By Dan Menken

Today, in the unpublished opinion of United States v. Hawkins, the Fourth Circuit affirmed the conviction of Collin Hawkins for being a felon in possession of a firearm.  Hawkins was sentenced to 63 months’ imprisonment and two years of supervised release.

Hawkins Participated in Carjacking

On November 22, 2006, the Defendant participated in the carjacking and robbery of a Baltimore taxi driver.  When the Defendant was arrested, the arresting officer witnessed the Defendant reach for his waistband and subsequently discovered a firearm.  The Defendant was initially convicted of (1) carjacking, (2) possessing and brandishing a firearm in furtherance of a crime of violence, and (3) being a felon in possession of a firearm.  He was sentenced to 360 months’ imprisonment.  On appeal, the Fourth Circuit reversed the Defendant’s convictions on the first two counts because they were improperly joined to the third count.  On remand, the government elected not to retry the first two counts, and the Defendant was eventually sentenced to 63 months’ imprisonment.

On appeal, Hawkins argued that the gun underpinning his conviction should have been suppressed because the search and seizure violated the Fourth Amendment.  Additionally, Hawkins argued that he had ineffective assistance of counsel.

Mandate Rule Bars Fourth Amendment Appeal 

The Fourth Circuit looked to whether the mandate rule precluded the Defendant from raising the Fourth Amendment claim.  The mandate rule generally bars litigation of issues that could have been, but were not, raised before remand.  Exceptions to the mandate rule include circumstances where (1) a litigant can demonstrate that the legal landscape has dramatically changed, (2) significant new evidence has come to light, or (3) a “blatant error in the prior decision will, if uncorrected, result in a serious injustice.”  United States v. Bell, 5 F.3d 64, 67 (4th Cir. 1993).

The Fourth Circuit concluded that the error here was not blatant.  The Fourth Circuit and other circuits have determined that grabbing, touching, or securing a waistband may be evidence of the possession of a firearm when considering the totality of the circumstances.  Because the Defendant waived his Fourth Amendment claim by not raising it on his first appeal and no exception applied, the Fourth Circuit concluded that the mandate rule barred his Fourth Amendment claim.

Ineffective Counsel Claim Fails

Additionally, the Defendant asserted that his appellate counsel was ineffective for failing to raise his Fourth Amendment claim previously.  To raise a cognizable ineffective assistance of counsel claim, a Defendant must demonstrate that (1) his appellate counsel was deficient and (2) he suffered prejudice as a direct result of this deficiency. Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (en banc).

The Court noted that the law presumes effective assistance.  In order to overcome that presumption, the Defendant must show that their appellate counsel ignored clearly strong arguments on appeal.  Based on the success of the Defendant’s counsel in reducing Defendant’s sentence on the previous appeal, the Fourth Circuit concluded that the Defendant’s ineffective counsel claim failed.


The Fourth Circuit affirmed the judgment of the district court and upheld Hawkins’ sentence.