United States v. Xavier Garris

• Court: Court of Appeals for the Fourth Circuit
• Decided: April 14, 2023
• Docket: 19-4542
• Status: Unpublished

Opinion

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UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4542

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

XAVIER DOMINIQUE GARRIS,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:17-cr-00395-D-1)

Submitted: September 29, 2022 Decided: April 14, 2023

Before GREGORY, Chief Judge, and KING and QUATTLEBAUM, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

ON BRIEF: Rudolph A. Ashton, III, DUNN PITTMAN SKINNER & CUSHMAN, PLLC, New Bern, North Carolina, for Appellant. G. Norman Acker, III, Acting United States Attorney, David A. Bragdon, Assistant United States Attorney, Lucy Partain Brown, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

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PER CURIAM:

Xavier Dominique Garris pled guilty, pursuant to a written plea agreement, to

possession of a firearm after having been convicted of a crime punishable by imprisonment

for a term exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2) (2018),

and possession with intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1),

(b)(1)(D). The district court sentenced Garris to 162 months’ imprisonment. On appeal,

Garris challenges his § 922(g)(1) conviction in light of Rehaif v. United States, 139 S. Ct.

2191 (2019). He also argues that the district court made various errors in calculating his

Sentencing Guidelines range. We affirm in part and dismiss in part.

Garris first contends that his § 922(g)(1) conviction must be vacated in light of the

Supreme Court’s ruling in Rehaif because the district court accepted his guilty plea to that

offense without informing him that the Government would be required to prove at trial that

he knew of his prohibited status when he possessed the firearm. Because Garris did not

present this contention to the district court, we review it for plain error only. See United

States v. Heyward, 42 F.4th 460, 465 (4th Cir. 2022).

“In felon-in-possession cases after Rehaif, the Government must prove not only that

the defendant knew he possessed a firearm, but also that he knew he was a felon when he

possessed the firearm.” Greer v. United States, 141 S. Ct. 2090, 2095 (2021) (emphasis

omitted). “[A] Rehaif error is not a basis for plain-error relief unless the defendant first

makes a sufficient argument or representation on appeal that he would have presented

evidence at trial that he did not in fact know he was a felon.” Id. at 2100. “When a

defendant advances such an argument or representation on appeal, the [appellate] court

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must determine whether the defendant has carried the burden of showing a reasonable

probability that the outcome of the district court proceeding would have been different.”

Id. (internal quotation marks omitted). Where, as here, a defendant has pled guilty to a

§ 922(g)(1) charge, the defendant has the burden of showing “that, but for the Rehaif error

during the plea colloquy, there is a reasonable probability that he would have gone to trial

rather than plead guilty.” Id. at 2098.

Garris argues that he might not have known that he had been convicted of a crime

punishable by more than a year in prison when he possessed the firearm because he was

relatively young when he pled guilty to his prior felony offenses, he received a suspended

sentence for some of his prior felonies, and he had never served more than a year in prison

for any felony conviction prior to his conduct in this case. Based upon our review of the

record, however, we conclude that Garris’ argument is insufficient under Greer.

Prior to his possession of the firearm underlying the § 922(g)(1) offense, Garris had

pled guilty to 11 felonies in North Carolina state court, and he received a suspended

sentence of 14 to 24 months’ imprisonment for some of those felony convictions. See

United States v. Bryant, 976 F.3d 165, 176 (2d Cir. 2020) (“Although [the defendant]

served no actual time due to the suspended sentence, there is no reasonable probability that

he was unaware that he could have served more than one year of imprisonment.”). Notably,

about one month before committing the § 922(g)(1) offense, Garris pled guilty to

possession of a firearm as a felon in North Carolina state court. See United States v.

Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019) (holding that defendant could not show that

Rehaif error affected his substantial rights where he had prior felon-in-possession

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conviction in state court). In light of those facts, Garris has not shown a “reasonable

probability that the outcome of the district court proceeding would have been different”

absent the Rehaif error. Greer, 141 S. Ct. at 2100 (internal quotation marks omitted). And

because Garris has not established that the Rehaif error affected his substantial rights, we

affirm his § 922(g)(1) conviction. *

Garris next claims that his trial counsel was ineffective for failing to advise him

about the Rehaif errors in the indictment and the guilty plea colloquy prior to his sentencing

hearing. This court does not consider ineffective assistance of counsel claims on direct

appeal “[u]nless an attorney’s ineffectiveness conclusively appears on the face of the

record.” United States v. Faulls, 821 F.3d 502, 507 (4th Cir. 2016). Because the face of

the present record does not reveal that Garris’ trial counsel was ineffective, we decline to

consider Garris’ claim. Garris’ claim should be presented, if at all, in a 28 U.S.C. § 2255

motion. See United States v. Jordan, 952 F.3d 160, 163 n.1 (4th Cir. 2020).

Garris also challenges his sentence, arguing that the district court made several

errors in calculating his Guidelines range. The Government asserts that Garris’ challenges

to his sentence are barred by the appeal waiver contained in the plea agreement and asks

us to dismiss this appeal in part.

* In a letter filed pursuant to Fed. R. App. P. 28(j), Garris argues that he is entitled to relief from his § 922(g)(1) conviction under our recent decision in Heyward, where we vacated the defendant’s felon-in-possession conviction on plain-error review because of a Rehaif error. 42 F.4th at 471. But Heyward is readily distinguishable from Garris’ case and does not support a vacatur of Garris’ § 922(g)(1) conviction.

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Where the Government seeks to enforce an appeal waiver and has not breached the

plea agreement, this court will enforce the waiver if it is valid and the issue being appealed

falls within the waiver’s scope. United States v. Dillard, 891 F.3d 151, 156 (4th Cir. 2018).

Our review of the record reveals that the appeal waiver contained in Garris’ plea agreement

is valid and enforceable, as Garris entered it knowingly and voluntarily. See United

States v. Tate, 845 F.3d 571, 574 n.1 (4th Cir. 2017). We are also satisfied that Garris’

challenges to his sentence are within the appeal waiver’s scope. Accordingly, we dismiss

the sentencing aspect of this appeal.

We therefore affirm in part and dismiss in part. We also deny Garris’ motions

seeking leave to file pro se supplemental briefs. See United States v. Cohen, 888 F.3d 667,

682 (4th Cir. 2018) (“[A]n appellant who is represented by counsel has no right to file pro

se briefs or raise additional substantive issues in an appeal.”). We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED IN PART, DISMISSED IN PART