Criminal Practice – Sentencing – ACCA – Prior Convictions – Different Occasions

The Armed Career Criminal Act (ACCA) allows for the enhancement of a sentence if the defendant has “three previous convictions . . . for a violent felony or a serious drug offense . . . committed on occasions different from one another.” The court rejects defendant’s argument that a jury must decide whether prior offenses were committed on different occasions.

We affirm defendant’s enhanced sentence.

In a consolidated trial, defendant was convicted of committing one armed robbery on July 14, 2007, and another on September 24, 2007. In this federal weapons-possession case, the district court counted each of the two 2007 robbery conviction towards defendant’s ACCA sentence enhancement.

Defendant concedes that the district court acted in accordance with United States v. Thompson, 421 F.3d 278 (4th Cir. 2005), but he argues that Thompson is no longer controlling because of Descamps v. United States, 570 U.S. 254 (2013), Mathis v. United States, 579 U.S. 500 (2016), and especially Wooden v. United States, 142 S. Ct. 1063 (2022). In fact, the government has 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 now agrees that defendant is correct on the merits of his argument, although it maintains that the error here was harmless.

Nevertheless, sitting as a three-judge panel, we may not be permitted to reach that conclusion given our precedents on this issue.

The precise question before us is 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. We hold that we remain bound by Thompson.

Apprendi v. New Jersey, 530 U.S. 466 (2000), requires the state to allege and prove aggravating factors other than recidivism. Almendarez-Torres v. United States, 523 U.S. 224 (1998), 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 U.S. Constitution does not require that facts demonstrating recidivism be treated as elements of a distinct, aggravated offense.

In Wooden, the U.S. Supreme 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.” Wooden is a statutory decision, not a constitutional one. 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, Wooden does not undermine the validity of Thompson.

Neither Descamps nor Mathis considered ACCA’s “different occasions” phrase. Moreover, Almendarez-Torres 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. Until the Supreme Court recognizes and resolves any alleged tension, or limits or overrules Almendarez-Torres, we are bound by it.

We affirm the decision of the district court.

Concurrence

(Heytens, J.) I agree this panel may not grant relief, but only because of the prudential rule that one panel cannot overrule a decision issued by another panel. Concluding the choice to revisit this issue belongs to the en banc court rather than this panel, I concur in the decision rejecting defendant’s claim.

United States v. Brown (Lawyers Weekly No. 001-058-23, 35 pp.) (Paul Niemeyer, J.) (Toby Heytens, J., concurring) No. 21-4253. Appealed from USDC at Charlotte, N.C. (Kenneth Bell, J.) Joshua Carpenter and John Baker for appellant; Anthony Joseph Enright and Dena King for appellee. United States Court of Appeals for the Fourth Circuit