UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4271
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOUGLAS B. PHILLIPS, a/k/a Douglas Phillips,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Elizabeth Kay Dillon, District Judge. (7:18-cr-00021-EKD-1)
Submitted: February 28, 2022 Decided: March 18, 2022
Before KING and HARRIS, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles Michael Henter, HENTERLAW, PLC, Charlottesville, Virginia, for Appellant. ON BRIEF: Melissa W. Friedman, MELISSA W. FRIEDMAN, Roanoke, Virginia, for Appellant. Thomas T. Cullen, United States Attorney, Laura Day Rottenborn, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Douglas B. Phillips appeals his jury conviction for knowingly failing to register as
a sex offender under the Sex Offender Registration and Notification Act (SORNA) after
having traveled in interstate commerce, in violation of 18 U.S.C. § 2250(a), and knowingly
possessing a firearm and ammunition affecting interstate commerce after having been
convicted of a crime punishable by imprisonment for more than one year, in violation of
18 U.S.C. § 922(g)(1). On appeal, he argues the district court erred in instructing the jury
on his § 922(g)(1) offense, and in admitting and excluding evidence. We affirm.
Phillips first contends that his § 922(g)(1) conviction must be reversed under Rehaif
v. United States, 139 S. Ct. 2191 (2019), since the jury was instructed that the Government
did not need to prove that Phillips knew he was a convicted felon. Because he did not raise
this issue in the district court, we review it for plain error. See Greer v. United States, 141
S. Ct. 2090, 2096 (2021); United States v. Caldwell, 7 F.4th 191, 213 (4th Cir. 2021)
(“plain-error review applies to unpreserved Rehaif errors”). “To succeed in obtaining
plain-error relief, a defendant must show (1) an error, (2) that is plain, (3) and that affects
substantial rights . . . .” Caldwell, 7 F.4th at 211. For a jury conviction, a defendant “has
the burden of showing that, if the District Court had correctly instructed the jury on the
mens rea element of a felon-in-possession offense, there is a ‘reasonable probability’ that
he would have been acquitted.” Greer, 141 S. Ct. at 2097 (citation omitted). “If those
three requirements are met, [we] may grant relief if [we] conclude[] that the error had a
serious effect on the fairness, integrity or public reputation of judicial proceedings.” Id. at
2096–97 (citations omitted).
2 “[I]n Rehaif, the Supreme Court concluded that to obtain a § 922(g) conviction, the
government ‘must show that the defendant knew he possessed a firearm and also that he
knew he had the relevant [felon] status when he possessed it.” Caldwell, 7 F.4th at 213
(quoting Rehaif, 139 S. Ct. at 2194). “As the Supreme Court has noted, ‘[i]n a felon-in-
possession case where the defendant was in fact a felon when he possessed firearms, the
defendant faces an uphill climb in trying to satisfy the substantial-rights prong of the plain-
error test based on’” a Rehaif error. Id. (quoting Greer, 141 S. Ct. at 2097). “The reason
is simple: If a person is a felon, he ordinarily knows he is a felon.” Id. (quoting Greer,
141 S. Ct. at 2097).
However, “the mere undisputed fact that [the defendant] was a felon at the time of
the [offense] is not dispositive.” Id. “[T]here may be cases in which a defendant who is a
felon can make an adequate showing on appeal that he would have presented evidence in
the district court that he did not in fact know he was a felon when he possessed firearms.”
Greer, 141 S. Ct. at 2097. “But if a defendant does not make such an argument or
representation on appeal, [we] will have no reason to believe that the defendant would have
presented such evidence to a jury, and thus no basis to conclude that there is a ‘reasonable
probability’ that the outcome would have been different absent the Rehaif error.” Id.; see
United States v. Hobbs, 24 F.4th 965, 973 (4th Cir. 2022) (concluding that defendant failed
to carry this burden where he testified at trial that he was not allowed to possess firearms,
and on appeal, he had “not proffered ‘a sufficient argument or representation’ that he would
have presented a factual basis at trial for contradicting this evidence that he knew he was a
felon” (quoting Greer, 141 S. Ct. at 2100)).
3 Here, it is undisputed that the district court erred in instructing the jury on the mens
rea requirement for a conviction under § 922(g)(1) in light of Rehaif and that this error was
plain, but we conclude that Phillips has failed to show a reasonable probability that he
would not have been convicted absent the Rehaif error. The evidence at trial established
that Phillips knew he was a convicted felon; and on appeal, he has not proffered any
argument or representation that he could have or “would have presented a factual basis at
trial for contradicting this evidence.” Hobbs, 24 F.4th at 973.
Phillips also challenges two evidentiary rulings, one admitting evidence under Fed.
R. Evid. 404(b) and one excluding evidence under Fed. R. Evid. 402, each with respect to
his SORNA offense. We review a district court’s evidentiary rulings for abuse of
discretion. United States v. Webb, 965 F.3d 262, 266 (4th Cir. 2020). We have reviewed
the record and find no abuse of discretion by the district court.
“Rule 404(b) provides that ‘[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character,’ but that such evidence may nonetheless be
admissible for other purposes, ‘such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.’” United States v. Bell,
901 F.3d 455, 464–65 (4th Cir. 2018) (quoting Fed. R. Evid. 404(b)). “It is thus a rule of
inclusion because it ‘recognizes the admissibility of prior crimes, wrongs, or acts, with
only the one stated exception.’” Id. at 465 (quoting United States v. Queen, 132 F.3d 991,
994 (4th Cir. 1997)).
4 We have applied a four-factor test in evaluating whether a district court abused its
discretion in admitting prior “bad act” evidence: (1) “The evidence must be relevant to an
Free access — add to your briefcase to read the full text and ask questions with AI
UNPUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 19-4271
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DOUGLAS B. PHILLIPS, a/k/a Douglas Phillips,
Defendant - Appellant.
Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Elizabeth Kay Dillon, District Judge. (7:18-cr-00021-EKD-1)
Submitted: February 28, 2022 Decided: March 18, 2022
Before KING and HARRIS, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
Charles Michael Henter, HENTERLAW, PLC, Charlottesville, Virginia, for Appellant. ON BRIEF: Melissa W. Friedman, MELISSA W. FRIEDMAN, Roanoke, Virginia, for Appellant. Thomas T. Cullen, United States Attorney, Laura Day Rottenborn, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. PER CURIAM:
Douglas B. Phillips appeals his jury conviction for knowingly failing to register as
a sex offender under the Sex Offender Registration and Notification Act (SORNA) after
having traveled in interstate commerce, in violation of 18 U.S.C. § 2250(a), and knowingly
possessing a firearm and ammunition affecting interstate commerce after having been
convicted of a crime punishable by imprisonment for more than one year, in violation of
18 U.S.C. § 922(g)(1). On appeal, he argues the district court erred in instructing the jury
on his § 922(g)(1) offense, and in admitting and excluding evidence. We affirm.
Phillips first contends that his § 922(g)(1) conviction must be reversed under Rehaif
v. United States, 139 S. Ct. 2191 (2019), since the jury was instructed that the Government
did not need to prove that Phillips knew he was a convicted felon. Because he did not raise
this issue in the district court, we review it for plain error. See Greer v. United States, 141
S. Ct. 2090, 2096 (2021); United States v. Caldwell, 7 F.4th 191, 213 (4th Cir. 2021)
(“plain-error review applies to unpreserved Rehaif errors”). “To succeed in obtaining
plain-error relief, a defendant must show (1) an error, (2) that is plain, (3) and that affects
substantial rights . . . .” Caldwell, 7 F.4th at 211. For a jury conviction, a defendant “has
the burden of showing that, if the District Court had correctly instructed the jury on the
mens rea element of a felon-in-possession offense, there is a ‘reasonable probability’ that
he would have been acquitted.” Greer, 141 S. Ct. at 2097 (citation omitted). “If those
three requirements are met, [we] may grant relief if [we] conclude[] that the error had a
serious effect on the fairness, integrity or public reputation of judicial proceedings.” Id. at
2096–97 (citations omitted).
2 “[I]n Rehaif, the Supreme Court concluded that to obtain a § 922(g) conviction, the
government ‘must show that the defendant knew he possessed a firearm and also that he
knew he had the relevant [felon] status when he possessed it.” Caldwell, 7 F.4th at 213
(quoting Rehaif, 139 S. Ct. at 2194). “As the Supreme Court has noted, ‘[i]n a felon-in-
possession case where the defendant was in fact a felon when he possessed firearms, the
defendant faces an uphill climb in trying to satisfy the substantial-rights prong of the plain-
error test based on’” a Rehaif error. Id. (quoting Greer, 141 S. Ct. at 2097). “The reason
is simple: If a person is a felon, he ordinarily knows he is a felon.” Id. (quoting Greer,
141 S. Ct. at 2097).
However, “the mere undisputed fact that [the defendant] was a felon at the time of
the [offense] is not dispositive.” Id. “[T]here may be cases in which a defendant who is a
felon can make an adequate showing on appeal that he would have presented evidence in
the district court that he did not in fact know he was a felon when he possessed firearms.”
Greer, 141 S. Ct. at 2097. “But if a defendant does not make such an argument or
representation on appeal, [we] will have no reason to believe that the defendant would have
presented such evidence to a jury, and thus no basis to conclude that there is a ‘reasonable
probability’ that the outcome would have been different absent the Rehaif error.” Id.; see
United States v. Hobbs, 24 F.4th 965, 973 (4th Cir. 2022) (concluding that defendant failed
to carry this burden where he testified at trial that he was not allowed to possess firearms,
and on appeal, he had “not proffered ‘a sufficient argument or representation’ that he would
have presented a factual basis at trial for contradicting this evidence that he knew he was a
felon” (quoting Greer, 141 S. Ct. at 2100)).
3 Here, it is undisputed that the district court erred in instructing the jury on the mens
rea requirement for a conviction under § 922(g)(1) in light of Rehaif and that this error was
plain, but we conclude that Phillips has failed to show a reasonable probability that he
would not have been convicted absent the Rehaif error. The evidence at trial established
that Phillips knew he was a convicted felon; and on appeal, he has not proffered any
argument or representation that he could have or “would have presented a factual basis at
trial for contradicting this evidence.” Hobbs, 24 F.4th at 973.
Phillips also challenges two evidentiary rulings, one admitting evidence under Fed.
R. Evid. 404(b) and one excluding evidence under Fed. R. Evid. 402, each with respect to
his SORNA offense. We review a district court’s evidentiary rulings for abuse of
discretion. United States v. Webb, 965 F.3d 262, 266 (4th Cir. 2020). We have reviewed
the record and find no abuse of discretion by the district court.
“Rule 404(b) provides that ‘[e]vidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character,’ but that such evidence may nonetheless be
admissible for other purposes, ‘such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.’” United States v. Bell,
901 F.3d 455, 464–65 (4th Cir. 2018) (quoting Fed. R. Evid. 404(b)). “It is thus a rule of
inclusion because it ‘recognizes the admissibility of prior crimes, wrongs, or acts, with
only the one stated exception.’” Id. at 465 (quoting United States v. Queen, 132 F.3d 991,
994 (4th Cir. 1997)).
4 We have applied a four-factor test in evaluating whether a district court abused its
discretion in admitting prior “bad act” evidence: (1) “The evidence must be relevant to an
issue, such as an element of an offense, and must not be offered to establish the general
character of the defendant”; (2) “The act must be necessary in the sense that it is probative
of an essential claim or an element of the offense”; (3) “The evidence must be reliable”;
and (4) “the evidence’s probative value must not be substantially outweighed by confusion
or unfair prejudice in the sense that it tends to subordinate reason to emotion in the
factfinding process.” United States v. Cowden, 882 F.3d 464, 472 (4th Cir. 2018) (citations
omitted). “And the unfair prejudice is not shown merely because the evidence is damaging
to a defendant’s case, since highly probative [evidence] invariably will be prejudicial to
the defense.” Bell, 901 F.3d at 465 (citation omitted). Moreover, any prejudicial effect
may be reduced by “a limiting instruction explaining the narrow purpose for which the
prior ‘bad act’ evidence may be considered.” Cowden, 882 F.3d at 472.
The district court overruled Phillips’s pretrial objection to the admission of his prior
New York failure-to-register convictions, ruling them admissible for the limited purpose
of showing his knowledge of his duty to register as a sex offender. The court also issued
limiting instructions to that effect. On appeal, Phillips argues that because he admitted at
trial “that he knew he was required to register and that he did not,” the Rule 404(b) evidence
was not “necessary”; and “the prejudicial nature of the evidence substantially outweighed
any small probative value of the convictions.” We disagree. An essential element of the
SORNA offense was that Phillips knowingly failed to register or update a registration as
required by SORNA. See United States v. Spivey, 956 F.3d 212, 215 (4th Cir. 2020).
5 Because the Rule 404(b) evidence was probative of this element, it was “necessary.” See
United States v. Rooks, 596 F.3d 204, 211–12 (4th Cir. 2010) (“That the evidence was not
critical to the prosecution’s case against [the defendant] does not render it unnecessary for
purposes of Rule 404(b)[.]”). Moreover, we agree with the Government that given
Phillips’s shifting positions before and during trial, it could not reasonably have predicted
his defense at trial or potential testimony. We therefore conclude that any possible unfair
prejudice, in light of the appropriate limiting instructions, did not substantially outweigh
the probative value of the evidence. See id. at 212; Cowden, 882 F.3d at 473.
Finally, Phillips argues the district court erred in granting the Government’s motion
in limine to preclude, as irrelevant under Fed. R. Evid. 402, Phillips’s argument that he was
innocent of the underlying sex offense. The district court agreed with the Government that
this case was not the appropriate proceeding to challenge the underlying conviction, and
held that the Government still had to show that Phillips “was convicted of that underlying
offense that required the registration.” J.A. 26. We find no abuse of discretion. “SORNA
defines a ‘sex offender’ as ‘an individual who was convicted of a sex offense,’” United
States v. Helton, 944 F.3d 198, 202 (4th Cir. 2019) (quoting 34 U.S.C. § 20911(1)), and
requires such persons to “register” and “keep the registration current” wherever they reside,
are employees, or are enrolled as students, 34 U.S.C. § 20913(a). Phillips’s claim that he
did not commit the underlying sex offense, and that this explained his motive for failing to
register, was not relevant to whether he was “convicted of a sex offense” or knowingly
failed to register under SORNA.
6 Accordingly, we affirm the district court’s judgment. We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional process.
AFFIRMED