UNITED STATES OF AMERICA v. JAMES SCOTT ERVIN, JR.
No. 22-6055
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
March 14, 2025
PUBLISHED. Argued: January 29, 2025.
Argued: January 29, 2025 Decided: March 14, 2025
Before WILKINSON, HARRIS, and RUSHING, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion, in which Judge Harris and Judge Rushing joined.
ARGUED: Brent Evan Newton, Gaithersburg, Maryland, for Appellant. Elizabeth Margaret Greenough, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee. ON BRIEF: Dena J. King, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.
WILKINSON, Circuit Judge:
James Ervin pleaded guilty to possessing a semi-automatic rifle as a convicted felon in violation of
I.
In May 2016, Ervin got into an argument with several men in North Carolina.
Ervin was charged in the Western District of North Carolina with possessing a firearm as a convicted felon in violation of
Ervin was sentenced in November 2017. The presentence report (PSR) determined that he was an armed career criminal under
Ervin appealed his sentence as procedurally unreasonable. This court affirmed, and the Supreme Court denied certiorari in March 2019. United States v. Ervin, 729 F. App‘x 268 (4th Cir. 2018); Ervin v. United States, 586 U.S. 1255 (2019) (mem.).
While incarcerated, Ervin learned that before his guilty plea, the government hаd provided his counsel a report about the rifle from the Bureau of Alcohol, Tobacco, Firearms and Explosives (the ATF report). That report stated that the firearm Ervin pleaded guilty to possessing in North Carolina had been manufactured outside of North Carolina and therefore met the interstate nexus element of
Appearing pro se Ervin filed a motion to vacate his conviction under
In response, the government provided additional information from ATF stating that after the firearm was manufactured in North Carolina, it was shipped to a wholesaler in Louisiana before returning to North Carolina. In rejecting Ervin‘s motion to vacate, the district court noted that because of this shipment from North Carоlina to Louisiana, Ervin‘s argument that the rifle never traveled in interstate commerce was wrong. The district court therefore held that Ervin‘s ineffective assistance claim failed because he could not establish prejudice. The court denied his
Ervin filed a motion for reconsideration in the distriсt court. In that proceeding, the government supplied additional evidence from ATF that the rifle Ervin possessed not only traveled from the manufacturer in North Carolina to a wholesaler in Baton Rouge, Louisiana, but then from Louisiana to a retail distribution center in Jeffersonville, Georgia, before returning to North Carolina and eventually being possessed by Ervin. The district court denied
Ervin, now advised by counsel, moved this court for a certificate of appealability, which we granted. On appeal, Ervin argues that the district court erred in denying his
commerce” in
II.
In reviewing the denial of a
III.
A.
Ervin first argues that his guilty plea is invalid because his trial counsel provided ineffective assistance in violation of his Sixth Amendment right to counsel. To establish ineffective assistance, Ervin must make two showings: deficient performance and prejudice. First, he must show that “his attorney‘s performance ‘fell below an objective standard of reasonableness.‘” United States v. Fugit, 703 F.3d 248, 259 (4th Cir. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). Second, he must “demonstrate ‘a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and would have insisted on going to trial.‘” Id. (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). To satisfy the prejudice prong, Ervin “must convince the court” that pleading not guilty and insisting on trial “would have been rational under the circumstances” and “objectively reasonable.” Id. at 260 (quoting Padilla v. Kentucky, 559 U.S. 356, 372 (2010)). Ervin must overcome a “high bar,” especially because “the strong
societal interest in finality has ‘special force with respect to convictions based on guilty pleas.‘” Lee v. United States, 582 U.S. 357, 368-69 (2017) (quoting United States v. Timmreck, 441 U.S. 780, 784 (1979)).
Ervin cоntends that his trial attorney‘s performance was deficient because he failed to investigate the history of the firearm before advising Ervin to plead guilty. Ervin asserts that his attorney was wrong to rely on the ATF report, which stated that the rifle was manufactured outside of North Carolina.
Next, Ervin argues that he was prejudiced by this failure to question the ATF report and investigate furthеr. Under Ervin‘s interpretation of the felon-in-possession statute, if a firearm is manufactured in one state, travels outside of that state, but then returns to the original state, it does not meet
B.
Section 922(g) makes it unlawful for certain individuals, including those previously convicted of a felony, to commit three types of acts with a firearm:
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
Section 922(g) is the result of a 1986 “consolidation” of three separate provisions. United States v. Langley, 62 F.3d 602, 604 (4th Cir. 1995) (en banc), abrogated on other grounds by Rehaif v. United States, 588 U.S. 225 (2019). In one of these predecessor statutes,
When Congress consolidated
that “in or affecting commerce” in
Nothing in the statutory text indicates that Congress rejected Scarborough. See Gillies, 851 F.2d at 495 (“We have no goоd reason to think that Congress, when picking up the language of [
We have done this repeatedly, holding that
Other circuits have read it the same way, holding that
494-95; United States v. Garcia, 94 F.3d 57, 65 (2d Cir. 1996); United States v. Singletary, 268 F.3d 196, 200 (3d Cir. 2001); Fitzhugh, 984 F.2d at 146; United States v. Lewis, 100 F.3d 49, 52 (7th Cir. 1996).
And as we have explained, it is undisputed that the Ruger rifle here traveled in interstate commerce—from North Carolina to Louisiana to Georgia to North Carolinа—before Ervin possessed it.
To escape this conclusion, Ervin points to a statutory definition of “interstate or foreign commerce” that he claims constrained the meaning of “in or affecting commerce” after the consolidation of
The term “interstate or foreign commerce” includes commerce between any place in a State and any place outside of that State, or within any possession of the United States (not including the Canal Zone) or the District of Columbia, but such term does not include commerce between places within the same State but through any place outside of that State.
We disagree with Ervin at both steps. At step one, the definition of the statutory term “intеrstate or foreign commerce” does not also define the independent term “commerce.” The statutory text itself explains why. The relevant term in
We therefore conclude that
Even if we were to agree with Ervin that
unlawful. The definition in
C.
Because the linchpin of Ervin‘s prejudice argument falters, we reject his claim of ineffective assistance of counsel. Ervin argues that “had [he] been advisеd that the Ruger firearm had never traveled in ‘commerce’ within the meaning of
But his interpretation of
for acceptance of responsibility, which reduced his guidelines range by over 6 years, to pursue a meritless actual innocence defense. J.A. 233; see U.S.S.G. ch. 5, pt. A.1
IV.
Ervin‘s due process claim is similarly resolved by the threshold statutory interpretation issue. Ervin argues that his plea was constitutionally invalid because he was provided with materially false, inculpatory
We apply a two-part test to claims of government misconduct in the guilty plea context. First, Ervin “must show that impermissible government conduct occurred.” United States v. Fisher, 711 F.3d 460, 465 (4th Cir. 2013). Second, he must establish prejudice,
namely “that the misconduct induced him to plead guilty.” Id. at 467. Our test under the second prong is similar to the prejudice test for ineffective assistance. Ervin “must show a reasonable probability that, but for the misconduct, he would not have pleaded guilty and would have insisted on going to trial.” Id. (quoting Ferrara v. United States, 456 F.3d 278, 294 (1st Cir. 2006)). We “take an objective approach to determining reasonable probability” and “look to ‘all of the relevant circumstances surrounding’ the plea.” Id. (quoting Brady v. United States, 397 U.S. 742, 749 (1970)). The “defendant‘s reliance on a misrepresentation by the Government must ‘strike[] at the integrity of the prosecution as a whole.‘” United States v. Paylor, 88 F.4th 553, 561 (4th Cir. 2023) (quoting Fisher, 711 F.3d at 466).
Like his ineffective assistancе claim, Ervin‘s misconduct claim fails the prejudice prong.3 He argues that a “reasonable defendant in [his] shoes would have pleaded not guilty if he had been told that the firearm never traveled in ‘commerce’ within the meaning of
purported defense would have been incompatible with the plain text of the statute, in tension with precedent, and ultimately meritless, Ervin has failed to convince us “that a reasonable defendant standing in his shoes likely would have altered his decision to plead guilty,” id. at 561 (quoting Fisher, 711 F.3d at 467), especially in light of the over 6-year guidelines reduction he received for pleading guilty.
V.
The rifle Ervin possessed was a well-traveled weapon. Congress was well within its constitutional powers to criminalize its possession. And Congress did not unsettle the broad meaning of “in or affecting commerce”
AFFIRMED
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