Petition for Writ of Certiorari — Xavier Milton Earquhart, Petitioner v. United States

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21-4301

Xavier Milton Earquhart

#33867-057

FCI COLEMAN MEDIUM

FEDERAL CORRECTIONAL INSTITUTION

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FILED: September 16, 2022

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4301

(5:17-cr-00134-BR-1)

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

XAVIER MILTON EARQUHART, a/k/a Xavier Smart, a/k/a Xavier Akpan

Smart, a/k/a Xzavier Erquhart, a/k/a Xzayvier Emhart, a/k/a David Imrich, a/k/a

Kevin Liols, a/k/a Michael Powell, a/k/a Melvin Hailstones, a/k/a Rety Humos,

a/k/a Milton Monn

Defendant - Appellant

JUDGMENT

In accordance with the decision of this court, the judgment of the district

court is affirmed.

This judgment shall take effect upon issuance of this court's mandate in

accordance with Fed. R. App. P. 41.

/s/ PATRICIA S. CONNOR. CLERK

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4301

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

XAVIER MILTON EARQUHART, a/k/a Xavier Smart, a/k/a Xavier Akpan Smart,

a/k/a Xzavier Erquhart, a/k/a Xzayvier Emhart, a/k/a David Imrich, a/k/a Kevin

Liols, a/k/a Michael Powell, a/k/a Melvin Hailstones, a/k/a Rety Humos, a/k/a Milton

Monn,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at

Raleigh. W. Earl Britt, Senior District Judge. (5:17-cr-00134-BR-l)

Submitted: August 24, 2022

Decided: September 16, 2022

Before MOTZ, DIAZ, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Xavier Milton Earquhart, Appellant Pro Se. 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Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:

Xavier Milton Earquhart was convicted by a jury of bank fraud, in violation of IS

TTS C 8 1344. engaging in monetary transactions involving criminally derived property,

in violation of IS IT S C S 1957. and aggravated identity theft, in violation of JL8 liSXL

8 102RA- (aim. He was originally sentenced to 384 months’ imprisonment. Earquhart

appealed, asserting two claims.

First, Earquhart argued that his removal from his

sentencing hearing violated his rights to due process. Second, he claimed that the twolevel enhancement he received for deriving more than $1 million in gross receipts from

one or more financial institutions was improperly applied. See U.S. Sentencing Guidelines

Manual (“USSG”) § 2Bl.l(b)(16)(A) (2016).

We agreed with Earquhart’s second argument, vacated his sentence, and remanded

to the district court for resentencing without the enhancement pursuant to

§ 2Bl.l(b)(16)(A). See United States v. Earquhart, 795 F. Ann’x 885 (4th Cir. 2019) (No.

18-4471) (argued but unpublished). Because Earquhart would be resentenced, we did not

address the challenge to his absence from his original sentencing hearing.*

On remand, the revised presentence report removed the two-level enhancement

under TTSSfi S 2B1 1tb¥16VAl as well as a two-level enhancement for holding a

leadership role in the offense, USSG 8 3B1.1tck Earquhart’s revised total offense level

* In a separate appeal, Earquhart appealed the final order of forfeiture. We affirmed

in part and dismissed in part. See United States v. Earquhart, 776 F. App’x 802 (4th Cir.

2019) (Nos. 19-4106/4336).

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was 38. With a criminal history category of III, his advisory Guidelines range was reduced

to 292 to 365 months’ imprisonment. On June 14, 2021, the district court resentenced

Earquhart to 316 months’ imprisonment. Earquhart appeals and is proceeding pro se.

In his 125-page informal brief, Earquhart asserts numerous challenges to his conviction,

sentence, and the final order of forfeiture. We need not consider any of Earquhart’s

arguments. “The mandate rule governs what issues the lower court is permitted to consider

on remand—it is bound to carry out the mandate of the higher court, but may not reconsider

issues the mandate laid to rest.” United States v. Susi, 674 F.3d 278. 283 (4th Cir. 2012).

“[T]o the extent that the mandate of the appellate court instructs or permits reconsideration

of sentencing issues on remand, the district court may consider the issue de novo,

entertaining relevant evidence on that issue that it could have heard at the first hearing.”

Id. (internal quotation marks omitted). “But the mandate rule forecloses litigation of issues

foregone on appeal or otherwise waived, for example because they were not raised in the

district court.” United States v. Pileggi, 703 F.3d 675. 679 (4th Cir. 2013) (cleaned up).

Earquhart raised no challenges to his conviction or sentence in his first appeal except for

the two-level enhancement under IISSG S 2Bl.ltb¥161(A! and his absence from the

original sentencing hearing. And, with respect to forfeiture issues, we noted, in United

States v. Earquhart, 834 F. Apn’x 21 (4th Cir. 2021) (No. 20-4347), “Earquhart already

litigated these issues and we concluded that Earquhart lacked standing.”

To the extent that Earquhart’s claims could be construed as a broad challenge to the

substantive reasonableness of his amended sentence, he fails to overcome the presumption

of reasonableness accorded his within-Guidelines sentence. See United States v. Louthian,

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756 F.3d 295. 306 (4th Cir. 2014) (“[A]ny sentence that is within or below a properly

calculated Guidelines range is presumptively reasonable”).

Therefore, we affirm the judgment. We grant Earquhart’s motion to exceed the page

limitations on his informal brief, but we deny his motion to file a DVD. 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

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FILED: September 16, 2022

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 21-4301,

IJS v. Xavier Earquhart

5:17-cr-00134-BR-1

NOTICE OF JUDGMENT

Judgment was entered on this date in accordance with Fed. R. App. P. 36. Please

be advised of the following time periods:

PETITION FOR WRIT OF CERTIORARI: The time to file a petition for writ

of certiorari runs front the date of entry of the judgment sought to be reviewed and

not from the date of issuance of the mandate. If a petition for rehearing is timely

filed in the court of appeals, the time to file the petition for writ of certiorari for all

parties runs from the date of the denial of the petition for rehearing or, if the

petition for rehearing is granted, the subsequent entry of judgment. See Rule 13 of

the Rules of the Supreme Court of the United States; www.supremecourt.goy.

VOUCHERS FOR PAYMENT OF APPOINTED OR ASSIGNED

COUNSEL: Vouchers must be submitted within 60 days of entry of judgment or

denial of rehearing, whichever is later. If counsel files a petition for certiorari, the

60-day period runs from filing the certiorari petition. (Loc. R. 46(d)). If payment is

being made from CJA funds, counsel should submit the CJA 20 or CJA 30

Voucher through the CJA eVoucher system. In cases not covered by the Criminal

Justice Act, counsel should submit the Assigned Counsel Voucher to the clerk s

office for payment from the Attorney Admission Fund. An Assigned Counsel

Voucher will be sent to counsel shortly after entry of judgment. Forms and

instructions are also available on the court's web site, www.ca4.uscourts.gov, or

from the clerk's office.

BILL OF COSTS: A party to whom costs are allowable, who desires taxation of

costs, shall file a Bill of Costs within 14 calendar days of entry of judgment.

(FRAP 39, Loc. R. 39(b)).

PETITION FOR REHEARING AND PETITION FOR REHEARING EN

BANC: A petition for rehearing must be filed within 14 calendar days after entry

of judgment, except that in civil cases in which the United States or its officer or

agency is a party, the petition must be filed within 45 days after entry of judgment.

A petition for rehearing en banc must be filed within the same time limits and in

the same document as the petition for rehearing and must be clearly identified in

the title. The only grounds for an extension of time to file a petition for rehearing

are the death or serious illness of counsel or a family member (or of a party or

family member in pro se cases) or an extraordinary circumstance wholly beyond

the control of counsel or a party proceeding without counsel.

Each case number to which the petition applies must be listed on the petition and

included in the docket entry to identify the cases to which the petition applies. A

timely filed petition for rehearing or petition for rehearing en banc stays the

mandate and tolls the running of time for filing a petition for writ of certiorari. In

consolidated criminal appeals, the filing of a petition for rehearing does not stay

the mandate as to co-defendants not joining in the petition for rehearing. In

consolidated civil appeals arising from the same civil action, the court's mandate

will issue at the same time in all appeals.

A petition for rehearing must contain an introduction stating that, in counsel s

judgment, one or more of the following situations exist: (1) u material factual or

legal matter was overlooked; (2) a change in the law occurred after submission of

the case and was overlooked; (3) the opinion conflicts with a decision of the U.S.

Supreme Court, this court, or another court of appeals, and the conflict was not

addressed; or (4) the case involves one or more questions of exceptional

importance. A petition for rehearing, with or without a petition for rehearing en

banc, may not exceed 3900 words if prepared by computer and may not exceed 15

pages if handwritten or prepared on a typewriter. Copies are not required unless

requested by the court. (FRAP 35 & 40, Loc. R. 40(c)).

MANDATE: In original proceedings before this court, there is no mandate. Unless

the court shortens or extends the time, in all other cases, the mandate issues 7 days

after the expiration of the time for filing a petition for rehearing. A timely petition

for rehearing, petition for rehearing en banc, or motion to stay the mandate will

stay issuance of the mandate. If the petition or motion is denied, the mandate will

issue 7 days later. A motion to stay the mandate will ordinarily be denied, unless

the motion presents a substantial question or otherwise sets forth good or probable

cause for a stay. (FRAP 41, Loc. R. 41).