United States of America v. Emanuel Mann Billings

ON PETITION FOR REHEARING
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 22-4311
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EMANUEL MANN BILLINGS,
Defendant - Appellant.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, District Judge. (7:19-cr-00190-D-1)
Submitted: September 26, 2024 Decided: February 27, 2025
Before WYNN and HARRIS, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed in part, vacated in part, and remanded by unpublished per curiam opinion.
ON BRIEF: Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North
Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon,
Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
During a routine traffic stop on October 10, 2019, a police officer found a Taurus
nine millimeter handgun in the center console of a vehicle driven by Emmanuel Mann
Billings. A jury subsequently found Billings guilty of possession of a firearm by a
convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 924. The district court sentenced
Billings to 240 months’ imprisonment under the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). Billings timely appealed.
We previously affirmed Billings’s conviction but vacated his sentence in light of
Erlinger v. United States, 144 S. Ct. 1840, 1851 (2024) (holding that, in order to apply an
ACCA enhancement, the question of whether ACCA predicates were committed on
different occasions “must be resolved by a unanimous jury beyond a reasonable doubt (or
freely admitted in a guilty plea)”). United States v. Billings, No. 22-4311, 2024 WL
3633571 (4th Cir. Aug. 2, 2024). The Government has filed a petition for panel rehearing
challenging our conclusion that the district court plainly erred in sentencing Billings as an
armed career criminal. On further consideration, we conclude that Billings’s sentence must
be vacated pursuant to United States v. Rogers, 961 F.3d 291 (4th Cir. 2020), and its
progeny. Id. at 296-99 (holding that a district court must announce all nonmandatory
supervised release conditions at sentencing). We therefore grant panel rehearing, affirm
Billings’s conviction, vacate his sentence, and remand for further proceedings.
Counsel filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), raising
numerous challenges to Billings’s conviction and sentence, but concluding that there are
no meritorious grounds for appeal. Billings filed a pro se supplemental brief challenging

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the constitutionality of the traffic stop.1 Upon review of the record, we directed the parties
to file supplemental briefs addressing two issues: (1) whether Billings received
constitutionally deficient assistance of counsel, specifically based on Billings’s first
attorney’s failure to file a timely suppression motion; and (2) whether the district court
erred in admitting into evidence images showing Billings with a magazine that was not
attached to the distinctive gun he was alleged to have possessed in this case.
Billings first contends that the district court erred in denying trial counsel leave to
file an untimely motion to suppress evidence seized pursuant to the traffic stop. A motion
to suppress evidence must be made by the filing deadline established by the district court,
Fed. R. Crim. P. 12(b)(3)(C), (c)(1), but that court may consider an untimely motion if the
movant shows good cause to excuse the late filing, Fed. R. Crim. P. 12(c)(3).
The district court set an April 13, 2020, deadline for filing pretrial motions.
Billings’s original counsel did not file a motion to suppress or seek a continuance of the
pretrial motions deadline. A new attorney entered an appearance in lieu of the original
counsel on April 26, 2021, and sought leave to file a motion to suppress. New counsel
offered no reason for the first attorney’s failure to raise the suppression issue, nor did he
explain why, with due diligence, the motion to suppress could not have been filed sooner.
A change in counsel, by itself, does not qualify as good cause to excuse the untimely filing
of a motion to suppress. See United States v. Trancheff, 633 F.3d 696, 698 (8th Cir. 2011)
1 We have considered the issues in Billings’s pro se supplemental brief and have
determined that he is not entitled to relief on those claims.

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(“[T]he retention of new counsel [is] not by [itself] sufficient to establish good cause to
justify relief from a waiver of a defense, objection, or request under Rule 12.”); cf. United
States v. Garcia, 528 F.3d 481, 485 (7th Cir. 2008) (finding no good cause for untimely
filing of motion to compel identity of confidential informant where new counsel failed to
request new motions deadline and filed motion four months after entering appearance).
Under the facts of this case, we discern no error in the district court’s denial of leave to file
an untimely motion to suppress.
Turning to whether counsel rendered constitutionally deficient assistance by failing
to file a timely suppression motion, to succeed on an ineffective assistance of counsel
claim, a “defendant must show that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984).
“When a [defendant] claims ineffective assistance based on counsel’s failure to file
a suppression motion, we apply a refined version of the Strickland analysis.” United
States v. Pressley, 990 F.3d 383, 388 (4th Cir. 2021) (internal quotation marks omitted).
First, as to performance, “we ask whether the unfiled motion would have had some
substance.” Id. (internal quotation marks omitted). If so, “we ask whether reasonable
strategic reasons warranted not filing the motion.” Id. “[I]n order to satisfy the prejudice
prong, the movant must show (1) the suppression motion was meritorious and likely would
have been granted, and (2) a reasonable probability that granting the motion would have
affected the outcome of [his] trial.” United States v. Taylor, 54 F.4th 795, 803
(4th Cir. 2022) (cleaned up).

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Claims of ineffective assistance of counsel are not cognizable 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). Absent this showing, such
claims should be raised in a motion brought pursuant to 28 U.S.C. § 2255 to allow
sufficient development of the record. United States v. Kemp, 88 F.4th 539, 546
(4th Cir. 2023). Because evidence of ineffectiveness does not conclusively appear on the
face of the record, we decline to consider this claim on direct appeal. Rather, Billings may,
if he chooses, pursue the claim in a § 2255 motion.
Next, Billings questions whether the district court erred under Fed. R. Evid. 404(b)
by admitting into evidence images of Billings that had been posted on Facebook. “We
review a district court’s decision to admit evidence for abuse of discretion.” United States
v. Hart, 91 F.4th 732, 742 (4th Cir. 2024). “A court abuses its discretion when it acts
arbitrarily or irrationally, fails to consider judicially recognized factors constraining its
exercise of discretion, relies on erroneous factual or legal premises, or commits an error of
law.” Hicks v. Ferreyra, 64 F.4th 156, 171 (4th Cir. 2023) (internal quotation marks
omitted), cert. denied, 144 S. Ct. 555 (2024).
Rule 404(b) prohibits the admission into evidence of another “crime, wrong, or
act . . . to prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). “Such propensity
evidence is excluded because it might overpersuade a jury and cause them to prejudge one
with a bad general record.” United States v. Brizuela, 962 F.3d 784, 793 (4th Cir. 2020)
(internal quotation marks omitted). However, the Rule allows the admission of evidence of

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other acts or crimes to prove “motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). “Additionally,
[Fed. R. Evid.] 403 demands that the evidence’s probative value not be substantially
outweighed by its unfair prejudice to the defendant.” United States v. Sterling, 860 F.3d
233, 246-47 (4th Cir. 2017).
We apply a four-factor test to assess whether a district court abused its discretion by
admitting evidence of prior bad acts:
(1) [t]he evidence must be relevant to an issue, such as an element of an
offense, and must not be offered to establish the general character of the
defendant[;] . . . (2) [t]he [prior bad] act must be necessary in the sense that
it is probative of an essential claim or an element of the offense[;] (3) [t]he
evidence must be reliable[; a]nd (4) the evidence’s probative value must not
be substantially outweighed by confusion or unfair prejudice in the sense that
it tends to subordinate reason to emotion in the factfinding process.
United States v. Cowden, 882 F.3d 464, 472 (4th Cir. 2018) (quoting United States v.
Johnson, 617 F.3d 286, 296-97 (4th Cir. 2010)). “[U]nfair prejudice is not shown merely
because the evidence is damaging to a defendant’s case, since highly probative evidence
invariably will be prejudicial to the defense.” United States v. Bell, 901 F.3d 455, 465 (4th
Cir. 2018) (cleaned up). Moreover, any prejudicial effect may be reduced by “a limiting
instruction explaining the narrow purpose for which the prior bad act evidence may be
considered.” Cowden, 882 F.3d at 472 (internal quotation marks omitted).
Billings’s defense theory was that the handgun recovered from the SUV he was
driving belonged to his cousin and that he was not aware that it was in the vehicle.
Facebook images introduced at trial showed Billings with a black handgun in his waistband
bearing distinctive marks like the black handgun seized from his vehicle. Other Facebook

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images showed Billings in the driver’s seat of a vehicle with a passenger, who was not the
relevant cousin, and a black handgun with the same distinctive marks on the center console.
This evidence was relevant to an issue other than character; namely, to show that Billings’s
possession of the firearm found in his vehicle was knowing and intentional and was not
due to accident or mistake. “[T]he more closely the prior act is related to the charged
conduct—either in time, pattern, or state of mind—the more probative it is of the
defendant’s intent or knowledge in relation to the charged conduct.” Johnson, 617 F.3d at
297. These images were posted on Facebook shortly before Billings’s October 2019 arrest.
Moreover, “the fact that [Billings] knowingly possessed a firearm in a car on a previous
occasion makes it more likely that he knowingly did so this time as well, and not because
of accident or mistake.” United States v. Jernigan, 341 F.3d 1273, 1282 (11th Cir. 2003),
abrogated in part on other grounds by Rehaif v. United States, 588 U.S. 225 (2019); see
also United States v. Byers, 649 F.3d 197, 209 (4th Cir. 2011) (citing Jernigan, 341 F.3d
at 1281-82).
We further conclude that the probative value of the evidence outweighed any unfair
prejudice arising from the Facebook images. Moreover, the district court mitigated the risk
of unfair prejudice with its limiting instruction. See United States v. White, 405 F.3d 208,
213 (4th Cir. 2005). We conclude that the district court did not abuse its discretion in
allowing into evidence the images of Billings with a black handgun bearing the same
distinct markings as the black handgun recovered from Billings’s rental vehicle.
The district court also allowed into evidence images of Billings with a different gun
and a magazine that was not attached to the distinctive firearm Billings was alleged to have

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possessed in this case. Billings argues that these images had little probative value and did
not tend to show that he knowingly possessed the handgun that was seized during the traffic
stop.
Evidentiary rulings are reviewed for harmless error and will not be reversed so long
as “we can say with fair assurance, after pondering all that happened without stripping the
erroneous action from the whole, that the judgment was not substantially swayed by the
error.” United States v. Burfoot, 899 F.3d 326, 340 (4th Cir. 2018) (internal quotation
marks omitted); see also Kotteakos v. United States, 328 U.S. 750, 765 (1946). As we just
discussed, the evidence in this case included several pictures and a video of Billings with
a black handgun with the same distinctive markings as the handgun seized from the SUV.
In some of the images, Billings had the gun tucked into his pants; in others, it was resting
on the center console of a vehicle between Billings, in the driver’s seat, and a passenger
who was not the individual the defense claimed accidentally left the gun in the SUV
without Billings’s knowledge. Additionally, the arresting officer testified that when he
asked Billings if he had any contraband in the vehicle, Billings admitted he had a gun and
pointed to the center console where the officer subsequently discovered the handgun. Even
assuming the district court erred by admitting the images with a magazine not attached to
the distinctive handgun recovered from the SUV, in light of the other compelling evidence
of Billings’s guilt, we conclude that the judgment was not swayed by these images and,
thus, that any error was harmless.
Billings also questions whether the district court erred in denying his initial and
renewed motions for judgment of acquittal. “[O]n the defendant’s motion[, the district

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court] must enter a judgment of acquittal of any offense for which the evidence is
insufficient to sustain a conviction.” Fed. R. Crim. P. 29(a). “We review de novo a district
court’s denial of a Rule 29 motion.” United States v. Moody, 2 F.4th 180, 189
(4th Cir. 2021) (internal quotation marks omitted). A conviction must be affirmed “when
substantial evidence viewed in the light most favorable to the prosecution supports the
verdict.” Id. (internal quotation marks omitted). In conducting our review, “we make all
reasonable inferences in favor of the [G]overnment and do not weigh evidence or
credibility.” Id. (internal quotation marks omitted). Substantial evidence “is evidence that
a reasonable finder of fact could accept as adequate and sufficient to support a conclusion
of a defendant’s guilt beyond a reasonable doubt.” United States v. Savage, 885 F.3d 212,
219 (4th Cir. 2018) (internal quotation marks omitted). Accordingly, “[a] defendant who
brings a sufficiency challenge bears a heavy burden, as appellate reversal on grounds of
insufficient evidence is confined to cases where the prosecution’s failure is clear.” Id.
(internal quotation marks omitted).
To establish that Billings violated 18 U.S.C. § 922(g)(1), the Government had to
show that Billings (1) “previously had been convicted of a crime punishable by a term of
imprisonment exceeding one year; (2) . . . knowingly possessed . . . the firearm; and (3) the
possession was in or affecting commerce, because the firearm had travelled in interstate or
foreign commerce at some point during its existence.” United States v. Moye, 454 F.3d
390, 395 (4th Cir. 2006) (en banc) (citation omitted). Additionally, the Government had to
“prove both that [Billings] knew he possessed a firearm and that he knew he belonged to
the relevant category of persons barred from possessing a firearm.” Rehaif, 588 U.S. at 237.

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Here, because the parties stipulated to the other elements, the only element in question at
trial was whether Billings knowingly possessed the firearm.
The officer who conducted the traffic stop testified that he asked Billings if there
was anything illegal in the car, such as drugs or guns, and Billings told him there was a gun
and pointed to the center console. The officer found a Taurus nine millimeter handgun in
the center console. The Government also presented images of Billings that had been posted
on Facebook prior to Billings’s October 2019 arrest, showing Billings with a handgun with
the same distinctive indentation as the gun seized from Billings’s vehicle.
Billings countered the Government’s evidence with his own testimony that he did
not tell the officer that there was a gun in the car. He further testified that the gun belonged
to his cousin who, without Billings’s knowledge, left it in the center console of Billings’s
vehicle. That cousin’s testimony corroborated Billings’s claims. However, “[w]e do not
reweigh the evidence or the credibility of witnesses, but assume that the jury resolved all
contradictions in the testimony in favor of the Government.” United States v. Ziegler,
1 F.4th 219, 232 (4th Cir. 2021) (internal quotation marks omitted); see also United States
v. Robinson, 55 F.4th 390, 404 (4th Cir. 2022).
Viewed in the light most favorable to the Government, the evidence was sufficient
to establish that Billings knowingly possessed the handgun. Thus, the district court did not
err in denying the Rule 29 motion for judgment of acquittal.
Billings next argues that the district court abused its discretion in giving a jury
instruction on flight as evidence of guilt. Because Billings did not object to the jury
instruction at trial, our review is for plain error. United States v. Ali, 991 F.3d 561, 572 (4th

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Cir. 2021). On plain error review, Billings must establish “(1) that the court erred, (2) that
the error is clear and obvious, . . . (3) that the error affected his substantial rights,” and
(4) that the error “seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted).
“[W]hile evidence of [a defendant’s] flight and failure to appear on his initial trial
date must be used cautiously, our precedent allows for the jury to consider that
conduct . . . as evidence of his consciousness of guilt to the underlying” charge. United
States v. Seigler, 990 F.3d 331, 339 (4th Cir. 2021) (internal quotation marks omitted).
“[T]he jury’s consideration of evidence of flight requires that it be able, from the evidence,
to link such flight to consciousness of guilt of the crime for which the defendant is
charged.” United States v. Obi, 239 F.3d 662, 665 (4th Cir. 2001). “To establish this causal
chain, there must be evidence that the defendant fled,” and the evidence must “support[]
inferences that (1) the defendant’s flight was the product of consciousness of guilt, and
(2) his consciousness of guilt was in relation to the crime with which he was . . . charged
and on which the evidence is offered.” Id.
We have reviewed the transcript of Billings’s trial and conclude that the district
court’s instruction fairly and accurately informed the jurors of the controlling legal
principles without misleading or confusing them on this issue. The district court did not
err, plainly or otherwise, in giving the flight instruction.
Turning to Billings’s sentence, when announcing the conditions of supervised
release at the sentencing hearing, the district court imposed a special condition requiring

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Billings to “support [his] child.” (J.A. 428; see J.A. 427).2 However, the written judgment
requires Billings to “support his dependent(s).” (J.A. 436).
District courts must announce all nonmandatory conditions of supervised release at
the sentencing hearing. Rogers, 961 F.3d at 296-99. This “requirement . . . gives
defendants a chance to object to conditions that are not tailored to their individual
circumstances and ensures that they will be imposed only after consideration of the factors
set out in [18 U.S.C.] § 3583(d).” Id. at 300. “Discretionary conditions that appear for the
first time in a subsequent written judgment . . . are nullities; the defendant has not been
sentenced to those conditions, and a remand for resentencing is required.” United States v.
Singletary, 984 F.3d 341, 344 (4th Cir. 2021). “We review the consistency of [Billings’s]
oral sentence and the written judgment de novo.” United States v. Lassiter, 96 F.4th 629,
639 (4th Cir. 2024) (cleaned up), petition for cert. filed, No. 23-7568 (U.S. May 28, 2024).
For “Rogers-Singletary errors,” there is “only one option—vacate and remand for a
full resentencing.” United States v. Mathis, 103 F.4th 193, 199-200 (4th Cir. 2024); see
Lassiter, 96 F.4th at 640 (“That we have previously emphasized the primacy of the oral
over the written judgment doesn’t matter; Rogers observed this fact, too, yet it still
mandated a full resentencing.”). Here, there is a material discrepancy because the oral
pronouncement that Billings must support his child is narrower than the condition in the
written judgment mandating that Billings support his “dependent[s].” “[U]nder our Rogers-
2 Citations to the “J.A.” refer to the Joint Appendix filed by the parties in this appeal.

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Singletary jurisprudence, one rotten apple spoils the whole barrel.” Mathis, 103 F.4th at
198. Accordingly, we vacate Billings’s sentence and remand for resentencing.
Because Billings’s sentence must be vacated, we need not address Billings’s
challenge to the reasonableness of his sentence. Furthermore, we express no opinion on the
impact, if any, of Erlinger on this case, which the district court should address on remand.
In accordance with Anders, we have reviewed the entire record in this case and have
found no other meritorious grounds for appeal. We therefore affirm Billings’s conviction,
vacate his sentence, and remand for resentencing consistent with this opinion.
This court requires that counsel inform Billings, in writing, of the right to petition
the Supreme Court of the United States for further review. If Billings requests that a petition
be filed, but counsel believes that such a petition would be frivolous, then counsel may
move in this court for leave to withdraw from representation. Counsel’s motion must state
that a copy thereof was served on Billings. 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,
VACATED IN PART,
AND REMANDED

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