UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 22-4622

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

BRENDON TYRE GARNER, a/k/a Breeze,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of West Virginia, at 

Huntington. Robert C. Chambers, District Judge. (3:21-cr-00140-1)

Submitted: May 12, 2023 Decided: August 30, 2023

Before DIAZ, Chief Judge, RUSHING, Circuit Judge, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Glen Conway, CONWAY LAW OFFICE, Huntington, West Virginia, for 

Appellant. William S. Thompson, United States Attorney, Ryan A. Keefe, Assistant 

United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, 

West Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:

Brendon Tyre Garner appeals his conviction and the 100-month sentence imposed 

following a jury trial for possessing ammunition as a convicted felon, in violation of 

18 U.S.C. §§ 922(g)(1), 924(a)(2) (2018). On appeal, Garner argues that the district court 

erred by declining to instruct the jury on a justification defense and by enhancing his 

sentence based on acquitted or uncharged conduct. We affirm.

“A defendant is entitled to an instruction as to any recognized defense for which 

there exists evidence sufficient for a reasonable jury to find in his favor.” United States v. 

Ricks, 573 F.3d 198, 200 (4th Cir. 2009) (cleaned up). The defendant bears the burden of 

proving an affirmative defense by a preponderance of the evidence. Dixon v. United States, 

548 U.S. 1, 17 (2006). “Whether an affirmative defense is established is a factual issue 

that is usually a function of the jury, and the trial court rarely rules on a defense as a matter 

of law.” United States v. Sarno, 24 F.3d 618, 621 (4th Cir. 1994). However, where there 

is insufficient evidence to support any element of an affirmative defense, the district court 

may preclude a defendant from presenting evidence of the defense at trial “or, if some 

evidence is already presented at trial, the court can refuse to instruct the jury on the 

. . . defense.” Id. (citing United States v. Bailey, 444 U.S. 394, 414, 416 (1980)). “A 

district court’s refusal to instruct the jury on such a defense presents a question of law that 

we review de novo.” Ricks, 573 F.3d at 200.

A defendant is entitled to a jury instruction on the defense of justification if he puts

forth sufficient evidence that he 

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(1) was under unlawful and present threat of death or serious bodily injury;

(2) did not recklessly place himself in a situation where he would be forced 

to engage in criminal conduct; (3) had no reasonable legal alternative (to both 

the criminal act and the avoidance of the threatened harm); and (4) that there 

was a direct causal relationship between the criminal action and the 

avoidance of the threatened harm. 

United States v. Mooney, 497 F.3d 397, 406 (4th Cir. 2007) (cleaned up). We have

construed the justification defense “very narrowly” in cases concerning felons in 

possession of firearms, and “we reserve its application for the rarest of occasions.” Id.

(internal quotation marks omitted).

Upon review, we conclude that the district court did not err by declining to give a 

justification instruction. The evidence presented at trial shows that Garner had the 

opportunity to avoid meeting the victim in person but, regardless of his worries about the 

safety of the meeting, he nonetheless chose to meet him. He also decided to acquire a 

firearm and ammunition to take with him to the meeting. This is not the “extraordinarily 

uncommon” scenario in which the justification defense is applicable. United States v. 

Gilbert, 430 F.3d 215, 219 (4th Cir. 2005). Thus, the district court did not err in finding 

there was insufficient evidence to support giving the requested instruction.

As for Garner’s challenge to his sentence, “[s]entencing judges may find facts 

relevant to determining a [Sentencing] Guidelines range by a preponderance of the 

evidence, so long as that Guidelines sentence is treated as advisory and falls within the 

statutory maximum authorized by the jury’s verdict.” United States v. Medley, 34 F.4th 

326, 335 (4th Cir. 2022) (internal quotation marks omitted). The Supreme Court has held 

“that ‘a jury’s verdict of acquittal does not prevent the sentencing court from considering 

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conduct underlying the acquitted charge, so long as that conduct has been proved by a 

preponderance of the evidence.’” Id. at 335 (quoting United States v. Watts, 519 U.S. 148, 

157 (1997)). Thus, a district court may consider uncharged or acquitted conduct at 

sentencing without violating a defendant’s constitutional rights. Id. at 336. Garner 

acknowledges this precedent but nonetheless argues that the district court erred at 

sentencing by finding he committed an aggravated assault, even though he was not charged 

with that offense and the jury had acquitted him of other charges in relation to the same 

conduct. However, as we recently explained, “[w]hether or not we agree or disagree with 

the precedent from the Supreme Court and this Court, we are bound to follow it.” Id. 

Accordingly, we conclude that Garner’s argument is foreclosed by the binding precedent 

supporting the district court’s findings.

We therefore affirm the criminal judgment. 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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