Virginia Lawyers Weekly VA Lawyers Weekly
Where this court previously held 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, and that ruling has not been expressly overruled by the Supreme Court, it remains good law.
Background
After pleading guilty to possession of a firearm by a felon, 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, or ACCA, are satisfied. Brown’s indictment did not allege the facts supporting the ACCA enhancement; instead, the district court found them as part of the sentencing procedure.
Analysis
Even though this court held in United States v. Thompson, 421 F.3d 278 (4th Cir. 2005), 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, 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.
The court disagrees and concludes that the ACCA enhancement remains a matter for sentencing. Under Almendarez-Torres v. United States, 523 U.S. 224 (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 this court recognized in Thompson. Despite Brown’s arguments to the contrary, 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.
Affirmed.
Concurring opinion
Heytens, J., 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.” 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.
United States v. Brown, Case No. 21-4253, May 3, 2023. 4th Cir. (Niemeyer), from WDNC at Charlotte (Bell). Joshua B. Carpenter for Appellant. Anthony Joseph Enright for Appellee. VLW 023-2-126. 35 pp.
