Plain-Error Review After Rehaif and Erlinger: Indictment Omissions Do Not Warrant Relief Absent Prejudice

Introduction

In United States v. Neto Audric Dennison (4th Cir. Feb. 24, 2026) (unpublished), the Fourth Circuit affirmed Neto Audric Dennison’s conviction and 180-month sentence following his guilty plea to being a felon in possession of a firearm and ammunition under 18 U.S.C. §§ 922(g)(1), 924(a)(2), (e).

The appeal arrived in an Anders posture: counsel asserted no meritorious issues but questioned (1) the sufficiency of the indictment in light of intervening Supreme Court decisions, (2) the denial of a motion to suppress statements and physical evidence from a traffic stop, and (3) the validity of the Armed Career Criminal Act (ACCA) enhancement.

The core legal issues were (i) how plain-error review applies when an indictment predating Rehaif and Erlinger omits now-required elements, (ii) whether questioning during a traffic stop required Miranda warnings, and (iii) whether Dennison had at least three qualifying ACCA predicates committed on different “occasions.”

Summary of the Opinion

  • Indictment/element omissions: The court held the indictment omitted elements recognized in Rehaif v. United States (knowledge of prohibited status) and Erlinger v. United States (ACCA “different occasions” fact), creating plain error. However, Dennison failed to show the omissions affected his substantial rights, so no relief was warranted.
  • Suppression: Statements made during the traffic stop were not subject to suppression for lack of Miranda warnings because the stop did not constitute “Miranda custody.” The patdown and seizure of the firearm were supported by reasonable suspicion given the odor of marijuana and Dennison’s admission he had a loaded gun.
  • ACCA predicates: The court concluded Dennison had at least three valid ACCA predicates: two South Carolina strong arm robberies (violent felonies) and a South Carolina distribution of crack cocaine conviction (serious drug offense), thus sustaining the ACCA enhancement.

Although unpublished and “not binding precedent,” the opinion is a practical application of post-Rehaif and post-Erlinger error review in guilty-plea cases.

Analysis

Precedents Cited

1) Appellate posture and standards (Anders and plain error)

  • Anders v. California: Supplies the framework for counsel’s representation that no meritorious issues exist while still identifying potential issues for review; the court independently reviews the record.
  • United States v. Collins: Establishes that an unpreserved challenge to indictment sufficiency is reviewed for plain error.
  • United States v. Garrett: Restates the four-part plain-error test (error, plainness, substantial rights, and effect on fairness/integrity of proceedings).
  • United States v. Bolden: Cited for the baseline principle that a valid indictment must allege every element of the offense.

2) Missing element in § 922(g): knowledge of status

  • Rehaif v. United States: Requires proof that the defendant knew of his prohibited status (here, felon status). The indictment predated Rehaif and did not allege that knowledge element.
  • Greer v. United States: Governs prejudice under plain-error review for Rehaif omissions; a defendant must show a reasonable probability of a different outcome and must make a “sufficient argument or representation” that he would have presented evidence he did not know he was a felon. The court relied heavily on Greer’s practical point that “Felony status is simply not the kind of thing that one forgets.”

3) ACCA “different occasions” requirement after Erlinger

  • Erlinger v. United States: Holds the Government must prove the predicate offenses were “committed on occasions different from one another.” The indictment here did not allege that fact.
  • United States v. King: Provides the prejudice framework the panel applied for an indictment omission tied to an ACCA enhancement—Dennison had to show a reasonable probability he would have gone to trial had the indictment properly alleged the enhancement fact.
  • United States v. Brown (quoting Wooden v. United States): Defines “occasion” in its ordinary sense as an “episode or event.” Brown also supplies the “long odds” reasoning the panel adopted: where the record makes the different-occasions issue overwhelmingly one-sided, it is implausible the defendant would have rejected a plea to gamble on it.

4) Suppression standards: Miranda, traffic stops, and patdowns

  • United States v. Henderson: Sets the review standards for suppression rulings (legal issues de novo, factfinding for clear error; evidence viewed favorably to the Government when suppression is denied).
  • United States v. Leggette: States Miranda warnings are required only when interrogation occurs in custody.
  • Howes v. Fields: Cited for the proposition that traffic-stop detention ordinarily is not “Miranda custody.”
  • United States v. Sakyi: Authorizes ordering occupants out and a brief patdown when an officer reasonably suspects drugs are present and safety concerns are not allayed—supporting the frisk and firearm recovery here.

5) ACCA predicate qualification and standard of review

  • United States v. Sellers: Provides the standard of review for ACCA determinations (factual findings clear error; legal conclusions de novo).
  • United States v. Doctor; United States v. Campbell: Confirm South Carolina strong arm robbery is a violent felony for ACCA purposes.
  • United States v. Furlow: Holds South Carolina distribution of crack cocaine (first offense) categorically qualifies as a serious drug offense; the panel extended that reasoning to Dennison’s “second offense” distribution conviction.

6) Supervised release pronouncement (raised and rejected)

  • United States v. Rogers: Requires oral pronouncement of nonmandatory supervised release conditions; the court reviewed the alleged Rogers issue and found no error, denying the earlier motion for summary disposition.

Legal Reasoning

A. Indictment omissions: plain error exists, but prejudice was not shown

The panel treated the indictment’s omission of the Rehaif knowledge-of-status element and the Erlinger different-occasions allegation as plain error because the indictment predated those decisions. The decisive step was the third prong—substantial rights.

  • Rehaif prejudice (via Greer): Dennison offered no representation that he would have presented evidence he did not know he was a felon. The court emphasized his “long and serious felony record” and multiple multi-year sentences, making ignorance implausible in the absence of “compelling evidence to the contrary.”
  • Erlinger prejudice (via King, Brown, Wooden): The presentence report indicated each predicate was committed in a different year. Under the ordinary meaning of “occasion” (an episode or event), that temporal separation made the different-occasions issue overwhelmingly one-sided. The panel reasoned there was no reasonable probability Dennison would have gone to trial merely to pursue an exceedingly remote argument that multiple crimes across different years were the same “occasion(s).”

The result is a two-step message: post-Rehaif/Erlinger omissions can be plain, but reversal still turns on a concrete, defendant-specific showing of prejudice.

B. Suppression: traffic stop was not Miranda custody; frisk justified by drugs-plus-safety rationale

The panel held Miranda warnings were not required because Dennison’s admission about the gun was made during a traffic stop, and traffic-stop detention generally does not “sufficiently impair” the privilege against self-incrimination to constitute custody.

On the physical evidence, the court applied Sakyi: odor of marijuana created reasonable suspicion of drugs, and Dennison’s own statement that he had a loaded handgun reinforced officer-safety concerns—justifying the patdown and seizure of the firearm and ammunition.

C. ACCA qualification: at least three predicates were valid

The panel did not need to validate all five PSR-listed predicates; three suffice. It identified: (1) two South Carolina strong arm robbery convictions as violent felonies under Doctor and Campbell, and (2) a South Carolina distribution of crack cocaine (second offense) conviction as a serious drug offense by extension of Furlow.

Impact

  • Post-Erlinger litigation reality: The decision signals that defendants challenging ACCA “different occasions” errors on plain-error review—especially after guilty pleas—must present a plausible narrative that the occasions issue was meaningfully contestable and plea-dispositive. Widely separated offenses (e.g., different years) will be hard to parlay into prejudice.
  • Post-Rehaif prejudice remains difficult: Echoing Greer, defendants with substantial felony histories will struggle to show a reasonable probability of a different result without specific, credible proffers.
  • Suppression practice: The opinion reinforces the Fourth Circuit’s continued adherence to the non-custodial nature of typical traffic stops for Miranda purposes and the permissibility of patdowns where drug suspicion and safety concerns coincide.
  • Persuasive, not binding: Because the decision is unpublished, its primary significance lies in how it applies controlling Supreme Court and Fourth Circuit precedent rather than in creating new binding doctrine.

Complex Concepts Simplified

Plain-error review
A strict appellate standard used when an issue was not raised in the trial court. Even if the appellate court sees an obvious legal mistake, the defendant must still show it likely mattered to the outcome.
Rehaif element (knowledge of status)
In a felon-in-possession case, it is not enough that the defendant possessed a gun and had a prior felony; the Government must also prove the defendant knew he was a felon at the time.
ACCA “different occasions”
The ACCA’s 15-year mandatory minimum applies only if three qualifying prior convictions were committed on separate “occasions”—separate episodes or events. Crimes far apart in time are usually separate occasions.
Miranda custody
Miranda warnings are required only when a person is both (1) in custody (the situation resembles formal arrest) and (2) interrogated. Ordinary traffic-stop detention is typically not “custody” for this purpose.
Reasonable suspicion and a patdown
Officers may briefly frisk for weapons when specific facts make them reasonably suspect the person may be armed and dangerous. Drug indicators (like the odor of marijuana) can contribute to that suspicion, especially when combined with officer-safety factors.

Conclusion

United States v. Neto Audric Dennison applies controlling post-Rehaif and post-Erlinger doctrine to hold that indictment omissions—though plain—do not justify reversal without a concrete showing of prejudice: Dennison could not plausibly claim ignorance of felony status under Greer v. United States, and the record (predicates in different years) made an ACCA different-occasions contest implausible under United States v. King and United States v. Brown (quoting Wooden v. United States). The court also reaffirmed that typical traffic stops are not Miranda custody and that drug-related suspicion may justify a protective frisk under United States v. Sakyi.

The case’s broader significance lies less in novel rulemaking (it is unpublished) and more in its clear demonstration that, in the Fourth Circuit, post-plea challenges based on intervening element decisions will usually rise or fall on the defendant’s ability to articulate and support a realistic prejudice theory.