US v. Xavier Lopez

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 25-4117

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

XAVIER LOPEZ, a/k/a Xavier Louis Lopez,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. David J. Novak, District Judge. (3:23-cr-00079-DJN-1)

Submitted: July 16, 2026 Decided: July 20, 2026

Before WILKINSON, RICHARDSON, and QUATTLEBAUM, Circuit Judges.

Affirmed in part and dismissed in part by unpublished per curiam opinion.

ON BRIEF: Robert J. Wagner, ROBERT J. WAGNER, PLC, Richmond, Virginia, for
Appellant. Erik S. Siebert, United States Attorney, Thomas A. Garnett, Assistant United
States Attorney, Richmond, Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM:
Xavier Lopez appeals from the criminal judgment entered following his conditional
guilty plea to possession of a destructive device, in violation of 26 U.S.C. §§ 5841, 5845,
5861(c), (d), (f). On appeal, Lopez challenges the district court’s denial of his request for
a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), in relation to his motion
to suppress evidence seized during the execution of a search warrant at his home. Lopez
also contests the district court’s application of a four-level enhancement under U.S.
Sentencing Guidelines Manual § 2K2.1(b)(6)(B) (2024), because he possessed a
destructive device in connection with another felony offense. The Government argues that
the district court correctly denied a Franks hearing and that Lopez’s challenge to his
sentence should be dismissed pursuant to the appellate waiver in the written plea
agreement. We affirm in part and dismiss in part.
Beginning with the district court’s denial of Lopez’s request for a Franks hearing,
we have explained that “[a]n accused is generally not entitled to challenge the veracity of
a facially valid search warrant affidavit.” United States v. Allen, 631 F.3d 164, 171 (4th
Cir. 2011). “In its decision in Franks v. Delaware, however, the Supreme Court carved
out a narrow exception to this rule, whereby an accused is entitled to an evidentiary hearing
on the veracity of statements in the affidavit.” Id. Given the “presumption of validity”
afforded to an affidavit supporting a search warrant, the defendant faces a “heavy burden”
when invoking the narrow exception recognized in Franks. See United States v. Moody,
931 F.3d 366, 370 (4th Cir. 2019) (internal quotation marks omitted).

3

To earn a Franks hearing, the defendant “must make a substantial preliminary
showing that (1) law enforcement made a false statement; (2) the false statement was made
knowingly and intentionally, or with reckless disregard for the truth; and (3) the false
statement was necessary to the finding of probable cause” (also known as the “materiality”
requirement). Id. (internal quotation marks omitted). When the defendant predicates his
Franks hearing request on information omitted from an affidavit, he is obliged “to make a
substantial preliminary showing that the omissions were intentional or reckless,” and that
the omissions were material to the probable cause determination—that is, the inclusion of
the omitted information in the affidavit would have defeated probable cause. United
States v. Jones, 942 F.3d 634, 640 (4th Cir. 2019) (internal quotation marks omitted). “We
assess the legal determination underlying the district court’s Franks ruling de novo.” Id.
Having thoroughly reviewed the record, we are satisfied that the district court
correctly denied Lopez’s request for a Franks hearing. We agree with the district court
that the search warrant affidavit’s allegedly misleading statements related to Lopez’s prior
possession of firearms and reports of stolen firearms in the area of Lopez’s home were not
false and were not misleading when read in context. We also agree with the district court
that Lopez failed to make a substantial preliminary showing that the affiant made those
statements with an intent to mislead or with a reckless disregard for their truth. Finally,
the district court properly ruled that Lopez did not make a substantial preliminary showing
that the affiant acted intentionally or recklessly in omitting the fact that Lopez never
touched a firearm when visiting stores that sold firearms and inquiring about firearms

4

despite his felony conviction. And in all events, the district court correctly ruled that the
omission was not material to the probable cause determination.
Next, Lopez challenges the district court’s application of the four-level
enhancement under USSG § 2K2.1(b)(6)(B), based on the court’s finding that Lopez
possessed a destructive device in connection with another felony offense. Lopez contends
that the district court erred in its application of the enhancement because he did not commit
or attempt to commit another felony offense and none of the felony offenses used to support
the enhancement were connected to his offense of conviction. He also argues that the
district court relied on his protected speech in applying the enhancement, in violation of
the First Amendment.
Before considering the merits of Lopez’s challenge to his sentence, we must address
the Government’s invocation of the waiver of appellate rights in Lopez’s written plea
agreement. In response to the Government’s reliance on the appellate waiver, Lopez
maintains that he did not knowingly and intelligently agree to the appellate waiver. He
emphasizes that he did not sign the plea agreement until the Fed. R. Crim. P. 11 colloquy
and suggests that he thus did not understand the contours of the appellate waiver when he
entered his guilty plea. Even if the appellate waiver is valid, Lopez insists that his challenge
to his sentence is not waivable by law.
“We review an appellate waiver de novo to determine whether the waiver is
enforceable” and “will enforce the waiver if it is valid and if the issue being appealed falls
within the scope of the waiver.” United States v. Boutcher, 998 F.3d 603, 608 (4th Cir.
2021) (internal quotation marks omitted). An appellate waiver is valid if the defendant

5

enters it “knowingly and intelligently, a determination that we make by considering the
totality of the circumstances.” Id. “Generally though, if a district court questions a
defendant regarding the waiver of appellate rights during the Rule 11 colloquy and the
record indicates that the defendant understood the full significance of the waiver, the
waiver is valid.” United States v. McCoy, 895 F.3d 358, 362 (4th Cir. 2018) (internal
quotation marks omitted).
Our review of the record confirms that Lopez knowingly and intelligently waived
his right to appeal his conviction and sentence on any ground except for the suppression
issue and an ineffective assistance of counsel claim. During the Rule 11 colloquy, Lopez
confirmed under oath that he read the plea agreement and discussed it with his lawyer, and
he declined the district court’s offer of more time to review the agreement. The district
court also summarized the appellate waiver during that colloquy, and Lopez confirmed that
he understood it. We are thus satisfied that the appellate waiver is valid and enforceable.
We also conclude that Lopez’s challenge to his sentence falls squarely within the
scope of the appellate waiver. And we reject Lopez’s contention that the sentencing issue
he raises on appeal is not waivable by law. See Hunter v. United States, __ S. Ct. __, __,
No. 24-1063, 2026 WL 1751815, at *8 (U.S. June 18, 2026) (identifying examples of
claims that may avoid appeal waiver). Insofar as Lopez makes a more limited argument
that his First Amendment challenge at least escapes the appeal waiver, we conclude that
Lopez has not made a “colorable” constitutional claim, especially given that he made only
passing reference to the First Amendment in the district court. United States v. McGrath,
981 F.3d 248, 250 n.2 (4th Cir. 2020); see United States v. Hassan, 742 F.3d 104, 127 (4th

6

Cir. 2014) (explaining how criminal defendant’s speech may be used consistent with First
Amendment).
Accordingly, we affirm the district court’s denial of Lopez’s request for a Franks
hearing and dismiss Lopez’s appellate challenge to his sentence. 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 IN PART
AND DISMISSED IN PART