his initial appearance of both the
ten-year maximum penalty for a violation of § 922(g)(1) and the enhanced sentence that
would apply if his criminal history satisfied ACCA’s requirements.
Brown pleaded guilty to the firearm charge, and at the hearing conducted to
determine whether his plea was knowing and voluntary, he was again advised that “the
statutory punishment for a 922(g) [offense was] a maximum term of imprisonment of ten
years,” except that if ACCA applied, “the minimum term of imprisonment [would be] 15
years and the maximum term [would be] life.” Brown confirmed that he understood this
and that he nonetheless wanted to plead guilty. The court found Brown’s plea to be
knowing and voluntary and thus accepted it.
In the presentence report prepared for sentencing, the probation officer, using state
court records, concluded that Brown was indeed subject to ACCA’s enhanced sentencing
range because he had three previous convictions for crimes that qualified as violent felonies
and were committed on different occasions. The probation officer relied on: (1) a 2008
North Carolina conviction for robbery with a dangerous weapon arising out of a robbery
committed on July 14, 2007, during which Brown used a handgun to threaten the life of
Jesus Jasso; (2) a 2008 North Carolina conviction for robbery with a dangerous weapon
arising out of a robbery committed on September 24, 2007, during which Brown used a
shotgun to threaten the life of Tushar Mukundbhai Shah; and (3) a 2013 North Carolina
conviction for common-law robbery arising out of a robbery committed on October 8,
2012, during which Brown used violence or the threat of violence to take property from

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Pedro Alonso. Brown was sentenced for the first two of these prior convictions in a single
proceeding conducted on May 13, 2008.
Brown did not object to the accuracy of any information included in the presentence
report that pertained to his criminal history. Nor did he argue at the sentencing hearing
that the district judge should find that the two armed robberies for which he was convicted
in 2008 were part of a single criminal episode constituting one occasion, so as to render
ACCA inapplicable. But he did mount a constitutional challenge to the application of
ACCA. He contended that even if the court could constitutionally find the fact of his three
prior convictions, the fact that the underlying offenses had been committed on different
occasions should have been (1) charged in the indictment and (2) either found by a jury or
admitted by him in his guilty plea. He argued that because neither had occurred, sentencing
him under ACCA would violate the Fifth and Sixth Amendments, as delineated in
Apprendi v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United States, 570 U.S.
99 (2013).
The district court overruled Brown’s constitutional objections, relying on “the
existing authority of the Fourth Circuit,” and sentenced Brown under ACCA to 180
months’ imprisonment.
On appeal, we affirmed. United States v. Brown, 67 F.4th 200 (4th Cir. 2023). We
reasoned that the Supreme Court had held in Almendarez-Torres v. United States that “the
facts that support a recidivism enhancement are resolved by the district court during
sentencing” and that “ACCA provides just such a recidivism enhancement.” Id. at 201
(citing 523 U.S. 224 (1998)). We further concluded that subsequent Supreme Court

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decisions had “not narrowed or overruled Almendarez-Torres” and that “if they [had] done
so by implication, the Supreme Court must say so, not a court of appeals.” Id. When
Brown filed a petition in our court for rehearing en banc, we denied it, but almost every
member of our court joined an opinion urging the Supreme Court to resolve the issue. See
United States v. Brown, 77 F.4th 301, 301–02 (4th Cir. 2023) (Heytens, J., statement
concerning the denial of rehearing en banc); id. at 302 (Niemeyer, J., concurring in part in
the statement of Heytens, J.) (joining in “urging the Supreme Court to give the courts of
appeals guidance in this important matter”); id. at 303 (Wynn, J., dissenting from the denial
of rehearing en banc) (agreeing that “the Supreme Court should take up the key question
in this case”). Brown then filed a petition for a writ of certiorari in the Supreme Court.
The Supreme Court did indeed take up the issue in a similar case from the Seventh
Circuit and held that a defendant is “entitled to have a jury resolve ACCA’s occasions
inquiry unanimously and beyond a reasonable doubt.” Erlinger v. United States, 602 U.S.
821, 835 (2024). In light of its decision, the Court also granted Brown’s petition for a writ
of certiorari, vacated our decision, and remanded the case to us “for further consideration
in light of Erlinger.” Brown v. United States, 144 S. Ct. 2712 (2024).
On remand from the Supreme Court, we requested supplemental briefs from the
parties addressing whether the Erlinger error was subject to harmless-error review, and
thereafter we held a second oral argument to focus on that issue.

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II
The Erlinger error committed in this case, in violation of the Fifth and Sixth
Amendments, was, first, the government’s failure to allege in the indictment that Brown’s
prior convictions were for offenses “committed on occasions different from one another,”
18 U.S.C. § 924(e)(1), and second, in a similar vein, the court’s failure to advise Brown
during his guilty-plea hearing under Rule 11 that he had the right to have that “different
occasions” element found by a jury, rather than the sentencing judge.1 Because the failure
to allege and the failure to advise are directly related, we take them collectively as “the
Erlinger error.” The issue now presented is whether that error is subject to harmless-error
review.
The government contends that the Erlinger error is nothing more than an Apprendi
error and that our precedents are clear that Apprendi errors are subject to harmless-error
review. See, e.g., United States v. Legins, 34 F.4th 304, 321–22 (4th Cir. 2022) (explaining
that Washington v. Recuenco, 548 U.S. 212 (2006), made clear that Apprendi errors are
subject to harmless-error review).
Brown, however, contends that an Erlinger error is “per se prejudicial” and “can
never be harmless.” In other words, he maintains that it is the type of error referred to in
cases as “structural error,” for which relief may be granted without regard to the error’s
1 The Fifth Amendment provides, “No person shall be held to answer for a . . . crime,
unless on a presentment or indictment of a Grand Jury . . . nor be deprived of life, liberty,
or property, without due process of law . . . .” U.S. Const. amend. V. And the Sixth
Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury . . . .” Id. amend. VI.

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effect on the case’s outcome. He argues that this follows from the reasoning of Erlinger
itself and also from our decision in United States v. Whitfield, 695 F.3d 288 (4th Cir. 2012),
where we held that a district court’s constructive amendment of an indictment to add a new
offense was prejudicial per se and thus not subject to harmless-error review.
We begin by identifying the applicable legal principles. Federal Rule of Criminal
Procedure 52(a), which applies when the defendant has made a timely objection before the
district court, provides that any error “that does not affect substantial rights must be
disregarded.” Stated otherwise, even preserved error must have been “prejudicial” to be
considered on review; “it must have affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 734 (1993) (cleaned up). When “Rule 52(a) applies,
a court of appeals normally engages in a specific analysis of the district court record — a
so-called ‘harmless error’ inquiry — to determine whether the error was prejudicial,” and
the government “bears the burden of persuasion with respect to prejudice.” Id. When the
error is a constitutional one, that burden requires the government to “prove beyond a
reasonable doubt that the error complained of did not contribute to the [result] obtained.”
Chapman v. California, 386 U.S. 18, 24 (1967).
While Rule 52(a) “by its terms applies to all errors where a proper objection [was]
made,” there is nonetheless “a limited class of fundamental constitutional errors that defy
analysis by ‘harmless error’ standards” and are “so intrinsically harmful as to require
automatic reversal (i.e., ‘affect substantial rights’) without regard to their effect on the
outcome.” Neder v. United States, 527 U.S. 1, 7 (1999) (cleaned up). The Supreme Court
has repeatedly emphasized, however, that this class of errors — i.e., structural errors — is

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“very limited” and that such errors are “highly exceptional.” Greer v. United States,
593 U.S. 503, 513 (2021) (first quoting Neder, 527 U.S. at 8; and then quoting United
States v. Davila, 569 U.S. 597, 611 (2013)). Specifically, structural errors are understood
to be “errors that affect the entire conduct of the proceeding from beginning to end.” Id.
(emphasis added) (cleaned up). Examples include the “denial of counsel of choice, denial
of self-representation, denial of a public trial, and failure to convey to a jury that guilt must
be proved beyond a reasonable doubt.” Id. (quoting Davila, 569 U.S. at 611). Indeed, “if
the defendant had counsel and was tried by an impartial adjudicator, there is a strong
presumption that any other constitutional errors that may have occurred are subject to
harmless-error analysis.” Recuenco, 548 U.S. at 218 (cleaned up). Thus, “discrete defects
in the criminal process” — even if they represent a constitutional error — “are not
structural because they do not ‘necessarily render a criminal trial fundamentally unfair or
an unreliable vehicle for determining guilt or innocence.’” Greer, 593 U.S. at 513 (first
emphasis added) (quoting Neder, 527 U.S. at 9).
Under these principles, Apprendi errors — those errors where a fact that increases
the statutory penalty for a crime is omitted from the indictment and decided by a judge,
rather than a jury — are not structural errors but discrete defects that can be reviewed on
appeal for their effect on the outcome of the proceeding. This is clear from Recuenco. See
548 U.S. at 220–22; see also Legins, 34 F.4th at 322.
In Recuenco, the jury found that the defendant had committed an assault “with a
deadly weapon,” which would have resulted in a one-year sentence enhancement. 548 U.S.
at 215. The trial judge, however, applied a mandatory three-year enhancement based on

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his finding during sentencing that the deadly weapon was in fact a “firearm.” Id. The
Supreme Court of Washington concluded that the trial judge had committed an Apprendi
error and that the error was structural. Id. at 216. The U.S. Supreme Court, however,
reversed, concluding that the Apprendi error was not structural but was subject to review
under the harmless-error standard. Id. at 221–22. In reaching its conclusion, the Court
relied directly on its prior decision in Neder, indeed finding that the case before it was
“indistinguishable from Neder.” Id. at 220.
In Neder, the trial court did not submit to the jury the offense element of
“materiality” as it related to a false statement, reserving a finding on that element for the
court. 527 U.S. at 6. Even though that error amounted to a violation of the defendant’s
Sixth Amendment right to have the jury decide all elements of the offense, the Neder Court
held that the error was nonetheless subject to harmless-error review. See id. at 8–10.
The Recuenco Court recognized Neder’s distinguishing circumstances. In Neder,
the jury purportedly convicted the defendant of a crime without actually finding all the
crime’s elements. See Recuenco, 548 U.S. at 220–21. Conversely, in Recuenco, the jury
did find all the elements of one offense, but the defendant was sentenced as if the jury had
also found the sentencing factor that was necessary for his enhanced sentence. Id. Yet,
the Court reasoned that the distinction was of no “constitutional significance,” relying on
Apprendi’s recognition that “elements and sentencing factors [are] treated the same for
Sixth Amendment purposes.” Id. at 220. Thus, the Court concluded that “[f]ailure to
submit a sentencing factor to the jury, like failure to submit an element to the jury, is not
structural error.” Id. at 222 (emphasis added).

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Just as the failure to submit a sentencing factor or an element to the jury is not
structural error, neither is the closely related “failure to charge” error, in violation of the
Fifth Amendment, structural error. See Legins, 34 F.4th at 322–23. It is not an error so
fundamental as to have “affected the entire conduct of the proceeding from beginning to
end.” Greer, 593 U.S. at 513 (cleaned up). And similarly, the Greer Court recently
recognized that “[t]he omission of [an] element from a plea colloquy” “is likewise not
structural” because it “does not affect the entire framework within which the proceeding
occurs.” Id. at 513–14 (citing Neder 527 U.S. at 8). All are subject to harmless-error
analysis.
Therefore, under the Supreme Court’s decisions in Neder, Recuenco, and Greer, as
well as our decision in Legins, we conclude that harmless-error review applies to the
Erlinger error before us — i.e., to both (1) the indictment’s failure to allege that Brown
committed ACCA predicate offenses on at least three different occasions and (2) the district
court’s failure to inform Brown during his plea colloquy that he had the right to have a jury
find that fact beyond a reasonable doubt.
In so holding, we join all other courts of appeals that have decided the issue. See
United States v. Butler, 122 F.4th 584, 589 (5th Cir. 2024) (rejecting defendant’s argument
that the Erlinger error presented “falls within the limited class of constitutional errors that
require automatic reversal” and relying instead on its prior recognition “that Apprendi
errors are subject to a harmless-error analysis”); United States v. Campbell, 122 F.4th 624,
630 (6th Cir. 2024) (same); United States v. Johnson, 114 F.4th 913, 917 (7th Cir. 2024)
(applying harmless-error analysis).

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Brown nonetheless argues that Erlinger itself “implicitly rejected” using the
harmless-error analysis for the failure to submit the “different occasions” element of the
ACCA sentencing enhancement to a jury. He relies on the statement in Erlinger where the
Court explained that a criminal defendant has the right to require the government to prove
to a jury that he committed his prior predicate offenses on different occasions “‘regardless
of how overwhelmin[g]’ the evidence may seem to a judge.” 602 U.S. at 842 (alteration
in original) (quoting Rose v. Clark, 478 U.S. 570, 578 (1986)). In that quote, however, the
Court was simply explaining that it was error for the judge, not a jury, to have made the
“different occasions” finding, noting that such is true even in the “many” “straightforward”
cases where the “defendant’s past offenses” were “separated by enough time and space that
there is little question he committed them on separate occasions.” Id. The Court did not,
however, address how such an error should be treated once it has occurred. Indeed, Chief
Justice Roberts made this point explicit in a concurring opinion, in which he emphasized
that the error identified would be “subject to harmless error review.” Id. at 850 (Roberts,
C.J., concurring). Had the Erlinger Court provided otherwise, the Chief Justice, who
joined the Court’s opinion in full, could not have contributed that observation.
Moreover, Brown’s argument overlooks the Court’s observation that an Erlinger
error is merely a type of Apprendi error. See Erlinger, 602 U.S. at 848 (characterizing its
holding as a “straightforward application of Apprendi to ACCA’s different-occasions
requirement” (cleaned up)). And, of course, Recuenco established that Apprendi errors of
the type found in Erlinger are subject to harmless-error review. Recuenco, 548 U.S. at
221–22. Nothing in Erlinger purported to change or undermine that holding. See

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Campbell, 122 F.4th at 631 (rejecting the argument that Erlinger had “implicitly view[ed]
the underlying error at issue there as structural”).
Brown also contends that our decision in Whitfield, where we held that a judge’s
constructive amendment of an indictment was prejudicial per se, is “indistinguishable” and
therefore controls this case. In Whitfield, the district court, through instructions given to
the jury over the defendant’s objection, added a new crime for consideration by the jury —
“an offense not charged” in the indictment. 695 F.3d at 306. And the jury, following the
court’s instruction, convicted the defendant of that new offense. By being convicted of a
charge not included in the indictment, the defendant was denied all the benefits of an
indictment guaranteed by the Constitution — notice, an opportunity to defend, and
protection against a second prosecution on the same charge. See id. at 308. Unsurprisingly,
we held that the district court’s constructive amendment of the indictment denied the
defendant his Fifth Amendment rights and that the error was “fatal and reversible per se.”
Id. at 307 (cleaned up). Importantly, however, we distinguished the constructive
amendment of an indictment from the situation where the error was “the failure of an
indictment to allege an element of a charged offense.” Id. at 308 (emphasis added) (quoting
United States v. Higgs, 353 F.3d 281, 306 (4th Cir. 2003)). As to that type of error, we
noted that it would be subject to harmless-error review. Id. As we explained:
Although the distinction between a constructive amendment and a Higgs-
type indictment error [involving an omitted element] may be nuanced, the
difference is appreciable in this case. Here, there was substantially more than
a simple neglect to allege an element of a charged offense. . . . The error
arose not from the indictment’s omission of an element of a charged offense
but from the district court’s instructions on an element of an uncharged
offense . . . on which Whitfield was ultimately convicted and sentenced.

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Id. (cleaned up).
Clearly, the circumstances here do not involve the addition of a new offense to the
indictment; it was, rather, the failure to allege in the indictment but one element of the
ACCA sentencing enhancement to be decided by the jury. And, as we stated in Whitfield,
such an error of omission is subject to harmless-error review. 695 F.3d at 308. Indeed,
such an omission falls squarely within the holding of Recuenco that Apprendi errors are
subject to harmless-error review. See Recuenco, 548 U.S. at 221–22; see also Legins,
34 F.4th at 322 (“The takeaway from Recuenco is clear: The Government’s failure to
include a sentence-enhancing factor in the indictment and jury charge . . . like its failure to
include any other element of an offense” is subject to “harmless-error analysis”).
Whitfield is made yet more inapplicable because it did not arise in the context of a
guilty plea, where the defendant was, at every stage of the proceedings, advised that he
could be sentenced under ACCA’s enhanced sentencing range, notwithstanding the
indictment’s silence as to ACCA and its “different occasions” requirement. To be sure,
following Erlinger, the government must allege ACCA’s “different occasions” element in
the indictment when it intends to argue that ACCA is applicable. But because that was not
the case when Brown’s indictment was returned, Brown and his lawyer would not have
inferred anything from the omission of ACCA from his indictment. Thus, the error here
does not involve a failure of notice or ability to defend — benefits provided by an
indictment — but misadvice about a discrete procedure. And such misadvice is typically
subject to harmless-error review. See Greer, 593 U.S. at 508, 513–14 (holding that the

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district court’s failure to advise the defendant of an element of the offense at his plea
hearing was subject to plain-error review, which also requires a showing as to prejudice).
In short, Whitfield hardly provides Brown with support for his claim that the
Erlinger error in this case — i.e., omitting an element of the ACCA sentencing
enhancement from the indictment and failing to advise him that such element is subject to
a jury finding — is structural error.
At bottom, we reject Brown’s argument that an Erlinger error is “per se prejudicial”
and instead conclude that it is subject to harmless-error review.
III
Brown contends that even under the harmless-error standard of review, the
government has not met its burden of showing beyond a reasonable doubt that the Erlinger
error was harmless. He notes that the harmless-error analysis requires deciding whether
proof of the missing fact or element was overwhelming and uncontroverted so as to be able
to determine conclusively that a jury would have found the fact or element beyond a
reasonable doubt. See Neder, 527 U.S. at 17–18; Legins, 34 F.4th at 322–23. And he
argues that the government has not demonstrated that the Erlinger error was harmless
because it has not advanced overwhelming and uncontroverted evidence that the jury
would have found that his previous convictions were for offenses committed on different
occasions. He contends that the Supreme Court’s decision in Wooden v. United States,
595 U.S. 360 (2022), requires “a qualitative assessment about the character and relationship
of the offenses, including an inquiry into whether the crimes shared a common scheme or

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purpose.” (Cleaned up). And because, as he maintains, there is a controversy over whether
Brown’s two 2007 North Carolina robberies shared a common purpose, the government
cannot show beyond a reasonable doubt that the jury would have concluded — also beyond
a reasonable doubt — that the offenses were committed on different occasions.
The government argues the flipside, contending that the factual circumstances
contained in the presentence report about the two 2007 robberies show uncontroversially
and overwhelmingly that Brown committed them on different occasions, such that we can
be sure that a jury would have so found beyond a reasonable doubt. Therefore, it contends,
the error was harmless.
We believe, however, that both Brown and the government misdirect their
arguments in the context of this case. While the harmless-error analysis that the parties
invoke applies when a defendant went to trial and was convicted by the jury, there was no
trial in this case. Brown waived his right to go to trial and instead pleaded guilty. In this
context, the harmless-error burden is different, requiring that the government show that, “if
the District Court had correctly advised him of the [missing] element of the offense,” it is
clear beyond a reasonable doubt that “he would not have pled guilty.” Greer, 593 U.S. at
508 (emphasis added); see also Olano, 507 U.S. at 734 (explaining that the prejudice prong
of the plain-error test mirrors prejudice for harmless error, except as to which party bears
the burden on the issue of prejudice); United States v. Heyward, 42 F.4th 460, 466 (4th Cir.
2022) (discussing Greer’s two standards and explaining that the showing for a defendant
who pleaded guilty differs for one who is convicted by a jury “because the decision whether

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to plead guilty always belongs to the defendant”).2 Thus, the government’s harmless-error
burden is to show beyond a reasonable doubt that if Brown’s indictment had alleged the
“different occasions” element of ACCA and if Brown had been correctly advised at his
plea hearing that he “was entitled to have a jury resolve [that issue] unanimously and
beyond a reasonable doubt,” Erlinger, 602 U.S. at 835, he would have nonetheless waived
that right and admitted as part of his guilty plea that his prior offenses were committed on
different occasions. See Greer, 593 U.S. at 508; Heyward, 42 F.4th at 466. If the
government were unable to meet that burden, the remedy would be to vacate Brown’s
conviction and remand for further proceedings. See United States v. Hairston, 522 F.3d
336, 342 (4th Cir. 2008).
In the circumstances presented, we have little difficulty concluding that the Erlinger
error — both the failure to charge the “different occasions” element of the ACCA
sentencing enhancement in the indictment and the failure to inform Brown of his right to
have that element found by a jury — was indeed harmless.
We begin by noting that Brown chose to plead guilty to the firearm-possession
offense after having been twice informed that ACCA’s mandatory minimum of 15 years
and its maximum of life would apply if the judge found its requirements satisfied. At his
2 Nonetheless, we note that some courts continue to formulate the same burden
regardless of whether the defendant went to trial or pleaded guilty. See United States v.
Cogdill, 130 F.4th 523, 525, 529 (6th Cir. 2025) (“Cogdill pleaded guilty to being a felon
in possession of a firearm . . . . To prove that the Erlinger error here was harmless, the
government must show, beyond a reasonable doubt, that any rational jury would have
found that all three of Cogdill’s predicate offenses were committed on occasions different
from one another” (cleaned up)); Johnson, 114 F.4th at 914, 917 (same).

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initial appearance, Brown was specifically advised of the ACCA enhancement, and before
he pleaded guilty, he was again so advised, confirming that he understood and nonetheless
wanted to plead guilty. When the presentence report showed that ACCA’s requirements
were indeed satisfied by Brown’s criminal history, Brown did not object to the qualifying
data supporting that conclusion, nor did he argue that two of his ACCA predicate offenses
were, in fact, committed on a single occasion. And during all of these stages, he was
represented by counsel.
While Brown was not told that he was entitled to have a jury, rather than a judge,
determine whether his previous offenses had been committed on different occasions, that
misadvice apparently played no role in his guilty plea. Even after he raised the Apprendi
issue before the district court, he did not seek to withdraw his plea. To the contrary, he
sought the benefits of the plea, which included a three-level reduction of his offense level
for accepting responsibility. Had he instead gone to trial and been found guilty of both the
offense and the “different occasions” element of the ACCA enhancement, he likely would
have had an advisory Guidelines range of 235 to 293 months’ imprisonment. But under
the guilty plea, his Guidelines range was 180 to 210 months’ imprisonment, and he
received a 180-month sentence.
To be sure, a defendant’s evaluation of the likelihood of a jury’s finding that his
prior predicate offenses were not committed on at least three different occasions could be
a significant factor when deciding whether to plead guilty to that fact. But, in this case,
that factor could hardly be meaningful. Brown was fully aware of his criminal history, and
whether the jury or the judge assessed that history, the outcome in this case would have

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been the same, even under the jury’s higher standard of proof. As summarized in the
presentence report, state court records showed that Brown committed the first of his North
Carolina robberies on July 14, 2007; that the robbery involved his threatening Jesus Jasso;
and that he was arrested for that offense on July 17, 2007. The records also showed that
Brown committed a second robbery on September 24, 2007 — i.e., more than two months
after he was arrested for the first robbery — and that the robbery involved his threatening
Tushar Mukundbhai Shah. Finally, they showed that Brown committed a third robbery on
October 8, 2012, more than five years after the second offense. Brown had every incentive
to dispute the accuracy of the report’s information at his sentencing hearing if it were
mistaken, yet he did not do so. He did not even argue to the district court that it should
find that the first two robberies were part of a single criminal episode, which would have
avoided the ACCA sentencing enhancement altogether. In these circumstances, we can
conclude that whether the court or the jury decided the “different occasions” fact, the
outcome would have been the same — and that Brown and his lawyer would have
appreciated that practical reality at the time of his guilty plea.
Nonetheless, at oral argument, Brown maintained that he would have concluded that
he had a reasonable jury argument that the two 2007 robberies were committed on the same
occasion because they shared a common scheme or purpose, relying on the Supreme
Court’s analysis in Wooden. We cannot agree.
In Wooden, the Supreme Court held that the word “occasion” in ACCA should be
given its “ordinary meaning” — that is, “essentially an episode or event.” 595 U.S. at 366.
In that case, the defendant, “[i]n the course of one evening,” “burglarized ten units in a

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single storage facility,” such that giving “occasion” its ordinary meaning made all the
difference. Id. at 362. The Court explained that an ordinary person, “using language in its
normal way,” would say, “On one occasion, Wooden burglarized ten units in a storage
facility,” not “On ten occasions, Wooden burglarized a unit in the facility” or “On
one occasion, Wooden burglarized a storage unit; on a second occasion, he burglarized
another . . . and so on.” Id. at 367. It noted that “given what ‘occasion’ ordinarily means,
. . . a range of circumstances may be relevant to identifying” whether multiple criminal
offenses were committed on one occasion or separate ones. Id. at 369 (emphasis added).
Key among the factors recognized by the Court as relevant was the timing of the offenses
— specifically, “[o]ffenses committed close in time, in an uninterrupted course of conduct,
will often count as part of one occasion; not so offenses separated by substantial gaps in
time or significant intervening events.” Id. at 369. Indeed, the Court expressly recognized
that the timing factor “can decisively differentiate occasions,” and it noted with approval
that offenses “have nearly always” been treated “as occurring on separate occasions if a
person committed them a day or more apart.” Id. at 370 (emphasis added). The Wooden
Court concluded that, “[f]or the most part, applying this approach will be straightforward
and intuitive,” id. at 369, a point echoed by the Erlinger Court, see 602 U.S. at 842.
Brown’s case is certainly one of the straightforward ones. Absolutely no one would
say, “On one occasion, Brown robbed a person at gunpoint and on the same occasion, more
than two months later, he robbed a different person at gunpoint.” Instead, the person would
say, “On one occasion, Brown robbed someone, and on another occasion, he robbed
someone else.” And that, under Wooden, ends the matter. Thus, there is no question as to

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how a properly instructed jury would have resolved the “different occasions” inquiry in
this case.
Of course, as we have noted, when a defendant’s conviction resulted from a guilty
plea, the question for our harmless-error analysis is not how a jury would have ruled, but
whether the government has shown, beyond a reasonable doubt, that the defendant would
have still pleaded guilty. But given that the possibility of a favorable verdict on the
“different occasions” issue would have been so exceedingly remote as to be practically
irrelevant, we cannot fathom that Brown would have traded the benefit of pleading guilty
for such long odds. Thus, we conclude that there is no doubt that Brown would have
pleaded guilty if the indictment had alleged that he committed his prior robberies on three
different occasions and if he had been informed that he was entitled to have a jury find that
fact beyond a reasonable doubt.
At bottom, while an Erlinger error was committed in failing to charge Brown with
the ACCA element of “different occasions” and in failing to advise him of the right to have
that element decided by a jury, we are confident, beyond a reasonable doubt, that this error
had no effect on his substantial rights and hence must be “disregarded.” Fed. R. Crim. P.
52(a). Accordingly, the judgment of the district court in accepting Brown’s guilty plea and
in sentencing him to 180 months’ imprisonment, as enhanced by ACCA, is affirmed.
AFFIRMED

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