Firearm Made In Same State of Prosecution But That Then Travelled Through Several States Triggers §922(g)(1) Liability

US v. Ervin: Ervin possessed a rifle in North Carolina while he was a convicted felon. On advice of counsel, he pleaded guilty without a plea agreement and he was sentenced to 188 months under the Armed Career Criminal Act. Prior to his plea, Ervin’s counsel had been provided with an ATF report showing that the rifle had been made outside North Carolina, but Ervin later learned that it had actually been made in North Carolina.

Ervin filed a §2255 motion to vacate his conviction, arguing he received ineffective assistance of counsel because his attorney failed to adequately investigate the firearm. In response, the Government provided another ATF report that showed that while the rifle was made in North Carolina, it had been “shipped to a wholesaler in Louisiana before returning to North Carolina” via a retail outlet in Georgia The district court concluded that was sufficient to meet the interstate commerce element of the offense and, therefore, there was no prejudice. The district court denied Ervin’s §2255 motion.

On appeal, the Fourth Circuit affirmed. The court agreed with the district court that even if Ervin’s lawyer should have investigated the origin of the firearm there was no prejudice because evidence showed that it had been possessed “in or affecting commerce” as §922(g)(1) requires. Such a conclusion was required by Supreme Court precedent regarding a prior version of the statute. The court also reached the same conclusion regarding the definition of “interstate or foreign commerce,” concluding that it did not alter the analysis.