3:20-cr-00223-KDB-DCK-1) UNITED STATES OF AMERICA v. Rico Lorodge Brown

FILED: August 9, 2023
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 21-4253
(3:20-cr-00223-KDB-DCK-1)
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICO LORODGE BROWN,
Defendant - Appellant.
O R D E R
The court denies the petition for rehearing en banc.
A requested poll of the court failed to produce a majority of judges in regular active
service and not disqualified who voted in favor of rehearing en banc. Chief Judge Diaz
and Judges Wilkinson, Niemeyer, Agee, Harris, Richardson, Quattlebaum, Rushing,
Heytens, and Benjamin voted to deny rehearing en banc. Judges King, Gregory, Wynn,
and Thacker voted to grant rehearing en banc.
Entered at the direction of Judge Niemeyer.
For the Court
/s/ Patricia S. Connor, Clerk

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Statement of Circuit Judge HEYTENS, in which Chief Judge DIAZ and Judges AGEE,
HARRIS, RICHARDSON, RUSHING, and BENJAMIN join, concerning the denial of
rehearing en banc:
This appeal raises an important and recurring issue that should be considered by the
Supreme Court: Whether the Sixth Amendment permits district courts to decide a
defendant’s prior offenses were “committed on occasions different from one another” for
purposes of the Armed Career Criminal Act. 18 U.S.C. § 924(e)(1). Both parties recognize
Rico Brown preserved his argument on this point. And both sides agree this Court’s
existing precedent—and that of every other court of appeals—is wrong. Cf. Wooden v.
United States, 142 S. Ct. 1063, 1068 n.3 (2022) (not addressing the Sixth Amendment issue
because “Wooden did not raise it”). I nonetheless do not think en banc review is warranted
here because I believe this case implicates “an important question of federal law that has
not been, but should be, settled by [the Supreme] Court.” S. Ct. R. 10(c).
The problem is the uncertain scope of Almendarez-Torres v. United States, 523 U.S.
224 (1998), and how to square the broad language in that opinion with other broad language
in more recent decisions. The Supreme Court has instructed that if a decision “has direct
application in a case, yet appears to rest on reasons rejected in some other line of decisions,”
we “should follow the case which directly controls” and leave to the Court “the prerogative
of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Anderson Express, Inc.,
490 U.S. 477, 484 (1989). But Almendarez-Torres may not have “direct application” (id.)
because it involved a different statute (the Immigration and Nationality Act) and a different
question (whether the defendant in an illegal reentry prosecution was removed “subsequent

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to a conviction for commission of an aggravated felony”). Almendarez-Torres, 523 U.S. at
226 (quoting 8 U.S.C. § 1326(b)(2)). Thus, the challenge: Is this issue governed by
Almendarez-Torres’ sweeping statements about “recidivism” and its direct reference to the
ACCA, see, e.g., id. at 230, or, instead, by a host of later decisions that seemingly claw
back nearly all that language? See United States v. Brown, 789 F.3d 200, 215–18 (4th Cir.
2023) (Heytens, J., concurring in the judgment) (citing cases).
Given the constitutional rule announced in Apprendi v. New Jersey, 530 U.S. 466,
490 (2000), I believe a district court may not find a defendant committed previous offenses
on different occasions using the framework described in Wooden, and then increase the
defendant’s criminal penalty based on such judicial factfinding. But I recognize reasonable
people can disagree (and have disagreed). And because this disagreement stems from deep
tension within the Supreme Court’s precedent, an inferior court is poorly positioned to
resolve it. For that reason—and because the Eighth Circuit’s grant of rehearing en banc
may provide the Supreme Court a timely opportunity to consider this issue, see United
States v. Stowell, 2022 WL 16942355 (8th Cir. Nov. 15, 2022) (granting rehearing)—I do
not believe en banc review is warranted here. But I hope the Supreme Court will step in to
illuminate the path soon.

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NIEMEYER, Circuit Judge, with whom Senior Circuit Judge FLOYD joins, concurring in
part in Judge HEYTENS’ Statement:
As author of the opinion in this case, I wish to express my concurrence in most of
what my good colleague Judge Heytens has said in his thoughtful Statement urging the
Supreme Court to clarify and settle the question of whether the “different occasions” facts
required by 18 U.S.C. § 924(e)(1) should be found by a court or must be found by a jury.
I also concur in his reasons for why this issue would not be advanced by our en banc review.
I do have a different approach as to the scope of Almendarez-Torres’s continuing
vitality in light of subsequent Supreme Court cases, as discussed in United States v. Brown,
67 F.4th 200 (4th Cir. 2023), but this difference is the very basis for our urging the Supreme
Court to give the courts of appeals guidance in this important matter.

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KING, Circuit Judge, concurring in the dissent of Judge WYNN from the denial of
rehearing en banc, and separately dissenting from the denial of rehearing en banc:
For the reasons so well expressed by my distinguished colleague Judge Wynn, I
agree that our Court should have granted rehearing en banc to consider and resolve the
important Sixth Amendment issue presented in this appeal. I write separately to emphasize
some additional considerations.
As I observed in the not-too-distant past, “[i]t would certainly make our lives easier
as judges if we were free to resolve only the easy issues in a case and disregard the hard
ones, but, alas, we cannot do so and remain faithful to our constitutional charge to decide
cases and controversies as they are presented to us.” See Doe v. Va. Dep’t of State Police,
720 F.3d 212, 214 n.* (4th Cir. 2013) (King, J., dissenting from denial of rehearing en
banc). To that end, the Supreme Court has recently stressed that “resolving hard cases is
part of the judicial job description.” See Dubin v. United States, 143 S. Ct. 1557, 1573
n.10 (2023) (emphasis added).
Yet in these circumstances, our Court has denied an en banc rehearing, apparently
viewing this as being a difficult case in which “the Supreme Court will [soon] step in to
illuminate the path” forward. See Statement of Circuit Judge Heytens 3. In my view,
however, that speculative rationale does not provide a sound basis for denying en banc
review. Rather, because this appeal “involves a question of exceptional importance,”
rehearing en banc was warranted. See Fed. R. App. P. 35(a)(2).
That this appeal “involves a question of exceptional importance” is illustrated by
the unusual fact that the parties — the defendant and the government — agreed that en

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banc review by our Court was warranted. See Fed. R. App. P. 35(a)(2). And in that regard,
the government’s support of an en banc rehearing was with the prior authorization of the
Solicitor General of the United States. See U.S. Dep’t of Just., Justice Manual, § 2-2.122
(2020) (mandating that “[t]he prior authorization of the Solicitor General . . . must be
obtained for the filing of a petition for rehearing en banc in a court of appeals”).
More broadly, Judge Wynn persuasively explains that en banc review was necessary
in this situation to determine whether our 2005 decision in United States v. Thompson, 421
F.3d 278 (4th Cir. 2005) — which relies on the Supreme Court’s 1998 decision in
Almendarez-Torres v. United States, 523 U.S. 224 (1998) — conflicts with the Court’s
more recent decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), Descamps v. United
States, 570 U.S. 254 (2013), Mathis v. United States, 579 U.S. 500 (2016), and Wooden v.
United States, 142 S. Ct. 1063 (2022). To be sure, that is precisely the type of question a
court of appeals is obliged to assess and resolve, unless and until the Supreme Court says
otherwise. See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (recognizing that when
Supreme Court precedent has “direct application . . . yet appears to rest on reasons rejected
in some other line of decisions, [a court of appeals] should follow the line of cases which
directly controls, leaving to [the Supreme] Court the prerogative of overturning its own
decisions” (emphasis added)). And as Judge Wynn observes, that is probably why our
colleagues on the Eighth Circuit recently granted en banc rehearing in a similar situation.
See United States v. Stowell, No. 21-2234, 2022 WL 16942355 (8th Cir. Nov. 15, 2022).

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Put simply, this appeal is exceptionally important, and rehearing en banc was
warranted pursuant to Rule 35(a)(2). Although this may be a “hard case” that could one
day attract the attention of the Supreme Court, that does not mean our Court should have
steered clear of en banc review.
* * *
I am honored to confirm that Judge Gregory and Judge Wynn join in this
submission.

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WYNN, Circuit Judge, with whom Judge KING, Judge GREGORY, and Judge
THACKER join, dissenting from the denial of rehearing en banc:
I agree with my colleagues that developments in the Supreme Court over the past
two decades cast serious doubt on the continuing viability of Almendarez-Torres. And I
also agree that the Supreme Court should take up the key question in this case.
But I disagree with my colleagues’ conclusion that we must sit on our hands until it
does so. Instead, we should rehear this matter en banc and correct the flaws in our own
precedent.
* * *
The Armed Career Criminal Act provides that a criminal defendant who is convicted
of possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g), and who has “three
previous convictions . . . for a violent felony or a serious drug offense . . . committed on
occasions different from one another,” 18 U.S.C. § 924(e)(1), shall be subject to a
minimum of 15 years’ imprisonment, an enhanced sentence based on the defendant’s
criminal history.
In 2005, this Court addressed the question presented in this case: whether the Sixth
Amendment requires a jury to find that a defendant’s prior convictions were “committed
on occasions different from one another,” or whether that fact may be found by the
sentencing judge. United States v. Thompson, 421 F.3d 278 (4th Cir. 2005). We held that
the Sixth Amendment permits a judge to make that determination. Id.
In reaching that conclusion, we relied heavily on the Supreme Court’s decision in
Almendarez-Torres v. United States, 523 U.S. 224 (1998). There, the Supreme Court held

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that a different statute that authorized a court to increase the sentence based on a
defendant’s prior conviction did not require the Government to charge the earlier
conviction as an element in the indictment. Id. at 226–27. The Court explained that,
although an indictment must set forth each element of the charged crime, it need not set
forth those factors that are relevant only to sentencing—factors which are, ordinarily, for
Congress to determine. Id. at 228.
To ascertain whether it was faced with an element or a mere sentencing factor, the
Court looked to the intent of Congress: “Did it intend the factor that the statute
mentions . . . to help define a separate crime? Or did it intend the presence of an earlier
conviction as a sentencing factor, a factor that a sentencing court might use to increase
punishment?” Id. This distinction—element or sentencing factor—matters because an
element must be submitted to a jury (or admitted by the defendant), whereas a sentencing
factor may be determined by a sentencing judge. See Mathis v. United States, 579 U.S. 500,
504 (2016); Apprendi v. New Jersey, 530 U.S. 466, 485–86 (2000).
Noting that recidivism was a “traditional” basis “for a sentencing court’s increasing
an offender’s sentence,” Almendarez-Torres, 523 U.S. at 243, the Supreme Court rejected
petitioner’s invocation of the constitutional-avoidance canon. It explained that the Court
did not have grave doubts as to whether Congress could authorize courts “to impose longer
sentences upon recidivists who commit a particular crime.” Id. at 238.
Just two years later—still before this Court decided Thompson—the Supreme Court
narrowed its earlier holding. In Apprendi v. New Jersey, the Court held that, “[o]ther than
the fact of a prior conviction, any fact that increases the penalty for a crime beyond the

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prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.” 530 U.S. at 490 (emphases added). Recognizing that this holding was in tension
with its conclusion just two years earlier in Almendarez-Torres, the Court acknowledged
that it was “arguable that Almendarez-Torres was incorrectly decided,” id. at 489, but
declined to revisit Almendarez-Torres since no party contested its validity.
Instead, the Apprendi Court took pains to emphasize that the conclusion in
Almendarez-Torres “turned heavily” upon the fact that the increased sentence was based
on “the prior commission of a serious crime.” Id. at 488 (quoting Almendarez-Torres, 523
U.S. at 230). And the Sixth Amendment concerns that would otherwise have been
implicated by permitting a judge to determine the fact of a prior crime were mitigated, in
part, by the fact that the prior convictions had all “been entered pursuant to proceedings
with substantial procedural safeguards of their own.” Id. Thus, the Court came to recognize
Almendarez-Torres as “a narrow exception” to Apprendi’s general rule. Alleyne v. United
States, 570 U.S. 99, 111 n.1 (2013).
In Thompson, this Court relied on that exception. Recognizing that Almendarez-
Torres represented a carveout from Apprendi’s rule for the “fact of a prior conviction,” the
Court concluded that a prior conviction cannot “be reduced to nothing more than that the
defendant was at some prior time convicted of some crime.” Thompson, 421 F.3d at 282.
We concluded that although that “bare fact is certainly at the nucleus of the conviction,”
that nucleus “also contains other operative facts, such as the statute which was violated,”
“the date of the conviction,” and, relevant here, “the fact that [the prior crimes] were
separate episodes.” Id. at 282, 286.

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But subsequent developments have raised doubts as to whether our treatment of
Almendarez-Torres was correct, even at the time that we decided Thompson. Notably, the
Supreme Court has since clarified that the Apprendi rule applies not only to facts which
increase the statutory maximum, but also to those that raise a mandatory minimum sentence
dictated by statute. Alleyne, 570 U.S. at 103. The resulting rule is that “[a]ny fact that, by
law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and
found beyond a reasonable doubt.” Id.
And the Supreme Court has since relied on the broadest version of the Apprendi rule
time and time again. See, e.g., Descamps v. United States, 570 U.S. 254, 269 (2013)
(quoting the Apprendi holding and explaining that, because “[u]nder ACCA, the court’s
finding of a predicate offense indisputably increases the maximum penalty,” that finding
“would (at the least) raise serious Sixth Amendment concerns if it went beyond merely
identifying a prior conviction”); Mathis, 579 U.S. at 511 (“[O]nly a jury, and not a judge,
may find facts that increase a maximum penalty, except for the simple fact of a prior
conviction.”); Hurst v. Florida, 577 U.S. 92, 97–98 (2016) (reiterating the Apprendi
holding and collecting cases in which the Supreme Court has applied that rule).
While the Supreme Court has repeatedly applied the Apprendi rule in various
circumstances, it has not confronted the pressing question that we answered in Thompson:
does the Sixth Amendment require a jury, rather than a judge, to determine whether a
defendant’s prior crimes occurred on “occasions different from one another”?
As evidenced by the majority opinion and persuasive dissent in Thompson,
reasonable minds could reach different conclusions as to whether the Supreme Court meant

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precisely what it said in Apprendi: that, “[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime” beyond the statutory range must be submitted to a
jury. Apprendi, 530 U.S. at 490 (emphasis added). But “a good rule of thumb for reading
[Supreme Court] decisions is that what they say and what they mean are one and the same.”
Mathis, 579 U.S. at 514. And the fact of a prior conviction plainly does not encompass the
date of a prior offense—which the jury may not even have been required to find in
convicting the defendant of the prior crime.
If there were any lingering doubt after Apprendi, Alleyne, Descamps, and Mathis,
none remains after Wooden v. United States, 142 S. Ct. 1063 (2022). That’s because
Wooden confirmed that the separate-occasions question is deeply fact-bound. It requires a
“multi-factored” analysis examining the timing, proximity, character, and relationship of
the past offenses. Id. at 1070–71. After Wooden, it strains credulity to say that the “simple
fact of a prior conviction,” Mathis, 579 U.S. at 511, encompasses all of those other, not-
so-simple facts.
These subsequent developments have further eroded any foundation on which
Thompson once stood. And though the panel in this case correctly concluded that it was
not itself at liberty to overrule Thompson, see McMellon v. United States, 387 F.3d 329,
332–33 (4th Cir. 2004) (en banc) (noting that a panel will not overrule a decision by another
panel), this Court sitting en banc can—and should.
But today, this Court chooses to avoid confronting the question of whether
individuals may be serving lengthy terms of imprisonment under sentences that were
determined in violation of the Sixth Amendment to the Constitution. And, it chooses to do

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so in the face of agreement by both parties that en banc review is warranted here because
the Sixth Amendment requires that a jury find, or a defendant admit, that prior convictions
were for offenses occurring on occasions different from one another. See Pet. for Reh’g En
Banc at 9–10; Resp. to Appellant’s Pet. for Reh’g En Banc at 1.
I note with great respect that the Supreme Court has instructed that if one of its
decisions “has direct application in a case, yet appears to rest on reasons rejected in some
other line of decisions,” the lower courts “should follow the case which directly controls”
until the Supreme Court itself overrules the earlier case. Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). But as the separate opinion
by Judge Heytens correctly points out, it is not clear that Almendarez-Torres does, in fact,
have “direct application” in this case; it involved a different statute and a different factual
determination by the sentencing court. And more importantly, we are certainly free to
overrule prior decisions of this Court that, with the benefit of hindsight, appear to have
been wrongly decided.
That much was recently recognized by the Eighth Circuit when it took up this mantle
to address its own precedent in United States v. Stowell, No. 21-2234, 2022 WL 16942355
(8th Cir. Nov. 15, 2022) (granting rehearing en banc in an analogous case in that circuit).
And, as Brown points out, the Government has urged the Supreme Court to wait for lower
courts to weigh in before taking up this issue. See Pet. for Reh’g En Banc at 1 (noting that,
although “the Solicitor General has conceded that this ‘issue is important and frequently
recurring,’” it has “urged the Supreme Court to delay review because ‘lower courts have

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not yet had adequate time to react to Wooden.’” (quoting Br. for the United States in Opp’n,
Reed v. United States, No. 22-336, at 6 (Dec. 12, 2022)).
But alas, today’s choice to duck this issue and wait for potential action by the
Supreme Court means the courts and panels in this circuit must continue to apply strikingly
questionable precedent, entirely at the expense of rights conferred under the Sixth
Amendment.
* * *
At the end of the day, while I agree with my good colleagues that the Supreme Court
should take up its own precedent involving this vital question, we shouldn’t wait for it to
do so. We should take up our own precedent, established by Thompson, and determine
whether it runs afoul of the Constitution. That’s our duty as judges.

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