UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4853

UNITED STATES OF AMERICA,

Plaintiff − Appellee,

v.

GREGORY JAMES GARRISON, JR.,

Defendant – Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. John A. Gibney, Jr., Senior District Judge. (3:19−cr−00065−JAG−1)

Submitted: September 24, 2021 Decided: January 5, 2022

Before DIAZ and RICHARDSON, Circuit Judges, and FLOYD, Senior Circuit Judge.

Dismissed by unpublished opinion. Judge Diaz wrote the opinion, in which Judge Richardson and Senior Judge Floyd joined.

James R. Theuer, JAMES R. THEUER, PLLC, Norfolk, Virginia; David B. Smith, Nicholas D. Smith, DAVID B. SMITH, PLLC, Alexandria, Virginia, for Appellant. G. Zachary Terwilliger, United States Attorney, Alexandria, Virginia, Stephen E. Anthony, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit. DIAZ, Circuit Judge:

Gregory Garrison, Jr. appeals his conviction and sentence for carjacking and

brandishing a firearm in relation to a crime of violence, in violation of

and § 924(c), respectively. The district court sentenced him to 264 months’ imprisonment,

including the 180-month statutory maximum on the carjacking charge and 84 months on

the brandishing charge.

On appeal, Garrison raises a bevy of ineffective-assistance-of-counsel claims,

stemming from his guilty plea and sentencing proceedings. But because the record doesn’t

conclusively establish counsel’s ineffectiveness, these claims are premature. Garrison

should raise these claims, if at all, in a

motion. As a result, we dismiss

the appeal without prejudice to Garrison’s right to pursue his claims on collateral review.

I.

“We construe the evidence in the light most favorable to the Government, the

prevailing party below.” United States v. Seidman,

(4th Cir. 1998)

A.

In January 2019, Garrison approached an elderly man leaving work. With a firearm

in hand, Garrison demanded the man’s car keys. The man refused and walked away, but

Garrison wrestled him to the ground. The man dropped his keys, which Garrison grabbed

and used to flee in the man’s car.

Law enforcement found the car abandoned a short distance from where Garrison

had stolen it. Garrison was seen exiting the car after it had broken down. Officers took

2 Garrison into custody. At the time of his arrest, Garrison possessed a 9mm, semiautomatic

pistol and what appeared to be crack cocaine. The victim later identified Garrison as the

person who stole his car.

B.

A grand jury indicted Garrison on three counts: carjacking, brandishing a firearm

during and in relation to a crime of violence, and possessing a firearm as a felon, in

violation of

, § 924(c), and § 922(g)(1), respectively. He pleaded guilty

to the carjacking and brandishing charges as part of a written plea agreement. In exchange,

the government dismissed the felon-in-possession charge and offered Garrison immunity

for any other crimes stemming from the conduct described in the indictment or statement

of facts. The plea agreement also contained a waiver of Garrison’s right to appeal his

conviction or sentence, preserving only the right to claim ineffective assistance of counsel.

At the plea hearing, the district court confirmed that Garrison was not, at that time,

being treated by a doctor or mental health professional. The court asked Garrison whether

he had ever been treated for mental illness, to which he responded, “yes.” This exchange

followed:

THE COURT: What is that?

THE DEFENDANT: For like trying suicide and stuff.

...

THE COURT: Okay. What kind of treatment did you get when you tried to commit suicide?

THE DEFENDANT: I was in . . . Richmond Community Hospital, and they kept me in there like a week and then released me.

3 THE COURT: Did they give you any medicine?

THE DEFENDANT: Yes. I can’t remember what type.

THE COURT: That was three years ago?

THE DEFENDANT: No, it was probably less than three years.

THE COURT: That was last November; is that right?

THE DEFENDANT: Probably little bit before then.

THE COURT: All right. What was your diagnosis if you can remember[?] If you knew.

THE DEFENDANT: Probably, I think just probably bipolar schizophrenic.

THE COURT: Schizophrenic. All right. Other than that, did you ever get any mental health treatment?

THE DEFENDANT: No, sir.

J.A. 27–29. The district court then turned to defense counsel and asked whether he doubted

Garrison’s competence. Counsel said he didn’t have any such concerns. Nor did he think

that Garrison had an intellectual disability or that he couldn’t understand the proceedings.

The court made no further inquiry into Garrison’s mental health or his self-reported

diagnosis of bipolar schizophrenia. At the end of the hearing, the court accepted Garrison’s

guilty plea.

In the presentence report, the probation officer recommended that Garrison be

sentenced as a career offender based on two state-level felony convictions for drug-

trafficking offenses. Applying the career-offender enhancement, the probation officer

calculated Garrison’s Guidelines range as 262 to 327 months’ imprisonment. Garrison

4 didn’t object to the report, but he moved for a downward departure and variance, arguing

that his designation as a career offender overstated the seriousness of his criminal history.

At sentencing, Garrison’s counsel reiterated his arguments for a departure or

variance, emphasizing that Garrison’s prior offenses were nonviolent. The district court

denied the motion for a departure, and after analyzing the

(a) sentencing

factors, also declined to vary downward. It sentenced Garrison to 264 months’

imprisonment, comprising 180 months on the carjacking charge and a consecutive 84

months on the brandishing charge.

This appeal followed.

II.

Garrison raises four ineffective-assistance-of-counsel claims, which fall outside his

plea agreement’s appellate waiver. Garrison contends his attorney was ineffective for (1)

failing to investigate his diagnosis of bipolar schizophrenia; (2) failing to argue, in support

of a sentence below the career-offender Guidelines range, that Garrison’s prior distribution

offenses involved personal-use quantities and thus were suspect under Virginia law, and

that the court should have departed downward on public-policy grounds; (3) failing to

object to allegedly impermissible double counting of the same act of brandishing a firearm;

and (4) advising Garrison to accept the plea agreement where he says there was no strategic

advantage in doing so.

We review ineffective-assistance-of-counsel claims de novo. United States v.

Faulls,

(4th Cir. 2016). But on direct appeal, we’ll only consider such

5 claims if “an attorney’s ineffectiveness conclusively appears on the face of the record.”

(emphasis added). Because Garrison can’t meet this heightened standard for each of the

claims above, we decline to reach them. Garrison should pursue these claims, if at all, on

collateral review.

A.

The Sixth Amendment guarantees effective assistance of counsel. Strickland v.

Washington,

(1984). The Strickland test for ineffective-assistance-of-

counsel claims is twofold. First, a defendant must show that counsel’s performance was

deficient, meaning it “fell below an objective standard of reasonableness” as measured

against “prevailing professional norms.”

at 687–88. “A court considering a claim of

ineffective assistance must apply a strong presumption that counsel’s representation was

within the wide range of reasonable professional assistance.” Harrington v. Richter,

(2011) (cleaned up). But Strickland does “impose[] upon counsel a duty to

make reasonable investigations or to make a reasonable decision that makes particular

investigations unnecessary.” Gray v. Branker,

(4th Cir. 2008) (cleaned

up).

Second, a defendant must prove they were prejudiced by showing “a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Strickland,

. “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.”

The test for prejudice

varies based on the type of proceeding from which the claim stems. For claims challenging

a conviction following a guilty plea, a “defendant must show that there is a reasonable

6 probability that, but for counsel’s errors, he would not have pleaded guilty and would have

insisted on going to trial.” Hill v. Lockhart,

(1985). For claims related to

sentencing, prejudice exists where the evidence is “sufficient to undermine confidence in

the outcome actually reached at sentencing.” Gray,

(cleaned up).

B.

1.

First, Garrison argues that his attorney was deficient for failing to investigate his

diagnosis of bipolar schizophrenia, which Garrison disclosed at the plea hearing. Garrison

claims he was prejudiced by this failure because an investigation would have revealed a

nonfrivolous competence argument and because his diagnosis might have supported a

downward departure.

If counsel in fact failed to investigate Garrison’s self-reported diagnosis of bipolar

schizophrenia, that may be deficient performance under prevailing professional norms. See

(finding deficient performance where, “without making reasoned strategic

decisions, counsel ignored [] red flags and failed to investigate for mental health evidence

or consider introducing evidence on that issue”). But the record doesn’t conclusively

reveal whether such an investigation took place, making this precisely the sort of case in

which “it would be unfair to adjudicate the issue without any statement from counsel on

the record.” United States v. DeFusco,

(4th Cir. 1991).

Without this information, Garrison can’t conclusively establish deficient

performance. Nor does the record confirm Garrison’s self-proclaimed diagnosis or suggest

7 what, if any, relationship it had to the offense conduct here. 1 So, on the existing record,

Garrison can’t conclusively establish prejudice.

2.

Second, Garrison says his counsel was ineffective for failing to make three

arguments in support of his motion for a downward departure or variance from the career-

offender Guidelines range. He claims counsel should have (a) argued that his drug-

distribution offenses were based on personal-use quantities; (b) emphasized that his

convictions were suspect under Virginia law; and (c) argued the district court should refuse

to apply the enhancement as a matter of policy.

Counsel could have argued the mitigating circumstances of Garrison’s state-level

convictions more thoroughly. But the district court expressly acknowledged at sentencing

that Garrison’s underlying convictions didn’t involve “major amounts of drugs” and

refused to vary downward on that basis. J.A. 66. We can’t foreclose the possibility that

Garrison’s more compelling arguments on appeal would have swayed the district court.

But the court’s express reluctance to depart or vary downward on a substantially similar

basis means Garrison can’t conclusively establish prejudice.

3.

Third, Garrison claims counsel was ineffective for failing to object to the district

court’s double counting of the same act of brandishing a firearm. “Double counting occurs

1 Although the presentence report discusses Garrison’s mental and emotional health, it doesn’t mention a diagnosis of bipolar schizophrenia.

8 when a provision of the Guidelines is applied to increase punishment on the basis of a

consideration that has been accounted for by application of another Guideline provision or

by application of a statute.” United States v. Reevy,

(4th Cir. 2004). It

is generally permissible unless the Guidelines expressly forbid it.

Garrison argues the double-counting prohibition in application note 4 to U.S.

Sentencing Guideline § 2K2.4 barred the district court from applying a two-level

carjacking enhancement alongside his § 924(c) conviction because the government relied

on his use of a firearm as the requisite force for carjacking. See U.S.S.G. § 2K2.4 cmt. n.4

(“If a sentence under this guideline is imposed in conjunction with a sentence for an

underlying offense, do not apply any specific offense characteristic for possession,

brandishing, use, or discharge of an explosive or firearm when determining the sentence

for the underlying offense.”).

Even assuming Garrison’s double-counting argument is correct, he concedes his

Guidelines range would have been the same without the carjacking enhancement. Rather,

his argument for prejudice turns on the success of his second claim alleging ineffective

assistance of counsel. In other words, Garrison claims that, had his attorney successfully

argued for a variance or departure below the career-offender Guidelines range, the two-

level enhancement would have mattered in his overall calculation. But Garrison can’t

conclusively establish ineffective assistance on that claim, and so this claim too is

premature.

9 4.

Finally, Garrison argues that his counsel was ineffective for advising him to sign a

plea agreement, including a waiver of appellate rights, with no strategic advantage over an

open plea. He claims the government’s only concession was to dismiss Garrison’s felon-

in-possession charge, and a conviction on that charge wouldn’t have altered his Guidelines

range. 2

That may be true, but the government’s dismissal of the felon-in-possession charge

still benefitted Garrison. For example, we’ve recognized that the presence of another

charge may affect whether a court sentences on the lower or higher end of the Guidelines

range. See United States v. Allmendinger,

(4th Cir. 2018). Additionally,

the plea agreement offered immunity from prosecution for any other offenses arising from

the same facts, and Garrison had been arrested with what appeared to be crack cocaine in

his possession.

It’s possible that had Garrison’s attorney advised him that accepting the plea

agreement was unlikely to affect his sentence, he would have chosen to preserve his

appellate rights by entering an open plea. But such a claim isn’t supported by the current

record. So, Garrison must pursue it, if at all, on collateral review.

2 Garrison also argues, for the first time in his reply brief, that the plea agreement lacked consideration because the § 922(g) charge in the indictment was defective under Rehaif v. United States,

(2019) (holding that, in a § 922(g) prosecution, “the Government must prove both that the defendant knew he possessed a firearm and that he knew he belonged to the relevant category of persons barred from possessing a firearm”). But Garrison waived this argument by failing to raise it in his opening brief. Grayson O Co. v. Agadir Int’l LLC,

(4th Cir. 2017).

10 III.

For the reasons given, we dismiss the appeal.

DISMISSED

11