Erlinger Plain-Error Relief Requires a Showing the Defendant Would Have Rejected the Plea Despite ACCA “Different Occasions” Omission

Introduction

In United States v. Vinson Thompson (4th Cir. Apr. 21, 2026) (unpublished), the Fourth Circuit addressed two recurring post-sentencing challenges in federal criminal cases: (1) how to remedy an Erlinger v. United States error involving the Armed Career Criminal Act’s (“ACCA”) “committed on occasions different from one another” requirement, when the defendant pleaded guilty without being advised that a jury must decide that element; and (2) whether the district court properly pronounced supervised-release conditions under United States v. Rogers.

Vinson Thompson pleaded guilty to being a felon in possession of a firearm and ammunition under 18 U.S.C. § 922(g)(1). The district court applied the ACCA mandatory minimum (180 months) after finding Thompson had three prior “serious drug offense” convictions committed on different occasions. The indictment did not allege the “different occasions” element, and the plea colloquy did not advise Thompson of a right to have a jury decide it beyond a reasonable doubt. On appeal, Thompson sought relief under Erlinger and also alleged supervised-release pronouncement errors under Rogers.

Summary of the Opinion

The Fourth Circuit affirmed. It held:

Erlinger issue: There was plain Erlinger error (the district court decided the ACCA “different occasions” element despite the indictment/plea-colloquy omissions), but Thompson failed to show the error affected his substantial rights because he did not demonstrate a reasonable probability that, if properly advised, he would have rejected the plea and gone to trial on the ACCA element.
Rogers issues: No reversible Rogers error occurred. The court found incorporation of “standard” conditions sufficient under circuit precedent, deemed the reporting condition ambiguity curable by reference to the written judgment, and treated Thompson’s “failure to explain” argument as ordinary procedural sentencing error rather than a Rogers pronouncement defect.

Analysis

Precedents Cited

Erlinger v. United States, 602 U.S. 821 (2024)

Erlinger supplies the constitutional rule: defendants are “entitled to have a jury resolve [the] ACCA’s occasions inquiry unanimously and beyond a reasonable doubt.” The Thompson panel treated this as establishing that the “different occasions” fact is an element-like requirement that cannot be conclusively found by a judge at sentencing when it has not been admitted or found by a jury. Erlinger thus made the district court’s approach legally erroneous.

United States v. Brown, 136 F.4th 87 (4th Cir.), cert. denied, No. 25-5743, 2025 WL 3131959 (Nov. 10, 2025)

Brown provided the Fourth Circuit’s post-Erlinger template: (i) identify plain error when the indictment omits and the plea colloquy fails to advise of the jury right on “different occasions”; and (ii) apply ordinary plain-error principles to decide whether the defendant is entitled to relief. Thompson’s effort to relitigate Brown was rejected on stare decisis grounds, with the panel explicitly invoking binding-panel precedent doctrine.

United States v. Solis-Rodriguez, 144 F.4th 617 (4th Cir. 2025), petition for cert. filed, No. 25-6431 (U.S. Dec. 23, 2025)

Solis-Rodriguez furnished the governing plain-error framework and, critically, the substantial-rights standard for guilty pleas: the defendant must show “a reasonable probability that, but for the error, he would not have entered the plea.” Thompson follows this approach and applies it concretely to the record.

United States v. Ramirez-Castillo, 748 F.3d 205 (4th Cir. 2014)

This case supported the “plainness” analysis: an error is “plain” when it is clear at the time of appellate consideration, including where “settled law” of the Supreme Court or circuit establishes it. The panel used Ramirez-Castillo to justify treating Erlinger (and Brown) as making the error obvious on appeal.

Wooden v. United States, 595 U.S. 360 (2022)

Wooden informed what “occasion” means—an “episode or event”—and emphasized temporal and contextual separation: offenses committed “close in time” in an uninterrupted course often constitute one occasion, while offenses separated by “substantial gaps in time or significant intervening events” do not. Thompson relied on this understanding to conclude that the presentence report’s description (offenses separated by months) made a jury rejection of “different occasions” unlikely.

United States v. Rogers, 961 F.3d 291 (4th Cir. 2020); United States v. Singletary, 984 F.3d 341 (4th Cir. 2021)

Rogers and Singletary govern oral pronouncement of non-mandatory supervised-release conditions. The opinion recited the key rule: all non-mandatory conditions must be pronounced (or incorporated); conditions first appearing only in the written judgment are “nullities” requiring resentencing.

United States v. Cisson, 33 F.4th 185 (4th Cir. 2022)

Cisson was decisive on incorporation. In the District of South Carolina, where there was no separate standing order listing “standard” conditions different from the Guidelines, saying “mandatory and standard conditions” is treated as incorporating the Guidelines “standard” conditions. Thompson’s identical argument was therefore foreclosed.

United States v. Smith, 117 F.4th 584 (4th Cir. 2024), cert. denied, 145 S. Ct. 1340 (2025); United States v. Lassiter, 96 F.4th 629 (4th Cir.), cert. denied, 145 S. Ct. 208 (2024)

These cases provided the de novo standard of review for claimed Rogers pronouncement errors and the analytic approach to inconsistencies between oral and written supervised-release conditions.

United States v. Osborne, 345 F.3d 281 (4th Cir. 2003)

Osborne supported the proposition that when an oral pronouncement is ambiguous, the written judgment may be consulted to discern the sentencing court’s intent. The panel used this to resolve the “reporting to probation” condition dispute.

Warfaa v. Ali, 811 F.3d 653 (4th Cir. 2016); United States v. Green, 67 F.4th 657 (4th Cir. 2023); McMellon v. United States, 387 F.3d 329 (4th Cir. 2004) (en banc)

These cases were cited for the internal law-of-the-circuit rule: one panel cannot overrule another; Brown therefore bound this panel.

United States v. McMiller, 954 F.3d 670 (4th Cir. 2020)

McMiller helped the court categorize Thompson’s “failure to explain each discretionary condition” argument as a claim of procedural sentencing error rather than a Rogers oral-pronouncement defect.

Legal Reasoning

1) The Erlinger violation was “plain,” but not prejudicial on this record

The court’s reasoning tracked the four-part plain-error doctrine:

Error: After Erlinger, the “different occasions” determination cannot be made by the judge absent a jury finding or admission; the indictment and plea colloquy also failed to tee up that jury right.
Plainness: Because Erlinger and the Fourth Circuit’s own Brown clearly established the rule, the error was obvious at the time of appeal.
Substantial rights (prejudice): This was the dispositive step. Applying Solis-Rodriguez and Brown, the panel asked whether Thompson showed a reasonable probability that, if properly advised, he would not have pled guilty. It found the answer “no” based on: (a) he was informed in the plea agreement and colloquy that ACCA could yield a 15-year minimum; (b) he did not move to withdraw the plea; (c) he expressed no surprise at sentencing; (d) he did not dispute PSR criminal history facts supporting “different occasions”; and (e) the PSR described predicate offenses separated by months, making a jury finding against “different occasions” implausible under Wooden.
Discretionary correction: The court did not need to reach this step because Thompson failed at substantial-rights prejudice.

The practical thrust is that even a constitutionally significant Erlinger defect will not yield relief on plain-error review unless the defendant can connect the defect to a credible decision to forgo the plea and contest the ACCA element before a jury.

2) The supervised-release claims did not establish Rogers error

The court separated three contentions:

Failure to list “standard” conditions: Under Cisson, the District of South Carolina’s reference to “mandatory and standard” conditions sufficed to incorporate the Guidelines “standard” conditions, which were then properly detailed in the written judgment.
Inconsistency on the “reporting” condition: Any oral ambiguity could be resolved by consulting the written judgment under Rogers and Osborne; the written condition matched the Guidelines condition that had been incorporated.
Failure to explain discretionary conditions: This was characterized as procedural sentencing error (cf. McMiller), not a Rogers pronouncement defect; therefore it did not support a Rogers remedy.

Impact

Although unpublished and “not binding precedent,” the decision reflects and reinforces several operational consequences of the Fourth Circuit’s post-Erlinger landscape:

Plain-error posture will be decisive in many Erlinger cases. Defendants who did not object below must make an evidence-grounded showing that accurate advisement would have changed their plea decision—not merely that the indictment/colloquy was defective.
PSR facts and non-objection matter. Where the PSR strongly supports temporal separation and the defendant did not dispute it, courts may view the likelihood of a different jury outcome—and thus the likelihood of rejecting the plea—as too remote to establish prejudice.
Rogers claims remain constrained by incorporation doctrine. In districts where “standard conditions” can only sensibly mean Guidelines conditions, Cisson significantly narrows the universe of viable pronouncement challenges.
Framing matters: pronouncement vs. explanation. By distinguishing Rogers errors from procedural “failure to explain” claims, the court signals that litigants must select the correct doctrinal vehicle (and corresponding standards of review/remedies).

Complex Concepts Simplified

ACCA “different occasions” element: The ACCA increases the penalty for certain firearm offenders who have three qualifying prior convictions that were committed on separate “occasions”—meaning separate criminal episodes/events. After Erlinger, a jury (not a judge) must decide that separation beyond a reasonable doubt unless the defendant admits it.
Plain-error review: When a defendant did not object in the trial court, an appellate court will correct an error only if it was (1) an error, (2) clear/obvious, and (3) prejudicial—i.e., it likely changed the outcome in a meaningful way. In the guilty-plea context, prejudice usually requires showing a reasonable probability the defendant would have rejected the plea.
Rogers pronouncement rule: Non-mandatory supervised-release conditions must be stated in open court so the defendant hears the sentence. Courts can satisfy this by “incorporating” a known list (often the Guidelines “standard” conditions), later spelled out in the written judgment. If a discretionary condition appears only in the written judgment, it is generally invalid.
Ambiguity between oral and written conditions: If what the judge said out loud is unclear (ambiguous) rather than contradictory, the written judgment can be used to clarify what the court intended to impose.

Conclusion

United States v. Vinson Thompson applies Erlinger v. United States through the lens of plain-error review: even when it is plain that the indictment and plea colloquy failed to treat the ACCA “different occasions” requirement as a jury-resolved element, a defendant who did not preserve the issue must still show a reasonable probability he would have refused the plea and proceeded to trial. The opinion also reaffirms that, in the District of South Carolina, a sentencing court’s reference to “mandatory and standard” supervised-release conditions typically incorporates the Guidelines conditions under United States v. Cisson, and that not every complaint about supervised release fits within United States v. Rogers.