Identity by Modus Operandi and Post-Bruen Firearms Law: Fourth Circuit Upholds 404(b) Use of Uncharged Robberies and Implements Erlinger’s Jury-Finding Rule for ACCA “Occasions”

Introduction

In United States v. Lionel Robinson, No. 23-4420 (4th Cir. Mar. 25, 2025) (unpublished), the Fourth Circuit affirmed a 356-month sentence following convictions for two Hobbs Act robberies (18 U.S.C. § 1951), two counts of brandishing a firearm during a crime of violence (18 U.S.C. § 924(c)), and being a felon in possession of ammunition, enhanced under the Armed Career Criminal Act (ACCA) (18 U.S.C. §§ 922(g)(1), 924(e)).

The appeal—presented through an Anders brief by appointed counsel and supplemented pro se—raised several issues: (1) whether the district court erred in denying a Franks hearing and the related motion to suppress; (2) whether the court abused its discretion by admitting evidence of uncharged robberies under Federal Rule of Evidence 404(b); (3) whether § 922(g)(1) is unconstitutional after New York State Rifle & Pistol Ass’n v. Bruen; (4) whether the ACCA enhancement was proper in light of alleged sentencing law changes and the timing of prior drug convictions; (5) whether any unobjected-to Guidelines computations were plainly erroneous; and (6) whether the court’s recommendation for mental health assessment undermined its competency determination at sentencing.

The Fourth Circuit rejected each contention, drawing on a suite of recent and foundational precedents, including Franks v. Delaware, Canada and Hunt (post-Bruen Fourth Circuit decisions on § 922(g)(1)), Wooden and Erlinger (clarifying ACCA “occasions”), and longstanding evidentiary doctrine for 404(b)/403 balancing.

Summary of the Opinion

Franks hearing and suppression: The panel held Robinson failed to make the “substantial preliminary showing” that a search-warrant affidavit contained intentionally or recklessly false statements necessary to probable cause. Denial of a Franks hearing—and thus suppression—was affirmed.
Rule 404(b) evidence of uncharged robberies: The district court acted within its discretion in admitting limited evidence of uncharged robberies to prove motive, intent, plan, knowledge, and especially identity. The court emphasized similarities in modus operandi, including use of a particular vehicle and a robber’s distinctive gait captured on surveillance videos. The evidence survived Rule 403 balancing.
Constitutionality of § 922(g)(1): Binding circuit precedent forecloses both facial (United States v. Canada) and as-applied (United States v. Hunt) challenges to § 922(g)(1) post-Bruen. Robinson’s challenge therefore failed.
ACCA enhancement: Robinson’s prior federal crack distribution convictions qualified as “serious drug offenses” under § 924(e)(2)(A)(i). Consistent with Erlinger v. United States, the jury specifically and unanimously found the prior offenses were committed on different occasions, and the record reflected substantial gaps in time (see Wooden v. United States). The ACCA enhancement was properly applied.
Guidelines computations and plain error: Despite Robinson’s disavowal of agreement, he did not object to the presentence report (PSR) computations; counsel affirmatively agreed with the court’s Guidelines calculation. Reviewing for plain error, the panel found none.
Competency and mental health recommendation: The court did not abuse its discretion in proceeding with sentencing after determining competency. A recommendation for mental health assessment in the Bureau of Prisons does not imply incompetence.
Anders review: After independently reviewing the record, the court found no meritorious issues and affirmed in full.

Note: The opinion is unpublished and thus not binding in the Fourth Circuit, but it provides persuasive guidance on several recurring criminal procedure and sentencing issues.

Analysis

Precedents Cited and Their Influence

Franks v. Delaware, 438 U.S. 154 (1978); United States v. Haas, 986 F.3d 467 (4th Cir. 2021); United States v. Jones, 942 F.3d 634 (4th Cir. 2019); United States v. Moody, 931 F.3d 366 (4th Cir. 2019); United States v. Pulley, 987 F.3d 370 (4th Cir. 2019): Collectively, these cases set the demanding threshold to obtain a Franks hearing. A defendant must make a substantial preliminary showing that the warrant affidavit contains a knowingly or recklessly false statement necessary to probable cause; subjective disagreements with characterization of facts will not suffice. The panel applied this line of authority to hold that Robinson’s showing fell short, precluding both the hearing and suppression.
Federal Rules of Evidence 404(b) and 403; United States v. Hornsby, 666 F.3d 296 (4th Cir. 2012); United States v. Faulls, 821 F.3d 502 (4th Cir. 2016); United States v. Lentz, 524 F.3d 501 (4th Cir. 2008): The court emphasized Rule 404(b)’s allowance of other-act evidence for non-propensity purposes (e.g., motive, intent, identity), subject to Rule 403 balancing. Reviewing for abuse of discretion, the panel found the district court’s admission of limited evidence of uncharged robberies—closely mirroring the charged offenses and highly probative of identity—neither arbitrary nor irrational, and not unfairly prejudicial under Rule 403.
New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022); United States v. Canada, 123 F.4th 159 (4th Cir. 2024); United States v. Hunt, 123 F.4th 697 (4th Cir. 2024): Bruen’s history-and-tradition test does not invalidate § 922(g)(1) within the Fourth Circuit. Canada holds § 922(g)(1) is facially constitutional because it has a “plainly legitimate sweep.” Hunt forecloses as-applied challenges to § 922(g)(1). These decisions dictated the rejection of Robinson’s constitutional claims.
ACCA and “occasions”: 18 U.S.C. § 924(e); Erlinger v. United States, 602 U.S. 821 (2024); Wooden v. United States, 595 U.S. 360 (2022): Wooden provides a multi-factor, common-sense approach to determining whether prior offenses occurred on different “occasions,” including the time between offenses. Erlinger requires a unanimous jury finding beyond a reasonable doubt on the “occasions” question. The panel affirmed the ACCA enhancement after noting the jury’s Erlinger-compliant finding and record evidence of substantial temporal separation across six distribution offenses over five months.
United States v. Revels, 455 F.3d 448 (4th Cir. 2006); United States v. Greene, 704 F.3d 298 (4th Cir. 2013): Revels confirms that silence at sentencing can render facts undisputed for purposes of the PSR; Greene articulates the plain error standard for unpreserved sentencing challenges. These cases supported the court’s refusal to disturb the Guidelines calculation.
United States v. Moussaoui, 591 F.3d 263 (4th Cir. 2010): Provides the abuse-of-discretion framework for proceeding with sentencing after a competency determination. The panel cited Moussaoui to uphold the district court’s decision to continue and to recommend mental health evaluation without undermining the competency finding.
Anders v. California, 386 U.S. 738 (1967): Under Anders, when counsel perceives no nonfrivolous issues, the court independently reviews the record. Applying Anders, the panel found no meritorious claims.

Legal Reasoning Applied to Each Issue

1) Franks Hearing and Suppression

The court reviewed de novo whether Robinson made the threshold showing for a Franks hearing and for clear error the district court’s underlying factual findings. To obtain a Franks hearing, a defendant must make a substantial preliminary showing that (a) the affiant included a false statement, (b) knowingly and intentionally or with reckless disregard for the truth, and (c) that the falsehood was necessary to probable cause.

Relying on Haas, Moody, and Pulley, the panel concluded Robinson had not overcome the presumption of an affidavit’s validity. Purely subjective disagreements with how facts were characterized are insufficient. Because the substantial preliminary showing was not met, the court affirmed denial of both the hearing and suppression. Implicitly, that also obviated any need to consider whether a “corrected affidavit” (with any alleged misstatements excised) still established probable cause.

2) Admission of Uncharged Robberies Under Rule 404(b)/403

The admission of other-acts evidence was reviewed for abuse of discretion. Rule 404(b) bars propensity use but allows other-acts evidence to prove non-character matters, including motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

The district court admitted limited evidence from two uncharged robberies because the modus operandi closely mirrored the charged offenses and was probative of identity—particularly the same vehicle and a robber’s distinctive gait captured on video, which the Government compared to Robinson’s gait. The Fourth Circuit held this use aligned with Rule 404(b)’s identity rationale and found no abuse under Rule 403, referencing Lentz’s caution against excluding probative evidence unless the risk of irrational emotional response substantially outweighs probative value. The court also noted the narrow scope of admitted evidence, which mitigated undue prejudice.

3) Second Amendment Challenge to § 922(g)(1)

Post-Bruen, the Fourth Circuit’s decisions in Canada and Hunt foreclose facial and as-applied challenges to § 922(g)(1). Canada holds § 922(g)(1) has a “plainly legitimate sweep” and is facially constitutional; Hunt rejects as-applied challenges to felon-in-possession prosecutions. Applying these controlling precedents, the panel summarily rejected Robinson’s constitutional arguments.

4) ACCA Enhancement and the “Serious Drug Offense”/“Different Occasions” Elements

The ACCA elevates penalties for § 922(g) offenders with three prior “serious drug offenses” or “violent felonies” committed on different occasions. The court held Robinson’s six prior federal convictions for crack distribution under 21 U.S.C. § 841(a)(1) met the statutory definition of “serious drug offense” because they carried maximum penalties of at least ten years (as prescribed in the penalty provisions of § 841). The jury—consistent with Erlinger’s constitutional requirement—specifically and unanimously found that at least three such offenses were committed on distinct occasions. The record supported that finding, as the distribution offenses spanned five months, which Wooden recognizes as “separated by substantial gaps in time.”

Thus, both predicate-status and the “occasions” element were properly established, and the ACCA enhancement was correctly applied.

5) Guidelines Computations and Plain Error

Although Robinson suggested he did not “agree” with the PSR’s computations, he made no objections; indeed, defense counsel agreed with the court’s Guidelines calculation. Under Revels, silence suffices to render PSR facts undisputed; under Greene, unpreserved challenges are reviewed only for plain error. The court found no error, let alone plain error, in the advisory range that underpinned the ultimate sentence.

6) Competency at Sentencing and Mental Health Recommendation

The panel reviewed for abuse of discretion the district court’s decision to proceed to sentencing after determining Robinson was competent, despite his intermittent, unresponsive interjections. The court’s recommendation for mental health assessment and treatment within the Bureau of Prisons did not contradict or undermine the competency finding; such recommendations are routine and prophylactic. Citing Moussaoui, the panel affirmed the decision to continue with sentencing.

Impact

Franks practice: The decision reiterates the demanding threshold before a defendant can breach the presumption of an affidavit’s validity. Mere disagreements with characterization or inferences will not open the door to a Franks hearing. Practitioners must marshal concrete, reliable evidence of intentional or reckless falsehoods and materiality to probable cause.
404(b) identity evidence via modus operandi: The Fourth Circuit’s acceptance of identity evidence tied to uncharged robberies—especially vehicle linkage and a suspect’s distinctive gait on surveillance—signals continued receptivity to non-propensity uses of other-acts evidence when similarity and probative value are high and presentation is limited to minimize prejudice. Expect prosecutors to rely on pattern, signature features, and corroborating physical indicia to establish identity; defense counsel should challenge the distinctiveness of the similarities and press for limiting instructions.
Post-Bruen felon-in-possession law (Fourth Circuit): Canada and Hunt remain dispositive. Within the Fourth Circuit, § 922(g)(1) prosecutions are insulated against both facial and as-applied Second Amendment attacks unless and until the Supreme Court dictates otherwise.
ACCA after Erlinger and Wooden: This opinion exemplifies district court compliance with Erlinger’s jury-finding requirement on “occasions.” Prosecutors should ensure indictments, instructions, and verdict forms facilitate a unanimous finding beyond a reasonable doubt on the separate-occasions element. Wooden’s flexible, multi-factor test will continue to guide fact-finding, with temporal separation often decisive.
Sentencing procedure and preservation: The case underscores that absent objections, PSR facts generally stand and challenges face the steep plain-error standard. Clear, timely objections remain essential to preserve issues.
Competency versus treatment: A court’s recommendation for mental health evaluation in prison is compatible with a competency finding; it does not compel a competency hearing or create reversible error.
Unpublished but instructive: Although not binding, the decision assembles an up-to-date roadmap through frequently litigated issues in federal criminal practice, particularly in light of recent Supreme Court decisions (Bruen, Wooden, Erlinger).

Complex Concepts Simplified

Franks hearing: A special evidentiary hearing to challenge the truthfulness of statements in a search-warrant affidavit. To get one, a defendant must make a preliminary showing of deliberate or reckless falsehoods that mattered to probable cause. If granted and the falsehoods are excised such that probable cause disappears, the warrant’s fruits may be suppressed.
Rule 404(b): Bars using “other bad acts” to prove a person’s propensity to commit the charged crime but permits such evidence for specific purposes like proving identity, intent, or plan. Any 404(b) evidence must still pass Rule 403’s test: its probative value must not be substantially outweighed by the risk of unfair prejudice.
Identity by modus operandi: When uncharged acts are sufficiently similar to the charged crimes—sometimes displaying “signature” features—courts may admit them to show the same person likely committed both, not to show bad character.
Bruen test (Second Amendment): A firearms restriction is valid only if consistent with the Nation’s historical tradition of firearm regulation. In the Fourth Circuit, § 922(g)(1) survives under Canada and Hunt, foreclosing typical felon-in-possession constitutional challenges.
ACCA “serious drug offense”: Includes federal drug crimes (e.g., distribution under 21 U.S.C. § 841) that carry a maximum penalty of ten years or more. Many § 841 distribution offenses qualify because they authorize up to 20 years’ imprisonment.
ACCA “occasions” element: Prior predicate offenses must have been committed on different occasions. After Erlinger, a jury—unanimously, beyond a reasonable doubt—must make that determination. Wooden instructs courts to consider time, place, and relationship between offenses; substantial time gaps often indicate separate occasions.
Plain error review: For issues not raised below, an appellant must show a clear legal error that affected substantial rights and seriously affects the fairness, integrity, or public reputation of judicial proceedings.
Anders brief: When appointed counsel sees no nonfrivolous appellate issues, counsel may file an Anders brief; the appellate court then independently reviews the record to protect the defendant’s rights.
Competency at sentencing vs. mental health treatment: Competency asks whether a defendant can understand proceedings and assist counsel. A recommendation for evaluation/treatment is a rehabilitative measure and does not equate to a finding of incompetence.

Conclusion

The Fourth Circuit’s unpublished affirmance in United States v. Robinson synthesizes current doctrine across multiple domains of federal criminal law:

It reaffirms the high threshold for Franks hearings and the deference owed to warrant affidavits absent concrete evidence of intentional or reckless falsity.
It validates the careful admission of uncharged, similar robberies under Rule 404(b) to establish identity, especially where distinctive features (like a unique gait and a particular vehicle) supply strong probative value and the presentation is narrowly tailored to avoid unfair prejudice.
It confirms that, within the Fourth Circuit, post-Bruen challenges to § 922(g)(1) are foreclosed by Canada (facial) and Hunt (as-applied), providing clarity and stability for felon-in-possession prosecutions.
It demonstrates district court compliance with Erlinger’s jury-finding requirement on the ACCA “occasions” element, using Wooden’s practical framework to evaluate temporal separation.
It underscores the importance of preserving sentencing objections and the limited role of plain-error review.
It distinguishes competency findings from rehabilitative mental health recommendations at sentencing.

While not binding precedent, Robinson serves as a comprehensive, up-to-date guide to several recurring issues in federal prosecutions—from search warrant challenges and evidence admissibility, to constitutional firearms law and ACCA sentencing—in the wake of Bruen, Wooden, and Erlinger.