Erlinger Errors Are Non-Structural and Subject to Harmless-Error Review

Introduction

United States v. Rico Brown is a Fourth Circuit decision issued on April 29, 2025, deciding the procedural consequences of the Supreme Court’s ruling in Erlinger v. United States, 602 U.S. 821 (2024). The defendant, Rico Lorodge Brown, was convicted of possessing a firearm after three prior violent‐felony convictions under 18 U.S.C. § 922(g)(1). His 15-year mandatory minimum sentence was imposed under the Armed Career Criminal Act (ACCA), which requires three predicate “violent felonies committed on occasions different from one another.” Brown challenged the application of that “different occasions” element on Fifth and Sixth Amendment grounds, arguing it had to be alleged in the indictment and found by a jury. After the Fourth Circuit affirmed, the Supreme Court decided Erlinger, holding that the “different occasions” finding must indeed be submitted to a jury under Apprendi. The case returned to the Fourth Circuit to determine whether the failure to do so is “structural” error or is subject to harmless-error review.

Summary of the Judgment

On remand, the Fourth Circuit held:

An Erlinger error—omitting the ACCA “different occasions” element from the indictment and failing to advise the defendant in a plea colloquy of his right to a jury finding—does not constitute structural error; it is an Apprendi‐type sentencing factor error subject to harmless-error scrutiny under Federal Rule of Criminal Procedure 52(a).
The government bears the burden of proving beyond a reasonable doubt that the error did not affect the defendant’s substantial rights. In a guilty-plea context, that means showing the defendant would have pleaded guilty even if properly advised.
Here, Brown was twice told—at his initial appearance and at his plea hearing—that ACCA could apply; he never disputed the three qualifying predicate convictions or argued that two of them should merge as a single occasion; and he accepted the plea benefits (a lower sentencing range). The Fourth Circuit concluded, beyond a reasonable doubt, that Brown would have pleaded guilty even if told of his jury-finding right. Accordingly, the ACCA-enhanced 180-month sentence was affirmed.

Analysis

Precedents Cited

Almendarez-Torres v. United States (523 U.S. 224 (1998)) – Held recidivism enhancements are sentencing factors for the judge, not elements for the jury.
Apprendi v. New Jersey (530 U.S. 466 (2000)) – “Any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.”
Alleyne v. United States (570 U.S. 99 (2013)) – Held that any fact increasing the mandatory minimum is likewise subject to Apprendi’s jury requirement.
Erlinger v. United States (602 U.S. 821 (2024)) – Extended Apprendi/Alleyne to ACCA’s “different occasions” requirement, entitling the defendant to a jury determination of that fact.
Washington v. Recuenco (548 U.S. 212 (2006)) – Held Apprendi sentencing‐factor errors are subject to harmless-error review.
Neder v. United States (527 U.S. 1 (1999)) – Confirmed that not every Sixth Amendment error is structural; most are subject to harmless-error analysis.
United States v. Whitfield (695 F.3d 288 (4th Cir. 2012)) – Distinguished between a judge’s constructive amendment of an indictment (per se reversible) and the omission of an element (harmless-error review).
Wooden v. United States (595 U.S. 360 (2022)) – Clarified how to apply the “different occasions” inquiry under ACCA using an ordinary‐meaning approach (timing, continuity, scheme).
Greer v. United States (593 U.S. 503 (2021)) – Held that errors in a plea colloquy (omission of an element) are not structural and are subject to harmless-error or plain-error review.

Legal Reasoning

The Fourth Circuit’s reasoning unfolds in three steps:

Structural vs. Harmless-Error Analysis. The court surveyed the Supreme Court’s framework in Neder and Recuenco, reaffirming that only a narrow class of “structural” errors—those affecting the “entire framework” of a trial—require automatic reversal. Errors in sentencing factors (Apprendi errors) and omissions in indictments or plea colloquies do not fall in that narrow category and are instead reviewed for harmlessness.
Erlinger as an Apprendi Error. An “Erlinger error” consists of two related failures: the indictment’s omission of ACCA’s “different occasions” element and the plea colloquy’s failure to advise the defendant of his right to a jury finding under Apprendi/Alleyne. Like other Apprendi errors, an Erlinger error is not structural.
Application of Harmless-Error Review. In the context of a guilty plea, the government must prove beyond a reasonable doubt that the defendant would have pleaded guilty despite a proper jury advisory. Here, Brown was repeatedly informed of the ACCA range, did not dispute the predicate convictions or the occasions finding, and obtained a significant Guidelines benefit. The record leaves no doubt that the omission had no effect on his decision to plead, so the error was harmless.

Impact

This decision cements several important principles:

Erlinger Errors Are Not Per Se Reversible. Circuit courts will apply harmless-error review to omissions of ACCA’s “different occasions” element rather than treat them as structural defects requiring automatic reversal.
Burden on the Government. In plea cases, the government must prove beyond a reasonable doubt that an advised defendant would still have pleaded guilty, even if properly informed of a jury-finding right.
Plea Colloquy Requirements. Following Erlinger and this decision, plea colloquies in § 922(g)/ACCA cases must include explicit advisals of the jury determination right for the “different occasions” element. But omissions of that advice will not automatically void convictions if the government can satisfy the harmless-error standard.
Clarity for Practitioners. Defense attorneys will know that challenges to sentencing-factor findings not made by a jury must clear the harmless-error hurdle. Prosecutors must now include the ACCA element in indictments and plea advisals, but appellate relief will depend on prejudice, not per se reversal.

Complex Concepts Simplified

Sentencing Factor vs. Element of the Offense. An element must be alleged in the indictment and proved to a jury beyond a reasonable doubt. A sentencing factor traditionally could be found by the judge. Apprendi blurred that line when a sentencing factor raises the mandatory minimum or maximum, so courts now treat those factors like elements—but still subject them to harmless-error analysis.
Structural Error. A “structural” error affects the entire trial’s fairness—for example, denial of counsel or public trial. These are rare, and defendants automatically win on appeal. Most constitutional errors (including Apprendi errors) are not structural and require proof of prejudice.
Harmless-Error Review. When an error is non-structural, appellate courts ask whether it “affected substantial rights”—i.e., whether the outcome would have been different. The government must prove that any error was harmless beyond a reasonable doubt if it is constitutional.
Erlinger Error. The combined failure to (1) allege ACCA’s “different occasions” element in the indictment and (2) advise the defendant in the plea colloquy that a jury must find that element under Apprendi/Alleyne.

Conclusion

United States v. Brown clarifies that errors under Erlinger—failures to allege or advise about ACCA’s “different occasions” requirement—are not structural but are treated like other Apprendi sentencing-factor errors subject to harmless-error review. In a guilty-plea setting, the government must prove beyond a reasonable doubt that the defendant would have pled guilty even if properly advised of the jury-finding right. Here, the Fourth Circuit found that proof overwhelming and unanimously affirmed the 180-month ACCA-enhanced sentence. This ruling provides guidance to trial courts and counsel on the scope of plea advisals, indictment drafting, and the contours of harmless-error analysis in ACCA cases.