                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2481
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                              Rasheik Amond Harris

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

                    Appeal from United States District Court
              for the Eastern District of Missouri - Cape Girardeau
                                  ____________

                         Submitted: December 13, 2019
                             Filed: July 7, 2020
                                ____________

Before ERICKSON, MELLOY, and KOBES, Circuit Judges.
                          ____________

KOBES, Circuit Judge.

       Rasheik Amond Harris was convicted of possession with intent to distribute
methamphetamine, 21 U.S.C. §§ 841(a)(1), (b)(1)(B), & 851, and possessing a
firearm as a felon, 18 U.S.C. §§ 922(g)(1) & 924(a)(2). He appeals, claiming the
district court1 erred by denying him a pretrial hearing on evidentiary issues, admitting
hearsay at trial, and failing to instruct the jury properly for his felon in possession
charge. He also challenges his sentence. We affirm.

                                           I.

      On March 9, 2017, a police officer saw Harris driving in Sikeston, Missouri.
The officer recognized the car and remembered citing Harris two months earlier for
driving with a suspended license. He followed the car until Harris pulled into a
driveway, and then approached on foot. The officer asked Harris whether he had a
valid license and Harris admitted he did not. Several other officers, including
Detective Mario Whitney, arrived on the scene and arrested Harris.

       When Harris exited the car, the officers spotted a handgun in the side pocket
of the driver’s door and seized it. The police learned that the vehicle was registered
to one of the passengers, Harris’s girlfriend, Brenna Jo Smith. Smith consented to a
search of the car and officers discovered more than 90 grams of methamphetamine,
a small quantity of heroin and fentanyl, digital scales, and cash. At the scene, Smith
denied knowing anything about the gun. At the station she changed her story and
claimed it was hers.

       Harris was charged with possession with intent to distribute and possessing a
firearm as a felon. The district court appointed Assistant Federal Public Defender
Michael Skrien as his lawyer. Skrien represented Harris at a hearing on his motion
to suppress evidence and argued that officers violated Harris’s Fourth Amendment
rights when they stopped and searched the car. At the end of the hearing, Harris
spoke up and claimed that the evidence the Government was using in its case against
him was not the same evidence found in the car when he was arrested.

      1
       The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri.

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       After the hearing, Harris filed a pair of pro se motions raising this argument as
well as new arguments (e.g., that he had a Sixth Amendment right to cross examine
an officer who had not participated in the suppression hearing). He also claimed that
his relationship with Skrien had broken down over a disagreement about trial
strategy.

       The magistrate judge held a hearing to assess the state of Harris and Skrien’s
relationship and found a complete breakdown requiring the appointment of new
counsel. Skrien withdrew and the court appointed Preston Humphrey, Jr. to represent
Harris. Humphrey reviewed the motions Skrien filed and adopted the motion to
suppress that was the subject of the earlier hearing. He also adopted Harris’s pro se
motions. The magistrate ordered that the motions would be resolved without an
additional hearing and ultimately denied all pending motions.

       The jury found Harris guilty on both counts. At sentencing, the district court
took notice of Harris’s extensive criminal history, which included several prior felony
convictions and a state court conviction for unlawful possession of a firearm by a
felon. Based on this criminal history, the district court calculated Harris’s Guidelines
range at 120-150 months. The mandatory minimum sentence was 120 months.
Noting that “Mr. Harris is somebody from whom society needs protection,” the
district court explained that it was inclined to give a sentence above 150 months but
chose to “abide by the guidelines.” The court sentenced Harris to 150 months in
prison on the drug conviction and 120 months in prison on the felon in possession
conviction, to run concurrently, followed by eight years of supervised release.

                                          II.

      Harris argues that the district court erred when it did not hold a new hearing to
reconsider his pretrial motions after new counsel was appointed. In his view, the
decision to consider the motion to suppress and his other pro se motions without a
new hearing violated his right to counsel at a “critical stage” of his prosecution.

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      “The Sixth Amendment protects a defendant’s right to counsel at all critical
stages in the criminal justice process.” Fiorito v. United States, 821 F.3d 999, 1003
(8th Cir. 2016) (citation omitted). Ordinarily we review such a claim de novo, but
Harris concedes that he did not raise this issue below and our review is for plain error.
United States v. Picardi, 739 F.3d 1118, 1122 (8th Cir. 2014).

       Harris had qualified counsel for his pretrial motions. The magistrate judge did
not find that the relationship between Harris and Skrien had broken down until almost
three months after the hearing on his motion to suppress. And after he replaced
Skrien, Harris’s new counsel adopted his existing motion to suppress and did not
request a new hearing. Harris’s claim that he was uncounseled for his motion to
suppress must necessarily include the claim that his second attorney’s failure to
request a new hearing was deficient. We do not ordinarily consider such claims on
direct review, preferring to develop the record in post-conviction proceedings under
28 U.S.C. § 2255. United States v. Long, 721 F.3d 920, 926 (8th Cir. 2013). This
ineffective assistance of counsel claim requires Harris to develop facts outside of the
record before us and so we decline to review it. Id. at 926–27.2

                                          III.

      Next, Harris argues that the district court erred in admitting hearsay testimony
about the ownership of the gun. We review evidentiary rulings for an abuse of

      2
         Harris makes a related claim that, as a result of denying him a second hearing,
the district court violated his Sixth Amendment confrontation right and must have
denied his motion to dismiss (on what was essentially a chain-of-custody argument)
based on hearsay in the Government’s brief asserting that all of the items seized from
Harris were currently in the Government’s possession. This misstates the record.
The district court left Harris free to challenge the chain of custody of the evidence at
his trial but denied his motion to dismiss because the alleged evidentiary infirmities
were insufficient—even if true—to dismiss the indictment. Harris does not challenge
that ruling.

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discretion, but our review is de novo when evidentiary issues implicate a
constitutional right. United States v. West, 829 F.3d 1013, 1017 (8th Cir. 2016). The
admission of hearsay testimony is harmless if “the error did not influence or had only
a very slight influence on the verdict.” United States v. Lomas, 826 F.3d 1097, 1105
(8th Cir. 2016) (quoting United States v. Burch, 809 F.3d 1041, 1045 (8th Cir. 2016)).

       On redirect examination, over a hearsay objection from Harris’s counsel,
Detective Whitney testified that Smith told police officers at the scene that she did not
know about the gun in the pocket of the driver’s side door and that she had changed
her story and claimed possession only later. Harris argues that this statement should
have been excluded.

       The testimony at issue was not the first time possession of the gun was
discussed at trial. Earlier on direct examination, Detective Benjamin Quick was
asked whether Smith “appear[ed] surprised that there was a gun found in the vehicle”
and replied “Yes. . . . She advised she did not know that there was a gun in the
vehicle, and she also told me there was nothing else illegal in the vehicle that she had
knowledge of.” Harris’s counsel did not object to this testimony and then, during
Detective Whitney’s cross examination, asked whether it was “true that Ms. Smith
claimed ownership of the gun” at the police headquarters. It was on redirect from this
question that the Government elicited Detective Whitney’s statement that “[i]nitially
[] she didn’t know about a gun.”

       “It is fundamental that where the defendant ‘opened the door’ and ‘invited
error’ there can be no reversible error.” Id. (quoting United States v. Beason, 220
F.3d 964, 968 (8th Cir. 2000)). Harris does not claim error based on the initial
mention of Smith’s statements in Detective Quick’s testimony, presumably because
he recognizes that objection was not preserved. By the time Detective Whitney made
the statement that Harris now claims was error, both parties had already elicited
testimony about Smith’s comments at the scene and Detective Whitney’s testimony

                                          -5-
only served to clarify an issue discussed on cross-examination by the defense. See
United States v. Noe, 411 F.3d 878, 886 (8th Cir. 2005) (no error where the
Government’s questioning on redirect clarified an issue raised by defense).

       Harris argues that the invited error doctrine should not apply because the
admission of the statements violated not just the rules of evidence but also the Sixth
Amendment’s confrontation clause. We do not agree that, just because an evidentiary
ruling has an alleged constitutional dimension, the prohibition on a defendant leading
the district court to err and then raising that error as a ground for reversal should not
apply. See, e.g., United States v. Bolton, 908 F.3d 75, 92 (5th Cir. 2018).

                                          IV.

       “Until recently, possession of a firearm by a convicted felon required the
Government to prove three elements: ‘(1) previous conviction of a crime punishable
by a term of imprisonment exceeding one year, (2) knowing possession of a firearm,
and (3) the firearm was in or affecting interstate commerce.’” United States v.
Parsons, 946 F.3d 1011, 1014 (8th Cir. 2020) (quoting United States v. Montgomery,
701 F.3d 1218, 1221 (8th Cir. 2012)). However, the Supreme Court recently added
an additional element, requiring that the government prove the defendant “knew he
belonged to the relevant category of persons barred from possessing a firearm.”
Rehaif v. United States, 139 S.Ct. 2191, 2200 (2019).

       The district court instructed the jury that there were only three elements,
omitting the knowledge element from Rehaif. Harris argues that this was reversible
error. Because he did not object to the instruction before the district court, we review
for plain error. United States v. Hollingshed, 940 F.3d 410, 415 (8th Cir. 2019).
Under that standard, the defendant must show an error that was obvious, that affected
his substantial rights, and that seriously affected the fairness, integrity, or public
reputation of judicial proceedings. Id.

                                          -6-
       It was error for the district court not to instruct the jury on the element
identified in Rehaif. Id. And although Rehaif had not been decided at the time that
the district court instructed the jury, “it is enough that the error be ‘plain’ at the time
of appellate consideration.” United States v. Fast Horse, 747 F.3d 1040, 1042 (8th
Cir. 2014); see Griffith v. Kentucky, 479 U.S. 314, 322 (1987) (newly declared
constitutional rules apply immediately to criminal cases pending on direct review).

        Harris has not shown that the error affected his substantial rights. To satisfy
that requirement, a jury instruction error must have been prejudicial. United States
v. Rush-Richardson, 574 F.3d 906, 911 (8th Cir. 2009). As in Hollingshed, the record
shows that Harris knew he was a convicted felon prohibited from owning a firearm.
Harris had not one but several prior felony convictions that prevented him from
legally owning a firearm, including one for unlawful possession of a firearm. What’s
more, he told the arresting officer that he was a convicted felon. Given these facts,
Harris cannot show a reasonable probability that the result would have been different
if the jury had been required to find he knew he was a convicted felon. See United
States v. Warren, 951 F.3d 946, 951 (8th Cir. 2019).

                                            V.

       Harris next argues that the district court committed procedural error when it
sentenced him at the top of his Guidelines range of 120 to 150 months because it did
not state a “reason for imposing a sentence at [that] particular point within the range.”
18 U.S.C. § 3553(c)(1). He also argues the district court failed to adequately consider
the 18 U.S.C. § 3553(a) factors.

       In reviewing sentences, we first assess whether the district court committed
significant procedural error. United States v. William, 624 F.3d 889, 896 (8th Cir.
2010). Harris did not object to the alleged procedural errors before the district court
so we review only for plain error, United States v. Luedtke, 771 F.3d 453, 455 (8th

                                           -7-
Cir. 2014),3 and we find none. The district court did explain its decision to give
Harris a sentence at the top of his range. It considered Harris dangerous and
recognized that his criminal history—which included several drug and weapon
charges—was extensive. In fact, the court suggested an even longer sentence would
be appropriate but chose to sentence him within the Guidelines range. That it did not
reiterate each of these considerations later when it handed down the sentence does not
require reversal. United States v. Bistrup, 449 F.3d 873, 883–84 (8th Cir. 2006). The
same is true of the district court’s failure to specifically mention some of the
§ 3553(a) factors. The district court does not need to “provide a mechanical
recitation of all the §3553(a) factors, but rather to show clearly that it considered
those factors in determining the sentence.” United States v. Zayas, 758 F.3d 986, 990
(8th Cir. 2014).

       Finally, Harris argues that his sentence was substantively unreasonable because
the district court placed too much weight on his criminal history and allegedly gave
no weight to the other § 3553(a) factors. We review this claim for an abuse of
discretion. United States v. Anwar, 880 F.3d 958, 973 (8th Cir. 2018). A sentence
within the Guidelines range is presumptively reasonable. United States v. Pappas,
715 F.3d 225, 230 (8th Cir. 2013).

       The district court did not abuse its discretion. As discussed above, the record
reflects that the district court considered all of the § 3553(a) factors. It was well


      3
         Harris argues that the plain error standard should not apply to his claim that
the district court failed to consider the § 3553(a) factors and argues in reply that,
when decided, Holguin-Hernandez v. United States, 140 S. Ct. 762 (2020), may direct
us to apply a higher standard. Holguin-Hernandez was decided on February 26 and
we have not received a letter pursuant to Federal Rule of Appellate Procedure 28(j)
informing us whether or not Harris still believes that case requires more stringent
review. We need not decide the issue ourselves, because the district court made no
error, plain or otherwise.

                                         -8-
within its discretion to place greater weight on Harris’s criminal history than on other
factors. See United States v. Farmer, 647 F.3d 1175, 1179 (8th Cir. 2011).

      Harris’s conviction and sentence are affirmed.
                      ______________________________




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