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 18

U.S.C. § 922(g)(1), Rico Brown was sentenced to 15 years’ imprisonment, an enhanced

penalty that represents the mandatory minimum sentence required for such a violation

when the provisions of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1),

are satisfied. ACCA provides that when a defendant violates § 922(g) and has “three

previous convictions . . . for a violent felony or a serious drug offense . . . committed on

occasions different from one another,” he shall be given the enhanced sentence. Id.

Brown’s indictment did not allege the facts supporting the ACCA enhancement; instead,

the district court found them as part of the sentencing procedure.

Even though we held in United States v. Thompson that district courts may,

consistent with the Constitution, use information “found in conclusive judicial records” to

determine at sentencing that the defendant has three qualifying convictions for offenses

committed on different occasions, thus triggering the ACCA enhancement, 421 F.3d 278,

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

decisions in Descamps v. United States, 570 U.S. 254 (2013), Mathis v. United States, 579

U.S. 500 (2016), and Wooden v. United States, 142 S. Ct. 1063 (2022), Thompson is no

longer good law. He maintains that, in light of these Supreme Court cases and the Fifth

and Sixth Amendments, ACCA’s requirement that the defendant have committed the prior

offenses on different occasions must be alleged in the indictment and found by a jury or

admitted by the defendant in his guilty plea because that fact increases the penalty for his

crime.

2 USCA4 Appeal: 21-4253 Doc: 46 Filed: 05/03/2023 Pg: 3 of 35

We conclude, however, that the ACCA enhancement remains a matter for

sentencing. Under Almendarez-Torres v. United States, 523 U.S. 224 (1998), the f