Whether the different-occasions element of a criminal statute is subject to the Apprendi rule requiring jury finding or indictment, or falls under the Almendarez-Torres exception for prior convictions

asks whether the different-occasions element is (1) subject to the Apprendi rule, meaning it must be charged in the indictment and either admitted as part of a guilty plea or found by a jury beyond a reasonable doubt; or (2) encompassed by the A/mendarez-Torres exception, which exempts “the fact of a prior conviction” from the Apprendi tule. See Apprendi v. New Jersey, 530 U.S. 466 (2000); Almendarez-Torres v. United States, 523 U.S. 224 (1998). The question presented is critically important to the everyday operations of the federal criminal justice system. Indeed, in the proceeding below, the government agreed with the defendant that a constitutional violation had occurred and urged the en banc Fourth Circuit to review the issue. Although the en banc Court declined review, a majority of the Court’s judges signaled agreement with the parties’ constitutional argument while urging this Court to grant review. See United States v. Brown, 2023 WL 5089680, at *1 (4th Cir. Aug. 9, 2023) (Heytens, J., joined by six additional judges) (“I hope the Supreme Court will step in to illuminate the path soon.”); id. at *2 (Niemeyer, J., joined by Senior Judge Floyd) (“urging the Supreme Court to give the courts of appeals guidance in this important matter”); id. at *3 (Wynn, J., joined by three additional judges) (“agree[ing] that the Supreme Court should take up the key question in this case”’). In addition to preparing this petition, counsel is also responsible for meeting deadlines in numerous other cases, including United States v. Castillo, Fourth Circuit No. 20-6767 (reply brief filed September 18, 2023; oral argument scheduled October 24, 2023)); United States v. Castellon, Fourth Circuit No. 23-4055 (oral argument held September 20, 2023); United States v. Pearson, Fourth Circuit No. 23-4318 (opening brief due October 16, 2023); United States v. McManus, Fourth Circuit No. 23-4278 (opening brief due October 17, 2023); United States v. Thompson, Fourth Circuit No. 23-4374 (opening brief due October 23, 2023); United States v. Oliver, Fourth Circuit No. 23-4380 (opening brief due October 27, 2023); United States v. Royster, Fourth Circuit No. 23-4491 (opening brief due October 31, 2023); United States v. Beasley, Fourth Circuit No. 23-4545 (opening brief due November 6, 2023); and United States v. Robinson, Fourth Circuit No. 22-4588 (oral argument tentatively scheduled December, 2023). Counsel is also responsible for spearheading the Federal Public Defendet’s review of cases eligible for relief under the Sentencing Commission’s recent retroactive amendment to the Sentencing Guidelines (Amendment 821), which will take effect on November 1. This review involves more than 200 potentially eligible cases, with many defendants eligible for release on February 1, 2024. Counsel recently engaged Mr. Jeffrey Fisher to assist in preparing the petition for a writ of certiorari in this case, potentially with the assistance of the Stanford Supreme Court Litigation Clinic. The requested extension will allow Mr. Fisher, along with Clinic members, to fully familiarize themselves with the record, the decisions below, and the relevant case law. Given the other obligations of Mr. Fisher and the Clinic, completing these tasks by the current due date would not be possible. For these reasons, counsel respectfully requests that an order be entered extending the time to petition for certiorari up to and including January 8, 2024. Respectfully submitted, John G. Baker FEDERAL PUBLIC DEFENDER FOR THE WESTERN DISTRICT OF NORTH CAROLINA s/Joshua B. Carpenter Joshua B. Carpenter Appellate Chief One Page Avenue, Suite 210 Asheville, NC 28801 (828) 232-9992 Counsel for Petitioner October 11, 2023 Exhibit 1 United States v. Brown, 67 F.4th 200 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 21-4253 UNITED STATES OF AMERICA, Plaintiff Appellee, v. RICO LORODGE BROWN, Defendant Appellant. Appeal from the United States District Court for the West