United States of America v. Naquel Henderson

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued January 25, 2024 Decided July 26, 2024
No. 22-3003
UNITED STATES OF AMERICA,
APPELLEE
v.
NAQUEL HENDERSON,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cr-00131-1)
Isra J. Bhatty, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs were A. J.
Kramer, Federal Public Defender, and Celia Goetzl, Assistant
Federal Public Defender.
Timothy R. Cahill, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Chrisellen R.
Kolb and John P. Mannarino, Assistant U.S. Attorneys.
Before: WALKER and PAN, Circuit Judges, and ROGERS,
Senior Circuit Judge.

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Opinion for the Court by Senior Circuit Judge ROGERS.
ROGERS, Senior Circuit Judge: Naquel Henderson
pleaded guilty to 18 U.S.C. § 922(g)(1) pursuant to a global
plea agreement. After his plea but before he was sentenced, the
Supreme Court held in Rehaif v. United States, 588 U.S. 225
(2019), that to convict under § 922(g) the government had to
prove the defendant knew that he possessed a firearm and that
he belonged to a category of persons barred from such
possession. Id. at 237. Henderson collaterally attacks his
conviction, not having filed a direct appeal, and he now appeals
the denial of his motion to vacate his conviction pursuant to 28
U.S.C. § 2255 on the grounds he was denied the effective
assistance of counsel and his guilty plea was not knowing and
voluntary. Because the record fails to show that Henderson
suffered actual prejudice, the court affirms.
I.
On June 4, 2019, Henderson pleaded guilty to two counts
in a superseding information: unlawful possession of a firearm
and ammunition by a person previously convicted of a crime
punishable by imprisonment for a term exceeding one year, in
violation of 18 U.S.C. § 922(g)(1), and unlawful possession of
a firearm by a person previously convicted of a crime of
violence punishable by a term exceeding one year, in violation
of D.C. Code § 22-4503(a)(1) and (b)(1). The government, in
accord with the global plea agreement, dismissed at sentencing
Henderson’s indictment for another count of violation of 18
U.S.C. § 922(g)(1), and dismissed following his sentencing a
pending indictment charging him with four counts of violating
the District of Columbia Code: (1) unlawful possession of a
firearm by a person previously convicted of a crime of violence
punishable by a term exceeding one year, D.C. Code
§ 22-4503(a)(1) and (b)(1); (2) carrying a pistol without a

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license (outside home or place of business), D.C. Code
§ 22-4504(a)(2); (3) possession of unregistered firearm, D.C.
Code § 7-2502.01(a); and (4) unlawful possession of
ammunition, D.C. Code § 7-2506.01(a)(3). On August 15,
2019, the district court sentenced Henderson to concurrent
sentences of 36 months’ incarceration for violation of D.C.
Code § 22-4503(a)(1) and (b)(1), and 21 months’ incarceration
for violation of 18 U.S.C. § 922(g)(1), followed by 36 months
of supervised release.
The predicate felony for the felon-in-possession
conviction in 2019 was Henderson’s conviction of attempted
robbery in violation of D.C. Code § 22-2802. In the D.C.
Superior Court in 2015, he pled guilty to snatching a cellphone
from a D.C. METRO bus passenger, and was sentenced on
February 16, 2016, to six months’ incarceration followed by
one year of supervised release, which was suspended, and one
year of supervised probation under the Youth Rehabilitation
Act, D.C. Code § 24-903. While on probation for attempted
robbery, Henderson was arrested twice in 2016 and charged
with unlawful possession of a firearm by a felon, in violation
of D.C. Code § 22-4503(a)(1), among other charges. The
government dismissed a pending criminal case, and another
criminal case was resolved in 2019 as part of the global plea
agreement in the federal district court.
On January 11, 2019, the Supreme Court granted
certiorari “to consider whether, in prosecutions under § 922(g)
and § 924(a)(2), the [g]overnment must prove that a defendant
knows of his status as a person barred from possessing a
firearm.” Rehaif, 588 U.S. at 228. Oral arguments were held
on April 23, 2019. After Henderson pleaded guilty on June 4,
2019, and before his sentencing on August 15, 2019, the
Supreme Court held on June 21, 2019, that to convict under
§ 922(g) the government had to prove the defendant knew he

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possessed a firearm and that he belonged to a category of
persons barred from such possession. Id. at 237. Apparently,
neither the prosecutor nor Henderson’s trial counsel addressed
Rehaif or notified Henderson of the knowledge-of-status mens
rea element. Appellant’s Br. 6, 10. The district court
proceeded to sentence Henderson on August 15, 2019.
Henderson did not file a direct appeal from the judgment of
conviction.
On August 14, 2020, Henderson filed a motion to vacate
the 2019 judgment of conviction pursuant to 28 U.S.C. § 2255.
The government “elected not to invoke” Henderson’s waiver in
the global plea agreement of his rights of collateral attack, save
for an ineffective assistance of counsel claim. Opp’n to Motion
to Vacate (Feb. 16, 2021) at 13 n.5. Instead the government
argued that (1) his Rehaif claim was procedurally defaulted by
failing to file a direct appeal on the ground “his guilty plea was
involuntary due to his lack of notification about a purported
knowledge-of-status requirement for either 18 U.S.C.
§ 922(g)(1) or D.C. Code § 22-4503(a),” id. at 16, and (2) trial
counsel’s failure to discuss Rehaif was neither constitutionally
deficient nor prejudicial to Henderson, see id. at 37.
The district court denied Henderson’s § 2255 motion,
ruling that he had “failed to show cause that would excuse the
procedural default of his Rehaif claim, [or] actual prejudice
resulting from that default, or actual innocence of the charged
offenses,” Mem. Op. at 13 (Nov. 10, 2021), much less trial
counsel’s “deficient performance and resulting prejudice,” id.
at 16. The district court found no need to decide whether Rehaif
applied to Henderson’s D.C. Code § 22-4503(a) felon-in-
possession conviction. Id. at 13 n.4. Henderson had argued
there was no such need: both convictions had to be reversed
because his “entire prosecution . . . and his entire judgment of

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conviction” were “infected with fundamental constitutional
error,” Reply in Supp. of Mot. to Vacate J. at 21.
The district court declined to issue a certificate of
appealability once Henderson filed a notice of appeal. This
court granted his motion for the certificate of appealability.
Order (Dec. 2, 2022).
II.
On appeal, Henderson reprises his argument that his
conviction under 18 U.S.C. § 922(g) is unconstitutional.
Appellant’s Br. 15. If “defense counsel [had] informed and
properly advised” Henderson “about Rehaif, there is a
reasonable probability that he would not have pled guilty, or
would have moved to withdraw his plea after Rehaif was
issued, and proceeded to trial.” Id. at 22–23. This court
reviews de novo the denial of an ineffective assistance of
counsel claim. United States v. Abney, 812 F.3d 1079, 1087
(D.C. Cir. 2016).
“The Sixth Amendment [to the Constitution] guarantees a
defendant the effective assistance of counsel at ‘critical stages
of a criminal proceeding,’ including when he enters a guilty
plea.” Lee v. United States, 582 U.S. 357, 363 (2017) (quoting
Lafler v. Cooper, 566 U.S. 156, 165 (2012)). To prevail on an
ineffective assistance of counsel claim, “the 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). But “there is no reason
for a court . . . to approach the inquiry in the same order or even
to address both components of the inquiry if the defendant
makes an insufficient showing on one.” Id. at 697. Further, the
court has instructed that “[i]f it is easier to dispose of an

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ineffectiveness claim on the ground of lack of sufficient
prejudice . . . that course should be followed.” Id.
To demonstrate that trial counsel’s performance
prejudiced his defense, id. at 687, “the defendant must show
that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59
(1985); see Greer v. United States, 593 U.S. 503, 508–10
(2021). Here, had Henderson gone to trial and raised a Rehaif
defense, “[t]he relevant inquiry [would have been] . . . whether
[the defendant] knew that the maximum penalty for his crimes
was more than one year of imprisonment.” United States v.
Reynoso, 38 F.4th 1083, 1093 (D.C. Cir. 2022). The record
confirms that Henderson knew he had been convicted of a
predicate crime punishable by at least one year in prison when
he possessed the firearm that resulted in his conviction of 18
U.S.C. § 922(g)(1) in 2019. There is thus not a reasonable
probability that, had he known of the availability of a Rehaif
defense, Henderson would have gone to trial to raise such a
defense.
While “a person is a felon, he ordinarily knows he is a
felon,” Greer, 593 U.S. at 508, it is also true that as the Court
and Government recognized, id. at 509, there are exceptions.
Here, there is evidence to support finding that Henderson knew
of his status. In 2015, Henderson signed both a plea agreement
that stated the maximum sentence on the attempted robbery
charge was three years’ imprisonment, Plea Agreement ¶ 1
(Dec. 14, 2015), and a waiver of indictment that stated he was
being prosecuted for a felony offense, Waiver of Indictment
(Dec. 14, 2015). At the plea hearing, the Superior Court judge
informed Henderson that he could be sentenced up to three
years in prison. Super. Ct. Plea Hr’g Tr. at 5:14–16 (Dec. 14,
2015). Commenting that Henderson “look[ed] confused,” the

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judge asked if there was “something about the maximum
possible sentence that [he was] not aware of,” Henderson had
responded unequivocally, “[n]o.” Id. at 5:22–25. In explaining
Henderson’s waiver of his right to be indicted by a grand jury,
the judge stated that attempted robbery is a felony offense in
the District of Columbia, and Henderson confirmed that he
understood. See id. at 8:4–9:1. Additionally, while on
probation for attempted robbery, Henderson was charged twice
later in 2016 with being a felon-in-possession of a firearm, in
violation of D.C. Code § 22-4503(a)(1), inter alia, and nowhere
suggests that he was not duly arraigned.
The 2019 presentencing report in the U.S. District Court
stated that at the time of the predicate felony offense in 2015,
Henderson was 18 years old, suffered from learning
disabilities, and was scheduled to receive his high school
diploma in 2016. Although sentenced under the Youth
Rehabilitation Act, which is modeled after the Federal Youth
Corrections Act, (codified as amended at 18 U.S.C. § 5005 et
seq. (1976) (repealed 1984)), see United States v. McDonald,
991 F.2d 866, 872 (D.C. Cir. 1993), Henderson continued to
engage in activity resulting in being charged twice in 2016 as a
felon in unlawful possession of a firearm. The district court
observed in 2019 that Henderson had received his high school
diploma in 2016, and there was nothing to indicate that he was
unable to understand his offense in 2015 or his offense in 2019.
Mem. Op. at 11. On appeal now Henderson proffers no
evidence to belie his unequivocal negative response in 2016 to
the judge’s inquiry whether he was confused about the
maximum possible sentence he faced for attempted robbery.
Neither has he proffered evidence that would call into question
the district court’s conclusion in 2019 about his level of
comprehension of the charges against him, admittedly a
difficult task given the information in the Presentence Report.

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That Henderson avoided imprisonment as an adult prior to
possessing the firearms underlying his 2019 convictions of 18
U.S.C. § 922(g)(1) and D.C. Code § 22-4503(a)(1) and (b)(1)
does not overcome the record evidence that he was aware of his
prior status as a felon. The record prevents concluding that
“there is a reasonable probability that [Henderson] would have
gone to trial” to argue that he did not know of his felon status.
Greer, 593 U.S. at 510. Cases with significantly different
records do not advance his cause. Henderson may have had a
learning disability and pleaded guilty to violation of 18 U.S.C.
§ 922(g)(1) at a young age, but in United States v. Guzmán-
Merced, 984 F.3d 18 (1st Cir. 2020), the First Circuit was
confronted with the “sparseness of the evidence offered on
appeal by the government with respect to Guzman’s knowledge
of his felon status.” Id. at 21. In United States v. Wilson, 853
F. App’x 297 (10th Cir. 2021), the defendant’s only prior
convictions were “juvenile adjudications,” which were not
“criminal in nature” in Colorado. Id. at 305–06. Neither case,
nor United States v. Banks, 104 F.4th 496 (4th Cir. 2024), see
Rule 28(j) Ltr. (June 18, 2024), support concluding that
Henderson lacked knowledge he was a felon-in-possession
under 18 U.S.C. § 922(g)(1) when he pleaded guilty in 2019,
or that he would have opted to go to trial to advance such a
defense had he known it was available.
III.
Relatedly, Henderson contends that his guilty plea to 18
U.S.C. § 922(g)(1) in 2019 was neither knowing nor voluntary
because he was not informed of, nor pled guilty to, the
knowledge-of-status requirement for a § 922(g) conviction
established by Rehaif. Had he been properly advised, he
maintains, he would have gone to trial. Appellant’s Br. 15, 36.

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To obtain collateral relief from a conviction pursuant to 28
U.S.C. § 2255, a defendant “must clear a significantly higher
hurdle than would exist on direct appeal.” United States v.
Frady, 456 U.S. 152, 166 (1982). This burden can be met by
establishing actual innocence, Bousley v. United States, 523
U.S. 614, 623 (1998), or cause for the default and “actual
prejudice” resulting from the error, Frady, 456 U.S. at 167–68.
The court reviews de novo claims of procedural default. United
States v. Hicks, 911 F.3d 623, 626 (D.C. Cir. 2018).
Henderson has not shown that he was prejudiced. See Part
II, supra. For cause and prejudice, the court need not decide
whether Henderson demonstrated cause because he has failed
to show “actual prejudice of a degree sufficient to justify
collateral relief.” Frady, 456 U.S. at 168. Having failed to
make a sufficient showing of prejudice to support his
ineffective assistance of counsel claim, it follows that he has
not met his burden to show actual prejudice on collateral
review. See United States v. Hicks, 911 F.3d 623, 627 (D.C.
Cir. 2018).
Neither has Henderson shown actual innocence because
“no reasonable juror would have found [him] guilty.” Schlup
v. Delo, 513 U.S. 298, 329 (1995). This exacting standard
requires he “make a stronger showing than that needed to
establish prejudice.” Id. at 327. Contrary to Henderson’s
insistence that “at the time of his offense he did not know that
he belonged to the relevant category of persons barred from
possessing a firearm under § 922(g),” and it is therefore “‘more
likely than not any reasonable juror would have reasonable
doubt’ about his knowledge,” Appellant’s Br. 38 (internal
citation omitted), the record before the district court belies his
claim, see Part II, supra.

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Accordingly, the court affirms the denial of Henderson’s
motion to set aside and vacate the 2019 judgment of conviction
pursuant to 28 U.S.C. § 2255.

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