Filed: Mar. 08, 2016
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-6589 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ARNOLD PAUL BURLESON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:13-cr-00070-CCE-1; 1:13-cv-01158-CCE-LPA) Argued: January 28, 2016 Decided: March 8, 2016 Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Reversed, vacated,
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-6589 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. ARNOLD PAUL BURLESON, Defendant - Appellant. Appeal from the United States District Court for the Middle District of North Carolina, at Greensboro. Catherine C. Eagles, District Judge. (1:13-cr-00070-CCE-1; 1:13-cv-01158-CCE-LPA) Argued: January 28, 2016 Decided: March 8, 2016 Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior Circuit Judge. Reversed, vacated, a..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6589
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ARNOLD PAUL BURLESON,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cr-00070-CCE-1; 1:13-cv-01158-CCE-LPA)
Argued: January 28, 2016 Decided: March 8, 2016
Before GREGORY and HARRIS, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Reversed, vacated, and remanded by published opinion. Judge
Harris wrote the opinion, in which Judge Gregory and Senior
Judge Davis joined.
ARGUED: Kevin F. King, COVINGTON & BURLING LLP, Washington,
D.C., for Appellant. Harry L. Hobgood, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee. ON
BRIEF: Robert A. Long, Jr., Gregory L. Halperin, COVINGTON &
BURLING LLP, Washington, D.C., for Appellant. Ripley Rand,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greensboro, North Carolina, for Appellee.
PAMELA HARRIS, Circuit Judge:
Arnold Paul Burleson was convicted of several North
Carolina felony offenses between 1964 and 1985. Based on those
convictions, he pled guilty in 2013 to possession of a firearm
by a convicted felon, 18 U.S.C. § 922(g), and was sentenced to a
fifteen-year mandatory minimum term of imprisonment under the
Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Several
months after his sentence was imposed, Burleson filed a 28
U.S.C. § 2255 motion asserting that he was actually innocent of
the § 922(g) offense. According to Burleson, because his civil
rights had been restored by North Carolina following his
discharge from parole and long before his 2012 arrest, none of
his prior state convictions was a predicate felony conviction
for purposes of § 922(g) or § 924(e). We agree. And because
Burleson pled guilty to a crime he could not commit, we vacate
Burleson’s conviction and sentence and remand with instructions
to grant his § 2255 motion.
I.
In September 2012, officers with the Sheriff’s Department
of Rowan County, North Carolina, responded to a report that an
intoxicated elderly male with a handgun was committing an
assault. When police arrived at the scene, they discovered
Burleson and asked if he had a weapon. Burleson admitted that
2
he did and produced a Taurus .357 Magnum caliber handgun.
Burleson was subsequently indicted by a federal grand jury,
charged with possession of a firearm by a convicted felon, see
18 U.S.C. § 922(g), and as an armed career criminal, see 18
U.S.C. § 924(e).
In order to be a felon in possession under § 922(g), a
defendant by definition must have an underlying felony
conviction on his record. Section 922(g) defines a qualifying
predicate conviction as one for “a crime punishable by
imprisonment for a term exceeding one year.” § 922(g)(1).
Violations of § 922(g) ordinarily carry a maximum sentence of
ten years’ imprisonment and no mandatory minimum. 18 U.S.C.
§ 924(a)(2). But when a defendant has at least three previous
convictions for certain “crime[s] punishable by imprisonment for
a term exceeding one year,” the ACCA calls for a mandatory
minimum sentence of fifteen years. § 924(e).
Burleson and his trial counsel believed that Burleson had
no sensible choice but to plead guilty to the § 922(g) offense,
agreeing during the plea colloquy that Burleson had at least one
prior conviction for a crime punishable by more than one year.
Because Burleson’s presentence investigation report indicated
that he had five such convictions on his record, all from North
Carolina and between the years 1964 and 1985, the ACCA’s
mandatory fifteen-year sentence also appeared to be triggered.
3
At sentencing, Burleson did not object to the treatment of his
prior convictions as qualifying felony convictions under
§ 924(e), and the court was left with “no choice” but to impose
the fifteen-year minimum sentence. J.A. 54. Burleson did not
file a direct appeal.
A few months after the district court entered its judgment,
however, Burleson filed a pro se motion under 28 U.S.C. § 2255,
in which he asked the court to vacate his conviction because his
prior North Carolina convictions do not qualify as predicate
felony convictions under § 922(g). 1 For the first time, Burleson
pointed to the 1986 Firearms Owners’ Protection Act, which
defines the term “crime punishable by imprisonment for a term
exceeding one year” as used in § 922(g) and § 924(e), and limits
the type of convictions that may be used as predicates under
those provisions. See 18 U.S.C. § 921(a)(20). Most important
here, the Act excludes any conviction for which a person “has
had civil rights restored,” “unless such . . . restoration of
1Because Burleson failed to raise this issue on direct
review, he is precluded from doing so in his § 2255 motion
unless he can demonstrate either “cause” and actual “prejudice,”
or that he is “actually innocent.” See Bousley v. United
States, 523 U.S. 614, 622 (1998). Burleson’s claim — that he
legally and factually could not have committed a § 922(g)
offense because he did not, at the time of the purported
offense, have a predicate felony conviction on his record —
falls squarely into the second category, see United States v.
Adams, No. 13-7107,
2016 WL 682950, at *3–5 (4th Cir. Feb. 19,
2016), and the government does not argue otherwise.
4
civil rights expressly provides that the person may not ship,
transport, possess, or receive firearms.” Id. In other words,
if a felon has had his civil rights restored, then his prior
felony conviction may no longer serve as a predicate for a
violation of § 922(g) (or sentencing as an armed career criminal
under § 924(e)) unless the state restricts his firearm rights as
contemplated by § 921(a)(20).
That exclusion is critical here because, as Burleson
explained in his § 2255 motion, his civil rights were fully
restored by operation of state law in 1993, almost two decades
before the 2012 arrest that led to his federal felon-in-
possession charge under § 922(g). In March 1988, Burleson’s
unconditional discharge from parole on his last state conviction
immediately restored his civil rights to vote, hold office, and
serve on a jury. See N.C. Gen. Stat. §§ 13–1, 13–2. In March
of 1993, after the expiration of a five-year waiting period,
Burleson’s firearm rights also were automatically and
unconditionally restored by operation of North Carolina law.
See id. § 14–415.1 (1975). So as of 1993, Burleson argued, his
civil rights were restored, and “such restoration” did not
provide, “expressly” or otherwise, for any restriction on his
firearm rights.
The government did not disagree, or dispute that in 1993,
§ 921(a)(20) excluded Burleson’s prior state convictions from
5
serving as predicates for a federal felon-in-possession charge.
But according to the government, what matters under
§ 921(a)(20)’s “unless clause” — under which a conviction
subject to civil rights restoration may continue to serve as a
predicate if “such restoration” “expressly provides” for a
restriction on firearm rights — is not whether Burleson’s
firearm rights were restricted at the time his civil rights were
restored, but whether they were restricted at the time of his
arrest on the § 922(g) charge. And at that time, the government
explained, Burleson’s firearm rights were indeed restricted, by
a state law passed in 1995 — two years after full restoration of
Burleson’s civil rights — that prohibits all people with felony
convictions from possessing firearms, regardless of whether they
were convicted after the law’s effective date or, like Burleson,
before. See N.C. Gen. Stat. § 14–415.1(a) (1995). That
retroactive 1995 statute, the government argued, activated the
unless clause and effectively revived Burleson’s prior
convictions as predicates under § 922(g) and § 924(e).
The district court referred Burleson’s § 2255 motion to a
magistrate judge for a report and recommendation. Relying on
two unpublished Fourth Circuit decisions analyzing the same 1995
North Carolina statute at issue here, the magistrate judge
agreed with the government that in determining whether a
restoration of civil rights provides for a firearm restriction
6
under § 921(a)(20) — and thus whether a prior conviction
qualifies as a predicate under § 922(g) — a court should
consider state firearm restrictions in effect at the time of the
§ 922(g) arrest, not the law in effect at the time of the civil
rights restoration. Consequently, the magistrate judge
recommended that Burleson’s § 2255 motion be denied and that a
certificate of appealability be denied as well.
Relying, like the magistrate judge, on our unpublished
decisions, the district court adopted the magistrate judge’s
recommendation and denied Burleson’s motion to vacate his
conviction. But the district court issued a certificate of
appealability, recognizing that “Burleson has made a substantial
showing of the denial of a constitutional right.” J.A. 134.
Acknowledging support for Burleson’s position in our published
decision in United States v. Haynes, 961 F.2d 50 (4th Cir.
1992), as well as cases from other federal courts of appeals,
the district court questioned “whether . . . Burleson’s prior
convictions provide a sufficient basis for his conviction under
18 U.S.C. § 922(g)(1).” J.A. 134.
This timely appeal followed.
II.
As all parties agree, this case turns on our interpretation
of 18 U.S.C. § 921(a)(20), which limits the class of prior
7
convictions that may serve as predicates for a federal felon-in-
possession charge or a sentence as an armed career criminal. 2 We
review the district court’s interpretation of § 921(a)(20) de
novo. See Haynes, 961 F.2d at 51.
A.
The Firearms Owners’ Protection Act defines “crime
punishable by imprisonment for a term exceeding one year” as it
is used to identify predicate felony convictions for § 922(g)’s
felon-in-possession offense, as well as for § 924(e)’s enhanced
sentences. See § 921(a)(20). Under the Act, “[w]hat
constitutes a conviction” for purposes of those provisions
“shall be determined in accordance with the law of the
jurisdiction in which the [prior criminal] proceedings were
2 On appeal, Burleson’s primary contention is that his trial
counsel was constitutionally ineffective for failing to argue
that he was actually innocent of the charged offense in light of
§ 921(a)(20). And ineffective assistance may well be an
alternative basis for a grant of relief on Burleson’s § 2255
motion. But as the government agrees, whether the claim is
styled as one of ineffective assistance or actual innocence, it
rises or falls on the merits of Burleson’s statutory claim: that
his prior North Carolina convictions are not predicates under
§ 922(g) and § 924(e) in light of the restoration exemption of
§ 921(a)(20). If that is correct, then Burleson cannot be
guilty of a § 922(g) felon-in-possession charge, and his
conviction and accompanying sentence are invalid. See Adams,
2016 WL 682950, at *5 (vacating § 922(g) conviction on
collateral review because prior conviction did not qualify as
predicate felony for felon-in-possession charge); Miller v.
United States,
735 F.3d 141, 146–47 (4th Cir. 2013) (same).
8
held” — here, North Carolina. Id. And pivotal here, “[a]ny
conviction . . . for which a person . . . has had civil rights
restored shall not be considered a conviction . . . unless
such . . . restoration of civil rights expressly provides that
the person may not ship, transport, possess, or receive
firearms.”
Id. (emphasis added).
In this circuit, it is settled that courts must consider
the “whole of state law” — not just the face of a certificate
granting the restoration of civil rights, but also relevant
state statutes — to determine whether the defendant has had his
civil rights “restored” and if a firearm restriction is
applicable. See United States v. McLean, 904 F.2d 216, 218 (4th
Cir. 1990). Here, nobody disputes that under the “whole of
state law,” Burleson’s civil rights were indeed restored without
any firearm restriction in 1993, many years before the 2012
arrest that gave rise to this case. For Burleson, that is the
end of the matter: His 1993 restoration did not “expressly
provide[]” for any restriction on firearm rights, and so under
the plain language of § 921(a)(20), his prior convictions do not
count as predicate convictions under § 922(g) or § 924(e). But
the government points to the 1995 amendment to North Carolina
law that retroactively barred Burleson from possessing firearms,
and argues that at the time of Burleson’s 2012 arrest, state law
did “expressly provide[]” that Burleson may not possess
9
firearms. So this case boils down to one question: In applying
§ 921(a)(20)’s “unless clause,” do we look to state firearm
restrictions in effect at the time Burleson’s civil rights were
restored, or to those in effect when Burleson was arrested on
the § 922(g) charge?
We think the text of § 921(a)(20) unambiguously answers
that question in Burleson’s favor, pointing us to the law that
governed at the time of restoration. The key statutory phrase
is “unless such . . . restoration . . . expressly provides” for
a firearm restriction. “Such restoration” plainly “refers back
to the restoration of civil rights discussed in the previous
clause.” United States v. Osborne, 262 F.3d 486, 491 (5th Cir.
2001) (holding that law at time of restoration governs
§ 921(a)(20) inquiry). By stating that firearm restrictions
must be linked to the restoration itself, § 921(a)(20)
necessarily excludes state-law restrictions enacted after that
restoration has been effected. “[I]t cannot be that ‘such . . .
restoration’ includes laws that had not been passed at the time
the restoration occurred.”
Id. And that reading is confirmed
by use of the present tense in the phrase “expressly provides,”
the “plain meaning” of which is that courts must determine the
effect of a restoration of civil rights “at the time it is
granted and cannot consider whether the defendant’s civil rights
later were limited or expanded.” See United States v. Cardwell,
10
967 F.2d 1349, 1350–51 (9th Cir. 1992) (holding that law at time
of restoration governs § 921(a)(20) inquiry).
Congress could have enacted a statute effectuating the
government’s position, providing that restoration of a
defendant’s civil rights precludes use of a prior conviction
“unless current state law expressly provides” for a firearm
restriction. But that is not what the statute says. See
Osborne, 262 F.3d at 491 (statute “does not read ‘unless state
law expressly provides that the person may not possess
firearms’”). Instead, Congress specified that “such
restoration” must “expressly provide[]” for a firearm
restriction, and that language makes it clear that post-
restoration enactments by the convicting state cannot restore a
previously negated predicate conviction for purposes of § 922(g)
and § 924(e).
The government does not attempt to reconcile its position
with the text of the unless clause. Instead, it points to our
cases holding that courts must look to the “whole of state law”
to determine if a felon’s civil rights have been restored fully
under § 921(a)(20), see McLean, 904 F.2d at 218, and argues that
the “whole of state law” includes the 1995 North Carolina
firearm restriction that was in effect when Burleson was
arrested in 2012. But that conflates two very different
questions. The first is whether courts may consult not only the
11
face of an individualized restoration certificate but also the
operation of general state statutes in deciding if civil rights
have been “restored” and if a firearm restriction applies. As
noted above, our court has answered that question in the
affirmative, allowing reference to the “whole of state law” in
applying § 921(a)(20). But that does not resolve the separate
question presented today: whether the state statutes that govern
are those in effect at the time civil rights are restored, or
those in effect at the time of a subsequent § 922(g) arrest.
The Courts of Appeals for the Fifth, Eighth, Ninth, and
Tenth Circuits have considered that question and come to the
same conclusion as ours, holding that the text of § 921(a)(20)
unambiguously requires courts to “look to the law at the time a
defendant’s civil rights were restored, without reference to
later changes in the law.” Osborne, 262 F.3d at 491; see United
States v. Norman,
129 F.3d 1393, 1397 (10th Cir. 1997); United
States v. Wind,
986 F.2d 1248, 1251 (8th Cir. 1993);
Cardwell,
967 F.2d at 1351. Only the Seventh Circuit appears once to have
reached a contrary conclusion, see Melvin v. United States,
78
F.3d 327, 330 (7th Cir. 1996), but in a more recent case that
court, too, applied “state law and practice at the time of the
asserted restoration of civil rights” to the § 921(a)(20)
inquiry, see United States v. Adams,
698 F.3d 965, 968–69 (7th
Cir. 2012). Application of the law in effect on the date of a
12
person’s § 922(g) arrest may be “problematic,” the court
concluded, when, as here, “a state restores a felon’s civil
rights and then changes its law after the restoration.” Id. at
969. We think so, too. North Carolina is entitled, of course,
to pass retroactive legislation that alters a felon’s right to
possess firearms under state law. But under the plain text of
§ 921(a)(20), once a conviction for which rights have been
restored ceases to count as a predicate for federal law
purposes, a subsequent change in state law will not revive it.
B.
The magistrate judge and district court reached a different
conclusion, in reliance on a pair of unpublished Fourth Circuit
decisions taking the government’s view of § 921(a)(20). But we
have published precedent that directly addresses the question at
issue here, and it adopts Burleson’s reading of the unless
clause, not the government’s.
In our 1992 decision in United States v. Haynes, we
encountered the same temporal sequence we confront today: A
defendant’s civil rights were fully restored after he was
discharged from parole on a state felony conviction, three years
later West Virginia passed a statute barring previously
convicted felons from carrying firearms, and one year after that
the defendant was discovered in possession of a firearm. See
961 F.2d at 51–52. As here, the government argued that the
13
defendant’s prior felony conviction qualified as a predicate
offense under § 922(g) because at the time of his arrest on that
charge, his firearm rights were restricted by operation of the
post-restoration state statute. Id. But we rejected that
argument because “at the time that [the defendant’s] civil
rights were restored, it was not against West Virginia law for a
convicted felon to possess a firearm.”
Id. at 53. West
Virginia’s “subsequent enactment of [a firearm restriction],” we
reasoned, “does not alter the fact that section 921(a)(20)
excluded the defendant from the definition of a convicted felon
for purposes of section 922(g)(1).”
Id. at 52–53.
Although Haynes would appear to foreclose the government’s
argument, the government contends — and the district court
agreed — that the case is distinguishable. According to the
government, Haynes rests not on an interpretation of
§ 921(a)(20)’s unless clause but instead on retroactivity
concerns: West Virginia’s laws are presumed to operate
prospectively only, and so relying on a post-restoration
enactment to limit a defendant’s firearm rights would have
amounted to impermissible retroactivity. In fairness, that
characterization is not entirely without support in our case
law. The government has uncovered a parenthetical in a footnote
that describes Haynes as turning on West Virginia’s presumption
against retroactivity. See United States v. O’Neal, 180 F.3d
14
115, 121 n.6 (4th Cir. 1999). And there are the two unpublished
opinions on which the magistrate judge and district court
relied, both of which involve the same 1995 North Carolina
statutory restriction at issue in this case, and both of which
adopt the government’s view of § 921(a)(20) without even
mentioning Haynes. See United States v. Hairston, 364 F. App’x
11, 16–17 (4th Cir. 2010) (convictions formerly excluded as
predicates under § 921(a)(20) become predicates upon enactment
of 1995 firearm restrictions); United States v. Brady, 438 F.
App’x 191, 196 (4th Cir. 2011) (same).
To the extent there has been a lack of clarity as to the
import of our decision in Haynes, we can resolve it now. 3 As we
read Haynes, it is a straightforward statutory interpretation
case, establishing that under § 921(a)(20)’s unless clause, “we
refer to the whole of [state] law in effect at the time that
[the defendant’s] civil rights were restored.” 961 F.2d at 53
(emphasis added). Haynes does acknowledge West Virginia’s
3
Our characterization of Haynes in O’Neal is not the law of
the circuit and does not bind this court. See United States v.
Gowing, 683 F.3d 406, 408–09 (2d Cir. 2012) (parenthetical in a
footnote interpreting statute is a “stray remark[]” that does
not bind court); Nicor Supply Ships Assocs. v. Gen. Motors
Corp.,
876 F.2d 501, 506 (5th Cir. 1989) (“parenthetical
description of another case, contained in a footnote,” is
“obiter dicta, not precedent” and “do[es] not bind [the court]
as the law of the circuit”). Nor, of course, do our decisions
in Hairston and Brady, which are unpublished and therefore have
no precedential effect in this circuit. Hogan v. Carter,
85
F.3d 1113, 1118 (4th Cir. 1996).
15
presumption against retroactivity, but only in the course of
declining to rule on the defendant’s alternative argument that
the presumption would be violated by application of a post-
restoration firearms restriction — an argument rendered moot by
the court’s holding that regardless of whether it was
retroactive, a post-restoration firearms restriction would not
revive a prior conviction under § 921(a)(20). Id. at 52–53.
We think the reasoning of Haynes is clear enough. But were
there any doubt, it is worth noting that the government’s
reading would render all but a few sentences of the opinion
meaningless. It also would surprise our sister circuits, which
have relied on Haynes as among the cases holding that courts
must look to the state law in effect at the time a defendant’s
civil rights are restored in applying § 921(a)(20)’s unless
clause. See Osborne, 262 F.3d at 491 & nn.18, 20 (citing
Haynes);
Norman, 129 F.3d at 1397 & n.4 (same);
Cardwell, 967
F.2d at 1351 (same).
In short, our decision today is compelled not only by the
text of § 921(a)(20) but also by this court’s prior decision in
Haynes. Under the straightforward text of the unless clause and
under Haynes, the result is the same: Burleson’s prior North
Carolina felony convictions cannot serve as predicates for his
felon-in-possession charge under § 922(g) or for his sentence as
an armed career criminal under § 924(e). For these federal-law
16
purposes, North Carolina’s post-restoration change in state law
is of no moment. 4
III.
Because Burleson did not have a qualifying predicate
conviction on his record at the time of the charged offense, it
was not illegal under § 922(g) for him to possess a firearm. He
cannot remain convicted of a crime of which he is actually
innocent. We therefore reverse the judgment of the district
court denying relief, vacate Burleson’s § 922(g) conviction and
attendant sentence, and remand to the district court with
instructions to grant Burleson’s § 2255 motion.
REVERSED, VACATED, AND REMANDED
4 Whether Burleson can be charged under state law is a
different question on which we express no view. We note that
North Carolina originally charged Burleson with a state-law
felon-in-possession offense, see N.C. Gen. Stat. § 14–415.1, but
dismissed that charge upon the filing of the federal indictment.
17
