Garrett v. USA
Filing
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ORDER Denying 31 Motion to Vacate (2255) as to Jason Garrett (1). Signed by Judge Kent J. Dawson on 4/12/2023. (Copies have been distributed pursuant to the NEF - JQC)
Case 2:20-cv-00839-KJD Document 1 Filed 04/12/23 Page 1 of 6
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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UNITED STATES OF AMERICA,
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Plaintiff,
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Case No. 2:15-cr-31-KJD-NJK
ORDER
v.
JASON DAVID GARRETT,
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Defendant.
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Presently before the Court is Movant’s Motion to Vacate, Set Aside, or Correct Sentence
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under 28 U.S.C. § 2255 (#31). The Government responded in opposition (#33) to which Movant
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replied (#34). The Government also filed a Motion for Leave to Advise the Court of New
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Supreme Court Authority (#44). Movant responded (#45) to which the Government replied
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(#47).
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I.
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Movant Jason Garrett (“Garrett” or “Defendant”) was convicted, on his guilty plea, of
Factual and Procedural Background
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unlawful possession of a firearm by a previously convicted felon. He now requests that the Court
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vacate his sentence under 28 U.S.C. § 2255, asserting that his indictment and subsequent
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conviction are invalid.
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Garrett has a lengthy criminal history, dating back to 1996 at age 18. Over the next 20 years,
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Garrett was convicted of various offenses including battery, giving false information to a police
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officer, drug possession, DUIs, and possessing drugs with intent to distribute. (PSR). On his first
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felony drug conviction, in 2008, the state court sentenced him to 12-34 months in state prison
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and he spent more than a year in prison for that offense. Id. In 2010, Garrett was again sentenced
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to 12-34 months in prison for a second drug-trafficking felony. Id. He was paroled early after
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serving nearly one year in prison. Id.
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In May 2015, Garrett pleaded guilty according to a plea agreement with the government, to
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unlawful possession of a firearm by a previously convicted felon. (#20). In the plea agreement,
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Garrett admitted that he knowingly possessed the firearm, and that when he did, he had been
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previously convicted of a crime punishable by a term of imprisonment exceeding one year. (#21,
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at 4).
In September 2015, this Court sentenced Garrett to 80 months of imprisonment followed by
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three years of supervised release. (#26/27). Garrett did not appeal, and his conviction became
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final on September 25, 2015.
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On May 11, Garrett filed this motion to vacate, arguing that the indictment was defective
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because it “did not allege Mr. Garrett knew he had a prohibitive status at the time of possession,”
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and that “the defective indictment also stripped the Court of jurisdiction.” (#31, at 9). Garrett
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further alleges that the “defect” in his indictment violated his Fifth and Sixth Amendment rights.
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Id.
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II.
Legal Standard
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A. Section 2255
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28 U.S.C. § 2255 allows a federal prisoner to seek relief under four grounds: (1) “the
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sentence was imposed in violation of the Constitution or laws of the United States;” (2) “the
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court was without jurisdiction to impose such a sentence;” (3) “the sentence was in excess of the
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maximum authorized by law;” and (4) the sentence is “otherwise subject to collateral attack.” 28
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U.S.C. § 2255(a).
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Under 18 U.S.C. § 922(g), it is “unlawful for any person” who falls within one of nine
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enumerated categories to “possess in or affecting commerce any firearm or ammunition.”
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Section 924(a)(2) sets out the penalties applicable to “[w]however knowingly violates” § 922(g).
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Before June 2019, courts treated the knowledge requirement in § 924(a)(2) as applying only to
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the defendant’s possession of a firearm or ammunition, not to the fact that he fell within the
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relevant enumerated category. But on June 21, 2019, the Supreme Court issued its decision in
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Rehaif v. United States, 139 S.Ct. 2191 (2019), holding that a defendant’s knowledge “that he
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fell within the relevant status (that he was a felon, an alien unlawfully in this country, or the
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like)” is an element of a § 922(g) offense. Id. at 2194. This decision applies to all § 922(g)
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categories, including felons under § 922(g)(1). A felon is one who has been convicted of a crime
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punishable by more than one year of imprisonment.
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In Rehaif, the Supreme Court stated:
The question here concerns the scope of the word “knowingly.”
Does it mean that the Government must prove that a defendant knew
both that he engaged in the relevant conduct (that he possessed a
firearm) and also that he fell within the relevant status (that he was
a felon, an alien unlawfully in this country, or the like)? We hold
that the word “knowingly” applies both to the defendant’s conduct
and to the defendant’s status. To convict a defendant, the
Government therefore must show that the defendant knew he
possessed a firearm and also that he knew he had the relevant status
when he possessed it.
Id. Rehaif does not stand for the proposition that the government must prove the defendant
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knew his possession of the firearm was unlawful. Rehaif requires proof of the defendant’s
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felonious status. So, in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the government
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must prove that (1) the defendant knew he possessed a firearm and that (2) he knew he belonged
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to the relevant category of persons barred from possessing a firearm. See id. at 2200. To hold
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otherwise would mean that pure ignorance of the United States Code was a sufficient defense.
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The Supreme Court also recently held that “[i]n felon-in-possession cases, a Rehaif error is
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not a basis for plain-error relief unless the defendant first makes a sufficient argument or
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representation on appeal that he would have presented evidence at trial that he did not in fact
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know he was a felon.” Greer v. United States, 141 S.Ct. 2090, 2093 (2021). The Court held that
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for the felons-in-possession in that case, they must have shown that had the Rehaif errors been
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correctly advised, there was a “reasonable possibility” they would been acquitted or not have
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plead guilty. Id. The Court held that it was unlikely they would have carried that burden because
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both had been convicted of multiple felonies before and those “prior convictions are substantial
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evidence that they knew they were felons.” Id. The Court also rejected the argument that a
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Rehaif error is a structural one that requires automatic vacatur and held that “Rehaif errors fit
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comfortably within the ‘general rule’ that ‘a constitutional error does not automatically require
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reversal of a conviction.’” Id., quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991).
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III.
Analysis
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Garrett asserts that in light of Rehaif, his sentence is unconstitutional and must be remanded
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because (1) the indictment failed to allege a cognizable crime against the United States and
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therefore stripped the Court of jurisdiction; (2) the grand jury was not required to find probable
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cause as per the defective indictment which violated his Fifth Amendment rights; and (3) Garrett
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was not informed of the nature and cause of the accusation which violated his Sixth Amendment
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rights. (#31, at 13-14).
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The government argues that the (1) Court did have jurisdiction; (2) that any error there may
have been in the indictment to match the Rehaif ruling does not constitute plain error affecting
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Garrett’s substantial rights, and (3) that Rehaif does not stand for the proposition that the
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government has to prove that Garrett knew his felony convictions barred him from possessing
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firearms, and instead that Rehaif requires the government to prove he knew he had a felonious
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status at the time he possessed the gun.
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A. Jurisdiction
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Garrett argues that his indictment failed to describe the criminal conduct as per Rehaif, which
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constitutes a fatal defect and deprived the Court of jurisdiction. (#31, at 14). However, the Ninth
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Circuit has ruled on this identical argument, holding that “the indictment’s omission of the
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knowledge of status requirement did not deprive the district court of jurisdiction.” United States
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v. Espinoza, 816 Fed.Appx. 82, 84 (9th Cir. 2020). “The Supreme Court has explicitly rejected
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‘the view that indictment omissions deprive a court of jurisdiction…” and this holding applies
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where ‘an indictment fails to allege the specific intent required’ for a crime[.]” Id., quoting
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United States v. Cotton, 535 U.S. 625, 631 (2002), United States v. Velasco-Medina, 205 F.3d
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839, 845-46 (9th Cir. 2002). Therefore, the Court rejects Garrett’s argument that his Court lacked
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jurisdiction.
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B. Fifth Amendment Rights
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Garrett also argues that because of the insufficient indictment, his Fifth Amendment rights
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were violated, and his sentence should be vacated. (#31, at 16). “The Fifth Amendment’s grand
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jury requirement establishes the ‘substantial right to be tried only on charges presented in an
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indictment returned by a grand jury.’” United States v. Davis, 854 F.3d 601, 603 (9th Cir. 2017),
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quoting United States v. Antonakeas, 255 F.3d 714, 721 (9th Cir. 2001). Garrett asserts that the
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failure to include the Rehaif elements “impermissibly allow[ed] conviction on a charge never
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considered by the grand jury” and that he should not have been tried based off this faulty
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indictment. (#31, at 16, 18). He also argues that this was a structural error that does not require a
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showing of prejudice. Id. at 18.
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“In this circuit an indictment missing an essential element that is properly challenged before
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trial must be dismissed.” United States v. Qazi, 975 F.3d 989, 991 (9th Cir. 2020). Garrett has
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not presented any evidence that he properly challenged his indictment before trial.
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Further, the Supreme Court has held that a Rehaif error is not a structural one, so Garrett
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must show actual prejudice. In Greer, the Court explained that “[s]tructural errors are errors that
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affect the ‘entire conduct of the [proceeding] from beginning to end” and consist of things like
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“the denial of counsel of choice, denial of self-representation, denial of a public trial, and failure
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to convey to a jury that guilt must be proved beyond a reasonable doubt.” Greer, 141 S.Ct., at
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2100. There, the Court held that “the omission of a single element from jury instructions or the
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omission of a required warning from a Rule 11 plea colloquy– are not structural because they do
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not ‘necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for
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determining guilt or innocence.” Id., quoting Neder v. United States, 527 U.S. 1, 9 (1999). The
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Court finds that here, the omission of the Rehaif requirement in the indictment does not amount
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to a structural error because it did not render Garrett’s legal proceedings fundamentally unfair or
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an unreliable vehicle for him deciding to plead guilty. As noted in Greer, “[i]f a person is a felon,
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he ordinarily knows he is a felon.” Greer, 141 S.Ct., at 2097. “Felony status is simply not the
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kind of thing that one forgets.” Id., quoting United States v. Gary, 963 F.3d 420, 423 (4th Cir.
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2020). Garrett has not made an argument that he did not know he was a felon, nor has he made a
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sufficient argument that the indictment truly did infect the entire judicial proceeding such that he
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would have changed his guilty plea.
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C. Sixth Amendment Rights
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Garrett makes a similar argument regarding his Sixth Amendment rights– that the indictment
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did not give him reasonable certainty the nature of the accusation against him and that it
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inhibited his counsel’s ability to properly defend him. (#31, at 19-20). The Court does not find
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this convincing. Again, Garrett has not made any representations that he did not know of his
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felonious status at the time he possessed the gun, and he has not shown in any way that it
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affected his guilty plea.
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Garrett also asserts this was a structural error that entitles him to relief without showing
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prejudice. Id. at 21. However, as clarified in Greer and explained above, this was not a structural
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error. Garrett stipulated in his guilty plea that he had a handgun in his possession and that at the
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time of his possession he had been convicted of one or more criminal offenses punishable by
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imprisonment for over one year. (#21, at 4). Further, the Supreme Court reasoned that when a
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defendant considers pleading guilty for this charge, he will usually recognize that as a felon, a
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jury would find he knew he was a felon when he possessed the gun and would likely factor that
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in when making the decision. Greer, 141 S.Ct., at 2097. “In short, if a defendant was in fact a
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felon, it will be difficult for him to carry the burden on plain-error review of showing a
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‘reasonable probability’ that, but for the Rehaif error, the outcome of the district court
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proceedings would have been different.” Id. Garrett has not made a showing that his Sixth
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Amendment rights were violated because of the Rehaif error and as per Greer, his sentence will
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not be vacated.
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IV.
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Accordingly, IT IS HEREBY ORDERED that Movant’s Motion to Vacate, Set Aside, or
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Conclusion
Correct Sentence under 28 U.S.C. § 2255 (#31) is DENIED.
DATED this 12th day of April 2023.
____________________________
Kent J. Dawson
United States District Judge
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